Martin and Minister for Immigration and Multicultural Affairs - [2000] AATA 895

DECISION AND REASONS FOR DECISION [2000] AATA 895

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/464

General Administrative Division        )
           Re      MELANIE MARTIN
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION

Tribunal Deputy President B.H. Burns

Date12 October 2000
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and in substitution therefor, exercises the discretion under section 501 of the Migration Act 1958 in favour of not refusing to grant the subject visa and the matter is accordingly remitted to the respondent for further consideration of the subject visa application.
  ......……..(Signed)..................
  Deputy President B H Burns
CATCHWORDS
IMMIGRATION – short term stay visa application – discretion to grant visa despite substantial criminal record – discretionary factors considered – rehabilitation, remorse and restitution relevant considerations – expectations of Australian community – other considerations

Migration Act 1958 – s501(1)
Ministerial Direction No. 17 of 1999
Re Radovanovic and Minister for Immigration and Multicultural Affairs [2000] AATA 146

REASONS FOR DECISION

12 October 2000 Deputy President B.H. Burns

This is an application by Ms Melanie Martin ("the applicant") for review of a decision of a delegate of the respondent dated 3 November 1999 (T2) which refused Mr Ewen George Martin ("the visa applicant") a Temporary Visitor Entry Subclass 676 (Short Stay) Visa pursuant to section 501 of the Migration Act 1958 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with 5 exhibits, 4 lodged by the applicant (Exhibits A1-A4) and 1 lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from both the applicant and the visa applicant. The applicant was represented by Mr Chris Ryan and the respondent was represented by Ms Nerida Ware, both of counsel.
By way of background the Tribunal makes the following findings of fact which are not in dispute.
The visa applicant was born on 9 September 1940 in New Zealand. On 10 March 1992 he was convicted in New Zealand on 16 charges of "forges (not cheque) obtains over $500" (T11/121) involving the sum of $257,000, in relation to a period of offending over some two and one half years. He was sentenced to 2 years 6 months imprisonment, of which he served a 15 month non-parole period and a subsequent period of 6 months probation. The conditions of the probation period included that he reside with his parents and regularly report to the police. He complied with the conditions of his probation.
In 1997 the visa applicant was granted a short-term stay visa and visited Australia for a period of three months.
On 6 October 1999 the visa applicant again applied for a short-term visa for a proposed stay of three weeks to visit the applicant (T8/93). At question 28 of that application form, he answered "yes" to the questions "Have you … been convicted of a crime or any offence in any country?" and "Have you … been excluded from or required to leave any country?" providing the following details,
"UK visa application declined 10/4/..
10/3/92 sentence 2yrs 6 mths
for forgery – served 15 mths in
jail – released 14/6/93 with
6 months probation to 13/12/93."
On 3 November 1999 the delegate of the respondent exercised the discretion under s501(1) of the Act to refuse to grant the subject visa after being satisfied that the visa applicant did not meet the character test. This decision took into account the Ministerial Direction No 17 of 1999 ("the Direction") given pursuant to s499 of the Act.
the evidence
The Tribunal found both the applicant and the visa applicant to be impressive witnesses whose evidence as to factual matters the Tribunal accepts. It notes that Ms Ware did not take issue with the credibility of either of the witnesses.
The applicant told the Tribunal that she was estranged from her father until about 1995/96, and that his visit in 1997 provided the basis upon which they have begun to rebuild their relationship. She stated that since that visit they have regularly kept in contact by phone and letter. She told the Tribunal that since her father's visit in 1997, she has had two children (born on 19 February 1999 and 28 August 2000) and that allowing her father to visit would provide family support and an opportunity for him to visit his grandchildren.

The applicant gave evidence that she and her partner run a timber and logging business that employs about twenty people. They have recently bought another complementary business. She further stated that because of the nature of the business, and the recently increased business commitments, it is extremely difficult for her partner to arrange any time off for travel. He is on call twenty-four hours a day and is often required to fill in for sick employees at short notice. She did not consider it to be feasible at the present time for her to travel alone to New Zealand with her two young children.

The visa applicant told the Tribunal that he was born and educated in New Zealand. Employment in the main was in managerial roles and as an insurance agent prior to his offending. Since his offending he has made complete restitution of all the monies outstanding in relation to both civil and criminal liability, selling off all of his assets. His wife left him whilst he was in prison.

The visa applicant stated that since his release from prison he has worked as a labourer on a farm, earning ten dollars an hour. He further stated that it has been difficult to re-establish himself in the community, but that he felt compelled to remain in the same community and make amends. He has not had any prior or subsequent charges or convictions. He testified that he was active in scouting prior to his offending, and is now heavily involved in the local church.

