PLQY and Minister for Immigration and Border Protection (Migration)
[2017] AATA 2025
•30 October 2017
PLQY and Minister for Immigration and Border Protection (Migration) [2017] AATA 2025 (30 October 2017)
Division:General Division
File Number: 2017/4780
Re:PLQY
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:30 October 2017
Place:Melbourne
The Tribunal decides to:
affirm the decision of the respondent dated 7 August 2017 to refuse to grant the applicant a Bridging E (Class WE) visa.
.......[sgd].................................................................
Deputy President S A Forgie
Catchwords
MIGRATION – refusal of visa on character grounds – best interests of children – expectations of the Australian community - decision affirmed
Legislation
Family Law Act 1975 ss 61B, 62G, 68R, 97, 121
Migration Act 1958 ss 5, 29, 30, 31, 36, 45, 46, 47, 84, 86, 499, 501, 503
Family Law Rules Part 15.5
Migration Regulations 1994 r 1.03; and cll 020, 600, 601, 801, 820, 976, 4001, 5001
Direction No.65
Cases
Alexandra Private GeriatricHospital Pty Ltd v Blewett(1984) 2 FCR 368; 56 ALR 265
Harman v HomeDepartment State Secretary [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Secondary Materials
REASONS FOR DECISION
Deputy President S A Forgie
On 7 August 2017, a delegate of the Minister for Immigration and Border Protection (Minister) refused PLQY’s[1] application for a Bridging E (Class WE) visa (sc 050 BE visa) under s 501(1) of the Migration Act 1958 (Migration Act). The delegate did so on the basis that PLQY had not passed the character test under s 501(6). There was no dispute between the parties that PLQY had not passed it because he had a substantial criminal record within the meaning of ss 501(1)(a) and 501(7)(c) and (d) of the Migration Act in that he had been sentenced to a term of imprisonment of 12 months or more and has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. The Department of Immigration and Border Protection (Department) advised PLQY of the refusal in a letter dated 8 August 2017.
[1] Name suppressed to accommodate s 121 of the Family Law Act 1975.
PLQY has applied for review of the Minister’s decision. Since he first visited Australia in 1995, he has met and married the mother of his three young daughters. He and she have lived both in his country of birth, the United States of America (USA), and Australia at various times. In the main, PLQY has entered and remained in Australia on visitors’ visas, which require him to leave the country within 90 days. He applied for a Subclass 820/801 partner visa (partner visa) and associated Bridging Visa on 24 May 2011 but he withdrew it on 22 October 2013 after his marriage foundered. He has not disclosed his convictions when required to do so on his applications for visas or on his incoming passenger card in 1995. PLQY has continued to visit his daughters by applying, for the most part, for temporary visitors’ visa. The Federal Circuit Court (FCC) has ordered that he and his wife have equal shared parental responsibility for the children. The children live with his wife but the Family Court ordered that PLQY have overnight access to his two older daughters and day time access to his youngest when he was in Australia. PLQY’s wife has applied for, and been granted, interim Intervention Orders (IVOs) by the Magistrates’ Court and, after pleading guilty, PLQY was convicted of persistently breaching those orders.
Even though I have started from the premiss that it is generally in the best interests of children to grow up with their father and, if they do not live together, in circumstances in which they are able to spend time in his company, I have decided that the balance of all of the interests to which I must have regard, including those of the Australian community and its laws, requires me to affirm the decision under review. This means that PLQY’s daughters will not be able to spend time in his company in Australia at least in the short term although they will have access to him by electronic means and, as they grow older, possibly by visiting him in the United States of America (USA).
LEGISLATIVE BACKGROUND
Visas
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[2] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[3] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[4] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Migration Act. Regulations may specify the criteria that must be met for a visa of a specified class[5] as do specific provisions of the Migration Act.[6]
[2] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[3] Migration Act; ss 5 and 29(1)
[4] Migration Act; s 30
[5] Migration Act; s 31(3)
[6] See, for example, s 36 in relation to protection visas.
Subject to the Migration Act and regulations made under it, a non-citizen who wants a visa must apply for a visa of a particular class.[7] In certain circumstances, an application for a visa of a particular class may be taken to be an application for another class.[8] Section 47(1) requires the Minister to consider a valid application for a visa but the Minister is not to consider an application that is not a valid application.[9] An application for a visa is valid only if it satisfies the criteria set out in s 46.
[7] Migration Act; s 45
[8] Migration Act; s 45AA
[9] Migration Act; ss 47(1) and (3)
Subject to certain qualifications related to the suspension of the processing of visa applications under s 84 and visa limits under s 86, the Minister is to grant a valid application for a visa if satisfied that the health and other criteria specified for the visa have been satisfied, charges have been paid and the grant of the visa is not prevented by Commonwealth laws or the provisions of the Migration Act including s 501.[10]
Restrictions on entitlement to enter Australia or to be in Australia when decisions made under, among others, section 501 of the Migration Act
[10] Migration Act; s 65
A person in relation to whom a decision has been made under various provisions, including s 501 of the Migration Act, is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations. That is the effect of s 503(1)(b). The way in which that period is determined is by reference to the criteria that are prescribed under the Migration Regulations 1994 (Migration Regulations) as provided for by s 31(3) of the Migration Act.
