Marzella and Minister for Immigration and Border Protection (Migration)

[2016] AATA 339

Marzella and Minister for Immigration and Border Protection (Migration) [2016] AATA 339 (27 May 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1284
Re	Francesca Marzella
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Bernard McCabe
Date	27 May 2016
Place	Brisbane

The decision to exercise the discretion to refuse the applicant's visa is affirmed.

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

Deputy President Bernard McCabe

Catchwords
MIGRATION – bridging visa – s 501 discretion to refuse visa application – where applicant convicted of fraud – character test – whether primary considerations weigh against applicant – discretion should be exercised against the applicant – decision under review affirmed

Legislation

Migration Act 1958 (Cth) s 501

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA cl. 11, 12

REASONS FOR DECISION

Deputy President Bernard McCabe

27 May 2016

1. Francesca Marzella is a citizen of New Zealand but she has lived in Australia with her family for many years. The Minister for Immigration and Border Protection declined to issue Ms Marzella with a bridging visa because of character concerns after she committed a serious fraud and went to gaol.[1] She cannot remain in Australian without a visa. She has asked the Tribunal to review the minister’s decision to refuse the visa pursuant to s 501 of the Migration Act 1958 (Cth).

   [1] The applicant appeared to be under the impression she had a different class of visa – namely a type 444 visa that was issued to citizens of New Zealand upon arrival in Australia. That class of visa lapses when the visa holder departs and must be renewed on each occasion the applicant re-enters this country. The minister says the applicant did not hold a type 444 visa because her last arrival in Australia occurred under an assumed name and a false passport. The minister proceeded on the basis the applicant needed a bridging visa to remain. The applicant applied for a bridging visa on 16 December 2015. A delegate of the minister refused that application and declined to grant the visa on 9 March 2016.

2. The minister made the correct decision. I explain my reasons for that conclusion below.

   What happened?

3. Ms Marzella first entered Australia in 1981. She subsequently moved here from New Zealand with her three children after the breakdown of her marriage in 1984. She said her husband had been violent. She was soon followed by her sister. The applicant worked on the Gold Coast as a nurse although she also trained horses. She told the hearing she met her current husband, Mr Michael Mugridge, in around 1991. Mr Mugridge was a solicitor at the time and she was his client. They commenced a relationship and married in 1993. They subsequently had two children together. The family fell on hard times after Mr Mugridge was struck off as a solicitor. Ms Marzella also became ill with Crohn’s disease, a degenerative illness.

4. Ms Marzella said in her evidence that she became friends with an elderly neighbour not long after arriving in Australia. The neighbour lived alone and had little contact with her remaining family. In due course, the neighbour moved into a nursing home. Ms Marzella lost contact for a while but re-established the relationship in around 2004. The applicant said she would visit the elderly lady and take her on outings – to the hairdresser, for example. Ms Marzella said they had a very close relationship: the lady was like a parent. In due course, Ms Marzella said the lady mentioned she had a number of properties and she wanted to leave one of them to Ms Marzella. In her oral evidence, Ms Marzella explained she resisted the suggestion for some time but finally agreed to accept the gift. Before doing so, Ms Marzella thought it prudent to take the lady to a doctor who could confirm the lady was competent. The applicant also arranged for a justice of the peace to see the lady and talk through the issues. Ms Marzella said she never had any reason to believe the lady was incompetent, and nobody from the nursing home had ever suggested there was a problem.

5. The applicant took possession of the property and promptly sold it for around $350,000. Soon after, she transferred the money to an account in London and left the country. She spent around a month in London and another month in Spain. (Those reports are consistent with movement records tendered by the respondent: exhibit 9.) She said she gave most of the money from the property sale to charities. She says she has receipts for the gifts, but she has so far been unable to produce them because they are stored in the United Kingdom.

6. When the applicant returned to Australia on 13 September 2008, she was met at the airport by police and placed under arrest. She was charged with defrauding the elderly lady who was suffering from dementia. A relative had laid a complaint. Ms Marzella spent about three months on remand before she was granted bail. Then she fled.

