Molyneux and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3315
•27 August 2024
Molyneux and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3315 (27 August 2024)
Division:GENERAL DIVISION
File Number(s): 2024/3386
Re:Christy Molyneux
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 August 2024
Written reasons: 9 September 2024
Place:Canberra
The 23 May 2024 decision to refuse to grant Ms Shelley McGuiness’ application for a Visitor (Class FA) visa is set aside and remitted to the Minister for reconsideration with the direction the visa is not to be refused on character grounds under s 501(1) of the Migration Act 1958.
…[SGD]…………………………………………………
Mr S. Webb, MemberCatchwords
MIGRATION – visitor visa – discretion to refuse to grant visa – character test – risk visa applicant would engage in criminal conduct in Australia – Ministerial Direction No. 110 – primary and other relevant considerations – protection of Australian community – seriousness of criminal conduct – custodial sentence – singular offence – vulnerability – commission conditioned by entrapment – paucity of probative material – dishonesty – failure to disclose criminal conviction – punishment – remorse and rehabilitation – passage of time – low risk – family violence – strength, nature and duration of ties to Australia – adverse impact on Australian citizens – best interests of minor children not served by visa refusal – expectations of the Australian community – balance of considerations – decision set aside and remitted
Legislation
Migration Act 1958 (Cth), ss 101, 102, 104, 105, 499, 499(1), 500, 500(6)-(6L), 501, 501(1), 501(6), 501(6)(a), 501(7)(c)
Migration Regulations 1994, ss 600.213, 4020(1), 4020(2)
Crimes Act 1900 (NSW), s 26Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28
Markaj v Minister for Immigration and Border protection [2020] FCA 1511
FYBR v Minister for Home Affairs [2019] FCAFC 185Secondary Materials
Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
REASONS FOR DECISION
Mr S. Webb, Member
9 September 2024
At the hearing of this application on 27 August 2024, I gave a decision orally and undertook to provide written reasons within 14 days. The written reasons for the decision follow.
On 30 May 2024 Christy Molyneux, an Australian citizen, (the Applicant) applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Delegate) to refuse to grant Mrs Shelley McGuinness, a citizen of the United Kingdom, (the Visa Applicant) a Visitor (Class FA) visa (the Visa). [1] Ms Molyneux is Ms McGuinness’ daughter. The refusal decision was made on 23 May 2024 under s 501(1) of the Migration Act 1958 (the Act) (the cancellation decision).[2]
[1] Exhibit 1, G2, folio 7.
[2] Exhibit 1, G3.
I note in passing the legislative procedures set out in s 500(6) to (6L) of the Act are not applicable as Ms McGuinness resides in the United Kingdom and she is not in the ‘migration zone.’
Facts
The following uncontroversial facts are established by the documentary and oral evidence before the Tribunal.
The Visa Applicant is a citizen of the United Kingdom. She is 65 years old.[3]
[3] Exhibit 1, G3, folio 24.
In June 1980, the Visa Applicant married Jon Molyneux. There were four children of this marriage.
In January 2001, the marriage broke down when Mr Molyneux departed and took up residence with a girlfriend. Divorce proceedings ensued. These were protracted and acrimonious, and they were not finalised until July 2002.
In or about December 2001, the Visa Applicant commenced cohabiting with Paul McGuinness.
On 12 February 2002, the Visa Applicant committed a ‘soliciting to murder’ offence, for which she was subsequently charged and released on bail. Mr Molyneux was the intended victim of the offence.
On 21 October 2002, the Visa Applicant was convicted of the ‘soliciting to murder’ offence. She was sentenced to 5 years imprisonment. On appeal the sentence was upheld.
The Visa Applicant’s children, then between the ages of 3 and 17, resided with Mr McGuinness during the period of the Visa Applicant’s imprisonment.[4]
[4] Exhibit 2, folio 8.
On 13 February 2003,[5] the Visa Applicant was transferred to an open prison from which she was permitted to engage in activities in the community.
[5] Exhibit 1, G6, folio 140.
On 14 March 2005, the Visa Applicant was released on Final Parole.[6]
[6] Exhibit 1, G6, folio 97.
In June 2005, the Visa Applicant married Mr McGuinness.[7]
[7] Exhibit 1, G16, folio 245.
In December 2008 the Applicant gave birth to a son, the Visa Applicant’s first grandson.[8] The father is an Australian citizen and the boy was granted Australian citizenship by descent. The family moved to Australia in 2011. In 2012, the Applicant separated from the child’s father.[9] In 2014, the Applicant was granted Australian citizenship.
[8] Exhibit 1, G14, folio 216.
[9] Exhibit 1, G9, folio 165.
On 1 March 2012, the Visa Applicant travelled to Australia on a Visitor visa and departed on 22 March 2012.[10]
[10] Exhibit 1, FSG1.
On 7 January 2014, the Visa Applicant again travelled to Australia on a Visitor visa and departed on 5 February 2014.[11]
[11] Ibid.
On 13 October 2014, the Visa Applicant lodged an application for a Visitor visa.[12]
On 14 January 2015, the Visa Applicant again travelled to Australia on a Visitor visa and departed on 15 February 2015.
On 1 December 2015, the Visa Applicant lodged an application for an e-Visitor visa.[13] On 3 December 2015, the Minister’s Department sought additional information in support of the application.[14] On 9 December 2015, the Visa Applicant provided additional information, including a National Police Chiefs’ Council Police Certificate.[15]
[13] Exhibit 1, FSG2, folios 4-7; folio 9 refers.
[14] Exhibit 1, FSG3, folio 12.
[15] Exhibit 1, FSG4.
On 14 December 2015, an officer of the Minister’s Department invited the Visa Applicant to comment on adverse information received.[16] On 15 December 2015, the Visa Applicant lodged a form 1446, withdrawing her visa application.[17]
[16] Exhibit 1, FSG5.
