Morgan and Minister for Immigration and Multicultural Affairs - [2000] AATA 675

DECISION AND REASONS FOR DECISION [2000] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/614

GENERAL ADMINISTRATIVE DIVISION     )
           Re      John Morgan
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date7 August 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
   ........(Sgd. B.M. Forrest)...........
  Deputy President
IMMIGRATION – Cancellation of permanent residence visa on character grounds – applicant migrated to Australia in 1979 from the United Kingdom – criminal conviction for conspiracy to commit murder of ex-wife – fails to pass the character test due to substantial criminal record – whether discretion should be exercised – repugnance of the crime – risk of recidivism – community expectations – best interests of the children – interests of unborn child – hardship to Australian citizens – decision affirmed.
Migration Act 1958 ss. 499, 501(2), 501(6)(a) and 501(7)
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998
R v Morgan, Supreme Court of Victoria Court of Appeal, 13 August 1996, 215/1995
Ieng Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339

REASONS FOR DECISION

7 August 2000 Deputy President B.M. Forrest

This application by John Victor Morgan ("the applicant") is for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs in May 2000 to cancel the applicant's permanent residence visa. In making this decision pursuant to s. 501(2) of the Migration Act 1958 ("the Act"), the delegate found that the applicant does not satisfy the character test.
Section 501 of the Act in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, with effect from 1 June 1999. Section 501(2) of the Act provides:
"(2) The Minister may cancel a visa that has been 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 the person passes the character test."
In cancelling the visa the delegate relied on s. 501(6)(a) of the Act:
"(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
…
Otherwise, the person passes the character test."
"Substantial criminal record" is relevantly defined in s. 501(7) of the Act:
"(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
…"
The applicant is a British citizen. He was born in England on 9 April 1950. After leaving school he joined the Royal Air Force ("RAF") and trained as an aircraft engineer. After seven years in the RAF, he went into business on his own account and over the next few years acquired a number of business interests, including four licensed taxi cabs, a restaurant, three betting shops and a clothing shop. However, his fortunes fluctuated and he eventually lost most of his assets. The last of his former businesses was sold by the time he migrated to Australia in 1979.
In Australia the applicant initially worked in the hospitality industry and then in real estate and property development. The applicant married for the first time in England but this marriage ended before he came to Australia. There is one child of the marriage, a son who remained in England. The applicant married his second wife Robyn Morgan in Australia in 1984. There are two children of that marriage, a son Nathan born in 1988 and a daughter Kellie born in 1992. The marriage prospered in a financial sense in that the family were able to accumulate over the next few years a considerable property portfolio, which the applicant estimated was worth in the vicinity of $2 million. In July 1992 the applicant and Robyn Morgan separated. At that time Robyn was pregnant with their second child, Kellie who was born in October 1992. They were divorced in February 1994. After he separated from Robyn Morgan the applicant entered into a relationship with a Heather Maddox, then in about April 1993 he left her for Andrea Morgan who he was later to marry in February 1994.
The separation from Robyn Morgan became acrimonious. In about July 1993, the applicant attempted to dispose of some property he jointly owned with Robyn, by a transfer of land purportedly signed by her, but on which her signature was a forgery. Robyn Morgan took proceedings in the Family Court of Australia and obtained a restraining order. There were further proceedings about the matrimonial property and arrangements for the children.
In March 1994, acting on information received, members of the Victoria Police homicide squad began an undercover operation into an alleged conspiracy to murder Robyn Morgan involving the applicant and another man Paul Warren-Smith. A police undercover operative was introduced and as a result, the applicant and Warren-Smith were arrested on 5 April 1994 and charged with conspiring with each other to commit murder and with having together incited an undercover police officer to murder Robyn Morgan. On 28 June 1994 at Melbourne Magistrates' Court the applicant was committed to stand trial in the Supreme Court on both charges.
Briefly, the facts of the conspiracy were that in about December 1993 the applicant and Andrea Morgan approached Warren-Smith for assistance to kill Robyn Morgan after approaches they had made to two other persons had failed. In early 1994 the applicant arranged to pay $25,000 in cash to Warren-Smith to have Robyn Morgan killed. This money was paid by the applicant in early 1994. The applicant provided a photograph of Robyn Morgan to Warren-Smith. On 1 April 1994 the applicant in company with Warren-Smith and another person met a person introduced to them as a contract killer but in truth an undercover police officer. At the meeting the applicant drew a diagram of the house in which Robyn Morgan lived with the two children. When asked how he wanted the killing done, the applicant suggested that it be made to look like an accident or suicide. Video and audio evidence was obtained of this and of a further meeting on 5 April. After the applicant was told that Robyn Morgan had been strangled he was asked if he felt better and replied that he felt great. He was arrested that day and interviewed, at first denying his involvement. When re-interviewed on 8 April he admitted to his involvement in the conspiracy to murder his ex-wife.
