Mathers and Minister for Immigration and Multicultural Affairs
[2007] AATA 49
•25 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 49
ADMINISTRATIVE APPEALS TRIBUNAL No Q2006/820
GENERAL ADMINISTRATIVE DIVISION
Re: IAN DEREK MATHERS
Applicant
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: M J Carstairs, Senior Member
Date: 25 January 2007
Place: Brisbane
Decision:For reasons given orally at the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the visa should not be refused on character grounds.
[Sgd]
Senior Member
MIGRATION – rejection of spouse visa – ministerial direction – criminal record – character test – applicant held not to be of good character due to length and recency of criminal record and dishonesty – consideration of protection and expectations of Australian community – consideration of best interests of the children – weighing up of primary and secondary considerations – exercise of discretion to grant visa to applicant.
Migration Act 1958 s 499(1), 499(2A), 501(2), 501(6), 501(7), 501G
United Nations Convention on the Rights of the Child
Direction N° 21, Visa Refusal and Cancellation under s 501
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568
WRITTEN REASONS FOR ORAL DECISION
5 February 2007 M J Carstairs, Senior Member
1. On 3 November 2006 a delegate of the Minister for Immigration and Multicultural Affairs refused Ian Derek Mathers application for a spouse visa (partner class UK and Class BS – subclass 820/801 visa) on character grounds because of Mr Mathers’ criminal record.
2. This matter was heard on 24 January 2007. I gave oral reasons for decision the next day. The respondent requested reasons on 29 January 2007. These reasons answer that request.
ISSUES
3. The issues that I have to decide are
§ Whether Mr Mathers passes the character test because he is a person of good character, having regard to his past and present general conduct: s501(6) of the Migration Act 1958; and
§ If not, whether I should exercise the discretion in s 501 of the Act allowing Mr Mathers to be granted a spouse visa.
BACKGROUND
4. Mr Mathers is a British citizen, born on 5 January 1970 in the United Kingdom. He first came to Australia in 1997. He met his wife Natasha Kease here during a visit in 2003. She became pregnant and they married in November 2004. Their son Kit Ian Thomas Mathers had been born earlier that year, on 3 April 2004. Mr Mathers has had to return to England on several occasions since then when his visas expired. Mr Mathers has not always disclosed his criminal history on his arriving passenger cards. He partially disclosed his criminal history, however, in his application for a spouse visa.
5. Between 1990 and 2003 Mr Mathers had 10 convictions, involving 20 offences. The convictions were as follows:
§On 24/09/90:
- handling; fined £50.
Of this offence Mr Mathers said that it involved purchasing a stolen jacket, knowing that it was stolen property.
§On 22/04/91:
- theft from vehicle; imprisonment 6 months
- theft from vehicle; imprisonment 6 months concurrent
- theft form vehicle; imprisonment 6 months concurrent
Of these three related offences Mr Mathers said that he had been in the company of his brother and his mates while they broke into and stole from cars. He maintains he was a casual observer - not a participant in the illegal behaviour, and was set up by his brother and the others to take the blame. He maintains that the police then persuaded him to accept the responsibility for several thefts on the basis that this would be favourably taken into account. He said that he was shocked to receive a 6 months sentence.
§On 26/06/95:
- dishonestly using electricity; conditional discharge 12 months, fined.
Of this offence Mr Mathers said that his was renting a flat that had a coin-operated meter box and he and his girlfriend, who were students, had no money for heating so he jammed the meter box with a wire coat hanger to prevent the usage being recorded. He was ordered to pay restitution for this offence but received no further penalty.
§On 04/03/98:
- handling stolen goods (receiving); imprisonment 1 month
- handling stolen goods (receiving); imprisonment 1 month concurrent
- obtaining property by deception: imprisonment 2 months concurrent
- obtaining property ; imprisonment 3 months concurrent
Of this offence Mr Mathers said that his brother had given him an unsigned credit card to use on his behalf, assuring him it would be okay. He made a number of purchases and was charged with an offence for each use of the card.
§On 17/08/98:
- possessing controlled drug with intent to supply class B amphetamine: community service order 80 hours, probation order 2 years
Of this offence, Mr Mathers said that he was set up by a friend of his brother’s to mind some packets of white substance. He pleaded guilty to the charge.