One example of the way in which this comes about is by the prescription of certain public interest criteria. They are set out in Schedule 4 to the Migration Regulations. If, for example, the holder of a visa overstays the period during which he or she is permitted to remain in Australia, the Minister may cancel that visa under s 116(1)(b) on the basis that its holder has not complied with a condition of the visa. If that person applies for a further visa, the criteria prescribed for the particular visa may specify public interest criterion 4013. If it does, the visa applicant will not be able to make the application until three years have passed since the cancellation or there are certain compelling or compassionate circumstances.[11]
[11] Migration Regulations; Schedule 4; public interest criterion 4013(1) and (1A)(a)
If the criteria prescribed for a visa or class of visas include criterion 4001, which is one of the public interest criteria, a person is effectively excluded from Australia until:
“Either:
(a)the person satisfies the Minister that the person passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.”
If the Special Return Criteria set out in Schedule 5 to the Migration Regulations[12] were prescribed, their effect may be to exclude a person from Australia. Criterion 5001 is one of those Special Return Criteria. If criterion 5001 is prescribed by the Migration Regulations in relation to a visa or visas of a specified class in accordance with s 31(3) of the Migration Act, then the applicant must not, among other things, be:
[12] Migration Regulations; r 1.03
“…
(a) …
(b)a person whose visa has been cancelled under section 501 of the Act, as in force before 1 June 1999, wholly or partly because the Minister, having regard to the person’s past criminal conduct, was satisfied that the person is not of good character; or
(c)a person whose visa has been cancelled under section 501, 501A or 501B of the Act, if:
(i)the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or
(ii)after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person; or
(d)…”
The effect of a decision to refuse a visa under s 501 is not the subject of criterion 5001 but that does not necessarily mean that the fundamental issue behind the refusal of a visa under s 501 is irrelevant for it will be relevant if public interest criterion is prescribed.
Refusal under section 501 of the Migration Act
Section 501(1) provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).’
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[13]
[13] Migration Act; s 501(3)
The character test is set out in s 501(6). Only s 501(6)(a) is relevant:
“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));
…”
Section 501(7) sets out various situations in which a person is determined to have a substantial criminal record. They include the situation in which a person has been sentenced to a term of imprisonment of 12 months or more.[14] PLQY has been sentenced to such a term of imprisonment and it makes no difference that he was sentenced in a country other than Australia.
[14] Migration Act; s 501(7)(c)
Discretionary decision
Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[15]
[15] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
In the case of a discretionary decision of the sort provided for in s 500(1), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[16] Those directions must not be inconsistent with the Act or the Regulations made under it.[17] The person or body to whom the directions are given must comply with them.[18] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.
[16] Migration Act; s 499(1)
[17] Migration Act; s 499(2)
[18] Migration Act; s 499(2A)
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[19]
[19] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Differing considerations are prescribed in each Part. Regardless of those differences, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker when considering whether to cancel a visa, refuse an application for a visa or when considering whether the mandatory cancellation of a visa will be revoked. Decision-makers must take into account the primary and other considerations relevant to the individual case.[20] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[20] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[21] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[22]
[21] Direction No. 65 at [8(2)]
[22] Direction No. 65 at [8(4)] and [8(5)]
Part B of Direction No. 65 applies to a decision whether to refuse an application for a visa. I will expand on these later in these reasons but, in summary, the primary considerations are threefold:
“a) Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.”[23]
The secondary criteria:
“… include (but are not limited to):
a) International non-refoulment obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.”
[23] Direction No. 65 at [11(1)]
Direction No. 65 expands upon each of these criteria and I return to it later in these reasons.
BACKGROUND
In this section of my reasons, I will set out the facts that are either not in dispute or that I have found after hearing PLQY’s oral evidence and that of Mr Woodward as well as having regard to the written evidence. I will set out the facts by reference to the years in which they occurred.
Early life
PLQY’s parents separated and divorced when he was quite young. His mother moved out of the family home but she was later found raped and murdered. PLQY attributes his turning to illicit drugs to the devastation he experienced following his mother’s death in those circumstances. His first exposure to drugs in the form of marijuana and cocaine occurred when he was 12 years of age. He became caught up in the wrong crowd in California and was soon addicted to crack cocaine. At the same time, he continued with his schooling and graduated from High School and then from University.