[17] Exhibit 1, FSG6.
On 23 December 2015, the Visa Applicant lodged an application for a Visitor Short Stay (Class FA) visa[18] with a letter disclosing falsehoods in earlier visa applications.[19]
[18] Exhibit 1, FSG7.
[19] Exhibit 1, FSG8.
On 7 January 2016, a Departmental officer invited the Visa Applicant to comment on adverse information.[20] On 19 January 2016 the Visa Applicant provided a letter to the Department in reply.[21]
[20] Exhibit 1, FSG9.
[21] Exhibit 1, G8, folios 146-148.
On 5 February 2016, the Visa Applicant’s Visitor visa application was refused.[22] Under s 600.213 of the Migration Regulations 1994 the Visa Applicant was required to satisfy public interest criteria, including those set out in s 4020(1) and (2) in Schedule 4:
[22] Exhibit 1, G15.
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 – reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
As any further visa application by the Visa Applicant would be required to meet these criteria, the Visa Applicant was effectively excluded from obtaining a further visitor visa for three years, until 5 February 2019.
On 20 December 2018, in Australia, the Applicant married Martin Randall, a citizen of the United Kingdom. In 2022, Mr Randall was granted Australian citizenship.
On 13 November 2019, the Visa Applicant lodged an application for a Visitor (Class FA) visa.[23] In the visa application, the Visa Applicant stated, ‘I would like to spend around six weeks in Australia in order to support my daughter.’[24]
[23] Exhibit 1, G14, folios 208-222.
[24] Exhibit 1, G14, folio 208.
On 25 May 2020, an officer in the Visa Applicant Character Consideration Unit (VACCU) of the Minister’s Department sent the Visa Applicant a notice regarding possible visa refusal under s 501(1) of the Act, inviting her to comment.[25] The Visa Applicant’s response to this notice on 27 May 2020 has not been given to the Tribunal.[26]
[25] Exhibit 1, SG1.
[26] Exhibit 2, folio 3.
A complete documentary record of communications between the Visa Applicant and the VACCU in the Minister’s Department has not been given to the Tribunal.
On 28 May 2021 the Department sent a letter to the Visa Applicant, which has not been provided to the Tribunal. On 31 May 2021, the Visa Applicant responded to the letter and provided an ‘update as to my circumstances’, stating:
Once the Covid situation has improved and there is freer movement between the UK and Australia my intention is still to visit Australia when possible, to spend time with my daughter and grandson.[27]
[27] Exhibit 1, G8, folios 153-154.
It is probable the Visa Applicant provided further information to the VACCU on 1 June 2021 and 25 March 2022. These documents have not been given to the Tribunal.
On 26 May 2022, the Visa Applicant wrote to the VACCU and stated ‘the [Visa Applicant’s] daughter is due to give birth in less than five months after 17 rounds of IVF and a diagnosis of Post-Traumatic Stress Disorder’ and asked for the visitor visa application to be processed with some priority.[28]
[28] Exhibit 2, folio 3.
On 1 February 2023, the Visa Applicant provided further updated information to the VACCU, including that:
(a)her husband, Mr McGuinness ‘has been diagnosed with incurable indolent lymphoma[29] … and they are very hopeful to be able to travel to Australia for a visit while his health permits’;[30] and
(b)the Applicant had given birth to a second child, the Visa Applicant’s second grandchild.[31]
[29] Exhibit 1, G16, folios 265-267 refers.
[30] Exhibit 1, SG2, folio 78.
[31] Exhibit 1, SG2, folio 78.
On 22 February 2024, a Departmental officer in the VACCU issued a Notice of Intention to Consider Refusal of the Visa Applicant’s visitor visa application. The Notice was said to supersede the Notice previously issued on 25 May 2020 and invited the Visa Applicant to comment.[32] No reply to this Notice by the Visa Applicant has been given to the Tribunal.
[32] Exhibit 1, SG3, folios 86-92.
On 13 May 2024, a Departmental officer in the VACCU issued the Visa Applicant a further Notice of Intention to Consider Refusal of her visa application and invited the Visa Applicant to comment.[33] On 14 May 2024, the Visa Applicant provided a statement in reply.[34]
[33] Exhibit 1, SG4, folios 108-112.
[34] Exhibit 1, G8, folio 155.
On 23 May 2024, a delegate of the Minister decided to refuse to grant the Visa Applicant’s visitor visa as she failed to satisfy the delegate she passed the character test and the delegate decided to exercise the discretion conferred by s 501(1) of the Act.[35]
[35] Exhibit 1, G2, folios 22-23; G3.
On 30 May 2024, the Visa Applicant applied to the Tribunal for review of the cancellation decision.[36]
[36] Exhibit 1, G2.
Pausing at this point, I note the Visa Applicant’s visitor visa application was lodged on 13 November 2019 and it was not decided by the Minister’s delegate until 23 May 2024. Even making allowances for delays in the context of the Covid-19 pandemic and related travel restrictions, a period of four years and six months to process a short stay visitor visa application appears to be excessive. This is especially so where the Visa Applicant had informed the Minister’s Department of serious health considerations in respect of her husband and her daughter.
The Minister’s legal representative informed me this processing time was not the result of any policy within the VACCU, although priority was given to cases involving character considerations in respect of non-citizens held in detention.
I accept the processing delay in this case was not the result of a Departmental policy which is relevant to matters to be decided by the Tribunal in these proceedings or should be considered for present purposes. It appears priority is given to cases where the non-citizen is in detention. However reasonable the foundation of this policy might be, the explanation given in this case turns on lack of Departmental resources. If the submission is correct and the VACCU does not have sufficient resources to process short stay visitor visa applications in a reasonable time, it is a matter for the Minister and the Secretary to address, not this Tribunal.
