Muirson and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1270
•30 November 2004
CATCHWORDS – IMMIGRATION –visa – general conduct – criminal conduct – failure to pass character test – whether discretion should be exercised – decision affirmed.
Migration Act 1958 ss. 5, 31, 32, 499, 501 and 501G
Migration Regulations 1994 r. 5.15A and 444.2; Schedule 2,
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
DECISION AND REASONS FOR DECISION [2004] AATA 1270
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/1063
GENERAL ADMINISTRATIVE DIVISION )
Re STEVE WILLIAM MUIRSON
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 30 November 2004
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 26 July 2004.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 16 September 2004, the applicant, Mr Steve William Muirson, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”). The Minister cancelled his Special Category Class TY subclass 444 visa (“SCCTY444 visa”) on 26 July 2004 on the basis that he does not pass the character test under s. 501 of the Migration Act 1958 (“Act”). I have decided that the visa should be cancelled on that basis. He does not pass the character test and the discretion should not be exercised in his favour.
At the hearing, Mr Muirson represented himself and the Minister was represented by his solicitor, Mr Chand. I had regard to the G documents lodged pursuant to s. 501G of the Act (“G documents”) as well as an undated letter from Mr Muirson to the Tribunal on 10 November 2004 and a Victoria Police criminal history report dated 28 June 2004 and an ISIS incident report relating to an incident on 12 October 2004.
ISSUES
The first issue is whether Mr Muirson passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(2) should be exercised to grant him the visa.
BACKGROUND
I find that Mr Muirson was born in New Zealand on 24 February 1964. He stayed at school until he was 15 years of age and had completed Form 3. The next four years were spent on his parents’ farm. A job making ceramic cups followed and then a job in a wool store, another sign writing and another with an engineering company. When he was old enough, he started to drive a truck. He was looking for variety and, when he had learned a job, would move on.
Mr Muirson has not been married but, had a de facto relationship with Ms Kath Heaney from approximately 1998 until 2001. At the time they met, Ms Heaney had one child, James Clayton Tyler Heaney, who was born on 11 February 1998. They then had a daughter, Kiara Ashley Taylor Heaney, who was born on 28 February 1999. Mr Muirson regards James as his own son.
Mr Muirson and Ms Heaney arrived in Australia on 26 February 2000. He has no property in New Zealand. Only his mother and his three sisters and their partners live there. He has cousins who live in Brisbane. Mr Muirson and Ms Heaney separated early in 2001.
On his arrival in Australia, Mr Muirson worked with T.C.M. Builders. When the work ran out, his job ended. He then worked with Urban Transport carrying general freight from Bunnings’ warehouse. That job ended when Urban Transport had troubles with Bunnings and had to cut back staff. Mr Muirson then began work carrying general freight for Madafferi Haulage. That position only lasted a couple of months because he had a couple of accidents. It was followed by a further couple of months work for Simon Transport.
On 20 May 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) wrote to Mr Muirson while he was at the Port Phillip Prison. That letter advised him that his SCCTY444 visa might be cancelled under s. 501 of the Act. He was invited to provide any information he wanted the Minister to take into account.
I find that Mr Muirson was convicted of the following offences up to the end of 2002:
| Court and Date of Conviction | Offence | Result |
| 9 December 1994 | Operated a vehicle carelessly | Total Fines $75 |
| 17 July 1995 | Theft ex car (under $500) Theft ex car (over $500) | Reparation $113 Reparation $50 |
| 9 August 1995 | Burgles [property ($500-$5,000)] by day | Non resident periodic detention 4 months beginning 9 August 1995 |
| 19 January 1998 | Breath alcohol level over 0.400mgms/litre of breath (0613) breath/blood = 0613 | Total fines $600 |
| 2 June 1998 Papakura District Court New Zealand | Drove while disqualified | Total fines $600 |
| 4 April 2002 County Court Melbourne | 4 counts of armed robbery 1 count attempted armed robbery Dangerous driving | Total sentence 4 years’ imprisonment with non parole period of 2 years. |
During his imprisonment in Australia, Mr Muirson completed Certificate 1 in Hospitality (Kitchen Operations), Course in Food Hygiene for Food Handlers Level 1, Certificate in Basic Welding, Certificate II in Asset Maintenance (Cleaning Operations), Anger Management, Introduction to Drug and Alcohol Issues and Drug Treatment program, Certificate in Information Technology, Forklift Licence, Occupational Health and Safety, Certificate in Cleaning and Responsible Serving of Alcohol. Mr Muirson also voluntarily undertook individual counselling with a psychologist, Ms Kym Neville.
Mr Muirson was released on parole on 12 May 2004. On 28 May 2004, he was convicted in the Moe Magistrates’ Court of theft and of the use of an unregistered motor vehicle. He was given a three month Community Based Order. A delegate of the Minister decided to cancel Mr Muirson’s SCCTY444 visa on 26 July 2004. On 7 September 2004, he was taken into immigration detention.
THE EVIDENCE
Life in New Zealand
Mr Patrick Newton is a Forensic and Counselling Psychologist, who has worked in a range of areas including the treatment of those suffering from alcohol and drug dependence. He has also held a number of senior clinical and academic posts. He conducted a comprehensive psychological assessment of Mr Muirson on 26 March 2002. In doing so, he interviewed Mr Muirson and had regard to his past criminal history, Ms Neville’s reports and the courses that Mr Muirson had undertaken.