The applicant's then wife Andrea Morgan was subsequently also charged with conspiracy to commit murder and incitement to commit murder. On 6 September 1995 the applicant was sentenced in the Supreme Court on one count of conspiring with Andrea Morgan and Paul Warren-Smith between 1 September 1993 and 5 April 1994 to murder Robyn Morgan. He pleaded guilty and was sentenced to eight years imprisonment with a minimum non parole period of six years. Andrea Morgan who pleaded not guilty to a similar count was found guilty by a jury on 8 August 1995. On 6 September 1995 she was sentenced to six years imprisonment with a minimum of four years. On 16 January 1995 Warren-Smith pleaded guilty to a similar count and was sentenced on 24 January 1995 to four years imprisonment with a non parole period of fifteen months.
The applicant's marriage to Andrea Morgan did not survive. The Supreme Court (Teague J) observed when sentencing the applicant:
"On 11 July 1995, at a time when you had been spurned by Andrea Morgan, you turned on her. You did so in no modest way. You portrayed her as the evil architect of the whole plan to kill Robyn Morgan. You claimed to have been shocked when on 20 July 1993 she put to you the suggestion that Robyn Morgan be killed. You did not expressly say last July that you had lied earlier when you said that Andrea Morgan had nothing to do with the plan to kill Robyn Morgan, however, there can be no question but that you lied."
His Honour found that the applicant's main motive in arranging for someone to kill his former wife was greed in that he planned to be the survivor of the jointly owned property.
On 13 August 1996, the Court of Appeal (Phillips CJ, Hayne JA and Southwell AJA) dismissed an application for leave to appeal against sentence: see R v Morgan, Supreme Court of Victoria Court of Appeal, 13 August 1996, 215/1995. Hayne JA (as he then was) delivered the judgment of the Court. His Honour concluded:
"The applicant cold-bloodedly sought the murder of his former wife who was mother of his children. He set about the achievement of this object with unrelenting zeal over many months. That his plan was not carried out owed nothing to him. He was given (more than once) clear opportunities to relent but he did not. On being told that his former wife had been strangled in her bed, he expressed no emotion other than relief and pleasure. He then lied to police about his involvement, lied to police about the involvement of Andrea Morgan and, as convenience and his own interests dictated, put forward a story that minimized his involvement but which the learned sentencing judge found to be false.
Far from being excessive, I would regard the sentence passed on John Morgan as very merciful."
The applicant does not pass the character test. He has a "substantial criminal record" as defined in s. 501(7)(c) of the Act. The applicant's sentence satisfies the statutory definition of a "substantial criminal record" under s. 501(7)(c). It follows he does not pass the character test: s. 501(6)(a).
There remains the question of whether, despite failing the character test, the discretion in s. 501(2) should be exercised in the applicant's favour. For the purpose of considering a decision to cancel a visa under s. 501 the Minister has issued Direction No. 17 dated 16 June 1999 ("the Direction") which has the force of s. 499 of the Act. In Part 2 the Direction deals with the exercise of the discretion. The Direction provides three "primary" considerations and a number of "other" considerations to which a decision maker must have regard. No individual consideration can be more important than a primary consideration, but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to cancel a visa. This requires a balancing exercise having due regard to the primary considerations but also taking into account all relevant considerations.
The primary considerations are:
(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 relationship between a child or children and the person under consideration, the best interests of the child or children.
Factors relevant to an assessment of the level of risk to the community by the continued presence of the person in Australia include the seriousness and nature of the conduct, the likelihood that the conduct may be repeated, including any risk of recidivism, and general deterrence.
The applicant's conduct amounted to a deliberate act of very serious criminal behaviour. The gravity of his conduct needs no further exposition than described in the extract from the judgement of the Court of Appeal quoted earlier.
The issue of rehabilitation is usually a vexed question. The Supreme Court had reservations about the applicant's prospects of rehabilitation because of his lack of credibility and did not accept that he was remorseful to the extent he claimed to be. Having observed the applicant and read his statements, Ex. A, I have similar reservations. What he has said and written for the purpose of these proceedings reveals a glib explanation of his actions providing neither proper understanding of the magnitude of his criminal behaviour and the consequences of his actions nor genuine remorse.
