Mack and Minister for Immigration and Multicultural and Indigenou S Affairs
[2004] AATA 42
•21 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 42
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/416
GENERAL ADMINISTRATIVE DIVISION ) Re
Arthur Neal Mack
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date21 January 2004
PlaceCanberra
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Arthur Neal Mack.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – on-shore visa application – general residence subclass 820 (spouse) visa – refusal of application visa for failing character test – character test – past and present criminal conduct, past and present general conduct, significant risk of future criminal activity – discretion that the Tribunal may exercise where the Applicant fails the character test – examination of the Applicant’s criminal record – examination of the Applicant’s migration status – necessity to balance the expectations and protection of the Australian community, the best interests of the child and take into consideration any hardship to the Applicant and his family – held Applicant fails the character test – the best interests of the children outweigh the other considerations – decision of the Respondent set aside – discretion not to refuse the grant of a visa should be exercised in favour of the Applicant.
Migration Act 1958 ss 499, 499(1), 501, 501E(2), 501F(2), 501(6)(c), 501(6)(d)
The Drugs of Dependence Act 1989 (ACT) s 171A(4)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
REASONS FOR DECISION
21 January 2004 Mr RP Handley, Deputy President Summary
1. The Applicant, Arthur Neal Mack, who is aged 32 and a citizen of the United States of America (“the US”), arrived in Australia on 24 April 1996 on a long stay visitor visa valid for six months. This was extended for a further six months. From 25 April 1997 until November 2003, Mr Mack has remained in Australia on a bridging visa E. On 8 May 1997, Mr Mack lodged an application for a general residence (spouse) visa with the Department in Canberra.
2. The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Mack has a criminal history in the US, including a drug-related offence, which he failed to disclose in his visa application. Subsequently, he has also been fined in Australia for the possession of a small quantity of marijuana. He provided the Department with a Statutory Declaration declaring that he had never been convicted of a crime in any country. He also failed to disclose that he had been convicted whilst using another name. A delegate of the Respondent therefore refused Mr Mack’s application for a general residence (spouse) visa on the ground that he does not pass the character test. This is the decision to be reviewed by the Tribunal.
Background
3. Mr Mack was born in Monroe, Louisianna, in the US on 1 August 1971 and is aged 32. In the late 1980s, Mr Mack commenced a relationship with Trisha Edwards (G Documents “F”). On 4 February 1991, their son, Jordan Neal Mack, was born and, soon thereafter, Mr Mack’s relationship with Ms Edwards ended (G Documents “D” p32).
4. Mr Mack is recorded as having been convicted of a number of criminal offences committed between 1991 and 1995: these include assault domestic violence, possess controlled substance and give false information to the police. He was also charged with embezzlement and conspiracy, for which no conviction was recorded, and a further count of possess controlled substance, which was subsequently dismissed (G Documents “A”).
5. On 24 April 1996, Mr Mack arrived in Australia on a long stay visitor visa valid for six months. On 23 October 1996, a further six months extension was granted. He was subsequently granted bridging visas E on 25 April 1997 and 8 May 1997. On 30 September 1997, he was granted a further bridging visa E with permission to work, which would expire upon notification of the decision in respect of his general residence (spouse) visa application.
6. In January 1996, Mr Mack met Rowena Eirwin Thomas, who was born on 27 April 1971 in Port Moresby, Papua New Guinea, and is aged 32. She is a British citizen, first arrived in Australia in December 1979, and is a permanent resident of Australia. They commenced living in a de facto relationship in April 1996 and on 29 April 1997, their daughter, Taimara-Anne Lexus Mack, was born. Their second child, Marquis Monte Rex Mack, was born on 3 January 2002. Ms Thomas also has a child from a former relationship, Sarah Lee Thomas, born 24 April 1987, now aged 16, who resides with Mr Mack and Ms Thomas.
7. On 15 October 1998, Mr Mack was charged with “possess prohibited substance” in the ACT Magistrates Court and fined $200, three days in default (G Documents “B”). On 20 November 2002, Mr Mack was convicted of the offence of “destroy/damage ACT property” and placed on a $500 good behaviour bond for 18 months.
8. On 8 May 1997, Mr Mack lodged an application for a general residence (spouse) visa with the Department in Canberra. In answer to question 40 of that form, he ticked that he had not been convicted of a crime or offence in any country (G Documents “D” p31). On 8 January 1999, Mr Mack was interviewed by an officer of the Department. At that interview, he signed a Statutory Declaration stating that he had never been convicted of a crime or offence in any country, including any conviction which has been removed from official records (G Documents “E”).