§On 11/01/00:
- driving a motor vehicle with excess alcohol; fined and 24 month disqualification
§On 29/03/00:
- theft by employee: community service order 100 hours and 12 months supervision and probation centre [varied on appeal 08/11/00: original order revoked and probation order of 6 months]
Of this offence Mr Mathers said that it took place when he was working for a business that repaired shoes, cut keys and sold travel goods. He was caught repairing shoes for friends for free and undercharging them for purchases.
§On 06/03/01:
- failing to provide specimen for analysis; imprisonment 2 months; disqualified from driving 2 years
- driving whilst disqualified; imprisonment 2 months concurrent
using vehicle while uninsured; no separate penalty
Of this offence Mr Mathers said that the police had been aggressive when they pulled him over and he refused to take a breath test. He agreed that he was driving while disqualified and the vehicle was uninsured.
§On 19/11/02:
- possession of class B drug (cannabis resin); imprisonment 1 month concurrent
- possessing controlled drug with intent to supply class B (cannabis); imprisonment 9 months concurrent
- cultivating cannabis; imprisonment 9 months
Mr Mathers admitted to growing cannabis in his residence, for use by himself and friends. His admission that it was for friends led, he said, to being charged with intent to supply.
§On 09/01/03:
- driving whilst disqualified: imprisonment 3 months concurrent
- using vehicle while uninsured: no separate penalty
EVIDENCE
6. In an affidavit dated 9 January 2007 (Exhibit A1) Mr Mathers stated that he came from a broken family and experienced little parental love and guidance in his upbringing. He has a brother aged 39 and a sister aged 35; there are also other children from his father’s second marriage. His parents separated when Mr Mathers was about 4 years old and he had little contact with his father for some years. Mr Mathers was brought up by his mother after his father left. She was assisted by the maternal grandmother, a woman Mr Mathers described as domineering and oppressive in her treatment of them. Mr Mathers told the psychologist Mr T. Dorey that his mother would often lock all the children in the bedroom when she went out at night and she was frequently out with men.
7. When Mr Mathers was aged about 10 and his brother 12, it seems the two boys became too much for their mother to handle and she sent them, but not their sister, to live with their father, unannounced and despite them not having contact with him for some 7 years. In time this household did not work out either. It seems that Mr Mathers’ brother was hard to control and was asked to leave at the age of 15. Mr Mathers, however, stayed on with his father. His father had remarried for a third time. Mr Mathers made contact with his brother again, who by this time was engaged in criminal behaviour. There was a period when the two lived without permanent housing after the brother’s girlfriend asked them to leave.
8. Despite his difficult upbringing, Mr Mathers was able to complete his O-levels of schooling and in addition has a number of tertiary qualifications in hospitality. He has held positions in the hospitality industry and in sales and marketing in England. In Australia, until taken into detention, he worked as a barman/waiter, a driver for a furniture company and as a trainee engineer for two months at Eastgate Engineering. I note in that regard that his employer has provided a letter supporting Mr Mathers and confirming that his job is there for him to return to.
9. Mr Mathers stated that his criminal behaviour started when he was about 20 years old and was strongly influenced by his brother, who was by then mixing with bad company and engaging in criminal behaviour. Mr Mathers’ first convictions were for crimes which involved breaking into and stealing from cars in the company of his brother and others. Mr Mathers said that he was shocked to find himself with a 6 months prison sentence on a first offence. I have referred above to Mr Mathers’ description of the circumstances. I do not have the advantage of any court records with respect to the offence, but it seems to me that there must have been more to his involvement than he now asserts for the sentence to be so heavy for a first offence. He also stated that in a letter to the respondent dated 23 April 2006 that the custodial sentence was enough to deter me from committing more crimes. On no view of his later record could that statement be said to accord with what followed.
10. However Mr Mathers said that he is not proud of his past criminal behaviour. Despite it spanning twelve years and covering a range of offences he said that there were lengthy periods when he was not in trouble with the law, and where he tried to better himself by engaging in study and ensure that he avoided the bad influences of his brother and his connections. It was evident to me that there were substantial periods during the 1990’s when Mr Mathers did better himself through significant educational achievements.