In giving evidence there was no apparent indication of remorse. The applicant believes his sentence was harsh and told others as much. In evidence he maintained that his motivation for his actions was to obtain custody of the children and provide better care for them. He denied that he was motivated by greed, claiming there was no factual evidence of this, saying in evidence:
"And the sentencing Judge said here on page 24 that your main motivation for paying to have Robyn killed was greed?---Mm.
Would you agree with that?---Absolutely not. The only – the only evidence that this was about greed came from Robyn. There is no other – and it's only eventually her word against mine. There is no evidence as such to say that it was all about greed. I say now, and as I've always maintained, it was all about my children and I just at one point which was missed, had I – had this been about greed I would not have divorced her because she was on a superannuation pension and my understanding from her herself if that her next of kin, should anything happen to her, gets approximately 50 per cent of that superannuation payment. Look, surely – I am a fairly intelligent person – if this thing was strictly about greed, I would not have divorced her and if this thing had actually happened, I would have been something like $18,000 a year better off for the rest of my life. So this is a point that was – well I put it to my solicitors, this is a point that wasn't raised in court."
On the other hand there are objective indications of rehabilitation since his incarceration, which I take into account: his good behaviour while in prison and involvement in charity work and fund raising activities and the testimonials of support for him by people appreciative of his generosity. He is industrious. I also take into account the applicant has no other criminal history. However, given the seriousness of the criminal conduct and my reservations as to his rehabilitation because of his lack of genuine remorse, I am not satisfied that he is an acceptable risk to the community of not reoffending.
I do not consider the question of deterrence to be a significant factor in this matter in that cancellation of the visa is unlikely to deliver any message to persons tempted to by-pass the orderly resolution of matrimonial property disputes.
The Direction states (paragraph 2.12) that the Australian community expects non citizens to obey Australian laws while in Australia. As a general statement of community expectation I consider that the community, that is, the informed bystander, would, having regard to the nature and circumstances of the offence, regard the applicant's offending with such repugnance that in the weight to be given to the relevant considerations, give this factor considerable weight in accordance with my understanding of community expectations.
Robyn Morgan and the children have been in the witness protection programme since 1994. Robyn Morgan was called by the respondent. In a statement (Ex. 3) supplemented by oral evidence given by telephone, she said that she has suffered a great deal by what her ex-husband had planned to do to her. Her life and that of the children has been disrupted by relocation, more than once, and the restrictions imposed on her personal life and access to her extended family. Her health has deteriorated, she suffers disturbed sleep and nightmares and receives counselling. She is in fear of the applicant and believes that the quality of life for herself and the children would greatly improve if he were no longer in Australia. She disagreed when it was suggested to her in cross examination that there is no real reason to remain in the witness protection programme.
While the Direction states that in general terms a child's best interests will be served if the child remains with its parents unless countervailing considerations point in the opposite direction, any question of the children remaining with both parents is not a consideration in this matter.
There are two children of the applicant's marriage to Robyn Morgan, a son, Nathan born in 1988 and Kelly born in 1992. After the breakdown of the marriage Robyn Morgan was granted custody of the children and the applicant had access rights, but according to Robyn Morgan the applicant lacked genuine interest in his children and did not maintain regular contact or access. In April 1994, after the applicant was arrested, an order was made in the Family Court that Robyn Morgan have sole guardianship of the children and until further order, the applicant's access rights be suspended.
The children's interests coincide with each other. They have resided with their mother since birth. She is their sole guardian and primary carer, a role which undoubtedly has endured increased pressure with the disruption of their lives, particularly Nathan given his age, arising from the maleficence of their father. There was evidence from Robyn Morgan, which I accept, that Nathan is experiencing difficulties and has been "severely traumatised" after having to change his name at 5 years of age.
On the evidence before me, the best interests of the children will be served by living with their mother and she having responsibility for decisions relating to their care, welfare and development. Their father has by his actions forfeited the right to be involved with the upbringing of his children. That he would so relentlessly pursue a course to have the mother of his then 5 year old son and 1 year old daughter killed reveals the depth to which he was prepared to descend to achieve his aim. Before this Tribunal he maintained that his action was for the benefit of his children, an assertion which to my mind reveals a disquieting trait in his make-up.