Issues
The issues for decision in this review are:
(a)whether the Visa Applicant satisfies the Tribunal she passes the character test set out in s 501(6) of the Act; and, if not
(b)whether the discretion to refuse the application for grant of the Visa should be exercised.
When deciding whether to exercise the discretion to refuse to grant a visa under
s 501(1) of the Act, the Tribunal must comply with directions issued by the Minister under s 499(1) of the Act, presently Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).
The Direction sets out Objectives in paragraph 5.1. Applicable principles are set out in paragraph 5.2:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance:
6Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
…
9Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interest
Character test
With regard to the character test set out in s 501(6) of the Act and the alternative grounds set out therein, the sole ground raised in the delegate’s decision and in these proceedings is set out in s 501(6)(a):
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
…
7For the purposes of the character test, a person has a substantial criminal record if:
(a) …
…; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant concedes the Visa Applicant does not pass the character test on this ground.
I am satisfied the concession is well-made. This is so, even though the Visa Applicant has not been sentenced to a term of imprisonment of 12 months or more in Australia. The Visa Applicant was sentenced to a five year term of imprisonment in the United Kingdom. Following Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson,[37] s 501(7)(c) of the Act applies to sentences of imprisonment of 12 months or more imposed by courts outside Australia.
[37] [2022] FCAFC 28 at [39]-[40] and [45].
That being so, the discretion to refuse to grant the Visa for which the Visa Applicant applied is enlivened under s 501(1) of the Act.
Discretion to refuse
The Applicant asserts, in the circumstances of the Visa Applicant’s case, the Tribunal should not exercise the discretion to refuse to grant the Visa. In the Applicant’s submission, the primary considerations in respect of the strength, nature and duration of the Visa Applicant’s ties to Australia and the best interests of her two (soon to be three) grandchildren in Australia outweigh primary considerations in respect of the protection of the Australian community, family violence and the expectations of the Australian community.
The Minister broadly agrees with the Applicant’s identification of relevant primary considerations, including that other considerations in s 9 of the Direction are not relevant and applicable in this case. In the Minister’s submission, however, the balance of relevant considerations weighs for exercise of the discretion to refuse to grant the Visa. The Minister asserts the Visa Applicant’s conduct is very serious, involving solicitation to murder her ex-husband, an act of family violence of the most serious kind. The Minister argues the risk to the Australian community should she engage in further conduct of this kind weighs heavily in favour of exercising the discretion. The argument runs on two legs: the harm to individuals and the Australian community is not mitigated by the Visa Applicant’s professed remorse and alleged rehabilitation; and the Australian community’s tolerance for any risk of future harm is in inverse proportion to the seriousness of the potential harm. The Minister asserts the nature of the character concerns about the Visa Applicant and the offences she committed is such that the Australian community would expect she should not be granted a visa. The Minister submits these considerations weigh in favour of exercising the discretion to refuse to grant the Visa and they outweigh considerations in respect of the strength, nature, and duration of the Visa Applicant’s ties to Australia, including any adverse impact on her daughter and two (soon to be three) grandchildren and the best interests of those minor children.
Protection of the Australian community
When considering the protection of the Australian community, decision makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and it is to that end the Government is committed to protect the community from harm resulting from criminal conduct or other serious conduct by non-citizens. These matters should be kept squarely in mind. Furthermore, paragraph 8.1(1) of
the Direction states that:In this respect decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
It is also necessary to consider the
nature and seriousness of the Visa Applicant’s conduct to date under s 8.1.1 of the Direction and the risk to the Australian community under
s 8.1.2 should she commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The following matters are set out in s 8.1.1:
1In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
To date, in 2002, the Visa Applicant was convicted of one ‘soliciting to murder’ criminal offence in the United Kingdom.[38] This is an incitement to murder offence which is equivalent to a conspiracy to murder offence in Australia, under s 26 of the Crimes Act 1900 (NSW), for example.
[38] Exhibit 1, G13, folio 203.
In the materials before the Tribunal, there are scant official records of the circumstances, prosecution, sentencing of the Visa Applicant, and her term of imprisonment and subsequent parole. I understand related Court records were sought but these were not forthcoming.[39] This notwithstanding, some account can be gleaned from the evidence given by the Visa Applicant and Mr McGuinness, as well as from a letter provided by Judge Jeremy Donne RD KC who had direct knowledge of the proceedings in his then role as Junior Counsel to the Visa Applicant.[40] The Judge described the offence in the following terms:
[The Visa Applicant] was married to a very successful businessman who had decided to live his life to his own advantage, spending freely on cars, helicopter flying lessons and his mistresses, whilst spending little in terms of both time and money on his family. Unsurprisingly the marriage broke down and [the Visa Applicant] sought a fair financial settlement for herself and her children.
The divorce became protracted, due mainly to Mr Molyneux’s failure to cooperate with an assessment of his true financial worth. [The Visa Applicant] suffered increasing stress and became convinced her husband had undisclosed assets. Her solicitor instructed a private enquiry agent to explore this; he supported the suspicion but was unable to produce clear evidence.
According to [the Visa Applicant], in an emotional outburst one day she told the enquiry agent she would be better off if her husband was dead. It is at this point the offence commenced; the enquiry agent suggested that if she was serious he knew people who could arrange that to happen. Initially reluctant, she eventually agreed to talk to someone. She then became the subject of a newspaper “sting”; a journalist posing as an intermediary contacted her and at a meeting recorded her stating that she would pay a fee for her husband’s murder. The newspaper took the recording to the police who introduced an under-cover officer to whom [the Visa Applicant] confirmed her wish. Although she later backed out, the offence was complete.
There was a discussion with leading counsel about the possibility of defending the case because of the use of an “agent provocateur”. The newspaper reporter’s covert video recording showed a very nervous, stressed, chain-smoking woman being persuaded to accept the suggested remedy to her problem. The prosecution decided not to rely on this exchange as the basis of the offence; instead they relied on the conversation with the undercover officer.
