Munro and Minister of Immigration and Multicultural Affairs
[2000] AATA 908
•18 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/563
GENERAL ADMINISTRATIVE DIVISION )
Re TONI MUNRO
Applicant
And MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date18 October 2000
PlaceSydney
Decision The decision under review is set aside and the Minister is directed to exercise his discretion in favour of Callum Stewart Angus McGregor by granting him a sub-class 676 Tourist (Short Stay) Visa.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – tourist (short stay) visa – refusal on character grounds – whether applicant failed to meet the character test – whether tribunal must accept findings made by trial judge in his remarks on sentencing - whether residual discretion should be exercised – disregard for Australia's immigration laws – recidivism – protection of the Australian community – expectations of the Australian community – deterrent effect – relationship of visa applicant with family in Australia
Migration Act 1958 - sections 32, 234, 499, 500, 501
Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197
REASONS FOR DECISION
Deputy President J Block
INTRODUCTION
The Applicant seeks a review of a decision by the Respondent refusing the grant of a sub-class 676 Tourist (Short Stay) Visa to her son Callum Stewart Angus McGregor ("Callum").
(a) The Applicant was represented by Mr Ray Turner of Tzovaras Legal Solicitors and the Respondent was represented by Mr Leonard Leerdam of Sparke Helmore Solicitors.
(b) The Tribunal had before it the T Documents (as well as Supplementary T documents and Further Supplementary T documents) lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:· Exhibit A1 is a reference by Roger D Potter, a Director of J P Consultants Limited, who are Callum's employers;
· Exhibit A2 is a reference by Stephen Peter Williams, a barrister of New Zealand, who represented Callum at his trial;
· Exhibit A3 is a witness statement by Callum;
· Exhibit A4 is a report by Ian Coatsworth, a psychologist of New Zealand;
· Exhibit A5 is a statement by the Applicant;
· Exhibit A6 is a statement by Callum's brother, James Robb Stewart McGregor.
FACTS
I propose in the first instance, and purely because this is a convenient manner in which to set the scene and the background, to quote the whole of the Respondent's Statement of Facts and Contentions dated 15 August 2000. I do so purely as a matter of convenience. The fact that I do so should not be construed as indicating that I agree with all of its contents. On the contrary, and as will be seen in these Reasons, there are aspects of them which I do not accept. At the same time, much of it is either not disputed or uncontroversial. The Statement is set out below; (page references contained in the Statement relate to the T documents ("T"), Supplementary T documents ("ST") and Further Supplementary T documents ("FST")):
1.The visa applicant, Callum Stewart Angus McGregor, was born on 25 March 1977 in Hastings, New Zealand. (Tp105)
2.On the night of 28 May 1995 Mr McGregor, with his two brothers, manually assaulted Dr Nand, a medical practitioner. He was knocked to the ground, was temporarily rendered unconscious, and received abrasions. He lost a tooth. His scalp was lacerated in two places and he suffered from swellings. There was the suggestion before he was attacked that there was a racist comment made.
3.Mr McGregor was convicted of the offence on 14 February 1996 in Hamilton District Court, New Zealand. (Tp100)
4.He was sentenced to 18 months imprisonment suspended for two years and non-custodial periodic detention for eight months. (Tp100)
5.Mr McGregor has visited Australia four times since his conviction without a visa on the following dates:
(a) 27.12.1996 to 11.1.1997
(b) 10.1.1998 to 21.1.1998
(c) 27.12.1998 to 10.1.1999
(d) 15.1.2000 to 29.1.2000.