The applicant is now married to his fourth wife "Mary" [her real name and that of her 15 year old son "James" are not disclosed to preserve confidentiality]. Mary and the applicant had been friends for many years. About seven years ago she and the applicant had a brief relationship at a time when she was living in one of his properties. In about January 1999 Mary and her former husband separated. In April 1999 she wrote to the applicant in prison. Shortly afterwards he commenced a prison leave programme and visited her on day leave each month until his release on parole in March 2000.
Mary gave evidence that in August 1999 they decided to get married. According to her they planned to marry a few months after his release, but after he received notice of intention to cancel his visa in October 1999, they decided to "hurry things along". The applicant was interviewed by a departmental officer on 21 February 2000. They were married on 12 February 2000. Mary is pregnant and is due to give birth in October 2000. Mary is not in good health. She has two sons aged 22 and 15 who live with her. James' elder brother works long hours and supplements his mother's pension benefits by contributing the bulk of his earnings to the family finances. In evidence he said that the applicant has been a positive influence on him and his family particularly his mother and younger brother, James. Considerable store was put on this evidence on behalf of the applicant.
Recently James has shown a marked improvement in his school work. He was described in a school psychological report as a polite but shy student with extreme difficulties with short term attention memory. He is two years behind his peers.
I accept that the applicant has given positive encouragement to James. Their relationship is in its early stages. The applicant had lived with the family for two months before being taken into detention on 23 May 2000. There was also evidence to indicate that relations between James' father and the applicant are tense. James as I find also retains a bond with his father who he sees on a weekly basis and stays with from time to time. At its highest, James' interests are a relevant factor but are not a "primary" consideration in relation to the applicant.

In relation to Mary's pregnancy, the question of the rights of an unborn child in the context of a visa refusal under s. 501 was carefully considered by the Tribunal (Deputy President Forgie) is Ieng Ly and Minister for Immigration and Multicultural Affairs unreported [2000] AATA 339. The learned Deputy President concluded that the reference to a "child" in paragraphs 2.13-2.16 of the Direction refers to a child in the sense in which the word is used in the general provisions of the United Nations Convention on the Rights of the Child, that is, to a child who has been born. I respectfully agree with this view. It follows for present purposes that the best interests of Mary's unborn child are not a primary consideration but a factor to be taken into account in the "other" considerations of the Direction. In normal circumstances the best interests of a child are that he or she may live with their mother and father. However, given the applicant's past conduct in respect to the welfare of Nathan and Kellie, and my concerns expressed earlier regarding his remorse, this general position has less force in relation to the best interests of his unborn child.
Mary indicated she is not in a position to follow the applicant overseas if he is required to leave and I accept her evidence of her circumstances. I accept that his removal from Australia would cause considerable distress to her and while this is a relevant factor the weight to be given to her hardship is to be measured against the fact that before the marriage and pregnancy they were aware that the applicant's right to remain in Australia was in serious jeopardy. In this regard I think it also reasonable to infer there was an element of self interest in this by the applicant in order to facilitate his remaining in Australia.
The applicant left England at age 29. He has a 27 year old son there with whom he is in occasional contact. His mother, two sisters and two brothers also live in England. He has demonstrated business acumen both in England and in Australia. He exudes a confident self assured manner which should stand him in good stead as he re-establishes his life. With his business skills, there would seem little doubt that he has the capacity to re-establish himself relatively quickly. In that sense removal from Australia would not cause any appreciable hardship. At a personal level, as he has recently established further family ties in Australia and has an offer of employment as well as having friends here, his removal would cause disruption to those ties. The person who I think would suffer most in all of this is his Australian wife Mary who is due to give birth to the applicant's child in October. The child will be entitled to be registered as an Australian citizen and I take this into account.
Having considered all of the evidence and submissions and weighing up the considerations required by the Direction to be taken into account, the competing factors fall in favour of the cancellation of the applicant's visa. Despite the length of time the applicant has spent in Australia, the recent ties he has established to the community here and his capacity to make a contribution, these considerations are in my opinion outweighed by the nature and circumstances of his offending, the doubts about his rehabilitation and the rights of his victims (Robyn Morgan and the two children) as members of the Australian community to peace and protection as well as the children's best interests. The applicant maintained that he bore no ill will to his former wife Robyn Morgan but I do not believe him. Nor do I accept that hardship considerations to him personally or his wife Mary and her circumstances outweigh the factors adverse to the applicant.
For these reasons the decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11 and 12 July 2000
Date of Decision  7 August 2000
Counsel for the Applicant        Mr M. Kowalski
Solicitor for the Applicant         Fraser, Barristers & Solicitors
For the Respondent                 Ms B. Quayle, departmental advocate