In the event, [the Visa Applicant] decided that she would plead guilty to the charge. She was sentenced to five years imprisonment, a sentence upheld in the Court of Appeal because it was, in truth, entirely consistent with current sentencing practice.
[39] Ibid, G12, folios 189-195.
[40] Exhibit 2, folios 157-158.
Of the Visa Applicant, Judge Donne wrote:
I can truly say, after nearly 40 years at the Bar and on the Bench, that [the Visa Applicant] is not a criminally inclined person. She looked back on her conduct in those meetings with horror and revulsion, knowing that she had done wrong but at a loss to fully understand how she got into that position. She was undoubtedly a loving mother and her children were at the forefront of her mind, which made her conduct all the more inexplicable. When she took the decision to plead guilty she knew that a custodial sentence was inevitable; she showed considerable courage but also accepted that she deserved her punishment. I would be astonished if anyone was to suggest that she has not been completely rehabilitated.[41]
[41] Exhibit 2, folio 2.
The Minister is correct to assert the Visa Applicant’s offence is one which must be considered to be very serious under s 8.1.1(1)(a), involving family violence. Albeit the crime was somewhat inchoate, and it did not involve actual violence or physical harm to anyone, the offence of ‘soliciting to murder’ is one of incitement to violence of a most serious kind. Noting the exception in s 8.1.1(1)(c), this conclusion is reinforced by the sentence given to the Visa Applicant: a five year term of imprisonment.
The impact on the intended victim of the offence, the Visa Applicant’s previous husband, Mr Molyneux, is hard to assess. There is no direct evidence from Mr Molyneux. The only evidence on this point is Mr McGuinness’ testimony that Mr Molyneux made an application for leniency when the matter came for sentencing. Mr McGuinness was in attendance at the Visa Applicant’s trial and sentencing hearing. There has been no attack on Mr McGuinness’ credit or the reliability of his evidence, which I have no difficulty in accepting.
The Visa Applicant has no other criminal record. She engaged in a singular offence, without repetition, 22 years ago.
With regard to s 8.1.1(1)(g), the Visa Applicant provided false information to the Minister’s Department in successive Visitor visa applications in 2012, 2014 and 2015, and she made false declarations on Incoming Passenger cards in 2012, 2014 and 2015. Additionally, she obtained and provided to the Minister’s Department a Police Certificate for Immigration Purposes provided by the Criminal Records Office in the United Kingdom.[42] The Police Certificate was in the name of Shelley McGuinness. The Visa Applicant explained that she obtained a certificate in this name rather than her previous married name, Molyneux, in order to protect her previous criminal conviction from disclosure. This is serious conduct which displays a deliberate intention to deceive the Minister’s Department.
[42] Exhibit 1, FSG4, p 15.
I accept the Visa Applicant’s explanation for this conduct was frank and forthright. She explained she provided false information in her 2012 visa application as she anticipated her application for a Visitor visa would be refused or delayed if she disclosed her criminal record. Her primary focus was on travelling to Australia quickly in order to provide support to the Applicant and her grandchild (then three years old) during a difficult period, following the breakdown of the Applicant’s marriage in Australia. So much is confirmed by the Applicant.[43]
[43] Exhibit 1, G9, p 165.
The Visa Applicant openly acknowledged what she did was wrong, and she repeatedly expressed remorse for an act she described in her oral evidence as stupid. She explained she was frightened disclosure was likely to prevent her from providing assistance to her daughter during a critical time of need, which she considered was of paramount importance.
With regard to her subsequent provision of false information in visa applications in 2014 and 2015 (and on Incoming Passenger cards she was required to complete), the Visa Applicant explained she was trapped by her previous dishonesty – disclosure would reveal not just her criminal record but also her previous non-disclosure of it, and she expected this would mean she would be denied a visa permitting her to visit her daughter and grandchild in Australia. Once again, she explained that she placed a high value on her relationship with her daughter, with whom she has a strong, close bond, and her grandchild.
The Visa Applicant’s second daughter, Briony Molyneux, a barrister, provided the following unchallenged explanation of the Visa Applicant’s decision to not disclose her criminal conviction to the Minister’s Department:
… that decision came out of an utter fear that if she declared her offence, she would be turned away even before she reached the airline gate. She was worried that her offence could only ever be viewed as so serious that no one would even grant her the time to put forward her position, or the context of the situation. It was not a decision undertaken with any nefarious intent whatsoever, it was simply borne out of fear of losing her ability to see some of our closest family.[44]
[44] Exhibit 1, G9, p 161.
Aside from the obvious evidentiary difficulties with this explanation, it confirms the decisions the Visa Applicant made to provide false information were deliberate acts of deception. At hearing, the Visa Applicant conceded this to be so.
On the available materials, the Visa Applicant has not engaged in other serious conduct.
Two threads link the Visa Applicant’s serious and very serious conduct. The Visa Applicant has demonstrated a tendency to disregard the law when dealing with a family crisis and engage in deceitful or covert criminal conduct in order to obtain a benefit. Additionally, she has a record of making bad decisions, reactively, in times of stress without consulting trusted advisers about the possible consequences of such decisions. These are threads which lead to concerns about the Visa Applicant’s character.
There is no dispute, correctly in my view, the seriousness of the Visa Applicant’s conduct weighs in favour of refusing the Visa application. The weight is decreased by the passage of more than 20 years since the very serious conduct was engaged in and the Visa Applicant’s evident remorse and rehabilitation. The weight is increased by the Visa Applicant’s deceitful conduct when dealing with the Minister’s Department and Australian incoming passenger requirements (which would likely have continued had the deceit not been discovered), but this is ameliorated somewhat by her clear insight and remorse, and by her subsequent frank disclosures. Overall, this consideration tips the scale against grant of the Visa.