6.On each of these four occasions Mr McGregor filled out the Department of Immigration and Multicultural Affairs Passenger Card omitting to declare that he had a criminal conviction. (STp131-134)
7.Mr McGregor lodged an application for a subclass 676 Tourist (Short Stay) visa on 13 March 2000 in which he admitted his criminal conviction. (Tp107)
8.It appears that Mr McGregor only made an application for a visa because at the time of his last departure from Australia he was advised that he needed to make an application for a visa for future travel to Australia. (Tp10)
9. In support of the application the Applicant provided:
(a) a character reference from his employer, John R Jarvie; (Tp103)
(b) a character reference from his mother, the review applicant, Toni Munro; (Tp104)
(c) a character reference from his former Deputy Headmaster, Mr Jonathan Hensman; (Tp116)
(d) a character reference from his father Mr James McGregor;
(e) a character reference from a previous employer Mr Terry Lillis; (Tp117)
(f) a letter from his mother explaining the reasons for the proposed travel (Tp110)
10.On 16 March 2000 Mr McGregor was informed that based on the information he had provided a decision had been made to refuse the visa in accordance with Section 501 of the Migration Act 1958. (Tp6)
11.On 16 March 2000 Mr McGregor was provided with a copy of the decision record which explained the reasons for the decision to refuse the visa. (Tp7-11)
12.On 12 April 2000 Mr McGregor's mother Toni Munro lodged an appeal with the Administrative Appeals Tribunal (the Tribunal) for a review of the decision not to grant the visa. (Tp1-4)
Legislation
13.Section 32 of the Migration Act 1958 (the Act) enables the grant of a Special Category Visa to New Zealand citizens who present a New Zealand passport to an officer and who are neither a behaviour concern non-citizen nor a health concern non-citizen. (Tp12-14)
14.A person found to meet the definition of a behaviour concern non-citizen is not eligible for the grant of a Special Category Visa, and must therefore apply for and be granted a valid visa to be granted consistent with the intended purpose of their travel in order to enter Australia. (Tp15)
15.An Applicant for a Sub-class 676 (Short Stay) Visa must satisfy the relevant criteria set out in Schedule 4 of the Migration Regulations for the grant of such a visa. (Tp20)
16.Clause 676.221(2)(e) requires that, at the time of the decision, the Applicant must satisfy Public Interest Criterion 4001. (Tp16)
17.Public Interest Criterion 4001 requires the Minister to determine whether the applicant meets the character test as set out in Section 501 of the Act. (Tp20)
18.Section 501(1) of "the Act" provides a special power to refuse a visa if the Applicant does not meet the character test. (Tp13)
19.Section 501(6)(a) provides that a person does not pass the character test if the personal has a substantial criminal record. (Tp13)
20.Section 501(6)(c)(ii) provides for consideration of the applicant's past and present general conduct. (Tp13)
21.Section 501(7) provides for the purposes of the character test, a personal has a "substantial criminal record" if: (c) the person has been sentenced to a term of imprisonment of 12 months or more. (Tp14)
Contentions
22.Under Public Interest Criterion 4001, the Minister has discretion to decide not to refuse to grant a visa to the applicant, despite finding that the Applicant does not pass the character test. (Tp20)
23.Mr McGregor comes within the definition of a behaviour concern non-citizen as he has received a sentence of imprisonment of more than 12 months. (Tp100)
24.The sentencing judge found that where people are convicted of an offence punishable by imprisonment for two years or more and the offence involves either serious violence to the complainant or serious danger to his safety, then the Court shall impose full time custodial sentence unless there are special circumstances relating to the offender or to the offence. The judge found that there were no special circumstances of any sort to justify imposing a sentence less than a term of imprisonment. (FSTp137)
25.As Mr McGregor is a behaviour concern non-citizen he is not eligible for the grant of a Special Category visa and must therefore obtain a valid visa consistent with the intended purpose of his travel in order to enter Australia. In this case a Sub-class 676 (Short Stay) Visa. (Tp15)
26.The Respondent contends that Mr McGregor does not pass the character test as he has a substantial criminal record as defined in sub-section 501(7) of "the Act", having been sentenced to a term of imprisonment of eighteen months. (Tp100)
27.The Respondent contends that Mr McGregor does not pass the character test as he has breached immigration law as defined in paragraph 501(6)(c)(ii). (Tp10)
28.There is a recent line of cases upholding a longstanding principle that honesty in migration applications is integral to monitoring the migration system and confidence in Australia's legitimate migration program: Dumbrell v Minister for Immigration and Multicultural Affairs [2000] AATA 443.
Policy
29.In relation to directions made under Section 499 of the Act, it must be noted that they are binding on the Tribunal (Section 499(2A): Rokobatini v Minister for Immigration and Multicultural Affairs FC 19 April 1999 136/99).