9. On 22 December 2000, a delegate of the Respondent decided to refuse Mr Mack’s application for a visa on the grounds that he did not pass the character test because of his past and present criminal conduct and the significant risk that he would engage in future criminal conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”). Mr Mack was informed of this decision by letter dated 22 October 2003 which was sent by registered post the same day.
10. On 6 November 2003, an application for a review of this decision was lodged. On 11 November 2003, Mr Mack was detained by the Department. He is currently being held in the Villawood Immigration Detention Centre.
11. At the hearing, held in Canberra, the Applicant was represented by Ian Nicol, Solicitor, of Norton White, Solicitors, and the Respondent was represented by Andrew Dillon, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”) together with the documents tendered by the parties at the hearing. Oral evidence was given in person by Mr Mack, Rowena Thomas, Renee Rees, Paul Taylor, Otis Lisle, Sarah Thomas and Timothy Shenton, and by conference telephone by Aziza Taher.
Relevant Law and Policy
12. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (c) and (d), as follows:
(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; …
(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
…
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
15. The issue for the Tribunal to determine in this case is, therefore, whether Mr Mack is not of good character having regard to his past and present criminal conduct, his past and present general conduct, and/or the risk that he would engage in future criminal conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Mack.
Evidence
16. Mr Mack’s evidence was that his upbringing was not a happy one. As a young child he was looked after by his grandmother until his father took Mr Mack with him. When he was older, he had to look after his two sisters and one stepsister and his mother. His father was often “strung out on drugs” and used to disappear for two to three weeks at a time. Because his father used to move around from State to State, he had to move schools on a number of occasions and missed out on an American football, “gridiron” scholarship in Los Angeles when his father moved the family to Seattle.
17. Mr Mack said he did not have problems with the police in the country town in Louisiana where he attended Elementary School and finally graduated from High School. However, he felt he was unfairly dealt with by the police in general who regarded him as being suspicious because he was black and because of the people he “hung out with”. Gangs were inevitably part of the scene although he was never involved in gang violence.
18.
With regard to his US convictions, Mr Mack said the 10 April 1991 “assault domestic violence” conviction arose when his girlfriend came to his house and started taking his clothes. When the police were called, he was taken to gaol where he spent three days. He pleaded guilty. Mr Mack denied that he has ever hit anyone or been involved in violence. He said in the US any argument may be treated as domestic violence. The 28 July 1992 conviction for
“embezzling and conspiracy” arose from his taking some cereal and milk from his work. He was convicted but without record. The 9 June 1994 conviction for “possess controlled substance” was in respect of crack cocaine. He was not using cocaine but had been selling it for a short time. A further charge in respect of possession of cocaine dated 4 October 1995 was dismissed.
19. The 3 August 1995 conviction for providing false information to the police arose from his “being pulled over” by the police. He gave his name as Arthur Neal Sanders. He had always used the name Sanders, his father’s name, because his father had used this name for him and had registered him at school in this name. However, he should have been using the name Mack, his mother’s maiden name. He was registered at birth in the name of Mack because his parents were not married. Mr Mack was “given a ticket” by the police for identifying himself as Sanders when he should have identified himself as Mack.
20. Mr Mack said he came to Australia with a view to trying to “change his life around” and get away from his background and the gang violence in the US. He arrived in Australia in April 1996 on a visitor visa valid for six months. He had spoken to Ms Thomas on the phone over the previous few months before his coming to Australia, introduced by a mutual friend. She met him at Sydney Airport. Mr Mack said they fell in love, moved in together and have been living in a de facto relationship for nearly eight years.
21. Ms Thomas has one child by a previous relationship, Sarah Lee Thomas, who is now aged 16. Sarah does not know who her natural father is and said she loves Mr Mack and regards him as her father. She calls him variously Neal or Dad. Mr Mack said he regards Sarah as his daughter. They both said they are close – they play basketball, watch movies, play videogames and “hang out”. Ms Thomas coaches Sarah’s basketball team and Mr Mack helps them both with advice. Sarah said Mr Mack came to her school – to a chapel service, and spoke about his life, about the mistakes he made including being in trouble with the police. He told them “not to do drugs”.