1993 to 2005
In the years between 1993 and 2005 and before he travelled to Australia on the first occasion, PLQY was convicted of the following offences in California in the USA:
Date
Conviction
Sentence
13 May 1993
Theft
(Conviction status: Misdemeanour)
Convicted
3 years’ probation
180 days gaolPossess Controlled Substance Paraphernalia
(Conviction status: Misdemeanour)Convicted
3 years’ probation
180 days gaolBurglary
(Conviction status: Felony)Convicted
5 years’ probation
365 days gaol
Restitution ordered20 January 1994
Probation modified: sentenced to 90 days gaol in lieu
23 March 1994
Burglary (1)
(Conviction status: Felony)Convicted
Probation/gaolBurglary (2)
(Conviction status: Felony)Convicted
5 years’ probation
12 months gaol12 April 1995
Battery with Serious Bodily Injury
(Conviction status: Misdemeanour)Convicted
3 years’ probation
90 days gaol3 January 1996
Burglary: Second Degree
(Conviction status: Felony)(PLQY served his term at a Fire Camp with the California Department of Forestry and Firefighting. He underwent physical and mental training and became a Certified Class 1 Fire Fighter. I accept that he was drug free during the period of his term.)
Convicted
6 years’ gaol
Fine15 November 2002
Possess Narcotic Control Substance with prior prison
(Conviction status: Felony)Convicted
5 years’ probation
Fine
Restitution25 July 2003
Obstructs/resists Public Officer
(Conviction status: Misdemeanour)(PLQY stated that he chose to attend Drug Court with a three year suspended sentence rather than serve a term of imprisonment.)
Convicted
3 years’ probation
Fine
Restitution19 August 2004
Battery Peace Officer/Emergency Personnel
(Conviction status: Misdemeanour)Convicted
3 years’ probation with a condition of a firearm restriction
Fine
Restitution14 February 2005
Possess Narcotic Control Substance
(Conviction status: Felony)Convicted
3 years probation on condition undertake drug treatment placement
120 days gaol
Fine
2005
PLQY first arrived in Australia on 15 September 2005 as the holder of an Electronic Travel Authority (Visitor) (Subclass 976) (sc 976 ETA visa). Among the criteria that had to be satisfied at the time was the applicant’s stated intention to visit Australia temporarily for tourism purposes.[24] He was also required to satisfy public interest criteria 4002, 4003, 4004, 4005, 4013 and 4014 but was not required to satisfy public interest criterion 4001.[25] That means that he is not subject to scrutiny by reference to the character test under s 501[26] although he is subject to scrutiny in that he must not have been assessed by the Australian Security and Intelligence Organisation (ASIO) to be a risk to security within the meaning of s 4 of the Australian Security and Intelligence Organisation Act 1979[27]or has not been determined by the Minister for Foreign Affairs to be a person whose presence would, for example, be contrary to Australia’s foreign policy interests.
[24] Migration Regulations 1994 (Migration Regulations); r 976.222
[25] Migration Regulations; r 976.223
[26] See public interest criterion 4001 at [10] above
[27] Migration Regulations; Schedule 4, public interest criterion 4002
PLQY acknowledged that he had not revealed his previous criminal convictions either when applying for the sc 976 visa or in completing the incoming passenger card when he arrived in Australia. His reason for failing to do so was that his father, with whom he was travelling, had told him it was not necessary to disclose them as he would not be returning to Australia. PLQY realises that it was bad advice but, at the time, he had wanted to leave the stress of prisons and institutions behind him and thought that a trip to Australia was a great opportunity to do so. He did not understand the seriousness of his failure to disclose his convictions at the time.
As PLQY did not hold another substantive visa, he was permitted to travel to, and enter, Australia on multiple occasions within 12 months from the date of the grant of the visa but, on each occasion, he could remain no longer than three months.[28] The visa did not permit him to work in Australia.
[28] Migration Regulations; r 976.511(b)
PLQY met the woman who would become his wife in Sydney in November 2005. At the time, he was working on a wheat farm. His current view of his state of mind at the time is that he did not know that it was illegal to work while holding an sc 976 visa. The terms of his sc 976 visa required PLQY to leave Australia at or before the expiration of 90 days after his entry and he did so on 10 December 2015. As he had planned to do before he met his future wife, he travelled to New Zealand where he remained for a period.
2006
PLQY returned to Australia on 11 January 2006 as the holder of an sc 976 visa. Again, he was permitted to remain in Australia for periods of 90 days. This time, he overstayed that period by some six weeks as he did not leave until 29 May 2006. By that time, he was an unlawful non-citizen. His explanation for his failure to leave when he should have was that he was in love and had been hesitant to break up with his then girlfriend. The consequence was that he was excluded from returning to Australia for a period of three years.
On his return to the USA, PLQY handed himself in to the relevant authorities as he had breached the terms of his probation when he left the country in 2005. His then girlfriend travelled to the USA in August 2006 to be with PLQY. He was already in custody when they married in the San Joquain County Jail in December 2006. His wife then lived and worked with PLQY’s sister while he was incarcerated. She visited him many times in prison.
2007
On 7 February 2007, PLQY’s probation was revoked and he was sentenced to three years in a Substance Abuse Treatment Facility and Prison in California. That revocation related to the sentence imposed when he was convicted on 15 November 2002 for possession of narcotic control service with prior prison and sentenced to five years’ probation, a fine and restitution.