30.Ministerial Direction – Visa Refusal and Cancellation under Section 501 – No 17 of 17 June 1999 provides that in considering the exercise of the discretion, decision makers must take into account as primary considerations "The protection of the Australian community" and "The expectations of the Australian community". (Tp28)
31.Paragraph 2.6(c) of the Direction states that the presentation of false documents or making false or misleading statements in connection with entry or stay in Australia is a very serious offence. (Tp37)
32.Mr McGregor made false statements by not disclosing his criminal history on the Passenger Cards. (STp131-134)
33.Paragraph 2.6(f) of the Direction states that assault or any other form of violence against persons is considered by the Australian government to be a very serious offence. (Tp37)
34.Paragraph 2.7(b) of the Direction states the Australian government's view that the sentence imposed for a crime is an indication of the seriousness of the offender's conduct against the community. Decision makers should have due regard to the government's view in this respect, including the repugnance of the crime to the whole community, especially where the crime involves violence against defenceless persons. (Tp39)
35.Mr McGregor, with his two brothers, attacked a man in the street after making racist comments. The judge went so far as to say that they were 'hoons', and wondered whether they would 'go on and become the hoons that you were that night.' (FSTp137)
36.If the Tribunal finds that Mr McGregor does not pass the character test the Tribunal must then decide whether or not to exercise its discretion not to refuse the grant of a visa to Mr McGregor.
37.It is contended that given Mr McGregor's recent convictions involving assault, he is a person who poses an unacceptable risk to the community and for the sake of the protection of the Australian community should not be granted a visa to enter the country.
38.Para 2.10 of the Direction looks at the risk of recidivism. This offence was committed in 1995, and Mr McGregor was sentenced on 14 February 1996 to 18 months imprisonment. (Tp39)
39.During the time that Mr McGregor was subject to the above suspended sentence he travelled to Australia without disclosing his criminal history. This behaviour demonstrates that he has a high risk of recidivism.
40.The seriousness of the offence and the relatively recent commission of the offence ground the Respondent's contention that it would be the expectation of the Australian community that Mr McGregor be refused a visa. These are primary considerations.
41.Paragraph 2.17 of the Direction includes Other Considerations which are to be given less weight by decision makers when considering visa refusal. (Tp42)
42.The Respondent further contends that the compassionate circumstances raised by the Applicant for granting the visa in this case, are outweighed by the primary considerations.
43.The Respondent contends that any exercise of a discretion in favour of Mr McGregor would be tantamount to rewarding him for his illegal activities.
44.The Respondent respectfully submits that the Tribunal should affirm the decision under review.
Tribunal's powers on review
45.Section 500(1)(b) of "the Act" provides the Tribunal with jurisdiction to review "… decisions of a delegate of the Minister under Section 501…".
If only by way of balance, I next set out the Applicant's Statement of Facts and Contentions dated 4 August 2000. As was the case with the Respondent's Statement of Facts and Contentions, I do not, as will appear from these Reasons, accept the correctness of all of them. That Statement is set out below:
FACTS
1.The Applicant accepts the "Material Findings of Fact" as set out at TT page 95.
CONTENTIONS
1.Mr McGregor, Visa Applicant committed a minor isolated offence 5 years ago. He was sentenced to 18 months imprisonment (suspended) and ordered to serve 8 months non-residential periodic detention.
2.Mr McGregor has shown genuine contrition and remorse for his actions.
3.Mr McGregor only sought a short stay tourist visa to visit his mother and other family members in Australia.
4.Mr McGregor will seek to come to Australia on a number of occasions to visit his family in Australia, including his Uncle who is seriously ill.
5.The offence was committed in New Zealand, any deterrent effect will be upon New Zealand citizens in New Zealand and is, therefore, of no concern to the Respondent.
6.There is no evidence before the Tribunal that the Australian community will be at any risk of harm should Mr McGregor be given the visa he seeks. Indeed, there is considerable evidence to the contrary.
7.There is no evidence that the Australian community, or any significant part of it, would expect that this visa be refused.
8.The Criminal Courts in New Zealand did not see fit to imprison Mr McGregor. The Court, with great experience in sentences matters which include, inter alia, deterrence and protection of the community, so no necessity to remove Mr McGregor from the community by ordering his incarceration.