22. Mr Mack and Ms Thomas have two children: Taimara who is aged six and Marquis who is aged two. Mr Mack usually takes Taimara to school and often looks after Taimara and Marquis, including taking them to the park where he plays with them. Ms Thomas is studying Business Administration and has classes three nights a week. She also works as a waitress one night a week, earning about $50. Mr Mack looks after the children when she is studying or working or when she is coaching Sarah’s basketball team twice a week. Generally, he cleans the house, helps prepare meals and occasionally cooks, and bathes the children and helps in the garden. Ms Thomas said she could not study without someone to help with the children. Ms Thomas described Mr Mack as a good person – a good partner, friend and father who takes care of them. He has never been violent.
23. Whilst in Australia, on 30 July 1998, Mr Mack was fined for possession of marijuana. This followed his volunteering information to the police. Mr Mack said he smoked marijuana occasionally until early 2003 but he only ever purchased it once or twice. Ms Thomas said she has never seen Mr Mack smoke marijuana and he has never done so at home. On 20 November 2002, Mr Mack was convicted of the offence of “destroy/damage ACT property”.. He and Ms Thomas described how they had an argument over their finances. Ms Thomas had borrowed about $2,000 from her parents to buy a car. He thought she was going to take the children away from him. She felt stressed and locked him out of the house because she did not want to speak to him. Mr Mack tapped on a window of the house with his mobile phone and accidentally broke the window. Ms Thomas called the police who took him to the lock-up. He pleaded guilty to the charge. Notwithstanding this, Ms Thomas said they do not often have arguments. Sarah confirmed that her mother and Mr Mack “get on good” although they have occasional arguments. She has never been scared of Mr Mack nor does she think her mother ever has.
24. Mr Mack has worked casually. He is passionate about rap music which he performs around Australia in studios and nightclubs. He is usually away from home doing this about two or three nights a month, mostly in Sydney or Melbourne. Apart from rap music, Mr Mack also does labouring work in the building industry, for example in Belconnen or Tuggeranong, or does other odd jobs when he can, like washing dishes. Mr Mack said in a period of 12 months, he would probably average about three months work. Ms Thomas said Mr Mack gives her the money he earns for food, clothing etc. This is usually about $200 a week. She looks after their finances. Apart from the $50 a week she earns from waitressing, she is otherwise dependent on Social Security benefits. They rent their house from the ACT Government.
25. Mr Mack said since coming to Australia, he has changed his life – through his family and involvement in the community. He also thinks there are better opportunities for rap music in Australia, where he can met the artists. He would like to study in order to set up his own studio and a youth centre for children. He has been to Brindabella College and Wanniassa High School to talk about the mistakes he made and told the students “not to mess with drugs”.. He plays American football and has played in the ACT representative team. He also plays tennis and basketball socially both with his family and friends.
26. Mr Mack said he and Ms Thomas love each other and their children. He wants to be there for them and look after them. While, from time to time, he talks on the phone with his son in the US, who is aged 12, he does not provide for him financially. He has not seen his son since the age of five. His son’s mother has not allowed Mr Mack to be a father to him. She constantly has other men who provide help for him. Mr Mack said if his application for a visa is unsuccessful, he will probably never see his family in Australia again. They cannot afford to visit the US.
27. Ms Thomas said if Mr Mack’s application is unsuccessful she will not go to the US and their children will grow up without a father. Sarah is just starting Year 11 and wants to go to University. She is considering studying psychology. Ms Thomas has a year of study to go in order to complete her course in Business Administration. Her parents live close by in Kaleen and she provides them with emotional support – her mother is nearly 60 and her father nearly 80. Mr Mack has a good relationship with her parents and helps her father with his property near Cooma. Her parents also help them from time to time – for example, with occasional baby-sitting and they lent them about $2,000 to buy a car. However, her parents are busy with their own lives. Her mother is studying for a Bachelor of Community Education degree and her father does relief teaching. They do not have the capacity to help Ms Thomas financially.
28. Ms Thomas does not want to leave the home in which she and her children are settled. In the US, they would have to start all over again. They would have nowhere to live. Mr Mack said he would have difficulty getting a “proper” job – while he graduated from High School, his results did not permit him to go on to further study. He believes he would be disadvantaged by racism and corruption and get caught up in gang-related activities, although he would never sell drugs again.
29. Ms Thomas said it has been very difficult for her while Mr Mack has been in Villawood. The two younger children, particularly Taimara who is very close to her father, do not understand why their father was not home at Christmas. Sarah had to take care of the children while Ms Thomas was studying for her end of year exams and while she was working. Mr Mack was not able to be present at Sarah’s Year 10 graduation or Marquis’ second birthday. The loss of Mr Mack’s earnings meant they had no money over Christmas. It has been very hard.