11. As to his relationship with his wife - Ms Natasha Kaese - Mr Mathers said that he met her when he was visiting Australia in 2003. He has had to return to England on three occasions because his visitors visas had expired. He referred to the birth of their child Kit as the defining moment of his life. They were married after Ms Kaese fell pregnant during Mr Mathers’ first visit to Australia.
12. In a written statement dated 9 January 2007 (Exhibit A2) Ms Kaese stated that she has two children, Denzel, aged 11 years (who lives at present in Austria with his father) and Kit, now aged 2½ years. Ms Kaese was born in Rabaul in PNG. She came to Australia with her parents and two older and one younger brother in 1985, when Ms Kaese was a teenager. She is now an Australian citizen, as is the rest of her immediate family. Denzel and Kit are both Australian citizens. Ms Kaese confirmed the circumstances of meeting Mr Mathers in 2003 and marriage in November 2004. She was aware of Mr Mathers’ criminal past because he disclosed it to her from the start. He told her also of his unhappy family life and she said that he expressed shame about the trouble he got into with the law. She said that she decided to continue their relationship, accepting Mr Mathers’ explanations of his past and his regret about the path he had taken in the past.
13. Ms Kaese said that in July 2003, soon after they had first moved into a townhouse together, she found that she was pregnant. By that time her son Denzel, then still living with her in Australia, had met Mr Mathers and she observed that they were interacting well together. Denzel has spent the two months of his Austrian school holidays with Mr Mathers and Ms Kaese in 2005 and 2006. Her former husband has agreed that Denzel can return to live in Australia with Mr Mathers and Ms Kaese in July 2007 at the end of the Austrian school year. Ms Kaese said that she and her ex-husband have a positive relationship, and their agreement about Denzel living in Australia is to ensure that Denzel has the benefits of contact with the extended family who are here – the grandmother, uncles, aunts and cousins in what is a close knit family.
14. Ms Kaese referred to suffering post-natal depression after Kit’s birth and having ongoing counselling with the support of her employer. She said that the relationship with Mr Mathers has been though periods of struggle, due in part to the stress and uncertainty about Mr Mathers’ residence status. I note in that regard that on 12 May 2006, Ms Kaese requested to withdraw her sponsorship of Mr Mathers as they had separated and she had taken out a domestic violence order against him. Mr Trevor Kaese also withdrew his support for Mr Mathers’ application and has not requested its reinstatement. However on 31 May 2006 Ms Kaese asked for her sponsorship to be reinstated as they were working to resolve things. Ms Kaese said in her oral evidence that withdrawing the support was a vindictive action of hers after a fight between them and that they have worked through the issues with the support of counselling.
15. Ms Tanya Cook, Director of ABC Developmental Learning Centre at Capalaba (Exhibit A1), said that Kit attends the centre 5 days per week and that Mr Mathers drops Kit off and collects him at the end of the day. She said that there is a strong bond between Mr Mathers and Kit, more observable during a period a difficulty in the relationship between Mr Mathers and Ms Kaese.
16. Ms Kaese said that for a long time Mr Mathers was the primary carer for Kit, until Mr Mathers obtained a working visa in October 2005. I accept that this was the case, and it was confirmed by other sources including their general practitioner Dr Alyson Plint who said that Mr Mathers brought Kit for appointments and for childhood immunisations.
17. Ms Kaese said that Kit misses his father and is more fretful with his father in detention and seeing him only twice a week. She said that it would be detrimental for Kit if Mr Mathers were required to return to England. In her statement Ms Kaese said that Mr Mathers’ past is not a reflection of the person who he now is and that he is regretful but determined to provide an example to his children by observing a positive and law abiding life. She said that both she and Mr Mathers are committed to raising a family in an environment devoid of drugs and alcohol.
18. In relation to what would happen if Mr Mathers was to return to England, Ms Kaese said that her extended family all live here in Australia and most live nearby to her mother in the Capalaba area. She said that she is part of a close knit and supportive family and she would not wish to be parted from her mother, who was widowed in September 2004. She said that her career would be affected – she has worked at Suncorp for 7 years as a data integrity officer in its Insurance section and her employment is secure and stable. She said also that she has a wide network of friends and community involvements that would be disturbed by having to relocate.