Mr Muirson described to Mr Newton a childhood in which he was subject to a strict code of conduct that was enforced through harsh and authoritarian physical discipline. His sense of self-esteem was undermined as was his self-confidence. He experienced significant periods of mild depression throughout his early years. Mr Muirson displayed increasingly profound behavioural disturbance throughout his primary and early secondary school years. He was frequently involved in fights and other disputes with his peers and truanted from his school to such an extent that he had to repeat two grades. At the age of 15, Mr Muirson left school and has since worked in a number of short-term semi-skilled and labouring positions.
Mr Muirson has been a heavy user of both alcohol and cannabis. He began drinking at the age of 12 as part of his attempts to deal with his situation at home. Until he was 20 years of age, he drank heavily but told Mr Newton that his drinking has been less problematic since then. Since the age of 18, Mr Muirson has used high levels cannabis but he reports a range of negative psychological symptoms in response to his cannabis use, including an exacerbation of his depressed mood. Mr Newton said that Mr Muirson does not appear to have been physically addicted to either alcohol or cannabis. Mr Muirson stated that he has never used heroin or other drugs. He also told Mr Newton that he had never done so.
In a letter dated 23 March 2002, Mr Muirson’s mother and three sisters wrote to the sentencing Judge that:
“Steve did not take too well to secondary school, but pursued his education with various polytech courses. He had numerous jobs throughout his life in New Zealand, and whilst he was employed, he always showed diligence, determination, and pride in his work.” (G documents)
The move to Australia
Mr Muirson told Mr Newton that he thought the move to Australia had gone well. He had quickly found work and his family life was positive for a number of months.
Mr Muirson said that he had a disagreement with his mother in law once the family was in Australia. He felt that she had decided to break them up. At the time, he was trying to support his girlfriend and their two children as well as her sister and brother. It was hard on all of them and very hard on their relationship. His girlfriend’s sister and brother were staying with them at the time. He and his girlfriend had arguments all the time but he felt that she always backed her family. When the relationship broke down, he let her stay in the house with their children and her brother and sister while he found a caravan. His life had revolved around Ms Heaney and the children and he became very secluded and depressed when their relationship broke down. He then lost his job with Madafferi Haulage.
The offences
With regard to the two convictions for theft ex car in New Zealand, Mr Muirson said in an interview with the Department that he had been unemployed. A friend had offered him cash if he were to drive him around Auckland. Mr Muirson said that he did not know that he had been asked to do that so that his friend could steal stereo systems from cars or that his friend kept them in a bag in the boot. With regard to the second conviction, Mr Muirson said that he was stupid enough to offer to help a friend to repossess his property from his ex girlfriend. She charged them with stealing her property.
Mr Muirson accepted responsibility for his actions in driving while unlicensed. He had needed to pick up his building tools to start a new job. The careless driving incidents had not been as a result of his being on drugs. In one, a chap had been in his blind spot and, in the other, he had not allowed for the camber of the road and had ripped an awning.
Mr Muirson said of his robbery convictions that he was depressed and lost without his family. When he tried to get help from Centrelink and the Salvation Army, he was turned away. He was unable to get help from anyone. At the hearing, Mr Muirson said that he was still totally embarrassed about the stupid thing that he did at that time. At the time, he was giving money to his former girlfriend.
In speaking to Mr Newton, Mr Muirson described his state of mind:
“In late 2000 and early 2001, Mr Muirson experienced a number of extremely stressful events in his life. His relationship with Ms Heaney broke down under acrimonious terms, and he was prevented from seeing his children. Mr Muirson reported that he had become severely depressed in response to this situation. As a result, he experienced considerable difficulty coping. His poor concentration and difficulty in focussing led to him being involved in a series of minor accidents at work and he was consequently dismissed from his work as a truck driver. Losing his employment left Mr Muirson without any means of financial support. He stated that he had approached both Centrelink and the Salvation Army for assistance, but that for reasons which are unclear, did not receive assistance. Mr Muirson stated that he became increasingly desperate regarding his financial situation, a state which was heightened by his partner’s comments that any reconciliation (which he deeply desired) would be contingent on Mr Muirson dealing with his financial problems.
Mr Muirson stated that he had committed the armed robberies while in this depressed state. He reported that he had used the proceeds of his robberies to purchase the basic necessities of life for himself and clothes for his children.
… He reported that he experienced a sense of profound and pervasive sadness which dominated his experience in early 2001. He reported that he became preoccupied with thoughts of his worthlessness and the hopelessness of his situation together with recurrent suicidal ideation. These led to profound impairments in his ability to concentrate and attend to his environment (which are likely to have played a significant role in the accidents he was involved in at work). He stated that he had found it impossible to get thoughts of his situation out of his mind and that he was unable to take pleasure in any activities (even those he had formerly enjoyed). Mr Muirson also reported a range of depression-related physical symptoms including a pervasive lack of energy, profound sleep disturbance, and appetite loss. By the time he was arrested, Mr Muirson believed that he was on the verge of a complete collapse” (G documents)
Mr Muirson said that he was desperate for money when he committed the first robbery. He had been drinking, smoking a bit of choof and drinking coffee. He was intoxicated at the time but that was no excuse for his actions. He went to the service station with the intention of robbing it but could not get the courage up. The proprietor went around the corner of the building where he was and they gave each other a fright. When he had committed the robbery, he was really upset and bawled his eyes out. He committed the robbery to live, he said. The last robbery was committed about a week after he got his job with Simon’s Transport. The sentencing Judge, Judge Dyett in the County Court of Victoria, noted that the “… cash proceeds of these armed robberies were spent, in the main, on payment for …[his] new accommodation in a caravan park and paying accumulated bills as well as upon your two young children” (G documents).