9.If the Criminal Courts of New Zealand, where Mr McGregor permanently resides, saw no danger in releasing Mr McGregor, now can it be said that he represents a greater danger to the Australian community should he come here on a short visit.
(a) On 14 February 1996, in the District Court of Hamilton, New Zealand, Callum (as well as his brothers Hamish and Alastair) were found guilty of an assault which took place in Hamilton on 28 May 1995.
(b) The notes on sentencing by Judge J R Callander figured so largely in the hearing that I set them out in full in these Reasons, as follows:This offence occurred on 28 May last year and I presided over the hearing at which I found you three to be guilty of this offence of intentionally injuring Doctor Nand in the principal street of this city on the night in question. He was knocked to the ground, was temporarily rendered unconscious, and received abrasions. He lost I think a tooth. His scalp was lacerated in two places and he suffered from swellings. He did not require medical attention because of his own profession as a medical practitioner.
There was the suggestion before he was attacked by you that there was a racist comment made and that I think is shameful on your parts, or whoever it was who said it, and does not go down with any Court of law in this country.
Your counsel has realistically indicated that he accepts here that s 5 of the Criminal Justice Act applies in your case. That simply says that where people are convicted of an offence punishable by imprisonment for two years or more and the offence involves either serious violence to the complainant or serious danger to his safety, then the Court shall impose a full time custodial sentence unless there are special circumstances relating to either you or to the offence.
Analysing the offence, and analysing your circumstances from the Probation Reports that have been written about you, I do not find special circumstances of any sort and thus a term of imprisonment will be imposed.
The remaining issue is simply whether that sentence should be suspended and your counsel has made detailed submissions to me to that effect. In some ways, fortunately for you, the law changed several years ago permitting Courts to suspend sentences in certain circumstances and the New Zealand Court of Appeal in R v Petersen & Others gave guidelines to Courts as to the appropriate matters that should be considered by a sentencing Judge such as myself.
I intend here to impose sentences of 18 months imprisonment on all three of you but to suspend those sentences for two years commencing from today. That is because I am taking into account your relative youthfulness. I am taking into account that essentially in terms of offending of this type at least there are not relevant previous convictions. There are previous convictions but nothing fortunately in this order.
I believe clearly that there is a need for rehabilitation particularly with respect to two of you. The indication in the reports are that steps have clearly been taken to do just that with respect of alcohol problems and general counselling and that was a feature that the Court of Appeal focussed upon with some concern and I accept that that is clearly a feature here.
One matter the Court said that was important was what your likely response to the suspended sentence would be. Whether you would thumb your nose at the Court and go on and become the hoons that you were that night. Even the Probation Officer in one instance suggests that that was that type of behaviour, or whether this experience will wake you all up, make you realise that you have responsibilities, not only to your own family in the position of no doubt a very distressed father who sees three fine looking young sons lined up and about to go to prison but also a responsibility to the community at large. People who want to lead their lives in peace are not going to tolerate this sort of behaviour. It has been a feature of late nights in Hamilton for some years, to the concern of not only the Police and the Courts but all right thinking members of the community. They do not want this city to turn into the sort of barbaric place that many other cities are after midnight.
Now luckily I accept Mr William's submissions to me. They are reflected really also in the Probation Report and the letter that I have received from Jackie Bridge. I think you are likely to respond positively to the suspended sentence. I think that your background is likely to contribute there and that you have a background where you should indeed have known that this sort of drunken violence was inappropriate and wrong and I think that it may well be the last time we see any of you.
Alcohol was clearly a major feature. Four out of five of all men serving time in New Zealand prisons committed their offences while drunk or drugged. Four out of five! It is a massive problem in New Zealand society and a problem that people have been trying to address probably for 150 years without any great degree of success. It is no excuse that you were drunk. The law recognises that quite clearly. But I tell you what: if you do not recognise drunkenness problems, and if you do not do something about drink problems then the next thing you are beating your wife half stupid or you are whacking your child so that he is deaf in one ear or blind in one eye. I have been sitting here for 18 years as a Judge and I have seen all of it. I have seen preliminary hearings where there is a dead body on the street at 3 o'clock in the morning for nothing more than this; where somebody hits the pavement and dies as a result, and young men like you end up in Paremoremo Prison on a life sentence. That is what it is about.