19. Ms Kaese said that in England she would have no family support and as Mr Mathers does not have any real contact with his family apart from his half-sister, there would be little prospect of support developing. Her children would lose contact with their grandmother, aunts, uncles and cousins. She noted also that Denzel’s well-being would be affected if he were to lose contact with her extended family, which is the very purpose for which he is currently returning to Australia. She said that here in Australia they have a home and good prospects but in England there would be uncertainty about gaining employment and about where and how they would live. Ms Kaese said that it is possible that Mr Mathers would once again be exposed to the bad influences that have led him to commit crime in the past.
20. Ms Kaese expressed her reluctance to move with Mr Mathers to England. Referring to her history of suffering depression, she said she fears that, unsupported by her family and facing an uncertain future in a new country, her condition might relapse. These fears were confirmed by Dr Plint who said the effects of relocation would be devastating for Ms Kaese, Mr Mathers and for Kit. Ms Kaese said that should Mr Mathers have to return to England, Kit would grow up with limited contact with his father and Denzel without the benefit of a step-father. She said that she and Kit are the first real family that Mr Mathers has had and that he would return to a life devoid of family support in England. She said that whatever Mr Mathers had done in the past he is now a good person, a loving husband and father, who deserves a second chance.
21. In a written statement dated 10 November 2006 (Exhibit A1) Mr B. Bartlett, who operates Eastgate Engineering and employed Mr Mathers until he was taken into detention in November 2006, said that he was impressed with Mr Mathers' keenness, good attitude and willingness to learn. As noted there is a job for Mr Mathers to return to.
22. In an undated statement (Exhibit A1) Mr D Awithu said that he was aware of marital problems between Mr Mathers and Ms Kaese and Mr Mathers lived with him for some 6 weeks until they reconciled. He said that even during the period of separation Ms Kaese and Kit would visit and it was observable that there was a loving commitment between husband and wife that would help them to overcome their difficulties. Mr Awithu said that Mr Mathers is trustworthy and is genuinely ashamed and regretful about his past mistakes. He said that Mr Mathers is a good father and loving husband who would lose the support that he has found in Australia if required to leave his family and return to England.
23. In a written statement dated 6 November 2006 (Exhibit A1) Mrs E Grice from Shropshire, England, stated that her son Simon and Mr Mathers had been school friends. She said that she had included Mr Mathers in their home life because his own did not seem to be a happy one. She expressed her concerns that Mr Mathers has little family support in England and commented on his efforts to overcome his past negative behaviour.
24. Mr Simon Grice said in an undated statement (Exhibit A1) that he and Mr Mathers have been friends since high school in England – since about 1984. Mr Grice stated that he knew Mr Mathers’ family life was not a loving one like his own. Mr Grice, who now lives in Australia, said that he believes Mr Mathers deeply regrets his criminal past and has turned his life around since living in Australia. He said that although he was aware that Mr Mathers’ and Ms Kaese’s relationship has had difficulties, he has observed Mr Mathers to be a changed person as a result of his relationship with Ms Kease, and he is a doting husband and father as well as a hard working member of the community. Other supporting statements were prepared by Mr G Salter who has known Mr Mathers for 2 years; Mr P Hardisty who has know him for 3 years; and Mrs J Piva who has known him for 1 year.
25. In a written psychological assessment dated 19 January 2007 (Exhibit A5) Mr Dorey, clinical and consultant psychologist, referred to Mr Mathers’ family background. Mr Dorey’s evidence was highly relevant given that he has had over 20 years working with offenders in NSW and QLD prisons. Mr Dorey stated that Mr Mathers’ criminal history is not automatically a predictor of likely further criminal behaviour. He said it was necessary to take into account the nature of the offences, and the environment in which they occurred. He noted that Mr Mathers has had no convictions in Australia and his new family commitments make it unlikely that he will re-offend. This has been a significant positive influence on Mr Mathers’ thinking, behaviour, and long term goals.
26. Mr Dorey said that the consequences of return a to England for Mr Mathers would be that the marriage would fail; there would be limited likelihood of a proper relationship developing between father and son; and, as Mr Mathers has been the primary carer for Kit, there would be adjustment difficulties for Kit.