Judge Dyett also took account of the matters referred to in Mr Newton’s report and his psychological assessment. He also noted the “commendable steps” that Mr Muirson had taken towards his rehabilitation. Of the offences themselves and his sentence, he said:
“ Mr Newton is of the view that you are deeply remorseful and have expressed substantial victim empathy. On the other hand, the armed robbery, the subject of Count 3, was filmed by a security camera and you are depicted manhandling the unfortunate console attendant in such a forceful manner that it must have been very frightening for him.
The attempted armed robbery the subject of Count 2 obviously went no further for the sole reason that the console door was locked and you could not gain entrance to the store.
The offence of armed robbery is viewed so seriously by the legislature that the maximum penalty is 25 years’ imprisonment. Balancing the various competing factors as best I can, you are sentenced on each of Counts 1, 3, 4 and 5, the armed robberies, to three years’ imprisonment. Upon Count 2, attempted armed robbery, to 12 months’ imprisonment and, upon the summary charge of dangerous driving, to three months’ imprisonment.
I direct that three months of the sentences imposed on each of Counts 3, 4 and 5 and the three month sentence imposed upon the summary charge be served cumulatively upon each other and cumulatively upon the sentence imposed upon Count 1 making an effective total of four years’ imprisonment.
I fix a non-parole period of two years.
In respect of the summary charge of dangerous driving, all licences you may hold to drive a motor vehicle are hereby cancelled and you are disqualified from applying for a licence for 12 months … .” (G documents)
Mr Muirson said that he was glad that he had been caught and incarcerated as it had given him a chance to sort himself out. Although incarceration had been a good experience, he had no wish to repeat it. For the first eighteen months after the robberies, he saw the faces of his victims in his dreams. He felt embarrassed and wants to apologise to them. When he committed his robberies, he had been armed with a knife but he told his victims that he did not want to harm them or threaten them. All that he wanted was money and cigarettes. Most were scared but, when he told them that, they “mostly calmed down”. He had no intention of hurting them at all.
Mr Newton reported that Mr Muirson is a pleasant if somewhat reserved man who participated in the assessment co-operatively. He demonstrated a normal range of emotional responses. His mental status is, Mr Newton concluded, normal in all major respects. While he has some mild depressive symptoms, they were of a sub-clinical nature and suggested that he had responded well to the psychiatric and counselling interventions he had received. In his opinion, Mr Muirson was suffering from a Major Depressive Disorder, Recurrent, Severe Without Psychotic Symptoms, at the time that he committed the offences. Mr Newton considered that his diagnosis was supported by the fact that he had been prescribed anti-depressant medication soon after his arrest and by his positive response to that therapy.
Mr Muirson’s mother and three sisters signed a letter dated 23 March 2002. It was written to the Judge presiding:
“We are writing this letter in support of our brother/Son Steve William Muirson.
When we first heard of his arrest, we were devastated, shocked and upset to say the least. This is so out of character for him. He has never done anything like this before.
We had various discussions with Steve over the telephone prior to his arrest, and we were aware that he and Kathy were having financial difficulties, which as you know puts a strain on any relationship, they were going through some rough times. He was so looking forward to moving to Australia to make a new start with his family, which he loves and adores so much. He wanted to show us that he could stand on his own 2 feet and prove to his family (and us) that he could do it. For this we are very proud of. This is a big move and commitment for one who has not been out of New Zealand before (especially away from his mother and sisters)
A few weeks later Steve contacted us to say that Kathy had broken up with him and asked him to leave. Steve was devastated and heart broken, we were very sad for him because we new [sic] that he loved and adored Kathy and the children, James and Kiara, his whole life revolved around them, they are his life, without them he is nothing. He had no family or friends there to support him in his time of need.
We recall Steve contacting us on a few occasions prior to his arrest, asking us for money, but unfortunately given our family’s financial situations at the time, we were unable to help him. Had we known earlier just how desperate he was for money, we would have worked something out for him.
Whilst Steve was living in New Zealand, he showed nothing but kindness towards others, and helped in anyway he could for friends and for family, and has never done anything like this while he was here in New Zealand and that is why we were shocked with what happened. (This is so out of character for him.)
Of his conviction for theft on 28 May 2004, Mr Muirson said that he had tried to start a firewood business with a friend. This is not Mr Shane Robinson, to whom I refer below (paragraph 50). They saw an advertisement for “Free Redgum Sleepers” in Sale’s railway yards. Instead of taking those that were free, Mr Muirson and his friend took those that were not. They apologised but the police officers, he said, wanted to pursue the matter because they had criminal records. As for the conviction for the use of an unregistered car, Mr Muirson said that his friend had got the car from his sister. Originally, it had been his car. Unknown to them, she had de-registered the car and Mr Muirson was driving it at the time. He had not intended to break the law.
Since he committed the robberies, he has been trying to help people to stay out of bad situations. He has never said “no” to anyone who needs a hand.
Mr Muirson’s activities and outlook since being imprisoned and subsequently released
Mr Muirson has written three letters regarding his past actions. In one, written to Mr McLauchlan, he said:
“I know I did wrong and take full responsibility for my actions. I have paid for it with the loss of my freedom, the loss of quality time with my children Jame’s and Kiara. I have the deepest remorse to the people I robbed and what I put them through.
Since being incarcerated, I have learnt about other departments who can help in time of a crisis.