2009
On 29 May 2009, PLQY’s probation was revoked in relation to his conviction on 14 February 2005 for possessing a narcotic controlled substance. He was sentenced to eight months’ imprisonment.
PLQY was given remission for good behaviour and was released in July 2009 after serving eighteen months of his term. He and his wife moved into their own accommodation first near PLQY’s sister and then a little further away.
2010-2011
PLQY and his wife’s first child was born in 2010 in California. On 17 March 2011, the family arrived in Australia. PLQY entered the country as the holder of an sc 976 ETA visa.
PLQY lodged an application for an sc 820/801 partner visa (partner visa) and associated Bridging Visa on 24 May 2011. When asked at Question 43 whether he had been convicted of any crime or offence in any country, PLQY ticked the box marked “Yes”. In response to the requirement that he disclose “… ALL relevant details … [including] the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention”, PLQY wrote “2001 DUI conviction 18 month suspension of license & $500 fine”.[29]
[29] FSG documents; FSG5 at 499
His application for a partner visa was unresolved when he left Australia on 7 June 2011 but he had been granted a Bridging Visa B (BVB). He returned on 27 July 2011 as the holder of an sc 976 ETA visa. Towards the end of 2011, a second child was born to PLQY and his wife in Australia.
2013
By 2013, the relationship between PLQY and his wife had broken down. On 7 March 2013 when she was pregnant with her third child, orders were made by the FCC. I do not have a copy of those orders but they are referred to in the order made by Judge Hughes on 24 January 2014. PLQY and his wife’s third child was born in May 2013.
PLQY was granted a Bridging B (Class WB) (Bridging B (Subclass 020) visa (BWB visa) granted on 18 June 2013. That visa allowed him to remain in Australia for 28 days after he was notified of his application for a Partner (Temporary) (Class UK) Partner (Subclass 820) visa or after he withdrew his application for that visa.[30] He was permitted multiple entries until 15 July 2013. On 21 June 2013, PLQY left Australia and travelled to the USA. As he did not return to Australia until 24 July 2013, he could no longer enter on the BWB visa. Therefore, PLQY applied for and was granted an Electronic Travel Authority (Subclass 601) visa (sc 601), which he relied on to enter Australia.
[30] SG documents; SG7 at 305-308
PLQY and his wife reached an agreement on 16 September 2013 that the FCC should order that the earlier orders dated 7 March 2013 be discharged by consent. The order they had agreed upon was to the effect that all three children lived with their mother but that both parents had equal shared parental responsibility for the children. The effect of that order is that each had, in relation to each of their children, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[31] Provision was made for PLQY to have access to the children:
[31] Family Law Act 1975; s 61B
“4. That the Father spend time with the children as follows:
(a)Whilst the Mother and children are in the United States of America for an extended holiday as agreed between the parties.
(b)When the Mother is living in Australia whenever the Father is visiting in Australia that he spend time with the children as agreed between the parties.
(c)When the Father returns to live in Australia then:
(i)Each alternate week from Thursday to Tuesday;
(ii)Half of all school holidays and special occasions; and
(iii)Other times as agreed between the parties.
(d)If the Father remains in the United States of America for school holidays as agreed between the parties.
5.That the Mother and the children be permitted to leave the Commonwealth of Australia and that the Court requests that the Commissioner of Australia Federal Police take the children’s names off the Airport Watchlist.”[32]
[32] G documents; G2, F at 36-37
On 22 October 2013 an officer of the Department telephoned and spoke with his wife, who was travelling in a car with PLQY. His wife placed the call on speaker and the officer spoke with both of them. The officer noted that PLQY told her:
“… that the family plan to go live permanently in USA and he was thinking of withdrawing application. He stated he is departing Australia tomorrow and then his wife and children will follow. I advised that if application is withdrawn he will not get refund. Also explained to him that if he withdrew application and went back to live in USA and then decide to come back to Australia he can always put in a new partner application when they are ready to come back. … PLQY gave me his email address … and asked if I could send him the withdrawal letter for him to sign and form 956 and he will sign and send to me as soon as possible.”[33]
[33] SG documents; SG6 at 278
On 22 October 2013, PLQY signed a document withdrawing his application for a partner visa.[34] PLQY left Australia on 23 October 2013. PLQY was arrested in the USA on 9 November 2013 for three offences. I have set them out at [44] below. On 27 November 2013, PLQY’s application for withdrawal of his partner visa was lodged with the Department.
[34] Supplementary G documents (SG documents); SG6 at 279
2014
On 24 January 2014, Judge Hartnett discharged the orders made on 7 March 2013 and made a number of orders by consent noting that:
“The parents are in the process of reconciliation and have been cohabiting for some time. They intend that these orders will reflect the arrangements for the children in the event the relationship again breaks down.”[35]
[35] G documents; G1 at 68
He ordered that the three children live with their mother and also ordered:
“3. That the Father and Mother have equal shared parental responsibility for the said children.
4.That the Father spend time with the children as follows:
(a)Whilst the Mother and children are in the United States of America for an extended holiday as agreed between the parties.