CONSIDERATION OF THE ISSUES
27. Under s 501(2) of the Migration Act 1958 (the Act), the Minister may cancel a visa granted to a person if (a) the Minister reasonably suspects that the person does not pass the character test, and (b) the person does not satisfy the Minister that he or she 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 in s 501(6)(a)‑(d) is met. Section 501(6)(c) of the Act provides:
(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.
IS MR MATHERS A PERSON OF GOOD CHARACTER?
28. The matters which I took into account the evidence of Mr Mathers’ deprived background and the interruptions he experienced to what might be considered a normal and stable background by losing his father, firstly, and then being rejected by his mother, then losing the step-mother with whom he had clearly formed a close bond I also considered that evidence indicated that his pattern of criminal behaviour did not reveal continuing increasing levels of crime. Rather it is interspersed with periods where he bettered himself through education, and avoiding offending.
29. But in the end, his is a history that is lengthy, and in my view has such recency about it that it could not be said that there is unambiguous evidence of reform. Put simply, his criminal history spans the years from the age of twenty to the age of thirty-two, despite his having sufficient educational attainments and a pattern of employment that would, in a person of good character mean that there was no need to act in defiance of the law. It is clear from even casual perusal of his record that not all the crimes were equally serious. His range of offences were grouped in the police record as;
Fraud and kindred offences;
Theft and kindred offences;
Drug offences; and
Miscellaneous
There were a number of drink driving offences, which may fall into that last category. Some crimes were clearly less serious than others, as indicated by the penalties imposed. I took into account in Mr Mathers’ favour that none involved violence, nor were they abhorrent crimes in the nature of sexual assaults or crimes involving children. From the sentences imposed for the crimes involving drugs, the drug offences appear to be at the lower end of the scale. The 1998 drug offence resulted in a probation order and a community service order. The more recent drug offences in 2002, incurring nine months concurrent sentences were more significant. Again, I did not have the advantage of any sentencing remarks, but I do take into account that Mr Mathers was released to home curfew after serving only eight weeks.
30. On the issue of assessing the question of good character I was guided by the decision of Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, where the full court said in relation to good character in section 501,
The concept of good character in section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant’s character in the sense of [his] enduring moral qualities is so deficient as to show it is for the public good to [cancel his] visa.
31. This is reflected in Direction No. 21 issued by the Minister (considered in more detail below). That direction requires that I take into consideration the nature, severity and frequency of offences; how long ago they were committed and Mr Mathers’ record of conduct since they were committed. Some matters are favourable to Mr Mathers. He has no convictions since coming to Australia. However the pattern of offences occurred over such a lengthy period – well past any juvenile pattern. The repeated offences of dishonesty persuaded me to the conclusion that he is not of good character on account of past criminal conduct: s 501(6)(c)(i).
32. In so concluding, I took into account also, the evidence of his admitted false answers on incoming passenger records, stating that he had no criminal convictions. On Mr Mathers’ admission, this was done to ensure his entry to Australia would not be impeded as he needed to be with Ms Kaese and Kit, particularly on one occasion when Kit was unwell. This matter of false answers to immigration questions is relevant to considerations of past and general conduct (s501(6)(c)(ii)). On the other hand, Mr Mathers disclosed, sufficiently in my view, his criminal past in his application for a spouse visa. He later supplied the full record of his criminal background in the UK. However the instructions at paragraph 1.9(b) and (c) of Direction No. 21 require that I take account of false statements. I concluded that these failures to declare his past criminal record when it suited him not to, indicate a sufficient disregard for the requirement of honesty and led me to conclude that his past and present general conduct indicate that Mr Mathers is not of good character.
33. I concluded that Mr Mathers does not meet the test of good character.
GUIDANCE FROM THE MINISTERIAL DIRECTION & DISCRETION OF THE DECISION MAKER
34. 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. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under s 501 (Direction 21), which provides guidance to decision‑makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
35. Direction No. 21 provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
36. The three primary considerations in Direction No. 21 are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
37. The first primary consideration deals with protection of the Australian community from the actions of criminals, and with lessening the risk of crime and disorder to the Australian community. The Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
Seriousness and Nature of the Conduct
38. The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). Paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. The examples include 2.6(a) drug‑related crime.