The visa applicant told the Tribunal that it has taken a big effort to get the relationship between himself and his daughter back on track, and that the purpose of his proposed visit would be to help the applicant and her husband and visit his grandchildren. Due to work commitments, he could only afford to stay for up to two weeks. He stated that his family is now the focus for the rest of his life, and told the Tribunal that he wants to make amends.
The visa applicant also gave evidence that in seeking and obtaining a short stay visa to visit the applicant in Australia in 1997 he had disclosed his offending in New Zealand. His evidence in this regard is verified by the copy of his application sent by the respondent to the Tribunal on 11 October 2000.
discussion
The Tribunal takes into account the submissions made by both parties, but sees no purpose served in setting out the submissions here, as they are well known to the parties and to the Tribunal.
It is agreed between the parties and the Tribunal so finds that the visa applicant has a substantial criminal record pursuant to sub-paragraph 501(7)(c) of the Act as a result of his conviction and sentence of two and one half years. On this basis, he fails the character test under sub-paragraph 501(6)(a) of the Act. Despite this failure the Tribunal is then required to consider the discretion in sub-section 501(1) of the Act as to whether or not the visa should be refused. For the purposes of the exercise of the discretion, the Direction given pursuant to s499 of the Act is binding upon both the delegate and this Tribunal.
The Direction provides both primary and other considerations and gives guidance as to how such considerations are to be weighed.
"…
…Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa. 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." (factor 2.2 of the Direction)
Having regard to the Direction, the totality of the evidence and the submissions of the parties, the Tribunal turns to consider the primary and other considerations.
primary considerations
protection of the australian community
It goes without saying that the offending behaviour of the visa applicant which led to his conviction and sentencing was very serious (factor 2.6(l) of the Direction). In this regard the Tribunal adopts the view of the sentencing Judge with respect to the very serious nature of the visa applicant's offending. It consisted of the visa applicant forging documents on 16 occasions over two and one half years which led to the loss of over $250,000. As Ongley J stated in his sentencing remarks (Exhibit A1):
"Mr Martin there has to be a substantial sentence of imprisonment imposed for these offences. You realise that quite obviously. There are charges by which you obtained in total $272,747, net loss was $257,747 and until there is reparation made from your personal assets, that remains the quantity of the loss that will be met by NZI Life in order to keep faith with its clients. It is a loss of a great deal of money and a sentence near the limit of this Court's jurisdiction of three years has to be considered.
The offences occurred over a two and a half year period from August 1988 to January 1991. They involved a methodical system of forgery by changing computer address records by forging declarations to get replacement documents and by forging withdrawal forms to take money from accounts. The forging of the withdrawal forms comprises the substance of the charges on which there is a maximum of ten years imprisonment on each charge. As your Counsel has correctly said, there was an element of breach of trust by use of your specialised knowledge and access to records.
…"
The offending behaviour involved a gross breach of trust. The Tribunal notes from the sentencing remarks however, that the visa applicant entered a guilty plea and co-operated with the police. The obtaining of the monies was not for his own gratification or to support an extravagant lifestyle, as the funds appear to have been utilised in part for the purposes of supporting a failing business venture and maintaining an "inextravagant lifestyle" (per Ongley J at page 2 of the sentencing remarks).
With regard to the likelihood that the conduct may be repeated, the Tribunal notes that this is the only offending in the visa applicant's life. He has had an unblemished record before and since. He complied with his probationary requirements and has had steady employment since about one year subsequent to his release. He has established himself back into his community, holds a responsible position within the local church and has a number of supportive references from within that community. He is now sixty years of age with two grandchildren. The Tribunal gained the distinct impression from his evidence and actions since his offending that the visa applicant genuinely regrets and is remorseful of his behaviour.
On the totality of the evidence, and particularly considering the Tribunal's assessment of the visa applicant's testimony, it is clearly apparent that his rehabilitation is complete. This is supported by the references before the Tribunal. The Tribunal finds that there is no likelihood that the visa applicant will offend again.
In relation to general deterrence, the Tribunal considers Deputy President Forrest's remarks in Re Radovanovic and Minister for Immigration and Multicultural Affairs [2000] AATA 146 at paragraph 37 to be relevant to the present matter,
"37. While the Direction requires that I consider the question of general deterrence, I am of the view this is not a major factor in the circumstances of this matter. If I am wrong on this, I think it reasonable to assume that the deprivation of liberty to date would in itself act as some form of deterrence to persons contemplating similar behaviour within the community where the applicant is known."