(b)When the Mother is living in Australia whenever the Father is visiting in Australia that he spend time with the children as agreed between the parties.
(c)When the Father returns to live in Australia then:
(i)Each alternate week from Thursday to Tuesday;
(ii)Half of all school holidays and special occasions; and
(iii)Other times as agreed between the parties.
(d)If the Father remains in the United States of America for school holidays as agreed between the parties.
5.That the Mother and the children be permitted to leave the Commonwealth of Australia and that the Court requests that the Commissioner of Australia Federal Police take the children’s names off the Airport Watchlist.”[36]
[36] G documents; G2 at 67
PLQY was convicted on 27 March 2014 in the USA of the three further offences for which he had been arrested in 2013.
Date
Conviction
Sentence
27 March 2014
Transport/etc Controlled Substance
(Conviction status: Felony)
Convicted
3 years’ probation
FinePossess Controlled Substance Paraphernalia
(Conviction status: Misdemeanour)Drive while licence suspended/etc
(Conviction status: Misdemeanour)
PLQY returned to Australia on 23 May 2014 as the holder of an sc 601 visa. He was interviewed by officers of the Department at the airport and counselled regarding his residing in Australia on visitor’s visas on a long term basis.
On 3 June 2014, PLQY left Australia once more and returned to the USA. In July 2014, his wife followed him there with their three children but she returned with them to Australia in November 2014.
2015
On 3 June 2015, PLQY lodged an application for a Visitor (Class FA) Visitor (Tourist) (Subclass 600) (sc 600 visa) allowing him to remain in Australia for up to 12 months. He noted that his relationship status as “separated”.[37] When asked to give details of the offences of which he had said he had been convicted, PLQY wrote:
“Applicant was former drug user, property crimes and health and safety code violation.”[38]
[37] SG documents; SG7 at 281
[38] SG documents; SG7 at 287
On 11 June 2015, the Department asked PLQY for further information on a range of matters including his ability to satisfy the character test. It asked for details of his convictions and a police certificate.[39] On 22 June 2015, PLQY replied to the request beginning:
“… After considerable thought. I would like to inform you. That it is my intention to stay, live and work in Australia on a permanent basis. Of course I realize this depends upon getting you the information exactly as you have requested in order for you to process my application for Visa.
…
… I fully realize that I have a criminal past history. I am not proud of this. I have moved forward with my life in a positive direction. And want nothing more but to continue on this path and raise my children. I will be completely upfront and honest with you on every aspect of this visa. I know that when I had entered Australia on several occasions, That I did not divulge that I had a criminal record. This was advice given to me by a family member thinking that I would never be in the position I am in now. A Good lesson for me to pass on to my children.”[40]
[39] SG documents; SG7 at 291-298
[40] SG documents; SG7 at 299-300
He also submitted a Form entitled “Notification of incorrect answer(s)” in which he stated:
“I did not disclose my criminal record on my Incoming Passenger Cards dated 27/7/2011, 17/3/2011, 11/1/2016 and 15/9/2016 respectively.”[41]
His reason for his failure was:
“I was confused, not thinking straight, scared and ashamed of my criminal past. I deeply regret my failure to tick the ‘yes’ box in regard to my criminal record which I did disclose on my Form 47SP dated 9/5/2011 at Question 80. Please see my Statutory Declaration and Maria Jockel’s legal submission relating to character issues.”[42]
[41] SG documents; SG7 at 323
[42] SG documents; SG7 at 323
On 15 July 2015, a delegate of the Minister decided to refuse PLQY’s application for an sc 600 visa on the basis that he had not met cl 600.211 of the Migration Regulations. In particular, he had not provided acceptable evidence that he had sufficient funds to cover the cost of his travel to, and stay in, Australia. The delegate, therefore, was not satisfied that PLQY intended his visit to Australia to be on a temporary basis as a genuine visitor. Furthermore, the delegate found, he would have a significant incentive to work in Australia in order to support himself. To do so would be in breach of the conditions attaching to an sc 600 visa.[43]
[43] SG documents; SG7 at 335-341
PLQY was concerned that the delegate had not waited to receive all of the information that he was required to send before making a decision. He repeated that he had no intention to leave Australia and questioned the advice that he had been given to apply for an sc 600 visa. He pointed to his having shipped his household goods to Australia six months before and to his daughters’ education, which he had no plans to disrupt. The Department explained in a letter dated 22 July 2015 that it could not correspond on the matter once the decision had been made but did explain to him that:
“In deciding whether a visitor visa applicant intends a genuine temporary stay, decision makers should also consider whether the applicant is attempting to circumvent proper migration channels and use the visitor visa program to maintain ongoing residence in Australia.
Under 600.215, Visitor visa holders cannot stay in Australia on consecutive visitor visas or a visitor visa, Working Holiday or Work and Holiday visa for more than 12 months, except in exceptional circumstances.
Based on your declaration ‘That it is my intention to stay, live and work in Australia on a permanent basis’ and your intended period of stay in Australia, you may not be considered that you intend a genuine temporary stay in Australia as stated above.