Nevertheless, this consideration must be viewed in the context of the Government’s avowed priority to protect the safety of the Australian community and the commitment to protect the Australian community from harm. Protections of these kinds require consideration of the risks the Visa Applicant poses to the Australian community or to Australians.
Risk to the Australian community
In considering the need to protect the Australian community from harm, regard should be had to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Nevertheless, some conduct and the potential harm repetition would cause is so serious that any risk it may be repeated may be unacceptable.
When assessing the risk the Visa Applicant poses to the Australian community, regard is also to be had, cumulatively, to the matters set out in 8.1.2:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
It can be accepted that, if the Visa Applicant engaged in a further ‘soliciting to murder’ or similar conspiracy offence, the potential harm to the intended victim would be substantial should the plot be executed. Should the Visa Applicant engage in further deceitful conduct in her dealings with the Minister’s Department, the harm which would be caused is to the integrity of Australia’s immigration system and the grant of visas to non-citizens.
The clear focus of the inquiry is the risk the Visa Applicant might cause harm to individuals or the Australian community should the Visa application be granted.
The answer to the question, and the risk or likelihood of the Visa Applicant re-offending or engaging in further serious conduct, cannot be considered in a vacuum, without relevant evidence or on purely speculative and hypothetical grounds.
There is no direct evidence the Visa Applicant poses a real risk of reoffending in Australia should she be granted a visitor visa to visit the members of her family residing here, who are Australian citizens. The proposition the Visa Applicant poses a risk to the Australian community is raised by inference from her past behaviour alone. There is no independent, medical, or psychological evidence she poses any risk at all. The weight of the available materials and the witness evidence is that the Visa Applicant’s past serious and very serious conduct is out of character, and any risk of her engaging in further similar conduct is mitigated by the Visa Applicant’s remorse and rehabilitation.
The Applicant asserts the risk is also mitigated by the particular circumstances of the Visa Applicant’s singular criminal offence. She alleges the Visa Applicant was subject to a newspaper sting at a time when she was experiencing high stress and a probable mental breakdown, and the prospect of this arising again is so remote it is negligible.
There is no independent evidence the Visa Applicant was experiencing a ‘mental breakdown’ when she committed the ‘soliciting to murder’ offence. Nevertheless, it can readily be accepted she likely experienced high levels of stress in the particular circumstances at that time. The Visa Applicant’s eldest son, Ben Molyneux, is a doctor in general practice and Chair of the British Medical Association Sessional General Practitioners Committee. On 1 November 2019, Dr Molyneux stated:
It was very apparent to me at the time that my mother was going through what I called at the time a ‘nervous breakdown’ and what I would now described as an acute stress reaction. She was unable to cope with 4 children, significant debt and the emotional strain of the separation and her behaviour became erratic.
… My mother was in an acutely vulnerable state and was manipulated into a course of action she would not have otherwise chosen.
What she needed at the time was support, and what she received was entrapment for financial gain by a journalist who has since left the country.[45]
[45] Exhibit 1, G9, p 162.
The manipulation and entrapment Dr Molyneux refers to aligns with Judge Donne’s account that the Visa Applicant was the victim of a newspaper sting, involving a newspaper reporter acting covertly as an intermediary, and she was ‘persuaded to accept the suggested remedy to her problem.’[46] This does not diminish the crime the Visa Applicant committed but I accept the particularity of the circumstances and the unlikelihood of similar circumstances arising again mitigate any risk the Visa Applicant might engage in further similar conduct. Dr Molyneux observed:
My mother has accepted that despite her vulnerable state, she was guilty of a crime and accepted the punishment of the court. Since then she has moved on with her life and with the exception of this visa application, it is a thing of the past.
…
There is absolutely no chance of reoffending for my mother. Her historic crime was rooted in a unique set of circumstances during a particularly vulnerable time which will never be repeated. [47]
[46] Exhibit 2, p 2.
[47] Exhibit 1, G9, pp 162-163.
The Visa Applicant is a 65 year old grandmother who resides in England, where she cares for her elderly parents and engages in close relationships with her eldest son and second daughter. On Mr McGuinness’ evidence, which was not seriously challenged, the Visa Applicant has engaged in charitable works over many years: raising money for a children’s hospice;[48] raising money for mask protectors to assist health workers during the Covid-19 pandemic; and raising money to assist acquaintances in need. On Judge Donne’s account, which aligns with the account given by Mr McGuinness, the Applicant, Mr Randall and the weight of the testimonial materials[49], the Visa Applicant is ‘not a criminally inclined person.’[50]
[48] Exhibit 2, folio 10.
[49] See Exhibit 1, G9, and Exhibit 3, folios, 12, 14 and 27-28.
[50] Exhibit 2, folio 2.
The records of the HM Prison and Probation Service reveal that the Visa Applicant was taken into custody on 23 September 2002 and, on being sentenced, was transferred to Highpoint Prison on 21 October 2002.[51] On 13 February 2003, the Visa Applicant was transferred to an open prison in East Sutton Park.[52] Thereafter, the Visa Applicant was permitted into the community to attend religious services, and to engage in local visits, carer responsibilities, community service volunteer activities, job interviews, home visits and employment before being released on final parole on 14 March 2005.[53] Mr McGuinness confirmed that, during her custodial sentence, the Visa Applicant was employed at a golf club in a position which required interaction with the public. On this evidence, it can be inferred the HM Prison and Probation Service treated the Visa Applicant as a low risk to public safety at the time.
[51] Exhibit 1, G6, folio 140.
[52] Ibid.
[53] Exhibit 1, G6, folios 97-140.