30. Sarah said she will be starting Year 11 shortly and hopes to get casual work. She will not be able to do this if she has to look after the two younger children. Ms Thomas depends on Mr Mack to look after the children while she studies, works and coaches the basketball team. Sarah has had to take on this responsibility while Mr Mack has been in detention.
31. Mr Mack was asked about his application for permanent residence. He agreed that he had ticked “No” to the question asking whether he had ever been convicted of a crime or offence in any country. He thought this referred to any country other than the US. He had no reason to conceal his convictions since he had authorised the Department to make inquiries about his criminal record.
32. At the departmental interview with Mr Shenton on 8 January 1999, both Mr Mack and Ms Thomas were present initially. Both said that before the interview started, Mr Shenton asked Mr Mack to sign a Statutory Declaration. Mr Shenton said it did not matter what Mr Mack did in the US; what was important was Mr Mack’s conduct in Australia and whether he was a good person. Subsequently, during a discussion with Mr Shenton, Mr Mack said he told him about his criminal record and charges in the US without being asked. Mr Mack volunteered to Mr Shenton that he had sold crack cocaine for about two months and that he had a recent fine for possession of marijuana of which Mr Shenton was unaware.
33. In cross-examination, Mr Mack was asked about the completion of his application for permanent residence. He said some of the crosses on the form do not appear to be his. He acknowledged that he had misinterpreted the question about convictions but denied that he intended to lie. This was the first time he had filled out such a form.
34. Mr Mack was also asked about his application for further stay as a visitor made on 23 October 1996 (G Documents “C”). He acknowledged that he made a declaration in the application stating that he had not been convicted of a crime or offence in any country. Again, he had interpreted this as not referring to the US.
35. Ms Thomas could not remember whether she was present during the whole of Mr Mack’s interview with Mr Shenton. She acknowledged that Mr Shenton’s notes of the interview indicate that she came in at a later stage when he asked her some questions about her and Mr Mack’s situation. Ms Thomas said she had helped Mr Mack complete his application for permanent residence. He does not always understand questions asked of him and gets confused easily.
36. Mr Shenton gave evidence about his interview with Mr Mack and Ms Thomas on 8 January 1999. He has been an employee of the Department since 1991 and holds the position of Residence Officer. It was in this capacity that he interviewed Mr Mack on 8 January 1999 in relation to questions raised about his character as a result of information received from the US. Mr Shenton said it was standard practice in character cases for him to prepare a Statutory Declaration before the interview and ask the person to sign this before commencing the interview. Mr Shenton denied that he would have told Mr Mack that what had happened in the US was not relevant and that what was important was his character now. This would have undermined the whole purpose of the interview.
37. Mr Shenton said he would have handed Mr Mack the Statutory Declaration and asked him to read it and advise Mr Shenton of any statements that did not apply. He did not advise Mr Mack of the seriousness of signing a Statutory Declaration. He did not at this stage tell Mr Mack that he had information that Mr Mack had a criminal record. Mr Shenton acknowledged that Mr Mack did subsequently tell him of one conviction for giving false information before Mr Shenton put to him his criminal record and that Mr Mack volunteered information about his having sold cocaine and of his having been fined for possession of “dope” in the ACT.
38. In cross-examination, Mr Shenton acknowledged that he had no specific recollection of what was said in the course of the interview. His recollection is based on what was his standard practice in such interviews and on his interview notes. He said the notes represent the highlights of what Mr Mack said and not every word spoken.
39. Mr Shenton was asked about the delay between the decision being made on the application – on 22 December 2000 – and it being notified to Mr Mack – by letter sent by registered post on 22 October 2003. Mr Shenton said due to staff changes and moves, the file was mislaid and did not come to light again until October 2003. When it was found that a decision had been made, Mr Shenton contacted their Legal Help Desk for advice and was advised that Mr Mack should be notified of the decision as soon as possible. Mr Shenton said he was not involved in the decision to refuse Mr Mack’s application for a bridging visa at the time that he was detained.
Other Character Evidence
40. Four further witnesses were called to give character evidence for Mr Mack. Ms Renee Rees, who is a hairdresser, gave evidence of having known Mr Mack for more than two years. She met him through his music for which he has a talent. He has since become a client but she also socialises with him and Ms Thomas. She is aware of his background in the US, including his convictions, although not of his having sold cocaine. Ms Rees said Mr Mack and Ms Thomas have a loving, supportive relationship and Mr Mack gets on very well with his children. She has never seen him loose his temper or be violent. He is always there if Ms Rees needs help or advice. One or two of her friends smoke marijuana and Mr Mack smoked marijuana on one occasion at her home. She has never seen him smoke marijuana at home.