If you wish to reside in Australia or continue to spend the majority of your time in Australia you should consider other visa options. If you continue to use Tourist visas to reside in Australia you should note subsequent Tourist visa applications could be refused or you may experience difficulties or delays on arrival in Australia.”[44]
[44] SG documents; SG7 at 345-346
On or about 21 December 2015, PLQY applied for a short term visitor visa. He referred to it in his email to the Department on that date.[45] A document described as a “Record of Responses” set out the information PLQY had provided in his application. He gave as his reason for visiting Australia: “Family visit” and added:
“I would like to visit Australia as soon as possible. I understand why my visa was rejected last time. The purpose of this visit is to spend time with my children and perhaps see a few sites and amusement parks. My father is in Australia now. I plan to spend time with him also.”[46]
[45] SG documents; SG8 at 347
[46] SG documents; SG8 at 349
PLQY advised that he had been convicted of an offence and gave the following details:
“I was convicted of a commercial property crime many years ago. And of some minor drug possessions.”[47]
As to whether he had ever overstayed a visa in any country, PLQY responded:
“In 2005 I over stayed my cisa [sic] by a few days. I think. It was not long but I did overstay my visa.”[48]
[47] SG documents; SG8 at 357
[48] SG documents; SG8 at 358
2016
In a letter dated 25 January 2016, the Department asked PLQY for further information including a police clearance from the USA.[49] On 3 February 2016, PLQY advised that he had sent further information to the Department. He added:
“Just in closing I would like to say that I didn’t get that much rest last night after I lodged my application. Perhaps it’s the guilt and remorse I sincerely feel for my past behavior. But mostly I feel for my daughters and I not there to meet them.
My past troubles are in the past and I would just like to say that for the nearly three years I lived in Australia. The only mark I had was a traffic ticket. My wife’s allegations of domestic violence were thrown out of court and all points dismissed. As I stated in my letter yesterday. My wife was diagnosed with post partum depression and All I can say is that it is a very difficult thing to deal with.
I do have a question about the ‘State check’. The only two countries I have lived in during the past Ten years and A more. Are Australia and the United States. Over 20 years ago I did live in London. My mother and father are both British and resided in the UK. I guess my question is. The background check comes from the State Capital Justice department here in California. Is that not enough to meet your requirement? I am planning on seeing the district attorney this week regarding the hague convention treaty. I hope not to have to go through that process and just come down to Australia and spent time with my girls. I will ask Ms. Aalazar who is the district attorney A for my city about the çheck’. I did file for and pay the AFP check. I think that is the third or fourth one I have requested and paid for..”[50]
[49] SG documents; SG8 at 362-367
[50] SG documents; SG8 at 370
When he was in New Zealand, PLQY wrote to the Department enquiring about the progress of his visa application. He was advised in a letter dated 30 June 2016 that everyone had to satisfy the character requirement under the Migration Act before a visa could be granted. If information indicates that a visa applicant may not satisfy the Character Test, the application is sent to the Department’s centralised character processing centre for assessment and a decision on the matter. This is what had happened to PLQY’s application.[51] By then, PLQY was back in California.[52]
[51] SG documents; SG8 at 373-374
[52] SG documents; SG8 at 375
On 30 November 2016, the Department advised PLQY that the Minister intended to consider whether to refuse his application for the sc 601 visa under s 501(1) of the Migration Act. A delegate of the Minister decided on 8 December 2016 not to exercise the discretion to refuse PLQY’s application for an sc 601 visa on character grounds. The letter continued:
“On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you. A copy of section 501 of the Act is attached for your information.
It is important to note that if you ever make a future application for a visa or Australian citizenship, or complete an incoming passenger card when entering Australia, you are required by law to disclose any criminal convictions that you may have in that application or passenger card. The consequences of failing to disclose your convictions are serious.
…”[53]
[53] SG documents; SG2, J at 376
PLQY was granted a Visitor (Class FA) (Subclass 600) visa (sc 600 visa) on 9 December 2016. He was required to enter Australia by 9 December 2017 and was permitted to remain for three months from the date of each arrival. The sc 600 visa did not permit PLQY to work.
PLQY arrived in Australia on 12 December 2016. He went to his wife’s home in the afternoon of the same day. On 15 December 2016, she obtained an IVO but that order is not included in the material that I have.
2017
On 4 January 2017, the Frankston Magistrates’ Court made an interim IVO against PLQY naming his wife and daughters as persons protected by its order. The application for the order was not served on PLQY, he was not present at the hearing and did not consent to the orders. Only interim orders 5, 6, 7 and 9 are relevant:
“The Court orders that the respondent [PLQY] must not:
1.-4.…
5.contact or communicate with a protected person by any means.
6.approach or remain within 200 metres of a protected person.
7.go or remain within 200 metres of … or any other place where a protected person lives, works or attends school/childcare.
8.…
9.At the time of making this interim intervention order, the Court has also made an order under section 68R of the Family Law Act 1975.
The Court has ordered that the parenting order made on 24/01/14 is:
suspended.