7. What happened next is the subject of dispute. The applicant said in her oral evidence that she moved with her family (including her grandson, whom I will refer to as Andrew[2]) to Coffs Harbour in New South Wales. She said she lived openly under her own name until the police finally came to arrest her in January 2014. She was extradited to Queensland. She was placed on remand while she waited for her trial. She said in her evidence before me that she decided to plead guilty on the advice of her lawyers because they estimated she would be released almost immediately once she was given credit for time already served.

   [2] ‘Andrew’ is an assumed name for the purposes of these proceedings. I refer to the son of Ms Marzella’s late son.

8. She took her lawyer’s advice and pleaded guilty. She was sentenced to five years imprisonment on 2 June 2015. She was given credit for time served. The sentencing judge’s remarks are reproduced in exhibit one at pp 134-136. On 9 July 2015, the applicant was also convicted of breaching her bail conditions, although no penalty was imposed.

9. The applicant was granted parole on 8 October 2015, but her problems were not over. Three days before her parole was granted, the minister’s delegate purported to cancel her visa. There was a technical defect in that cancellation decision: it was concluded there was no visa to cancel. The applicant applied for a bridging visa. The decision to refuse that visa is now before the Tribunal.

   The relevant law and the reviewable decision

10. The minister has the discretion to refuse a visa if the minister is not persuaded the applicant passes the character test: s 501(1). The character test is explained in s 501(6). Section 501(6)(a) says a person does not satisfy the character test for the purpose of s 501(1) if the person has a substantial criminal record within the meaning of s 501(7).

11. Ms Marzella’s conviction and imprisonment on 2 June 2015 means she has a substantial criminal record, and the discretion to refuse a visa was enlivened.

12. The discretion must be exercised having regard to the binding guidance provided by the Minister in Direction No. 65 – Migration Act 1958 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the Direction). The Direction includes an extensive Preamble which sets out certain principles and expectations. I will not repeat those here. Part B of the Direction identifies the considerations which must be taken into account when considering whether to refuse a visa. There are three primary considerations that must be given particular weight, but there are other considerations which might also be relevant. I will deal with the three primary considerations in turn.

    Protection of the Australian Community from criminal or other serious conduct

13. The Direction explains that I must deal with this consideration in two parts. I must first turn my mind towards the nature and seriousness of the non-citizen’s conduct to date. In this case, the applicant has a committed a significant fraud against a vulnerable member of the community. That is regarded as a serious matter: see clause 11.1.1(b). The sentencing judge underlined the seriousness of the offence in her remarks, where she said (exhibit one at p 135):

    The fraud was a very serious one. You took advantage of an old lady who you knew and who was suffering from dementia, obviously had no idea what you were up to.

14. Her Honour went onto point out:

    …the Court of Appeal has noted that this sort of behaviour is despicable, taking advantage of old people who are very vulnerable by gaining their trust and then using that trust to take away what is essentially their life’s savings.

15. The sentencing judge noted the applicant left the country quickly and transferred the money overseas. (That behaviour suggested the behaviour was deliberate and planned.) Her Honour also noted the money was dissipated. The applicant said in her oral evidence that members of her family had repaid the money on her behalf to the family members of the elderly lady. I was not provided with any other evidence of that occurring.

16. The applicant was sentenced to five years in gaol. That is a significant punishment which reflects the seriousness of the offence.

17. The applicant is only accused of one instance of fraud, so there is no trend of increasing seriousness. But the bad behaviour on that occasion is compounded by the applicant’s decision to abscond while on bail. She was on the run for a significant period of time. She sought to evade justice; if she had not been arrested following a tip-off, she would presumably still be in hiding. While no separate penalty was imposed in respect of that conduct, the decision to flee does her no credit.

18. That conduct, of itself, weighs heavily in favour of cancellation. But there were other allegations that have not been the subject of criminal charges. I refer in particular to allegations that the applicant obtained and used false passports to travel overseas while she was on the run. The respondent says the applicant left the country on 10 July 2009 using a British passport in the name of Marilyn Gray Howitt. The applicant is said to have returned to Australia on 22 July 2010 on a British passport in the assumed name of Taylor Scheaffer. The applicant denied all of this. When questioned closely, she admitted she was aware of a passport in the name of Taylor Scheaffer: she had little choice, given she was carrying it when arrested in Coffs Harbour by New South Wales police. (Ms Marzella reluctantly agreed in cross-examination she had offered the passport to police to prove she was not Francesca Marzella in a further attempt to evade justice.) She was shown a copy of an intelligence report from HM Passport Office in the United Kingdom which included the pictures on each passport: exhibit 7.4. She agreed she was the person in those pictures. She said someone else must have organised the passports; she denied using them for travel.