41. Ms Aziza Taher, who is a systems programmer, gave evidence of her having known Mr Mack for about seven years. Ms Thomas used to be her neighbour in Lyneham. Ms Taher still sees Mr Mack irregularly when they meet for lunch. She is aware of his background in the US and of his convictions. In her opinion, Mr Mack and Ms Thomas love each other and he wants to be a good father to his children. Mr Mack would not do anything illegal. For example, she is aware that he gave a talk at Wanniassa High School when he advised the children to stay away from drugs.
42. Mr Paul Taylor, an Information Management Officer for the Family Court, gave evidence of having known Mr Mack since 1997. They met playing American football for the ACT representative team and have spent time together socially. Mr Taylor is aware of some of Mr Mack’s background and convictions in the US and that he came to Australia to get away from this. Mr Taylor knows Ms Thomas and their children. He said Mr Mack and Ms Thomas seem to be a tightly-knit family and Mr Mack is always there for his kids. He is a good father but also a good friend and teammate. Mr Taylor has not seen Mr Mack smoke marijuana but knows it is not uncommon in the music industry.
43. Mr Taylor regards Mr Mack as trustworthy and they have discussed going into business together. Mr Taylor finds it hard to believe that Mr Mack would seek to conceal his US convictions otherwise than by accident or as a result of a misunderstanding. Mr Taylor has, however, noted that Mr Mack does not have a lot of experience of filling in forms.
44. Mr Otis Lisle is a personal trainer and Assistant Manager of the clubhouse at the Hyatt Hotel in Canberra who has known Mr Mack since 1996 when they were introduced by a mutual friend. They continue to meet through sport – American football – Mr Lisle has played in an opposing team, and basketball, and socially. Mr Lisle said Mr Mack is a gridiron player of some talent who plays according to the rules. He interacts well with others and is well-accepted.
45. Mr Lisle has met Ms Thomas and their children. Mr Mack is very responsible and always puts his family first – they are his number one passion. He and Ms Thomas seem to have a very good relationship. Mr Mack is also a talented rapper who has performed at several locations. Mr Lisle has never seen him smoke marijuana although Mr Lisle has numerous friends who do. This is not something that Mr Lisle approves of. If Mr Mack was forced to return to the US his family and children would be very upset.
46. Mr Lisle has been to the US on numerous occasions. Mr Mack has told him of his US convictions and Mr Lisle is also aware that Mr Mack was fined for possession of marijuana in 1998 and has a recent conviction for damage to a window following Ms Thomas having called the police. Knowing this, Mr Lisle still regards Mr Mack as a responsible person and a trustworthy friend. He would be a person whom Mr Lisle would employ if Mr Mack had the right qualifications for the job. Mr Lisle noted that Mr Mack has, on some occasions, misunderstood things said to him. In relation to Mr Mack’s declarations to the Department, he probably did not understand the questions about his past convictions – he is very open about his past.
Consideration of the Law and Findings
47. A search by the Washington office of the Department provided the following record of Mr Mack’s convictions in the US which are not in dispute:
· 10 April 1991 – Denver County – convicted of assault domestic violence.
Disposition - sentenced to 90 days, served 3 days, suspended 87 days, fine US$19.
· 28 July 1992 – Englewood County – charged with embezzling and conspiracy. Disposition – convicted without record.
· 9 June 1994 – Denver County – charged with possess controlled substance. Disposition – two years probation, fined US$75 – probation revoked 30 May 1995, three years probation and fined US$300, 50 hours community service. Name used Jordan N Edwards.
· 10 April 1995 – Denver County – charged with possess controlled substance. Disposition – dismissed.
· 3 August 1995 – Denver County – charged with provide false information to police. Disposition – sentenced to three days.
48. Mr Mack gave evidence about these convictions. The Tribunal considers that they are all relevantly minor offences, involving sentences of not more than three days in custody, small fines and probation. However, Mr Mack admitted that for a period of about two months he was involved in selling crack cocaine. At the time of the convictions he was aged between 19 and 24 and the Tribunal accepts that it is relevant to take into account Mr Mack’s background as an African American from a poor and unhappy family, associating with others from like backgrounds and getting into trouble with the police. It was Mr Mack’s evidence, which was supported by the evidence of the other witnesses, that he came to Australia to escape this situation and try and start a new life.