This order will end when the interim intervention order ends or 21 days from the date when the intervention order was made (whichever is the earlier).This INTERIM intervention order will last until final order, unless varied or revoked; or it the application is withdrawn.”[54]
[54] SG documents; SG1 at 140-141
The IVO was served on PLQY on 10 January 2017. On 1 February 2017, PLQY was standing on the nature strip outside the address set out in cl 7 of the IVO. The children ran to him before their mother noticed his presence. PLQY acknowledged to police that he had been present and took full responsibility saying that he was confused about the orders and their current status. He also told police that he would not have stopped had he not seen the children. [55]
[55] SG documents; SG1 at 127 and FSG documents; FSG2 at 408
On 10 March 2017, the FCC ordered that the three children live with their mother and that the two older children:
“… spend time with the Applicant father providing he is in Australia for a block of at least 90 days at a time, as follows:-
(a) for a period of one month:-
(i)each Sunday from 10.00am to 4.00pm commencing 12 March 2017 (however in the event that the Applicant father is unavailable on 12 March 2017 his time with the children will take place on Monday 13 March 2017); and
(ii)each Tuesday from the conclusion of school or 3:30pm until 6:30pm commencing 14 March 2017; and
(b)for a period of five months thereafter:-
(i)each alternate weekend from 4.00pm on Saturday until 4.00pm on Sunday commencing 8 April 2017; and
(ii)each Tuesday from the conclusion of school or 3:30pm until the commencement of school or 3:30pm on Wednesday commencing 11 April 2017.”[56]
[56] G documents; G2 at 72
The order made provision for shorter periods of access to PLQY of the youngest daughter but in the same framework. Provision was made for a handover of the children at particular places on particular days and for the parents to undertake a Triple P Positive Parenting Program. PLQY was also required to undertake a post separation parenting course and to attend a medical practitioner and provide supervised urine samples for drug testing when required to do so by the Independent Children’s Lawyer.[57]
[57] G documents; G2 at 72-73
On 11 March 2017, PLQY left Australia and travelled to New Zealand. He returned on the same day as the holder of an sc 600 visitor visa.
The charge of contravening the IVO on 1 February 2016 went before the Dromana Magistrates’ Court on 6 April 2017. PLQY pleaded guilty to a breach of the IVO. The Dromana Magistrates’ Court adjourned the matter without conviction to 5 April 2018.[58] PLQY was released on giving an undertaking on 6 April 2017 to appear before the adjourned date if called upon to do so and to be of good behaviour during the period of the adjournment.[59]
[58] SG documents; SG2 at 160
[59] FSG documents; FSG1 at 407
On 23 April 2017, his wife reported a breach of the order when PLQY drove into the driveway of the house whose address was set out in clause 7 of the order. While she was reporting the breach to the police by telephone, PLQY telephoned her to explain why he had breached the IVO. The police report states that he had acknowledged that he had driven past the property when the children told him that their mother’s boyfriend lived across the road. When questioned by police, PLQY said that he had breached the order as he had concerns for the health of one of his daughters.[60]
[60] SG documents; SG1 at 143
On 1 May 2017, PLQY was charged with two counts of contravening the IVO. Others followed and PLQY was charged with persistently contravening a Family Violence Intervention Order between 23 April 2017 and 15 May 2017.
On 19 May 2017, the Magistrates’ Court at Frankston made a further IVO in the same terms as the earlier order.[61] The note of the order added that PLQY might do anything that was permitted by, among others, a Family Law Act order.[62]
[61] SG documents; SG5 at 231-233
[62] SG documents; SG5 at 233
On 29 May 2017, a delegate of the Minister cancelled PLQY’s sc 600 visa under s 116(1)(e)(ii) of the Migration Act on the basis that his presence in Australia might be, or would or might be, a risk to the health or safety of an individual or individuals.[63]
[63] SG documents; SG6 at 376
On 5 June 2017, PLQY applied for a Bridging E (Class WE) visa.
On 16 June 2017, Judge Hartnett made an order by consent in the FCC. While the orders made on 10 March 2017 remained in full force and effect:
“Then in the event the Mother alleges further breaches of intervention orders or a risk to the children she have liberty to apply to THIS COURT at short notice.”[64]
Although not by consent, Judge Hartnett went on to order that both PLQY and his wife be restrained from removing the children from Australia.
[64] G documents; G2 at 60
The Department advised him in a letter dated 19 June 2017 that consideration was being given to whether his visa application should be refused under s 501(1) of the Migration Act. It invited PLQY to comment upon, or provide further information, as to whether he passed the character test and on whether his application for a visa should be refused.[65]
[65] G documents; G1 at 55-57
On 2 August 2017, PLQY pleaded guilty to charges of persistently breaching the IVO. Without conviction, a Community Corrections Order was made against PLQY for a period of 18 months. The order commenced on 4 September 2017 and required him to undertake 125 hours of unpaid community service. It also required him to undergo offending behaviour programmes as directed as well as any other treatment and rehabilitation as directed including a Men’s Behaviour Change Program.[66]
[66] FSG documents; FSG2 at 409
On 7 August 2017, a delegate of the Minister decided to refuse PLQY’s application for an sc 050 BE and notice of the decision was served on him on 9 August 2017.