19. Ms Marzella’s denials need to be seen in the context of other evidence she gave. When I questioned her at the hearing, she initially said she travelled to Spain for approximately three weeks when she left the country after the fraud. Later, she mentioned she also spent a short time in London. But she insisted in her oral evidence that she lived in Coffs Harbour while she was on the run. When Mr Hawker questioned her in cross-examination, she agreed she may have spent up to a year in the United Kingdom. She said she stayed for a lengthy period with a former foster child of hers. She also said her husband and members of the family joined her when her husband came to seek work. Her furniture, papers and belongings were all transported to the United Kingdom while she considered settling there. When Mr Hawker pointed out the travel records in exhibit 9 suggested Francesca Marzella did not travel overseas for a long period but Taylor Scheaffer appears to have spent around a year in the United Kingdom, Ms Marzella backtracked and suggested she may not have spent a year there – perhaps it was only two months after all. Her denial was unconvincing. The picture became murkier still when the respondent produced a visa application in the name of Taylor Scheaffer. The application for a partner visa was sponsored by Mr Mugridge. It suggested Ms Marzella had disappeared and the mysterious Ms Scheaffer had commenced a relationship with Mr Mugridge and wanted to reside with him in Australia.

20. Mr Mugridge was present before the hearing commenced. I delayed the start of the hearing so he could talk with Mr Marzella in the expectation he was to represent her. When the hearing began, Mr Mugridge was nowhere to be seen. I was told he left the building after he was informed he would be required for cross-examination. Ms Marzella represented herself and said her husband needed to attend a medical appointment and then return to the Gold Coast to care for their son. She said it was never intended that he would appear on her behalf. She said he was only present in the court house that morning so he could deliver some documents.

21. In the circumstances, I do not need to reach a concluded view about whether or not Ms Marzella engaged in passport fraud although her oral evidence raises questions about her credit. I am satisfied the applicant’s admitted conduct weighs heavily in favour of refusing the visa.

22. I must next consider the risk to the Australian community should Ms Marzella commit further offences or engage in further serious conduct. I should say at once that the applicant is seriously ill, and she is around 63 years of age. It is unclear whether she is physically capable of significant bad behaviour. On the other hand, fraud is not an activity that requires a great deal of physical stamina. It requires a degree of charm and an unthreatening appearance. Ms Marzella certainly has all of that. Mr Hawker, who appeared on behalf of the respondent, pointed out the applicant and her family were under significant financial pressure. If the applicant were to remain, she would have a clear incentive to re-offend.

23. The Direction points out the community has a low tolerance for bad behaviour by visa applicants. The community’s tolerance for risk will be even lower where the harm that might result from future instances of bad behaviour is more serious: clauses [11.1.2(1) and (2)].

24. In Ms Marzella’s case, there is a danger of further instances of fraud, and the consequences might be very serious. The fraud she was found to have committed was significant, and she has a long history of involvement with other vulnerable members of the community. (The applicant said in her evidence she has been a foster parent to a number of children, and she has been involved in a community group supporting disabled persons.) The risk of harm is less palatable in those circumstances.

25. What of the risk that the conduct (or similar conduct) will reoccur? I was provided with references at the hearing. One reference was from the applicant’s sister, and another was from a person associated with a community group called Riding for the Disabled. Both references spoke warmly of the applicant’s character. I was also shown references from the applicant’s husband and her son, although neither of them were available for cross-examination.

26. Evidence from family members is welcome, but not especially compelling. It is assumed they will be well-disposed towards the applicant. The information provided by the community member was positive but general. The Direction emphasises the need for authoritative evidence from an independent source. The applicant supplied two references from a counsellor associated with a prison support group, Sisters Inside. In the first, dated 25 June 2014, the counsellor noted Ms Marzella had been attending therapy and had demonstrated “substantial insights into her current and historical life circumstances”. The second letter, dated 12 April 2016, repeated that assessment. I was also provided with a short reference from Reverend Audrey Bartlett, a prison chaplain, dated 15 February 2015. The chaplain said she had found the applicant “to be of good character and willing to improve her life.” The reference noted the applicant was undertaking a bible study course. The fact the applicant has undertaken rehabilitation courses counts in her favour.