49. A search by the Australian Federal Police provided the following record for Mr Mack in Australia:
15 October 1998 – ACT Magistrates Court – possess prohibited substance – offence date 30 July 1998. Fine: $200.00, days in default: three.
Mr Nicol submitted that, technically, this should not be treated as a conviction because, pursuant to The Drugs of Dependence Act 1989 (ACT), s 171A(4), any liability in respect of a “single cannabis offence” (possession of not more than 25 grams) is discharged if the fine imposed is paid in accordance with the offence notice served on the person by a police officer, “and the person shall not be regarded as having been convicted of the alleged simple cannabis offence”.
50. Mr Mack also disclosed the following additional offence:
20 November 2002 – ACT Magistrates Court – Destroy/damage ACT property – good behaviour bond of $500 for 18 months.
51. Mr Mack did not disclose his US convictions in his application for a further stay as a visitor dated 23 October 1996 (G Documents “C”), nor in his application to remain permanently in Australia dated 8 May 1997 (G Documents “D”), nor did he disclose these in a Statutory Declaration which he signed at his interview with the Department on 8 January 1999 (G Documents “E”). Mr Mack gave evidence that on each occasion he interpreted the question asking whether he had been convicted of a crime or offence in any country as meaning any country except the US. Whilst by itself this might not seem very convincing, nevertheless, Mr Mack’s witnesses – Ms Thomas and Mr Taylor, said that he is not good with forms, and Mr Lisle said Mr Mack does not always understand questions put to him. Moreover, at the interview with Mr Shenton on 8 January 1999, after signing the Statutory Declaration and answering “Not really” to a question from Mr Shenton about whether he had a criminal record, he volunteered information to Mr Shenton about incurring a fine for giving false information. Later, after Mr Shenton had put his US convictions to him and he had acknowledged these, he volunteered that he had sold cocaine for a short period and that he had also been fined in Australia “three or four months ago” for possession of a small quantity of marijuana.
52. Both Mr Mack and Ms Thomas claimed that at the beginning of the departmental interview on 8 January 1999, Mr Shenton stated that what had happened to Mr Mack in the US did not matter: what was important was his conduct in Australia and whether he is a good person. Mr Shenton denied saying this. Even though he acknowledged he had no specific memory of the interview and his recollection was based on his notes of the interview and his standard practice, the Tribunal considers it very improbable that he would have said what Mr Mack and Ms Thomas claim. It is also not clear that Ms Thomas was present at this stage of the interview. It seems more likely that Mr Shenton may have made some general comment about the all-importance of being totally honest at the interview, which Mr Mack may have mis-remembered or misinterpreted.
53. The Tribunal notes the evidence of Mr Mack’s witnesses that he has been open about his convictions and not sought to conceal his past. Certainly, once his convictions were put to him at the interview, he was open and frank about them as he was in giving evidence at the Tribunal. He also referred to at least one offence – his being fined for giving false information – when initially asked by Mr Shenton about whether he had a criminal record and before Mr Shenton put that record to him. Thus, while the Tribunal does not find Mr Mack’s explanation for not declaring his US convictions to be convincing, nevertheless it is not satisfied on the evidence before it that he deliberately lied. The Tribunal therefore finds merely that he failed to declare his US convictions on three separate occasions.
54. The Tribunal is surprised that Mr Shenton did not, at the very least, advise Mr Mack of the seriousness of signing the Statutory Declaration which Mr Shenton had prepared before the interview. Preferably, he should have drawn Mr Mack’s attention specifically to the first paragraph stating that he had never been convicted of a crime or offence in any country, and have told Mr Mack that if he had any doubts about this statement he should raise them before signing the Declaration. This would have focused Mr Mack’s mind on this and given him the opportunity to clarify any question he might have had as to what was meant by this statement. Mr Shenton might also have forewarned Mr Mack that the Department had obtained details of his criminal record from the US. The fact that Mr Shenton did not pursue any of these courses before asking Mr Mack to read and sign the Statutory Declaration raises concerns as to whether Mr Mack was afforded procedural fairness. It is not the Tribunal’s role to make a determination as to the legality of what occurred but it is appropriate to raise as a matter of concern what appears to have been departmental practice.
55. The first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c) and (d), Mr Mack passes the “character test” having regard to his past and present criminal and general conduct and the risk that he may engage in future criminal conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
56. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Mack, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
57. In relation to s 506(6)(c)(i), the person’s past and present criminal conduct, paragraph 1.8 of Part 1 of Direction No 21 states:
1.8In 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.
58. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9 (a), 1.9 (b) and 1.9 (c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9 (a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9) (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9 (c)).
59. In relation to s 501(6)(d)(i) and whether there is a “significant risk” of the person engaging in future criminal conduct in Australia, paragraph 1.13 of Direction No 21 states:
The “significant risk” criterion will be met if there is evidence which suggests that there is more than a minimal or trivial likelihood that a non-citizen would, if allowed to enter or remain in Australia, engage in conduct specified in paragraph 501(6)(d).
Paragraph 1.14 states:
The reference to criminal conduct must be read as requiring there to be a significant risk of the person engaging in conduct for which a criminal conviction could be recorded. Decision-makers must make a finding that there is a significant risk that the non-citizen would engage in conduct which, if proven, would amount to a criminal offence.
60. Having regard to these matters, the Tribunal notes that the US offences were relatively minor in nature and committed while Mr Mack was young. Of most seriousness is Mr Mack’s admission that he sold crack cocaine for a short period of about two months. He was not however, charged with selling drugs and the Tribunal is prepared to accept Mr Mack’s evidence that this came about as a result of the company he kept at that time and his assurance that he would never do this again. The last of the US convictions is from nearly nine years ago and Mr Mack has given a plausible explanation for what occurred in relation to his providing a name given him by his father – Sanders – rather than his registered name Mack. The Tribunal accepts Mr Mack’s evidence that a reason for his coming to Australia was to get away from his past and background and establish a new life. The two offences with which he has since been charged in Australia are of a minor nature, and isolated incidents, and do not suggest ongoing criminality by Mr Mack.
61. As Mr Mack recognised, the more serious concerns about Mr Mack arise from his, on three occasions, not having declared his US convictions. However, as stated above, the Tribunal is not satisfied on the evidence that Mr Mack deliberately lied and has declined to make a specific finding about this. The Tribunal regards his failure, on the application for permanent residency, to state any previous names by which he had been known – for example Sanders – as being merely an oversight.
62. Addressing s 506(6)(c) and (d), and whether Mr Mack passes the character test, he has some history of petty criminal conduct, most of this some years ago when he was relatively young. There is also evidence that he failed to declare his US convictions on three separate occasions although the Tribunal has declined to make a finding as to whether this was deliberate. Since he has been in Australia, Mr Mack has been fined for possession of a small quantity of marijuana and given a good behaviour bond for breaking a window following an argument with Ms Thomas.
63. The Tribunal considers that the overall picture is one sufficient to warrant a determination that Mr Mack is not of good character because of his past and present general conduct. Had there been a longer period without convictions and greater clarity as to Mr Mack’s state of mind and intention in relation to the declarations, the Tribunal might have decided differently.
64. Having decided that Mr Mack does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Mack. In doing so, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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.
65. Paragraph 2.3 sets out the 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.
66. With regard to the protection of the Australian community, paragraph 2.4 states:
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…
67. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
68. Examples of offences considered by the Government to be serious include the selling of illicit drugs and serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
69. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
70. With regard to the first primary consideration, the protection of the Australian community, the Tribunal has found that Mr Mack has been convicted of a number of minor offences, both in the US and Australia. None of the convictions are in respect of offences categorised in paragraph 2.6 of Direction No 21 as of a “very serious” nature. The Tribunal accepts Mr Mack’s evidence that his first conviction, at the age of 19 for “assault domestic violence” did not actually involve any violence as such. This is corroborated by Ms Thomas’ and Sarah Thomas’ evidence and that of the character witnesses, who attested to the fact that Mr Mack is not a violent man. The Respondent concedes that there is no evidence that he is violent.
71. Mr Mack’s voluntary admission that he sold cocaine for a period of two months – something with which he was never charged, is obviously criminal conduct in the “very serious” category but the Tribunal is prepared to accept Mr Mack’s evidence that this was an aberration and his assurance that he would never do this again. The fact that he has spoken at two schools in Canberra about his background and advised students “not to do drugs” supports this. However, Mr Mack may have been guilty of serious immigration misconduct in connection with entry or stay in Australia in that he made false declarations. As stated above, however, the Tribunal has declined to make a finding as to whether this was intentional conduct.
72. The Tribunal considers it unlikely that any immigration misconduct will be repeated and does not consider Mr Mack a threat to the community. Indeed, as stated, there is evidence of rehabilitation – of his good conduct and contribution to the Australian community. With regard to deterrence, while refusing a visa to those who have committed immigration misconduct may deter others from undertaking similar misconduct, this is not in itself a conclusive factor.