I am satisfied the risk of the Visa Applicant engaging in further very serious conduct involving ‘soliciting to murder’ is very low or negligible. The risk is reduced in the Australian context, should the Visa Applicant be granted a visitor visa. Setting aside considerations relating to the Visa Applicant’s alleged lack of motive, intent or means to commission such a crime in Australia, the stated purpose of the Visa Applicant travelling to Australia is to visit and provide practical and emotional maternal support to her daughter, the Applicant, and to visit, support and bond with her only grandchildren. There are clear compassionate circumstances which must be considered. The Applicant is due to give birth to her third child by caesarean section in November or December 2024. As with her previous births, the Applicant is at risk of complications which might require extended hospitalisation and recovery. Mr Randall is able to access two weeks’ paternity leave from his employment, but the family does not have a sufficient support network to provide care arrangements for the Applicant’s children, the Applicant herself should complications arise, or during the expected 6 week period of postnatal recovery. While it is possible Mr Randall’s parents might be able to step in, I understand this is unlikely as they reside in England and they have only limited capacity due to their own circumstances and caring responsibilities.
It is in these circumstances the Visa Applicant wants to travel to Australia to assist and support the Applicant and her grandchildren for a period of four to eight weeks. On the available evidence, should the Visa be granted, if the Visa Applicant poses any risk to the Australian community, I am satisfied the risk is negligible. The degree of risk inferred is tempered by the short stay character of the Visa.
Having regard to the matters set out in s 8.1.2(2) cumulatively, I am satisfied this consideration does not weigh in favour of exercising the discretion to refuse to grant the Visa.
Family Violence
The term ‘family violence’ is given the following meaning in s 4(1) of the Direction:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
There is a real question whether the Visa Applicant’s conduct in the commission of the ‘soliciting to murder’ offence is properly considered as ‘family violence’. There is no evidence from the Visa Applicant’s previous husband, Mr Molyneux. While he was the intended target of the crime and he was a member of the Visa Applicant’s family, in the particular circumstances, it is not clear he was coerced or controlled, or caused to be fearful, by the Visa Applicant’s behaviour. Importantly, the Visa Applicant’s crime was commissioned in the context of a newspaper sting in which she was recorded agreeing to a remedy to her problem, to pay a fee for her previous husband’s murder, which she was persuaded to accept by a reporter posing as an intermediary.
Judge Donne’s account provides additional context. On his account, Mr Molyneux
decided to live his life to his own advantage, spending freely on cars, helicopter flying lessons and his mistresses, whilst spending little in terms of both time and money on his family.[54]
[54] Exhibit 2, folio 1.
In divorce proceedings in which the Visa Applicant sought a fair financial settlement for herself and her children, Mr Molyneux failed to cooperate with an assessment of his true financial worth.[55] The Visa Applicant experienced increasing stress and became convinced her husband had undisclosed assets, in respect of which she sought legal advice. Her solicitor instructed a private investigator to explore this. The investigator supported the suspicion but was unable to produce clear evidence. The precise details of what then occurred are not entirely clear, although the crime ‘soliciting to murder’ was committed in a newspaper sting without any real prospect of real violence being done to Mr Molyneux.
[55] Exhibit 2, folio 1.
This notwithstanding, the parties agree it is possible the Visa Applicant’s conduct is within the meaning of ‘family violence’ and I will proceed on that basis.
The ‘family violence’ consideration is explained in s 8.2 of the Direction. The Australian government has serious concerns about conferring on non-citizens who engage in family violence overseas the privilege of entering Australia. The concern is stated to be proportionate to the seriousness of the family violence the non-citizen has engaged in, having regard to the matters set out in s 8.2(3):
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Visa Applicant’s family violence occurred in the circumstances I have outlined above on a single occasion in 2002. The conduct has not been repeated and the Visa Applicant has expressed revulsion and remorse for her conduct. I accept she takes full responsibility for her conduct; Judge Donne’s account and her guilty plea clearly indicates this to be so. The Visa Applicant expressed understanding in respect of the impact of her conduct on her children and on her previous husband and referred to undertaking counselling and courses during the term of her imprisonment.
There is no evidence the Visa Applicant has engaged in family violence of any kind since being released on final parole in 2005.
Considering the matters set out in s 8.2(3), I am satisfied the seriousness of the Visa Applicant’s single episode of probable family violence conduct is substantially reduced in the particular circumstances.
The level of concern about conferring the privilege of entering Australia on the Visa Applicant is proportionate to the seriousness of the incident of family violence she engaged in more than 20 years ago.
I am satisfied this consideration does not weigh heavily in the balance. It weighs only slightly in favour of exercising the discretion to refuse to grant the Visa.
Strength, nature and duration of ties to Australia
This consideration is explained in s 8.3 of the Direction:
1Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As this case does not involve cancellation of a visa, s 8.3(2) is not applicable.
The Visa Applicant has immediate family members in Australia who are Australian citizens, principally the Applicant, her husband, Mr Randall, and their two (soon to be three) children.
There is no dispute between the parties that refusal of the Visa is likely to impact each of these people. The issue is a matter of degree.
The Applicant and Mr Randall gave compelling evidence of the likely impact on them and their children should the Visa not be granted. I accept the greatest impact is likely to be experienced later this year when the Applicant gives birth. Considering the evidence of
Dr Paton (treating general practitioner),[56] Dr Ruff (treating obstetrician),[57] and Amanda Woolveridge (treating psychotherapist),[58] it is probable the Applicant and her children will require emotional and practical support for a period before and after the birth.[56] Exhibit 1, G9, folio 164.
[57] Exhibit 3, folio 33.
[58] Ibid, folio 32.
The Applicant and Mr Randall each migrated to Australia from the United Kingdom. I accept they do not have a support network in Australia on which they can readily draw for additional support. It is possible, as the Minister asserts, other family members could provide assistance, including Mr Randall’s parents who might be able to travel to Australia to provide practical and emotional support. There is no evidence from Mr Randall’s parents. It is possible Mr McGuinness could travel to Australia to provide assistance, as the Minister asserts. During the hearing, however, Mr McGuinness staunchly rejected this proposition and explained he has no intention of travelling to Australia later this year as he has work to attend to and doing so would be too cruel to the Visa Applicant. It is possible the Applicant’s sister who resides in London might be able to travel to provide assistance, but there is no evidence to support this proposition and, on the Visa Applicant’s evidence, she is presently unwell and requires support herself.