27. The applicant’s treating psychiatrist is Dr Eve Timmins. Dr Timmins provided a report dated 18 June 2015: exhibit one at pp 42ff. Dr Timmins noted the applicant was experiencing symptoms of anxiety as a result of her situation. That is unsurprising, but it tells me little about the risk of further offending. An up-to-date report was provided by Dr Luke Pervan on 10 March 2016. Dr Pervan also discusses the applicant’s anxiety and depression as a result of her situation. Once again, the report sheds little light on the question I must answer: what is the risk of her re-offending?

28. Ms Marzella has insisted in her statement that she is remorseful: see, for example, exhibit two at [20]. I note the reference from the counsellor at Sisters Inside has commented on the applicant’s insight. But the applicant’s evidence at the hearing confirmed she does not accept she intentionally defrauded the elderly lady. Ms Marzella merely accepts she went about effecting the transaction in the wrong way, and that she should have taken further steps to ascertain the competency of her former neighbour. The applicant does not accept the sentencing judge’s assessment that she knew the elderly lady was incompetent and set out to defraud her. Ms Marzella said she only pleaded guilty to avoid the prospect of spending more time in gaol. She also explains away the decision to flee and her subsequent attempts to evade capture by using a false passport on the basis she feared going to gaol. She does not acknowledge there was a pattern of deceptive and lawless conduct.

29. I am not satisfied the applicant has genuine insight into her past offending. In the absence of that insight, it is impossible to say the applicant has been rehabilitated. The evidence from authoritative and independent sources does not help me to reach a different conclusion. Her treating doctors do not squarely address the question of risk and the limited evidence provided by a counsellor and the chaplain is difficult to square with the objective evidence. I accept the applicant had made attempts to rehabilitate herself by attending courses and participating in therapy, and I accept she has been so shaken by her experience that she would think twice before re-offending. I also take into account her age and ill-health. But given the applicant intends remaining in Australia for the rest of her life, I accept the risk of further misconduct is real, even if it is not especially great. (If the applicant were only seeking to remain in Australia while she underwent medical treatment, I might be less cautious in my assessment.)

30. The relatively low risk of further offending must be assessed in light of the relatively serious nature of the applicant’s offences. In all the circumstances, I am satisfied this primary consideration must count moderately heavily against the applicant.

    The best interests of minor children

31. I was provided with evidence about Andrew, the applicant’s grandson. Andrew is the child of Daniel, one of the children from Ms Marzella’s earlier marriage who accompanied her to Australia in 1984. Daniel died recently. Ms Marzella is understandably distraught. She said she was unable to attend her son’s funeral. Ms Marzella said Daniel and Andrew were living with her and her husband while she was on the run. Daniel was still living with Mr Mugridge while the applicant was incarcerated. She initially said Daniel’s son, Andrew, was currently living with Mr Mugridge in the family home although she subsequently said in cross-examination he was staying with other members of the family and only spent about 20% of the time with Mr Mugridge. She said those other family members are not in a position to take up the burden of looking after the child on an ongoing basis. It is unclear whether Ms Marzella would be in a better position given the state of her health and the straitened financial circumstances of the family.

1. The child is aged around eight. The applicant is not in a parental relationship with the boy. He may well have had a close relationship with the applicant while they lived in the same household, but he was young at the time. He has had limited contact with the applicant since she was incarcerated. The applicant’s other relatives have played a parental role following the death of Daniel. There are no court orders in place in relation to the child. I am unaware of him expressing a view about the future, but it is unlikely he would have an informed view in any event.

2. There is no evidence to suggest the child has been traumatised by the applicant’s prior conduct, and there is no suggestion of abuse. It is unclear what impact her future conduct might have upon him. I accept it would be more difficult for the child to maintain a relationship with his grandmother if she were required to leave this country, although he could visit her in New Zealand. (The applicant suggested at one point in her evidence that the child might accompany her to New Zealand, but that evidence is difficult to reconcile with her other evidence to the effect that she would be homeless if she returned there.) In the circumstances, he is unlikely to have more difficulty maintaining a relationship with his grandmother in the future than he has had in the recent past.