39. The Tribunal notes that Mr Mathers has a criminal history during the period 1990 to 2002, including a range of offences of dishonesty and drug offences. A number of his offences are on the less serious end of the scale but others, including the drug charges, are more worrying and raise concerns under paragraph 2.6 of the Direction as being serious conduct against the community.
40. Under paragraph 2.7 of the Direction, I must also have due regard to the extent of the criminal record, including the number and nature of the offences; the time between offences; and the time that has elapsed since the most recent offence. Under paragraph 2.7(b), I must consider the repugnance of the crime.
41. Finally, under paragraph 2.8(a) of the Direction, I must take into account any mitigating factors. In this case there are a number and I rely on the assessment of Mr Dorey of these matters. I accept that Mr Mathers’ criminal history is explained by his disrupted upbringing and the lack of love and continuity of parenting that he experienced. Of course he has to take responsibility for his later choices and I considered after hearing the evidence of Mr Mathers and Ms Kaese, that he does.
Likelihood of Repetition of the Conduct, and Risk of Recidivism
42. The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
43. Mr Dorey’s report and evidence lends support to the conclusion that Mr Mathers has made positive steps towards rehabilitation. Mr Dorey commented during hearing that from his experience, a lot of offenders will be are full of words intent but something more than that is required. He said that intent people need to demonstrate changes of behaviour and goals. He said that the positive effects of changed environment and circumstances are the sort of practical changes that he looks for when assessing likelihood of recidivism. With respect to these matters in Mr Mathers’ case he said that the positive things were that Mr Mathers had in the past redirected himself through study as an attempt to change for the better.” Mr Dorey also emphasised Mr Mathers’ clear choice to return to Australia to care for Ms Kaese and their son when he could have walked away from the pregnancy and from responsibility by staying in England.
44. I accepted Mr Mathers’ evidence that he has turned his life around since coming to Australia. With his family history and aspects of instability in his early childhood, it is easy to understand the significance that he places on being a father and providing a stable and loving home. I was impressed with the frank manner in which Mr Mathers gave his evidence about the changes in his life, and I believe that he is remorseful and ashamed by his past. I accept Mr Mathers’ evidence that he no longer drinks and has been drug‑free since his last offences in 2002. He appears to have demonstrated a clearer insight into the effects of drug use and has a commitment to provide an example to his children.
General Deterrence
45. The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the cancellation of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). A number of Tribunal decisions refer to the difficulties of assessing issues of deterrence, and the dependence on the publicity given to any cancellation of a visa. It is unusual for wide publicity to be given in the media to the outcome of proceedings of this sort. I was mindful of this factor in exercising the discretion, but in the absence of evidence that there would in fact be a significant general deterrent effect, I attach little weight to this aspect.
46. Having had regard to all of the factors relevant to the first primary consideration, I consider that the evidence did not point to an exercise of discretion adverse to the applicant.
Second Primary Consideration – Expectations of the Australian Community
47. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 [at p7] when he made the following comments in relation to how community expectations should be assessed in deportation cases.
Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.
48. This second primary consideration seems to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
49. The Australian community expects that non‑citizens will obey Australian laws while in Australia. In that respect I note the lengthy period over which Mr Mathers offended. But I also note that he has not offended in Australia. I do not discount the failures to disclose on incoming passenger cards, but in the context of his disclosure of his criminal past in his application for the spouse visa and given his need and desire to be with his family in Australia, I believe that his actions on this account would be viewed more benignly by the Australian community.
50. I also concluded that many Australians who were fully aware of his circumstances and of his offending would expect a humane and compassionate approach to be taken, especially in view of the changes he has made to his life since being in a stable family environment with support of Ms Kaese’s extended family and their network of friends. In this regard I took into account the stark difference between the lack of family support that Mr Mathers had in the past in England and what his circumstances are now. His efforts to effect these changes and his acceptance of the responsibilities as a father and step-father would contribute, in my view, to satisfying the Australian community that Mr Mathers would, if given the opportunity to remain in Australia, become a responsible member of the wider community. This is supported by the references from Mr Bruce Bartlett his former employer; Ms T Cook the director of ABC Learning Centre and the assessment by Mr Dorey and Dr Alyson Plint.