I accept there is a strong maternal bond between the Visa Applicant and the Applicant, and the depth of this mother-daughter relationship informs the emotional support and love each provide to the other. This is demonstrated in the daily communications in which they engage by telephone and Skype. One can understand the Applicant has turned to her mother for physical and emotional support in times of difficulty in the past, and she hopes to do so again with the expected birth of her baby by caesarean section in November or
December 2024. It can readily be accepted such a maternal relationship between a mother and daughter seeks satisfaction and expression, and it is most powerfully experienced in direct personal contact, especially in the context of challenging circumstances and deeply personal reproductive and related health considerations. It can also be accepted remote contact by telephone and video does not rise to the level of direct personal contact.More broadly, the Minister contends the Applicant and her children have travelled to the United Kingdom and other countries to spend time with the Visa Applicant and
Mr McGuinness over the past eight years, since the Visa Applicant last visited Australia in January 2015, and this can be done in the future. There are two difficulties with this submission. While the Applicant and Mr Randall have afforded travel in the past, each gave evidence of the increasing difficulties they face doing so in the future. Their family is growing and this increases the cost and practical difficulty of international travel, particularly with very young children. Additionally, the Applicant has been on maternity leave since January 2023 and she expects this will not change in the foreseeable future. Even though the Applicant is likely to be entitled to a maternity leave payment when her baby is born, I accept the family is expecting to have a single income which is barely sufficient to cover their mortgage and living costs, and they are unlikely to be in a position to afford international travel for some time.Refusal to grant the Visa is likely to impact upon the Applicant’s children in these circumstances as they will not be able to engage in personal contact with their grandmother. I note the eldest child provided a letter expressing his views.[59]
[59] Exhibit 3, folios 34-35.
I am satisfied this consideration weighs heavily in favour of granting the Visa and there are compelling compassionate grounds for doing so.
Best interests of minor children
The primary consideration of the best interests of minor children is explained in s 8.4 of the Direction, which provides:
1Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
2This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
3If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
4In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
There are two (and potentially three) minor children affected by the decision in this case.
The Applicant’s youngest child has had personal contact with his grandmother, the Visa Applicant, during visits to her home in England at Christmas and during holidays in third countries. Otherwise, the child has remote contact with her, using telephone or video devices. He has not had personal contact with her in his home in Australia. I accept that personal contact of this kind is likely to enable, develop and reinforce the bond he has with his grandmother and doing so is likely to be in his best interests.
It is for this reason the decision to refuse the Visa is not in his best interests.
The Applicant’s eldest child was born in 2008 in the United Kingdom. He resided with the Visa Applicant and Mr McGuinness for several months prior to the Applicant’s departure for Australia in 2011. Subsequently, the child has maintained a bond with his grandmother using electronic communications and during face-to-face visits. Dr Molyneux observed, and I accept, the impact of moving to Australia has negatively impacted the child’s relationship with the Visa Applicant:
They miss one another terribly and it has had a negative impact on her relationship with her [then] only grandson. It is inevitable that being on the other side of the world has reduced the intensity of the possible relationship- young boys just don’t want to sit at a desk and have an adult conversation on a computer.[60]
[60] Exhibit 1, G9, folio 163.
I am satisfied the decision to refuse to grant the Visa Applicant’s Visitor visa application is likely to limit opportunities for direct personal contact with her eldest grandchild and this is not in this child’s best interests.
The Minister asserts the weight to be given is reduced because the Visa Applicant does not fulfil a parental role with either of the children. The term ‘parental role’ should not be construed narrowly as it extends to embrace conceptions of emotional support, affection and encouragement, companionship and the provision of stability in the overall family environment.[61] The role described is not confined to the child’s parents. It is sufficiently broad to include the child’s grandparents or other people in the child’s family life who take on and fulfill the role.
[61] Markaj v Minister for Immigration and Border protection [2020] FCA 1511 at 33.
The evidence given by Mr McGuinness, Mr Randall, Dr Molyneux, the Applicant, and the Applicant’s eldest child supports a finding that the Visa Applicant plays a strong and enduring emotional support and stabilising role in the overall family environment, albeit from afar and particularly in relation to the Applicant and her eldest child. The role is best described as a grand parental role, which more squarely aligns with a parental role during times of direct personal connection, when the Visa Applicant has provided practical as well as emotional support to the eldest child, such as taking him to school on his first day. The Visa Applicant’s role with the children is constrained by physical separation and reliance on electronic communications. This is an unavoidable consequence of geography following the Applicant’s migration to Australia. In this context, I accept performance of this role would likely be enhanced by direct personal contact and involvement, albeit only from time to time.
I am satisfied this consideration weighs against exercising the discretion to refuse to grant the Visa.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
2In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
3The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
As can be seen, the Government’s statement of Australian community expectations ‘as a norm’ is adverse to any visa applicant who has engaged in serious conduct giving rise to character concerns in breach of those expectations.[62] Nevertheless, the expectations expressed should be considered on the facts of each case and weighed with other relevant considerations when deciding if it is appropriate in all the circumstances to exercise the discretion to refuse to grant a visa to a person on character grounds. These provisions of the Direction should not be construed as binding on a decision maker in any case or as inimical to exercise of the discretion conferred by s 501(1).[63]
[62] FYBR v Minister for Home Affairs [2019] FCAFC 185 (FBYR), per Charlesworth J at [75] and Stewart at [89].
[63] FBYR, per Charlesworth J at [73] and Stewart J at [90]-[92].