The fact of imprisonment in this case is of itself some form of deterrence. The Tribunal does not consider that the nature of the particular offending in this case is such that visa refusal would significantly deter others from committing similar offences. In the Tribunal's opinion, deterrence is not a major factor in the present case.
expectations of the australian community
The direction provides an explanatory paragraph in relation to expectations of the Australian community (factor 2.12):
"2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that [sic] the Australian community would expect that the person would not be granted a visa or should be removed from Australia…"
In the Tribunal's assessment, for the reasons given at paragraphs 21-22, there is no risk that the visa applicant will not obey Australian law while in Australia. The Tribunal concurs with Ms Ware that it is a legitimate expectation that serious criminal offenders will not be allowed into the country. As the Tribunal pointed out at the hearing of this matter however, the Australian community is united and prides itself in the principle of giving people a "fair go". The Tribunal considers that the Australian community would reasonably expect that, subject to the nature of the offending, where a person has been fully rehabilitated, made complete restitution, shown remorse, and where it is considered that there is no likelihood of that person re-offending, such a person should be allowed into the country to visit their child and grandchildren. This seems a reasonable community expectation.
other considerations
Factor 2.17 of the Direction provides that other considerations are to be taken into account but given less individual weight than the primary considerations.
With respect to factor 2.17(a) of the Direction, the Tribunal considers that some disruption to the applicant's family ties would result if the visa is not granted. The applicant and her father are in the process of re-establishing their relationship. Not granting the visa would detract from the furthering of the relationship between the applicant and the visa applicant and, indirectly, disrupt the grandchildren's opportunity to form a relationship with their grandfather.
Factor 2.17(b) of the Direction is not relevant.
With regard to factor 2.17(c) of the Direction, the Tribunal accepts the applicant's evidence which suggests that it may cause some difficulties for the applicant in terms of her business were the applicant to travel to New Zealand to visit her father. The difficulties in travelling with two very young children must also be considered. The visa applicant's presence in his daughter's household to see his grandchildren for the first time, even for a limited period of time by way of visiting, may well provide emotional support of a beneficial nature to the overall family.
The applicant has no other family resident in Australia. (factor 2.17(d) of the Direction).
Factors 2.17(e)(f) and (g) of the Direction are not relevant.
The Tribunal has already addressed the issue of rehabilitation and considers the visa applicant to be fully rehabilitated. He has evidenced good conduct since his release, and is involved in laudable community activities as well as having stable employment (factor 2.17(h) of the Direction).
The application is for a temporary visa (factor 2.17(i) of the Direction) and the Tribunal notes the limitations placed on the visa applicant's travel by his employer.
With regard to factor 2.17(j) of the Direction, the visa applicant does not simply want to come for a holiday. He is coming to further the relationship between himself and his daughter, which is recovering following a period of estrangement. He is also coming to see his grandchildren for the first time in the country of their birth. He intends staying for a short period of time only and the Tribunal accepts his evidence in this regard.
There is no evidence of any formal advice of the type referred to in factor 2.17(k) of the Direction.
The Tribunal is in agreement with the respondent's submissions of 11 October 2000 with respect to the circumstances regarding the 1997 short term visa.
conclusions
The Tribunal is particularly mindful that where there is a gap of some seven years between a person's release from gaol and their application for a visa, it is necessary to give close attention to that intervening period of time. In this case, the Tribunal is satisfied and has found that during that period, the visa applicant has shown remorse and been fully rehabilitated. Those findings must weigh significantly in the visa applicant's favour in relation to the primary and other considerations, and further lead to the conclusion that there is no likelihood of re-offending. The Tribunal further takes into account the expectations of the Australian community as canvassed above, and is mindful of the other relevant considerations.
Taking into account the totality of the evidence as against the relevant factors, the Tribunal is of the view that those matters of both "primary" and "other" considerations in favour of exercising the discretion in favour of the visa applicant significantly outweigh those against.
Accordingly, for the reasons given, the Tribunal sets aside the decision under review and in substitution therefor exercises the discretion under section 501 of the Act in favour of not refusing to grant the subject visa and the matter is accordingly remitted to the respondent for further consideration of the subject visa application.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         .....................(Signed)...............…
   Richard Coates (Associate)
Date/s of Hearing  21 September 2000
Date of Decision  12 October 2000
Counsel for the Applicant        Mr C Ryan
Counsel for the Respondent    Ms N Ware
Solicitor for the Respondent    Australian Government Solicitor