Since being incarcerated I put the time to good use and have done as many courses as I can to better myself and to help to become a better citizen.
All I want to do now when I’m released is to work hard, see my kids and try to make up for the loss time away from them and to save up for a house in the country.” (G documents, G5)
In another received by the Department on 9 August 2002, he also said:
“… I regret my actions leading up to imprisonment, I feel deeply remorseful to my victims and the mental anguish that I put them through. I realize now that I’d gone a bit off the rails and cannot blame anyone but myself. …” (G documents, G5)
At the hearing, Mr Muirson said that Buddhism had helped him a lot. He still meditated and Buddhism helped him a lot in understanding his problems and giving him a better perspective.
Mr Muirson’s mother and sisters wrote that they are very proud of what he was able to achieve in prison. They also confirmed Mr Muirson’s evidence that he had become interested in Buddhism. In their view, his interest had helped him to think a lot more clearly and to become more focused on his true self and his actions. They admired him for his achievements in prison and felt that he had become a better person with improved self-esteem for his time there. Their support, encouragement and love was what they would continue to give their son and brother in his hour of need.
Ms Neville wrote on 11 December 2001 that Mr Muirson had attended individual counselling to address personal issues had confronted during the group sessions. Mr Muirson participated actively during the sessions and appeared highly motivated to abstain from alcohol and drug use. Ms Neville felt that Mr Muirson took the initiative to address personal problems and to discuss solutions. Mr Muirson made significant progress during the time he was involved in counselling. Ms Neville considered that he was motivated to address his past behaviour and appears to have an understanding of the link between his drug and alcohol use and his behaviour. He was aware of the necessity to separate himself from situations that put him at risk of using drugs and has expressed a desire to do so in the future.
Mr Newton reported that Mr Muirson appeared to have found incarceration to be a watershed in his life. He had realised that he needed to make a determined effort to address his personal problems in order to ensure that he never ended up in gaol again. Mr Muirson took advantage of the courses that were offered to him in an effort to improve his employment prospects. He realised that he needed ongoing assistance to deal with his personal issues and to ensure that there would be no repetition of his offending in the future. Mr Newton was prepared to provide that ongoing counselling.
When he was first released, Mr Muirson said, he worked with a friend whom he met in gaol. The friend had started a business selling firewood. Although he stayed with him for some time, he was not happy as he felt that the friend was a bit sly. He wanted to steer clear of him. Another friend and he had planned a business but that fell through. They worked on odd jobs for about a month after his friend was released from gaol. While the friend worked on getting his truck going, Mr Muirson did volunteer work for the fire brigade.
Mr Muirson said that he had a job driving trucks. He got the job through a friend he met when he was doing seasonal work. When the seasonal work ran out, the friend put him in touch with the boss, Mr Steve Wallace, up on the Hume Highway. When he flew back from his uncles’ funeral in Brisbane, he caught the train to Morwell. His boss had picked him up and taken him straight off to drive a truck back to Brisbane. Mr Muirson was happy with that job because it was what he had always wanted to do. He did about four trips up to Brisbane and Sydney as well as a couple around town. Mr Muirson had been due to drive a new Freightliner when he was incarcerated by the police. At the time, he had thought that things were looking good for him. His life was back on track and he could see his children.
At the time, he was helping a friend in Morwell who had a 16 year old child. He was still looking after her place when he was taken into immigration detention.
Mr Muirson’s view of himself and his future
In a letter sent to the Department on 9 August 2002, Mr Muirson set out the courses he has undertaken and his hopes for the future:
“… I’m not a violent person but generally a peaceful, loving, thoughtful person who could or would not hurt or harm anyone or anything. I have put this time while incarcerated at Port Phillip Prison to make me a more educated, confident, and focused person, for when I am released. I’ve received certificates in; Computers; Certificate II, Drug and Alcohol, Ausmusic, Ceramics, and am working, painting all around the prison. And Now that I’m at Fulhamn [sic] Prison, I’ve now enroled [sic] for mor [sic] courses in; Bar Attendant, Cleaning Industry, Sports and Recreational, Engineering/Welding, Furniture Manufacturing, First Aid. So you can see I have taken action to better myself in becoming a decent citizen in Australia. I would also like to do education in youth workers to help troubled teenagers before they end up in this situation that I have put myself in. … I believe this country can give you the opportunity to have a successful life in what ever destiny that you decide to choose. The other reason that I wish to stay in this country is because my girlfriend and kids will not return to New Zealand, because her dad, mum, sister, and brother are here in Melbourn [sic] and will not return to New Zealand because they have started their lives here as well. My girlfriend is pretty close to her family and does’nt [sic] want to be too far away from them. If I was to be deported back to N.Z. I would not have the chance to help and support my kids and would feel so lost without them. For they are the love of my life and would totally destroy me to not be able to see them or anything at all. The time I have spent incarcerated in prison has been a great loss of quality time that I have missed out on with my kids becaused [sic] of my stupid mistakes, so as you can see I have paid for my crimes in more ways than you can imagine. So all I can say is if you could take it into your heart to give me another chance and oppurtunity [sic] to prove myself, I feel that I will not let you down. …” (G documents)
Mr Muirson was in touch with members of his family in Brisbane when his uncle died. They had wanted him to move there so that they could support him. His mother and sisters visited Brisbane for the funeral. They spoke of moving to Australia. Mr Muirson has been unable to get his family to give evidence on his behalf as his address book is in storage with the rest of his property.