Now given those features and given the fact that I really think the public will not suffer by future misbehaviour on your part I am doing what I am doing with a suspended sentence. I was concerned at the defended hearing that you tried to deceive me in terms of your own testimony with respect to what happened but I recognise it was probably some vain attempt to get off the hook on what was obviously a serious charge.
Apart from the suspended sentence of imprisonment the effective sentence will be a term of eight months Periodic Detention for all three of you. I am treating you the same although I recognise your involvement was not identical in each case but it seems to me that all three were there as either principle or party and should be dealt with on the same basis.
In terms of probationary supervision in Hamish McGregor's case there will be supervision for 12 months on the conditions that he undertake alcohol and substance abuse, counselling treatment or programmes and also undertake an anger management programme. In the case of Alastair McGregor there will be 12 months supervision. The conditions are that he will undertake a substance abuse counselling programme with the Zenith House organisation and will live and work as directed. I do not think it was suggested in Callum's case that there was any need for supervision.
I have reflected on the issue of reparation and I do not believe here that it is called for given Dr Nand's obvious substantial position. I will however make an order for the witnesses expenses of $204.00. That $204.00 will be split as $68.00 for each defendant and I think that covers everything. They may step down.
(c) It is relevant to note that the Judge was, in respect of his sentence and the suspension of it, influenced by a number of factors. In particular, the fact that a racist comment was made, the fact that Dr Nand was knocked unconscious (albeit temporarily), Callum's age (and it is to be noted that he was 18 at the time) and the fact that alcohol was involved. Callum received a sentence of 18 months imprisonment suspended for 2 years, together with an obligation to perform community service.
(d) The judge noted that "there are previous convictions but nothing fortunately in this order". In fact the evidence (and including a report by the New Zealand police authorities) reveals that Callum does not have any other convictions of any nature and so that this reference must have been to previous convictions of his brothers.
(e) It is also relevant to note that probationary supervision was ordered for Hamish and Alistair, but not for Callum, in respect of whom the Judge felt that no such supervision was needed.
(f) In this context I note paragraphs 45 and 46 of the judgment of the Full Federal Court in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, reading as follows:
45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46 While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.
ORAL EVIDENCE
Oral evidence was given by Callum and a psychologist, Mr Ian Coatsworth (both by telephone link from New Zealand), and also by the Applicant and her son James.
The evidence of Callum was by and large clear, straightforward and deserving, except in two respects of credibility. I have reservations as to his evidence in respect of the assault offence itself, and as regards certain aspects of his evidence referable to four trips to Australia made by him subsequently. In this regard :
(a) Callum's evidence as to the assault itself amounted to an attempt to exonerate himself. He spoke of a rugby match in which he played, followed by some beer at the rugby club and followed by a visit to a pub (accompanied by friends) at which he had some more beer. Apart from a number of friends, he was joined at some point in time by his two brothers who had travelled from Auckland. Callum's evidence was that a remark was made by someone in a group of whom Dr Nand was one, which provoked a remark by him to the following effect: "Fuck off you bloody Indians". He said that in the ensuing fracas, in which he did not take part, Dr Nand was knocked down. It was Callum's evidence then, that in effect the whole unfortunate incident was started by the other group. Moreover, that there was an element of self-defence involved, although Callum admitted the extent and nature of the self-defence was excessive. Callum expressed remorse for what occurred; however what is not clear is what exactly Callum was remorseful about. I am prepared to accept that, understandably enough, he regards the whole unfortunate affair and its consequences to him personally as regrettable, but that is not the same as remorse as to the harm caused to Dr Nand. I must of course accept (having regard to the decision in SRT (supra)) that Callum was properly convicted and also that his sentence was proper in all of the circumstances;
(b) On four occasions since then Callum has entered Australia where he has a number of close relations including his mother (the Applicant), two other brothers, two uncles (one being seriously ill) and a number of cousins (see in particular paragraph 5 of the Respondent's Statement of Facts and Contentions);
(c) On each occasion Callum was obliged to fill in a landing card which required him to tick a box with the answer 'yes' if:
(i) in the case of the first two visits, he had any convictions resulting in a sentence of 12 months imprisonment; and
(ii) in the case of the last two visits, he had any convictions (without qualification as to sentence).