73. With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s opinion, the community would take a compassionate view of Mr Mack’s situation notwithstanding his conviction for a number of a minor offences and his immigration misconduct (Re Leha and Minister of Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054).
74. The third primary consideration is the Best Interests of the Child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
75. Mr Mack and Ms Thomas have a daughter, Taimara-Anne, who is now aged six, and a son, Marquis, who is aged two. The Tribunal finds, based on the uncontradicted evidence of Mr Mack and Ms Thomas and the glowing testimonials from Mr Mack’s character witnesses, that he has a close and loving relationship with his children and with Ms Thomas’ daughter Sarah, who is aged 16. Mr Mack regards her as a daughter and she regards him as her father. She does not know who her biological father is and Mr Mack has been Ms Thomas’ partner and her stepfather for nearly eight years.
76. Mr Mack was detained by departmental officers on 11 November 2003. The two younger children do not understand why their father is not at home nor why he was away at Christmas and for Marquis’ second birthday. The Tribunal accepts that if Mr Mack is not permitted to remain in Australia his children and the family as a whole will be devastated. Mr Nicol described the effect as “catastrophic”.. The Tribunal notes in passing some surprise at the refusal of Mr Mack’s application for a bridging visa at the time of his detention on 11 November 2003. Given the stability of his family and general situation, the likelihood of his absconding is minimal and his detention has caused significant anxiety and difficulty, including financial difficulty, to both Mr Mack and his family. Ms Thomas gave evidence that they had no money at Christmas. The refusal of a bridging visa should be seen in the context of the Department having taken two years and 10 months to notify Mr Mack of the decision to refuse his application for a general residence visa.
77. Mr Mack also has a son, Jordan, by a previous relationship in the US, who lives there with his mother. Mr Mack has not seen Jordan for over seven years and does not support him financially. However, they talk on the phone from time to time. Mr Mack’s evidence is that Jordan’s mother did not allow Mr Mack to be a father to him and that he has been supported by other men with whom she lives.
78. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
79. The Tribunal finds that the refusal of a visa to Mr Mack would have a devastating effect on his family in Australia. There is no question and the Respondent concedes that the relationship between Mr Mack and Ms Thomas is a genuine loving and caring marriage-like relationship. Mr Mack provides significant support for Ms Thomas in terms of caring for their three children and running the home. Ms Thomas is undertaking a Business Administration course and has one further year of study. She often has classes three nights a week. She also has casual work as a waitress one night a week and coaches Sarah’s basketball team twice a week. Since Mr Mack’s detention, Sarah has been helping her mother with caring for the two younger children but she will shortly be commencing Year 11 at College with the long term aim of undertaking university study. She is also looking for casual or part-time work. Having to care for the two younger children has been restrictive for Sarah.
80. The evidence indicates that Mr Mack has found a place for himself in the Australian community. He is a keen sportsman and has played representative American football – gridiron – for the ACT. He has a passion for rap music in which he attracts some casual work and in which he is trying to establish himself. He also undertakes other unskilled labouring work to contribute to the family income. Ms Thomas receives Social Security benefits and earns about $50 per week from her casual work as a waitress.
81. The Tribunal accepts that Mr Mack has sought to divorce himself from his background in the US and to make a new life for himself in Australia. He appears to have some contact with his mother but otherwise his family is that in Australia. The Tribunal heard evidence that Mr Mack has given talks at two ACT schools drawing on his background to warn the students off drugs. The evidence of his character witnesses is very supportive in terms of his character, good conduct and place in the community. If Mr Mack were to return to the US, his prospects for employment are limited. Ms Thomas was adamant that she would not relocate to the US with his children and they cannot afford to travel to the US to see him – effectively her children would be without a father.
82. Weighing up the primary and other considerations, there is a powerful case for exercise of the s 501(1) discretion. The Tribunal does not consider Mr Mack to be a threat to the Australian community and the community would be likely to take a compassionate view of his situation. Even if the protection and expectations of the Australian community favoured the refusal of a visa, in this case they are outweighed by the best interests of the three children in Australia, which strongly favour the granting of a visa. The other considerations also support such a decision.
83. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in the case of Arthur Neal Mack.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 12 and 13 January 2004
Date of Decision 21 January 2004
Solicitor for the Applicant Mr I Nicol, Norton White, SolicitorsSolicitor for the Respondent Mr A Dillon, Australian Government Solicitor’s Office
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