In the client questionnaire he completed on 24 May 2003, Mr Muirson said that he was planning on getting work in forestry, renting a place for his children to visit, saving up for his own house and starting a business delivering firewood. He saw the cancellation of his visa as leading to the loss of opportunity to better himself financially as well as to involve himself in community activities. Mr Muirson would be unable to spend quality times with his children and to support them. Cancellation would affect his ability to provide financial support to his children. It is impossible for him to get a house in New Zealand. There is no support for him from his family in New Zealand as they are struggling to get by themselves. They could not offer much even in the way of accommodation. Australia is a land of opportunities where a person’s work is more appreciated. A person can get there in the end in New Zealand but, in the short term, it is a lot harder than in Australia.
Smoking choof at Maribyrnong
An ISIS Incident Report dated 12 October 2004 from the Maribyrnong Detention Centre states that Mr Muirson had been found with a prohibited article. It was described as “… a smoking vessel and a small quantity of green vegetable matter …” (Exhibit 2). Mr Muirson was smoking it at the time. The incident was noted as “minor” but the police were called. Mr Muirson was charged with being in possession of an illegal drug and, on 22 October 2004, Mr Muirson was given a caution and charges were no longer pending.
At the hearing, Mr Muirson said that he found some choof (marijuana) on the floor at the detention centre. There are “heaps of things” on the floor. He used the cardboard from a toilet roll to roll it in. At the time, he had an abscess on his throat. He did not take medication for it. When he found the choof, he thought that he would have a smoke to calm himself down and get some pain relief. Things had started getting on top of him at that stage. He was a bit run down and a bit stressed. Smoking choof was preferable to taking medication. Choof is the only drug he ever uses but it is nothing that he cannot stop. He used it in New Zealand and stopped for about 12 months. At the time, he was not thinking straight and had “heaps of pain”. The next day, he was rushed to the hospital for the abscess on his throat. At the time, he did not think of the outcome of his actions.
In cross-examination, Mr Muirson denied that there was any pattern to his behaviour in the sense that he committed offences when he was not coping. Armed robberies and smoking choof were not the same thing. Choof was self-inflicted. He never smoked choof in front of the children. In response to Mr Chand’s suggestion that there was no excuse for breaking the law, Mr Muirson said that it was not a good law; choof is nothing bad; heroin and ecstasy are bad for everyone; and choof does not make anyone violent.
The false answer on his application for a visa
In a letter to Mr McLauchlan, Mr Muirson said that he had answered “no” on the form at the airport because:
“… My intentions were when I came here to Australia to start a new life with my family I wanted to leave that all behind and to start clean. Also I thought that it might hinder my visa coming into this country.” (G documents, G5)
He confirmed what he had said at the hearing. He had wanted to ignore his previous life.
Mr Muirson’s children
In a letter received in the Tribunal on 10 November 2004, Mr Muirson wrote that he has already lost two of the most important years of his children’s life. Those years can never be recovered. If he were sent back to New Zealand, he would miss out on seeing them growing up. Speaking to them on the telephone is not the same as seeing their faces as they grow up.
Mr Muirson did carnival work for a couple of months after his separation from Ms Heaney. He worked on the Bumper Cars. For her birthday, he took his daughter to the carnival but a month later, the carnival work ran out.
He has had little contact with them since he was incarcerated. His former girlfriend had stopped taking the children to see him at the goal. After his release, he said that he tracked his family down and has seen them a few times. He said that, since his release, he has telephoned them a couple of times but has not seen them as he has not been working. He would prefer to see them when he has set himself up with work. He would then have money to take them out. When he is working, he will also have the money to travel from Morwell to see them. Even when he can take them out, he will not be able to make up for lost time. He hopes that his former girlfriend will let him take the children on his truck as she starts to trust him a bit more. She could go with them and she is thinking of moving to Brisbane in any event. He would be interested in moving there and being closer to his family. It would also be better for him so far as work is concerned.
In a conversation with a Departmental officer on 18 May 2004, Mr Muirson said that he could then see his children whenever he wanted. It was not easy for him to take advantage of this arrangement as he lives in Morwell and his children live in Cranbourne with his ex girlfriend.
Mr Muirson’s referees
Mr James Haig, who is the Co-ordinator of the Fulham Islander Group at the Fulham Correctional Centre wrote to the Department on 27 March 2003:
“I have known Steve Muirson for approximately 8 months whilst conducting the Fulham Islander Program (Cultural program teaching language, music, culture, mutual respect for residents from 14 Island nations).
During this time I have found Steve to be a strong team player. He combines with the men from the different Islands to work in a mutually respected work environment. He encourages them to work together and learn their own culture as well as that of the other regions.
This mutual respect and rapport has also been extended into the wider correctional centre population.
He is a pleasure to work with, stays out of trouble and wants nothing more than to complete his term quietly, then return to his family. He is willing to assist in any way possible. He is very good with his hands and would like to work when his term has been completed. He would also like to work with, and mentor, drug and alcohol affected youth.” (G documents, G11)
Mr Shane Robinson wrote a letter to the Department on 16 June 2003. He has known Mr Muirson for over two years. He continued:
“… He is a quiet spoken & gentle type of person who is a hard worker and helpful in any way.