3. I agree that cancellation is not in the best interests of the minor child, but it is doubtful his interests will be significantly compromised. This primary consideration counts in the applicant’s favour, but not heavily.

   The expectations of the Australian community

4. The third primary consideration is the expectations of the Australian community. Those expectations can be gleaned from the Preamble to the Direction. The Direction refers in particular to the expectation that non-citizens are conscious that it is a privilege for non-citizens to come to Australia. The opportunity to come and stay is made available in the expectation that non-citizens will obey the law. The community has little patience for people that prey on the vulnerable. They have even less patience for people who attempt to evade responsibility for their actions by absconding.

5. While there is no objective standard for assessing the expectations of the community, the authoritative statement of the community’s elected representative in the Direction makes it clear that this primary consideration weighs against the applicant.

   Other considerations

6. The three primary considerations obviously carry the most weight. But there are other considerations which may be relevant.

7. I am not satisfied there are international non-refoulement obligations. The applicant did refer to a risk of harm at the hands of her former husband. She said that individual had been violent towards her and continued to threaten her after she left New Zealand. She said she feared for her safety if she were to return.

8. The claim is not especially compelling. The only evidence of a threat comes from the applicant. As will be apparent from my discussion of the evidence – for example, her unconvincing account of how a false passport came into her possession – I do not regard the applicant as a credible historian. Without more evidence, I am not prepared to accept the applicant faces a current threat of harm from her former husband were she to be required to return to New Zealand.

9. I accept the applicant’s family will be negatively impacted if she is not allowed to stay in Australia – although there is nothing to prevent them moving with her to New Zealand. She is particularly concerned about the impact on Gene and Dylan, the sons of her marriage to Mr Mugridge. She said both of them have been unable to cope with her absence and have dropped out of university studies. One of them experienced serious mental health problems. Dylan provided a statement, but he was unavailable for cross-examination and I was not provided with clear evidence of his challenges and the level of dependency on his mother (other than evidence from Ms Marzella, of course).

10. Mr Mugridge may also be negatively impacted, although the nature of his relationship with the applicant is unclear. Ms Marzella agreed in cross-examination that they had lived apart for periods and they did not have an ordinary marriage. The fact he saw fit to leave Ms Marzella to fend for herself at the hearing raised questions about the quality of his commitment, although his reluctance to answers questions over what may be serious misconduct is probably understandable.

11. I have already referred to the impact on the applicant’s grandson. I also accept there will be a negative impact on other family members, including the applicant’s sister and her other children and grandchildren. I accept this consideration weighs in favour of the applicant.

12. The applicant’s victim has since died. It is unclear whether the lady’s family is aware of these proceedings or will be impacted by the applicant’s fate. This consideration does not count for or against the applicant.

13. The decision will not impact on Australian business interests.

14. There will be a potentially significant impact on the applicant if she is required to leave the country. I have already noted she is seriously ill. She told me at the hearing that she is due to undergo medical treatment in the next two weeks. Her prognosis is unclear. I assume she would not be removed before that scheduled treatment was undertaken and her condition was stabilised – although it may be that a separate bridging visa for a limited duration might be available if it became impossible to remove the applicant on account of her deteriorating health. For now, I have no reason to doubt that equivalent medical treatment is available to the applicant in New Zealand.

15. I accept the applicant has been away from New Zealand for a long time. She says she no longer has any family or support network there. I accept that consideration weighs in favour of her staying in this country.

    Conclusion

16. I have already explained the first primary consideration weighs moderately heavily against the applicant, while the second primary consideration counts to some extent in her favour. The third primary consideration counts firmly against her. The other considerations, when taken together, weigh in the applicant’s favour. While the process is not a precise one, I am satisfied the discretion to refuse the visa in s 501 of the Migration Act 1958 (Cth) should, on balance, be exercised against the applicant. It follows the decision under review should be affirmed.

48.     I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

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

Associate

Dated 27 May 2016

Date of hearing	18 May 2016
Applicant	In person
Solicitor for the Respondent	Mr M Hawker, Sparke Helmore