In all cases Callum answered 'no'. On his last visit to Australia, which occurred at the beginning of this year, Callum was interrogated by Department of Immigration officials. They were somehow aware of his conviction, but nevertheless gave him a 14-day temporary visa and he was warned that he would be required to seek a temporary visa in the future. That warning was repeated when he departed Australia at the end of January 2000. (It is to be noted that a New Zealand citizen such as Callum is entitled to a special category visa provided that he is not a behaviour concern non-citizen, and as to which see Section 32 of the Migration Act 1958 ("the Act"). Callum told the Tribunal that he answered in this fashion because he did not have to serve a prison sentence. That evidence cannot be accepted. Callum is not uneducated, the question in the form is cast in simple terms and focuses on whether or not convictions are held. The Tribunal considers that it is likely that Callum answered in this fashion precisely because he feared that a correct answer might have resulted in denial of a visa. In consequence Callum was in breach of Section 234(1)(b) of the Act which reads as follows:
234 False papers etc.
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
. . .
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
. . .
SUBMISSIONS
Mr Turner, for the Applicant, presented arguments at various times during the hearing to the following effect:
(a) The word 'sentences' in section 501(7)(c) of the Act does not include, having regard to the definition of 'sentence' in section 501(12) of the Act, a suspended sentence. He later conceded that this argument could not stand.
(b) The statements made by Callum when he landed in Australia, in respect of each of the four trips referred to previously, were not false or misleading in a material way, particularly in relation to the fourth trip to Australia, because notwithstanding the fact that the existence of the conviction was known, Callum nevertheless was granted a visa. The Tribunal does not accept that such an argument is tenable.
(c) Mr Turner argued that paragraph 5 of the Respondent's Statement of Facts and Contentions is incorrect in that Callum did in fact receive a visa on each occasion when he visited Australia. On the first three occasions he received a visa because he did not tick the box on the landing form correctly and on the fourth occasion after the enquiries to which I have referred previously. The Tribunal considers that whether or not this is correct, it does not alter the fact that Callum committed a breach of section 234(1)(b) of the Act on each such occasion.The T documents contain a number of references testifying as to Callum's good character. Some of those references are by close family members and can be treated with a degree of reserve. Others were not tested by cross-examination. I do note, though, that subject only to this reservation, his employer in New Zealand speaks highly of him, as does Mr Williams, a barrister, and equally the deputy headmaster of the school he attended. In this latter context a glowing reference (dated before the assault) speaks of Callum's position as a prefect of the school and a member of the 1st XV rugby team.
Callum has worked for the same firm (JP Consultants Limited) as a draughtsman for a number of years and is obviously held in high regard by that firm. At the same time he has been attending an Institute of Technology and will graduate as a civil engineer at the end of this year. He said, and I accept, that he has received good grades throughout the course of his studies.
The evidence of Mr Coatsworth while honest enough was subject to some degree of criticism by the Respondent on the basis that at least some of his observations were based on insufficient analysis or information. Criticism was focused in particular on the fact that he interviewed neither Dr Nand, nor either of the two brothers who were accused with Callum.
The evidence of the Applicant and Callum's brother James was in each case brief and testified merely as to his good character.
DISCRETION NOT TO REFUSE VISAThe Ministerial Direction ("the Direction") referred to in paragraph 29 of the Respondent's Statement of Facts and Contentions is binding on me in accordance with section 499 of the Act.
(a) It is plain enough that Callum fails the character test having regard to the provisions of section 501(7)(c) of the Act. This being so it is necessary for me to consider part 2 of the Direction (Exercising the Discretion) and to balance those factors which are relevant.
(b) The prime factors are those set out in clause 2.3 of the Direction which reads as follows:2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(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.