51. Taking all the evidence into account I concluded that the Australian community would on balance favour the grant of the visa.
Third Primary Consideration – Best Interests of the Child
52. In respect of the third primary consideration, there is guidance from recent authorities that this needs to be a foremost consideration. This consideration applies as there are two children under the age of 18 years who will be affected by the decision of the Tribunal, being Kit who is almost three, and Mr Mathers’ step-son Denzel, who is likely to soon return to his mother’s care.
53. The best interests of the child as a primary consideration stems from Australia’s ratification of the United Nations Convention on the Rights of the Child, which provides in Article 3 that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The significance of Australia’s ratification of this has been considered in the high court case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, where it was held that the ratification of this convention creates a legitimate expectation that administrative decision makers will treat the best interests of the child as a primary consideration.
54. In considering the interests of Ms Kaese’s children, I am mindful of the decision of Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568 where it was held that the Tribunal had failed to treat the best interests of the child as a primary consideration. While the Tribunal in Wan had considered the effects on the children of a refusal to grant a visa, they did not consider what decision would actually be in the best interests of the children.
55. I will start then with considering what decision would actually be in the best interests of the children concerned. There was no dispute that a child’s interests are best served by regular contact with both parents. The respondent did not dispute that Kit’s best interests are to have regular contact with his father. In this instance the father has been the primary carer, because Ms Kaese has needed to return to work. So, here, an unusually close bond has been formed between the two, which has been disrupted by the period of detention, during which Kit has been distressed at the absence of his father.
56. Given Kit’s age and the financial resources available to his parents, there is no realistic prospect that Mr Mathers would be able to maintain satisfactory direct contact with Kit, or with Denzel, if he were required to return to England. Meaningful telephone or electronic contact with a young child would be difficult. Furthermore a return to England, would likely result in a disruption to the family unit, and would place additional emotional and financial pressures on Ms Kaese as a single parent. The Tribunal concludes that cancellation of the visa would effectively prevent Mr Mathers from playing a significant role in Kit’s life or in Denzel’s.
57. I accept the evidence of Mr Dorey that Kit is likely to suffer medium term adjustment problems into his teens at least. Mr Dorey commented that Kit’s adjustment might result in altered behaviour which would in turn place more pressure on Ms Kaese. Mr Dorey based these statements on his assessment and his own experiences as a professional psychologist.
other relevant considerations
58. In respect of the other relevant considerations, I note that those who have supplied references have commented favourably on Mr Mathers’ behaviour as a father and his commitment as a steady worker and trustworthy character. Ms Kease has provided a positive influence and a stable partner, despite the strains on the marriage arising from post natal depression and the death of her father in 2004, as well as the uncertainly over their future as a family.
59. Without any doubt, this family relationship would be disrupted if Mr Mathers was required to live in England. I have no doubt that Ms Kaese’s health, her stable employment here and her commitments in Australia, including to her now widowed mother, would prevent her from leaving Australia on a permanent basis. This would deprive Mr Mathers of his strongest support, especially as he has lost contact with his father and his mother and has few family connections. His remaining connections seem to be limited to regular phone contact with his half sister, and less directly contact with his step mother by his father’s second marriage. Mr Mathers severed his ties when he returned to England and sold up his possessions in 2004. Since knowing that he was to be a father he has taken full responsibility and shifted his life entirely to this country. I also take into account that Ms Kaese cannot move to England and honour her arrangement with her first husband to have Denzel return to Australia.
60. In weighing up all the circumstances of the primary considerations and then the secondary considerations, the Tribunal concludes, for the reasons given, that the discretion to grant Mr Mather’s visa should be exercised.
DECISION
61. For reasons given orally at the hearing, the Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the visa should not be refused on character grounds.
I certify that the preceding 61 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.
Signed: Michelle Brazier
AssociateDates of Hearing 24 January 2007 & 25 January 2007
Date of Decision 25 January 2007
Request for Written Reasons 29 January 2007
Date of Written Reasons 5 February 2007
Counsel for the Applicant Ms S Scott-MackenzieSolicitor for the Applicant Queensland Public Interest Law Clearing House Incorporated
Solicitor for the Respondent Mr J Lo, Clayton Utz
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