Mathers and Minister for Immigration and Multicultural Affairs - [2000] AATA 126

DECISION AND REASONS FOR DECISION [2000] AATA 126

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1230

GENERAL ADMINISTRATIVE DIVISION )

Re BRUCE ROBERT MATHERS
Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date23 February 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicants.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – Visa refusal – Section 501 of the Migration act 1958 – character test – discretion – Ministerial Direction No 17.

REASONS FOR DECISION

23 February 2000 Deputy President DP Breen, Presidential Member

The decision under review in this matter was made by a delegate of the Minister for Immigration and Multicultural Affairs on 1 December 1999. It was made under Section 501 of the Migration Act 1958 (Cth)(as amended). Section 501 is in the following terms:
"(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…..
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)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
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasion), where the total of those terms is 2 years or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
….."
This matter came on for hearing before me on 16 February 2000. The applicant was represented by his cousin, Ms A McQuinlan and the respondent by Ms B Quayle, Departmental Advocate.
In this case the determinative subsections are (6) and (7). The applicant for review is Mr Bruce Robert Mathers. He is the mature age son of the visa applicants, Mr Ronald Clifford Mathers and Mrs Shirley Patricia Mathers.
Mr Bruce Mathers has been a resident of Australia for some years now and has not seen his parents for something in the order of 6 years. He himself faces difficulty with the notion of visiting his parents in his country of birth, New Zealand, as he resides with a friend, Mr Eduard Cowell who is a quadriplegic and totally reliant on Mr Mathers Jnr for his daily succour and support. Mr Cowell's income is by way of disability support allowance. Mr Mathers Jnr's sole income is by way of carer's pension paid to him as an adjunct to his friend's disability pension.
Were Mr Mathers Jnr to travel overseas, Mr Cowell would require hospitalisation.
Mr and Mrs Mathers Snr applied for visitor's visas and as can be seen by the terms of the decision under review, their applications were refused. The reason for the rejection of the applications flows from the effect of subsection (6) and (7) of Section 501. Mr Mathers Snr has a conviction in New Zealand imposed by a jury after a trial on 25 September 1991 of attempted sexual violation. I shall deal with the circumstances of the offence in some small detail shortly.
I should record that Mr Mathers Snr has an earlier conviction in 1983 of attempted false pretence. That conviction does not feature in my determinations. Ms Quayle conceded that it should not do so.
So far as the attempted sexual violation offence is concerned, I shall confine my comments in these reasons to merely recording the comments of the Sentencing Judge, Mr Justice Jamieson of the High Court of New Zealand made upon imposing sentence on 25 September 1991.
"You were found guilty of attempted sexual violation. The circumstances were, as you know, that you knew this complainant, this girl of 16. She had worked for you and she was in effect a family friend. That is the way she saw herself, although in evidence you, and I think to a lesser degree your wife, tried to minimise that. On the day in question you were at home alone. For some reason you wanted milk, you telephoned the complainant who you knew was working at the supermarket and asked her if she would bring some milk home for you when she returned from work. She agreed to that. She arrived at your house, gave you the milk, you invited her inside, offered her a cup of tea, and, after having a cup of tea with her, or after she had a cup of tea, you then started to touch her in an indecent way. She told you she did not want that to continue. She backed off into the kitchen. You followed her and in a sense imprisoned her between yourself and the kitchen bench, and there you attempted to insert your finger into her vagina, up under her clothing. You offered to show her 'tricks', and you invited her into the bedroom. You were not successful because she had all along made it clear she did not want anything of that to happen. She persisted in that, and she made it impossible for you to get your finger into her vagina, by crossing her legs. You thereupon desisted and she left.
Now that sort of conduct in a man of your age with a girl of her age, a family friend and someone who regards you and your wife in the nature of second parents, is quite reprehensible and nothing can condone it. To make matters worse, you still deny your guilt and therefore show no remorse. As a result of that denial, of course, you made this girl give evidence, as was your right, but it follows from that that you cannot get any credit for having saved her the need to have to talk of these sorts of embarrassing incidents in front of strangers.
I think there is room for the suggestion that there was a degree of premeditation, but I do not propose to take that into account in sentencing you. It is somewhat equivocal.
You persisted to a degree but in your favour you did not persist for long. There is some suggestion that this girl received some bruises, but that is, in my view, not entirely conclusively established, and it seems to me, on what she told the jury, that it is rather unlikely that she suffered any injuries at your hands, and that is a factor to be taken in your favour.
The first question is whether or not this offence requires me to send you to gaol. Mr Bungay has urged on me that it does not because it falls at the lower end of the scale of sexual violations and is virtually on the threshold of an indecent assault. I can accept that it is at the lower end of the scale, but, in my view, it went further than an indecent assault, because on the jury's findings your intention was to do more than simply touch her.
Mr Bungay then urged on me that your personal circumstances were such as to put this into a special category where I could deal with you short of imprisonment, and he referred to your age, your previous good record, your stable marriage, your good work record, and the support you have within the community, and finally he adverted to your health problem. I accept that those are all factors in your favour, but they do not diminish the fact that you took advantage of this girl on this occasion when you knew you should not have done and in so doing you committed this relatively serious criminal offence. It is my view that the circumstances are not sufficiently special, either as to you or as to the offence, to justify my dealing with you short of the way in which Parliament has indicated you should be dealt with. It is accordingly my view that a sentence of imprisonment must be imposed. I am satisfied that the prison authorities can attend to your health requirements.
The next question is how long. As I have said, it was not a prolonged assault. It was at the lower end of the scale. You are convicted of an attempt to commit sexual violation. You are entitled to credit for your previous good record, unblemished life, and I take those matters into account.
It is my view, having regard to all those factors, that the appropriate penalty is one of 18 months' imprisonment, and you are sentenced accordingly."
The conviction of 18 months imprisonment mandates that Mr Mathers Snr has a substantial criminal record and it is because of this that he fails the character test under subsection 501(6)(a) of the Act. Both parties concede this point.
Therefore, the Tribunal must consider whether to exercise the discretion in favour of the visa applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501, applies to the exercise of this discretion.
There are three primary considerations under this direction – protection of the Australian community, expectations of the Australian community and the best interests of any children involved. The latter consideration does not apply in this case.
Considering, firstly, the protection of the Australian community, the crime which the visa applicant was convicted of, is a serious crime. It was a sexual crime against a girl and the 18 months sentence imposed attests to its seriousness. There is, however, no risk of recidivism in this case, as was acknowledged by Ms Quayle for the respondent. Further, although general deterrence may be a significant consideration in cases where the crimes are notorious or involve co-offenders or wide-scale criminal operations, in cases such as this, it has little weight.
The expectations of the Australian community are that a person visiting Australia will obey Australian laws. Where there is a risk that this trust will be breached or the crime the person is convicted of is so abhorrent, it may be appropriate to refuse the visa. In this case, the visa applicant has, but for this incident, had a clean record for 61 years. He has supplied numerous character references which demonstrate that he is clearly not a risk to his community in New Zealand. He has served his time for that crime and it is evident that he is of no risk to the Australian community. Therefore, the expectations of the Australian community would not preclude Mr Mathers Snr from obtaining a visitor's visa.
There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration. The pertinent secondary considerations are as follows:

(a)the extent to disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)family composition of the non-citizen's family, both in Australia and overseas;
(d)evidence of rehabilitation and recent good conduct;
(e)whether the application is for a temporary visa or a permanent visa; and
(f)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.

The applicant in these proceedings, Mr Mathers Jnr, is a lawful resident of Australia and the visa applicant's only son. As has been stated already, it would involve great difficulty for him to visit New Zealand given Mr Cowell's dependence on him and the financial constraints he faces. The prospect of not being able to see his parents was greatly distressing to Mr Mathers. The visa applicants no longer have any family in New Zealand; all their relatives reside in Australia. As stated above, Mr Mathers Snr has had no recent charges against him.
Mr Mathers Snr is experiencing deteriorating health. He is now partially legally blind and it is estimated he will loose his sight completely within 12 months. He also suffers from kidney stones and a hernia. He is dependent upon his wife and she cares for him 24 hours a day. Mr and Mrs Mathers Snr are applying for a temporary visa and only intend to stay for a week to ten days. The sole purpose of their visit is to see their son and other family before Mr Mathers Snr looses his eyesight completely. These are significant compassionate grounds for granting this visa.
The primary considerations in this case are fairly balanced. However, six secondary considerations favour the granting of the visas. As such it is the Tribunal's view that this application should succeed.
The Tribunal sets aside the decision under review and in substitution therefore determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicants.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  16.2.00
Date of Decision  23.2.00
Counsel for the Applicant
Representative for Applicant   Ms A McQuinlan
Counsel for the Respondent    Mr B Quayle, Departmental Advocate
Solicitor for the Respondent