I have been doing firewood for 10 yrs and now have a yard and work is abundant. I have employed Steve permanently and have offered him accommodation also. So as you can see he has permanent work and accommodation and is no threat to society and only seeks to work and buy himself a house and spend quality time with his kids.” (G documents, G12)
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a SCCTY444 visa are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. The primary criteria set out in r. 444.2 of the Regulations state that the only criteria are those set out in s. 32(2)(a) of the Act and r. 5.15A of the Regulations. Of relevance in this case is the criterion that the Minister is satisfied that the applicant for a SCCTY444 visa is not a “behaviour concern non-citizen”. A “behaviour concern non-citizen” means, among other things, a non-citizen (as is a New Zealand citizen; s. 5(1)) who:
“(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b)has been convicted of two or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i)any period concurrent with part of a longer period is disregarded; and
(ii)any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii)the crimes were of the same kind; or
(iv)the crimes were committed at the same time; or
(v)the convictions were at the same time; or
(vi)the sentencings were at the same time; or
(vii)the period were consecutive; or
(c)has been charged with a crime and either:
(i)found guilty of having committed the crime while of unsound mind; or
(ii)acquitted on the ground that the crime was committed while the person was of unsound mind;
(d)has been removed or deported from Australia or removed or deported from another country; or
(e)has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.”
Even if a person satisfies the primary criteria for a SCCTY444 visa, s. 501(2) of the Act provides that:
“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.”
The “character test” is set out in s. 501(6), which, in so far as it is relevant, provides that:
“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));
(b)…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d) …
Otherwise, the person passes the character test.”
A person has a substantial criminal record if sentenced to a term of imprisonment of 12 months or more (s. 501(7)).
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, “… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of merely determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of determining whether the decision made conformed with whatever the relevant general government policy might be.” (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant in this case. Of them, the Minister stated in the Direction:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
In considering whether a person is not of good character when measured against s. 501(6)(c)(i), decision-makers are directed that they:
“should take into consideration the following:
(a)the nature, severity and frequency of the offence/s;
(b)how long ago the offence/s were committed;
(c)the non-citizen’s record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and
(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.” (Direction, cl. 1.8)
In considering whether a person is not of good character when measured against s. 501(6)(c)(ii), the Minister directs decision-makers to take the following into consideration:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
The authorities regarding “good character”
In this case, the focus is upon Mr Muirson’s past and present general conduct and past and present criminal conduct as set out in s. 501(6)(c). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)
Does Mr Muirson pass the character test?
Mr Muirson does not pass the character test. That is the result of his having been sentenced to a term of imprisonment of 12 months (ss. 501(6)(a) and (7)). He has been sentenced to four of them. Although that is an end of that question, I will consider whether he would pass it under the other relevant headings. My findings were put into context my findings and decision regarding the exercise of the discretion.
Putting to one side his convictions for armed robbery, Mr Muirson has a history of driving, or motor vehicle related, offences and of theft. They were punished with fines, disqualifications of his driver’s licence and/or a community service order or community service type order. Viewed alone, they could be regarded as relatively minor offences grouped into three time frames. Those time frames are 1994-95 and 1998 in New Zealand and 2004 in Australia. They are quite well separated and Mr Muirson has an explanation for each. To some extent, they could be explained by his choosing the wrong company to keep although that does not explain his careless driving conviction, driving above the permitted alcohol level and driving while disqualified. It could be said that his driving while disqualified arises from his difficult personal circumstances that have led to his having a variety of employment and changing it quite regularly.
His four convictions for armed robbery in Australia are in a different category. When viewed against the maximum sentence of 25 years imprisonment that could have been imposed on him, Judge Dyett’s sentence of three years for each indicates that the offences are at the lower end of the scale. His Honour directed that a month of each be served consecutively and so recognised that there was an added seriousness in the repetition of the offences. Even though they are at the lower end of the scale of armed robbery offences, I find that they are serious offences. I accept Mr Muirson’s evidence that he did not wish to harm anyone and that he told them that he did not want to harm them. I accept Mr Muirson’s view that the video of one of the robberies suggested that he manhandled one of the attendants far more forcefully than he in fact did. Having heard and seen Mr Muirson and read Mr Haig’s report, I accept that he is, at heart, a gentle person.
As did Judge Dyett, I accept that Mr Muirson is deeply remorseful for his armed robbery offences. I accept that the effect that he has had on his victims has played on his mind. He has used his time well to try to change aspects of his life. So, for example, I accept that he has turned to Buddhism to try to find a better path for himself. He has looked for work to engage himself and had, at the time of his detention, found a driving job that he enjoyed. At the same time, he has not always chosen his friends well. He did discard one whom he regarded as sly but was not as careful in choosing his next friend whose sister let him down over the deregistration of the car.
Mr Muirson is not a person who always handles life’s difficulties in the best way possible. That may be because he does not know how to do so or because he does not possess the best tools to analyse his situation and to choose a course that properly balances his interests with those of the wider community. His armed robbery offences are an example. I accept that he was desperate because he had lost his family and because he had no income. I also accept that he used the monetary proceeds to pay bills. At the same time, he put his own sense of desperation against those of others. The four armed robbery offences are not the only example of his doing that. His conviction in New Zealand for driving while unlicensed is another. He had to get his tools so that he could start another job. That was the motivating reason for driving the car and even at the hearing Mr Muirson did not appear to display any understanding that he should have put the interests of the community in wanting him to obey the law above the immediacy of his own needs so that he found another way to get his tools. In relative terms, that offence was long in the past as it was in 1998. His possession and smoking of choof or marijuana is not long in the past in any terms. It has occurred since his detention at Maribyrnong and it has occurred at a time when he knew that his past offences and behaviour were under scrutiny. I find that the police did not regard his smoking choof as serious for he was given only a caution. What is more serious, I find, is Mr Muirson’s view that smoking choof is nothing bad and that the law against its being possessed was a bad law. I accept that he found it on the floor and that he smoked it to relieve the pain of an abscess in his throat. For all that and whatever he and others may think of the law, it is still the law and one that is being enforced. His view, when taken with his view about driving unlicensed to get his tools and his committing armed robberies because of his desperate situation, shows a pattern. That pattern is one of acting in a way that he sees as suiting his own immediate needs without thinking of the consequences for others or the longer term consequences for himself. It is a pattern that was repeated when he came to Australia and did not disclose his previous convictions as required on the visa application form.