The task described by Stewart J in FBYR’s case involves evaluation of what is appropriate in the particular circumstances of the visa applicant and attribution of weight to an adverse character assessment:
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.[64]
[64] FBYR per Stewart J at [102].
Consequently, there are two main limbs to the consideration of community expectations. The first is the serious conduct the Visa Applicant has engaged in and the nature of the resulting character concern. The second is an evaluation of the appropriate weight it should be given in the circumstances.
It will be apparent by now the Visa Applicant’s very serious conduct and her criminal offence were not committed in Australia. While this does not breach the stated expectation that non-citizens will obey Australian laws while in Australia, it is nevertheless very serious conduct which raises a character concern. The seriousness of the concern is mitigated to a significant degree by the Visa Applicant’s remorse, rehabilitation, and the positive character traits she has demonstrated in the charitable works she has subsequently engaged in over the last 20 years.
The remaining stain and the concern about her character is accentuated by the serious conduct in which she engaged in 2012, 2014 and 2015. She acted in a manner which was deliberately deceitful when providing false information to the Minister’s Department and Australian immigration officials at the border. In doing so, the Visa Applicant was likely in breach of her legal obligations under ss 101, 102, 104 and 105 of the Act.
I have discussed the circumstances of the Visa Applicant’s serious and very serious conduct when considering matters relating to the protection of the Australian community and family violence. There are mitigating factors which bear upon the seriousness of related character concerns, particularly in respect of her very serious criminal conduct in 2002. Those factors include the singularity of the offence in its particular circumstances, including the matters Judge Donne discussed in relation to the newspaper ‘sting’ and the acute stress reaction the Visa Applicant was likely experiencing at the time.
The Visa Applicant asserts she was driven, at least in part, by a powerful maternal concern in 2002, albeit affected by her adverse reaction to the acute stress she likely experienced at the time. She asserts it was maternal concern following the breakdown of the Applicant’s relationship in 2012 which caused her to provide false information in order to be able to travel to visit her daughter and grandchild at a time of perceived need. Judge Donne’s observation when discussing her criminal offence is apposite in these circumstances: the avowed maternal concern makes her action even more inexplicable. Thereafter, in 2014 and 2015, one can accept the Visa Applicant became trapped by her own deceit.
The power invested in maternal concern for a child can readily be accepted. Mr McGuinness gave evidence that the Visa Applicant would ‘walk over hot coals’ to tend and care for her children and she values her children and grandchildren more than anything else.[65] The Visa Applicant’s legal difficulties have arisen where her maternal concern runs up against the law. While no physical harm was caused by the Visa Applicant’s conduct in 2002, 2012, 2014 and 2015, her conduct suggests a tendency to place family considerations above all else. This colours the seriousness of concerns about her character assessment.
[65] Exhibit 1, G9, folio 169.
Against this, the negligible risk of the Visa Applicant engaging in further serious or very serious conduct must be considered. This reduces the seriousness of concern about her adverse character assessment.
Taking these matters into account, in consideration of Australian community expectations, the character concerns arising from the Visa Applicant’s conduct are serious enough to weigh against granting the Visa, although I am satisfied it is appropriate to conclude this consideration does not weigh heavily in the balance.
Other considerations
The parties agree no other considerations are relevantly applicable in the circumstances of this case. I am satisfied no other considerations arise on the facts and the available materials in this case.
Conclusion
The weight given to the seriousness of the Visa Applicant’s conduct is reduced by the negligible risk of her engaging in further such conduct and causing harm to the Australian community. Considering the principle in s 5.2(2), the available materials do not establish the Visa Applicant is likely to pose a risk to the safety of the Australian community in any real sense. Nevertheless, the considerations relating to protection and safety of the Australian community, the government’s highest priority, weigh in favour of exercising the discretion to refuse to grant the Visa, but not heavily. The weight is substantially reduced by strong compassionate reasons relating to the Applicant’s pregnancy and related health and practical considerations. Considerations of family violence in the Visa Applicant’s 2002 offence add to this weight, but only very slightly. To the extent there is a family violence element to the Visa Applicant’s conduct in 2002, it is an element which adds little weight when viewed through the prism of contextual circumstances at the time. Considerations of Australian community expectations also add some weight against the Visa Applicant being granted a Visa, although only little weight can appropriately be given in the circumstances.
The weight of these considerations does not decisively tip the balance when other considerations relating to the strength, nature and duration of the Visa Applicant’s ties to Australia and the best interests of minor children are added. The strength, nature and duration of the Visa Applicant’s ties to Australia, particularly the impact of refusing to grant the Visa on members of her immediate family (who are Australian citizens) weigh strongly against exercising the discretion to refuse to grant the Visa. To this is added the weight given to consideration of the best interests of two minor children, which are not served by refusing to grant the Visa.
On balance, weighing all the relevant considerations, I am satisfied the balance tips against exercising the discretion to refuse to grant the Visa Applicant’s Visa application. The consideration of the Visa Applicant’s ties to Australia and the best interests of her grandchildren outweigh adverse considerations relating to protection of the Australian community, family violence and Australian community expectations.
From this it follows the decision to refuse the Visa Applicant’s Visa under s 501(1) of the Act must be set aside. It is appropriate to remit the matter to the Minister for reconsideration with the direction the Visa Applicant’s Visa application is not to be refused on character grounds under s 501(1) of the Act.
Decision
The 23 May 2024 decision to refuse to grant Ms Shelley McGuiness a Visitor (Class FA) visa is set aside and remitted to the Minister for reconsideration with the direction the Visa is not to be refused on character grounds under s 501(1) of the Act.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
....[SGD]....................................................................
Associate
Dated: 9 September 2024
Date of hearing: 26 and 27 August 2024 Solicitor for the Applicant: Ms Alice Graziotti, Estrin Saul Lawyers & Migration Specialists Solicitor for the Respondent:
Mr Matt Gauci, Hunt & Hunt Lawyers
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