(c) Clause 2.3(c) of the Direction is not relevant. I do not think that the Australian public or members of the Australian public require protection against Callum, nor indeed do I think that the expectations of the Australian community are such that they would expect the refusal of a temporary visa in these circumstances. While not minimising the serious nature of the assault, it occurred once only more than five years ago in circumstances involving alcohol and perhaps a prohibited substance (but in the latter case not in relation to Callum). Callum and his brothers received precisely the same sentence, even though the Judge treated Callum differently, in relation to probationary supervision.
(d) In respect of clause 2.5(a) of the Direction the assault was viewed by the Judge in New Zealand as sufficiently serious to justify a custodial sentence albeit that that sentence was suspended. A crime of violence is treated as being of special concern (clause 2.6(n) of the Direction). Having regard to clause 2.6(c) of the Direction, the offences under the Act must also be regarded seriously. Even though there was evidence before me which would suggest that the assault might perhaps be characterised as a drunken brawl, the Judge did not so regard it and I am bound by his remarks. The reference in paragraph 1 of the Applicant's Statement of Facts and Contentions to a 'minor' offence cannot be accepted.
Mr Leerdam, for the Respondent, urged me to have particular regard to the racist slur which was made by Callum prior to the assault. I agree that the remark was unnecessary and uncalled for. At the same time I do not think it should be treated as seriously as Mr Leerdam suggested. The obscenity is common place in these times and the use of the word "Indian" while reprehensible was surely not as serious as Mr Leerdam suggests. The use of a descriptive term such as this, albeit by reference to a racial group, occurs regularly and need not always be taken too seriously.
(e) Mr Leerdam conceded that the risk of recidivism is remote, although, as he put it, this is unpredictable. I do not regard the contraventions under the Act as evidence of recidivism and the second sentence of paragraph 39 of the Respondent's Statement of Facts and Contentions cannot be accepted.
(f) As regards clause 2.11 of the Direction, I do not think that there is any evidence that refusal of a temporary visa in these circumstances would have a deterrent effect. As Mr Turner pointed out the probabilities are that the only persons who would ever know are those concerned with this case.
(g) I should note that I do not think that paragraph 35 of the Respondent's Statements of Facts and Contentions accurately reflects what the Judge in fact said. Indeed the last paragraph of the Judge's remarks might be thought to be inapposite in some respects. It is at least conceivable that the Judge was seeking to sound a very strong note of warning to Callum and his brothers and perhaps in the last paragraph overstated the position to some extent. In the same context the reference to 'convictions' (in the plural) in paragraph 37 of the Respondent's Statement was incorrect in that Callum has only one conviction.
(h) There is a secondary consideration which strongly favours Callum. His mother (the Applicant), two of his brothers and other close relations live in Australia. I accept that his relationship with his mother (the Applicant) is particularly close.
I was furnished immediately prior to the hearing with references to a number of decided cases; however those cases were referred to either in passing or not at all. The Respondent referred to two cases involving migration offences involving Filipinos seeking to become permanently resident in Australia and making false statements in pursuance of that aim. I do not think that those offences under the Act are properly comparable with those by Callum, more particularly having regard to his desire for a short stay visa only.
CONCLUSIONIn summary, the assault in 1995 was serious and should be properly treated as such. However, it occurred while Callum was young and under the influence of alcohol. There is in my view little or no danger of recidivism and Callum poses no threat to the Australian public. The primary considerations are therefore of little, if any, relevance in this case, and the presence of close family in Australia leads me to conclude that on a proper balance, Callum should be given a sub-class 6 Tourist (Short Stay) Visa in order to visit his family. He originally sought a sub-class 676 Tourist (Short Stay) Visa earlier this year in connection with his mother's 50th birthday celebrations in March 2000 and plainly that is no longer feasible. However he said in evidence that he would like to visit his mother and family in Australia at Christmas.
In these circumstances the decision under review is set aside and the Respondent is directed to exercise his discretion in favour of Callum by granting him a sub-class 676 Tourist (Short Stay) Visa.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT J BLOCK
Signed: .....................................................................................
AssociateDate of Hearing 11 October 2000
Date of Decision 18 October 2000
Solicitor for the Applicant Ray Turner of Tzovaras Legal Solicitors
Solicitor for the Respondent Leonard Leerdam of Sparke Helmore Solicitors
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