On the basis of Mr Haig’s report, I also find that Mr Muirson is a willing worker who draws others to him to work in a strong working group. He is good with his hands. Mr Muirson has attempted to rehabilitate himself and to take advantage of the opportunities for doing so while he was in gaol. For all that, the pattern of his behaviour outweighs Mr Muirson’s good qualities and efforts to help himself. The latest pieces in the pattern were added within two weeks of his being released from gaol. The pattern and the fact that it has been added to so recently persuades me that Mr Muirson is likely to offend again. I am unable to make a finding of the degree of likelihood of his committing offences of the gravity of his armed robberies again and I consider that it is too soon to make a finding on that as he only lived in the community for four months after being released from prison and before being taken into immigration detention. I am satisfied that he is likely to commit further offences.
In view of that, I am satisfied that Mr Muirson represents a risk to the public good if he is permitted to remain as a member of the Australian community. Having regard to all of these matters, I find that Mr Muirson is a person who is not of good character. He is a person who is likely to harm the welfare of the Australian community by committing further offences of theft and driving related offences. Taking all of these matters into account, I am satisfied that Mr Muirson is not a person of good character as that is understood in s. 501 of the Act.
The Direction – exercise of the discretion
As I have found that Mr Muirson does not pass the character test, I must now consider whether or not his visa should be cancelled. This is the discretionary aspect of the character test. The Minister has directed that there are both primary and other considerations to which a decision-maker should have regard in exercising the discretion. Decision-makers are directed that they:
“… must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.” (Direction, cl. 2.2)
The three 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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Muirson’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future (Direction, cl. 2.5).
Of particular significance in relation to the seriousness and nature of Mr Muirson’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(c)serious crimes against the Migration Act 1958, including, but not limited to, … making a false or misleading statement in connection with entry or stay in Australia;
…
(e)armed robbery (including robbery involving the use of imitation weapons), home invasion;
…
(n)any other crimes involving violence or the threat of violence:
such crimes are of special concern to the welfare and safety of the Australian community;
(o)ancillary offences in respect to any of the above offences, including:
convictions for attempting to commit any of the above offences;
…” (Direction, cl. 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Muirson as mitigating factors (Direction, cl. 2.8(a)). The sentence imposed for any offence is regarded as an indication of the seriousness of the offender’s conduct against the community (Direction, cl. 2.7). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Muirson’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, cl. 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:
“(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g) the time (if any) that the child has spent in Australia;
(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (Direction, paragraph 2.16)
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community; …
(b) genuine marriage to … an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) …” (Direction, paragraph, 2.17)
Should Mr Muirson’s visa be cancelled on the basis of his not passing the character test?
As I have found, Mr Muirson’s offences are a mixture of lower level and more serious offences. He was armed during the armed robberies but, apart from manhandling an attendant, has not shown any violence towards anybody. His sentences for the armed robberies reflected their being at the lower end of the scale of armed robberies. Those sentences, however, do not detract from their being serious offences despite the absence of actual violence. Mr Muirson was armed with a knife and a knife presents a threat of violence even if none is intended. I have already made findings of fact relating to the circumstances in which Mr Muirson came to commit those offences. I accept his explanations in relation to all of the offences and have made findings above in relation to some of the difficulties that Mr Muirson has faced in his past. His difficulties, I find, go back to his childhood in which he endured a very strict upbringing and developed a sense of lacking worth.
I have also made findings about the pattern of Mr Muirson’s pattern of behaviour. He might have been unlucky in taking redgum sleepers from the wrong pile of wood at the railway station but he was not careful in checking whether the car he drove was registered or not. It was not his car and he was a person, who had only recently been released from prison and who was on notice that his visa was under consideration. He was not unlucky when he smoked choof at Maribyrnong. That was a deliberate decision on his part. Again it was taken against a background of his recent release from prison. This time, though, the status of his visa was no longer under consideration. Things had moved on and the Minister’s delegate had cancelled it. In view of these matters and those to which I have already referred, I find that Mr Muirson wants to rehabilitate himself in the sense that he does not want to commit crimes of the sort of armed robbery. Other perhaps lesser offences are not so important to him. They are bad laws in the case of marijuana or he is careless of the law and either careless or completely unknowing of the facts that he should make enquiries about. I am satisfied that he is likely to offend again if either or both of those circumstances arise and I think it likely that they will. He has been a long time user of marijuana even though I accept that he does not consider himself addicted to it.
Cancelling Mr Muirson’s visa could conceivably give a jolt to people in a like situation but I consider it unlikely. He knows very few people in Australia and it is unlikely that many will come to know of the cancellation. Cancellation would certainly not deter a person such as Mr Muirson who would not seem capable of factoring such consequences into his decisions. Therefore, I do not consider that cancelling Mr Muirson’s visa will prevent others from committing offences.
The Australian community tolerates those who have difficulties in their lives. It expects that help is available to those who need it and it would question why help was not available to Mr Muirson when he sought it. I cannot make any finding of fact as to whether Mr Muirson was let down by the government and non-government agencies he approached. They have not been asked about the approaches he said he made. Even if he was let down, though, the Australian community does not tolerate his actions of turning to armed robbery. It does not tolerate a pattern of lower level violations of its law particularly when those violations occur when Mr Muirson is on notice that his behaviour is being watched and weighed.
Mr Muirson, I find, breached the Australian community’s trust that he would be honest with it when he came to Australia. He was not honest because he did not reveal his previous convictions. In failing to do so, he did not give the Minister and his Department a chance to decide whether or not he should be allowed to be in Australia. It may well be that the Australian community would have thought that he should have been given his chance at that time. He had a young family whom he cared about, a difficult childhood and a pattern of working even though at a number of different jobs. It might have overlooked his previous convictions. Having failed to reveal his convictions, I consider that the Australian community would expect that he not be permitted to remain in Australia.
I find that Mr Muirson considers that he has two children even though he has only one biological child. His attitude is understandable and commendable. By the same token, he has seen his children little this year and saw them little during his imprisonment. His failure to do so during his imprisonment was not his fault. On the basis of his evidence, I find that his former partner decided not to take the children when her son became too distressed by the visits. Mr Muirson’s failure to do so between his release on parole in May and August 2004 is a different matter. Based on his statement to the Department on 18 May 2004, I find that Mr Muirson may see the children whenever he wants. In a world of consumerism, Mr Muirson’s view that he needs money so that he can do things with his children is somewhat understandable. What that viewpoint fails to take into account is that proper foundations for relationships cannot be built by spending money. The mortar for proper foundations is time and communication. Money and goods that money buys may be the tuck pointing to what is built on those foundations but not for the foundations. Quite apart from causing him difficulty in taking them out, Mr Muirson’s lack of money has meant that he has had difficulty in travelling to the children’s home from his at Morwell. That is a practical problem.
It is a sadness that Ms Heaney did not come to the hearing. I am not aware whether she knew of it or not. Given that relations between her and Mr Muirson appear to be somewhat better than in the past, she might have been in a position to give a dispassionate account of the way in which the children’s welfare might be affected positively or negatively by contact with him. Mr Muirson saw the children from his point of view. That is to say, from the point of view of how he needed to see them growing up rather than from the point of view of how having him in their lives would help them. They are now aged six and five years of age and he has missed the opportunity to see them regularly for more than two years of his imprisonment.
Even without evidence, I think that it can be said that it is desirable for children to have a good relationship with their parents. All other things being equal, it is good for them to have a mother and father in their lives. In the absence of evidence, it is difficult to know whether all other things are equal in the children’s lives. There is, though, the fact of Mr Muirson’s prior convictions. I do not consider that they are relevant in this context in this case. I accept that he behaves when he is with them and does not even smoke choof, which he regards as an acceptable practice, when he is with them. There is evidence of Mr Muirson’s infrequent contact with the children. Were he to return to New Zealand, that contact would be dependent upon Ms Heaney’s taking the children to that country and upon his and their telephoning each other. Given his track record this year, the contact that he has in that situation may be little different from that he has now. Mr Muirson wants to have contact but has not been able to carry it into practice very well to date. If he were to remain in Australia, he would like to move to Brisbane. That move would take him away from the children. He said that Ms Heaney is talking of moving to Brisbane but I am unable to make a finding as to how certain that is.
The children have only been in Australia since 2000 but it would seem that they are to remain here with their mother. The upshot is that I find that Mr Muirson’s living in New Zealand would have little impact on the children in the short term. He has seen little of them and he would be able to maintain contact over the telephone, even though it is not the best way of having it. Whether their lack of contact would have a negative impact in the longer term is difficult to gauge when I do not know the quality of their relationship now. If they want to have greater contact with him in the future and their mother did not want to leave Australia, the children would have to travel to New Zealand to see him. That is relatively easy but it would cost money that Mr Muirson has had little of either in Australia or in New Zealand.
Mr Muirson, I find, has a mother and three sisters in New Zealand. They are clearly supportive of him emotionally although I am satisfied that they can offer him little in the way of accommodation or monetary support. There is some talk of their moving to Australia but they do not seem to have any concrete proposal at the moment.
Taking all of these matters into account, I consider that the decision should be affirmed. Where the best interests of the children lie is difficult to gauge in this case. Even if they lie with his being in Australia, I consider that they are outweighed by the interests of the Australian community in protecting itself from the risk that I have found that Mr Muirson will re-offend and in its expectation that its laws will not be breached. Mr Muirson’s history in Australia and in New Zealand seems to be on a par; his employment history, his family connections and, with the exception of the armed robberies, his history of offending are relatively equal. His returning to New Zealand possibly ends any hope of reconciliation with Ms Heaney but he has given no indication that reconciliation is on the horizon at all. At best, they have returned to cordial relations. Mr Muirson will find it difficult to leave behind his hopes of seeing his children as they grow up but, as I have said, considerations relating to his situation are outweighed by those relating to the safety and security of the Australian community.
For the reasons I have been given, I affirm the decision of the respondent dated 26 July 2004.
I certify that the ninety-one preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
R. Crook Associate
Date of Hearing 15 November 2004
Date of Decision 30 November 2004
For the Applicant unrepresentedSolicitor for the Respondent Mr A Chand
Clayton Utz
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