CONSIDERATION
Primary considerations
Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11.
A. Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[67]
[67] Direction No. 65; [11.1(1)]
A.1 The nature and seriousness of PLQY’s conduct to date
Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) …;
b)…;
c)…
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious [sic];
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.”
A.1.1 Consideraton
PLQY was first convicted of criminal offences in 1993 when he was 24 years of age and between 1993 and 1996 PLQY was convicted of a total of eight offences. In the main, they were burglary and theft offences one offence related to his possessing controlled substance paraphernalia and another of battery with serious bodily injury. Although they might be known by different names in Australia, each of the offences is an offence in Australia. I do not have the benefit of the sentencing Judge’s remarks for any of those offences but the sentences themselves give some indication of how they were viewed. The lengthy periods of 180 and 365 days imposed for his first three offences in 1993 indicate that they were regarded as serious given that they are recorded as his first offences. That indication is also apparent from the lengthy probation periods of three and five years initially imposed although they can also be seen as an attempt to set a young man on the right path. Some eight months later in January 1994, the probation period was modified and PLQY was sentenced to 90 days’ gaol in lieu. Although I do not have any clear evidence, it would seem that this came about because of further charges for offences of which he was convicted in March 1994 and which would be expected to have been a breach of the terms of his probation. He was again placed on probation in April 1995 but was not given that opportunity when he was convicted of Burglary: Second Degree on 3 January 1996.
I accept PLQY’s evidence that he was drug free during the term of his imprisonment imposed on his conviction for Burglary: Second Degree. I also find that, despite the skills he learnt at Fire Camp during his sentence and despite the physical and mental training he undertook, he returned to his previous ways on his release when he was no longer under supervision and subject to the rules imposed at the Fire Camp. PLQY’s pattern of offending following his release from Fire Camp and up until his first trip to Australia was one of regular breaches of the law. Once he left that supervision, his offending began again. He was convicted of further offences in 2002, 2003, 2004 and 2005. Two were concerned with the possession of a Narcotic Control Substance, one with obstructing or resisting a Public Officer and another with batter of a Peace Officer. PLQY explained that he had accepted the option of attending Drug Court during these years and that he had many months of “clean time” during the programme as well as periods of imprisonment when he was not.
Putting aside his contraventions of the IVOs and of the Migration Act, I accept PLQY’s evidence that, apart from one traffic offence, he has not breached Australian law since he first came to Australia. His breaches of Australia’s laws have not, however, been inconsequential breaches. He says that his first was committed after seeking advice from his father but his father was not called to give evidence on the point or generally. Whether it was at his father’s behest or not, responsibility for omitting to record his past criminal record on the incoming passenger card or on his application for an sc 976 visa was PLQY’s entirely. His excuse was that he wanted to make a fresh start but, accepting that to be so, it is not a sufficient reason when later events are considered.
Those later events include his not responding to further requests for information regarding his criminal convictions. The next opportunity that he had to reveal them arose when he applied for a further sc 976 visa in 2011. There is no evidence that he did reveal them. When specifically asked in his application for a partner visa and associated Bridging Visa on 24 May 2011 for all relevant details, including the nature of the offence, full details of the sentences and of periods of imprisonment, PLQY answered that he had a conviction for Driving Under the Influence. For that offence, his driver’s licence had been suspended for 18 months and a $500 fine imposed. An offence of that nature does not appear on the official records obtained from the State of California and from which I have summarised PLQY’s convictions. It may be that PLQY did commit that offence but what is more important in the context of this case is that he omitted to reveal any of the other offences of which he had been convicted.
Again in response to a direct question seeking details of any offences of which he had been convicted, PLQY did not disclose those details. Instead, he wrote that he had been a former drug user and that he had committed property crimes and health and safety code violations. That was on 3 June 2015 when he lodged an application for an sc 600 visa. He sought to explain this and his previous answers on 22 June 2015 in response to the Department’s asking for further information and for a police certificate. The essence of his response was that he had been ashamed to admit to his criminal past and that he had relied on the advice of a family member. He acknowledged that he had not given details of his offences when completing his Incoming Passenger Cards in 2011 and 2016.
Even then, PLQY did not give details of his convictions and he did not do so when he applied on 21 December 2015 for a short term visitor visa. Again, he described his convictions in very general terms omitting any reference to the two offences against the person. He said that he had been convicted of commercial property crime many years before as well as of some minor drug possessions.
I accept that PLQY might well have been, and may well be, ashamed of his convictions in the past but he has also shown a lack of preparedness to be open with Australian immigration officials and to obey its laws. Even his last answer in relation to his application for a visa in December 2015 did not acknowledge that his most recent conviction had been on 27 March 2014. That could not be described as having occurred “many years ago” if that was what PLQY had meant to convey by his answer on the application form.
At the hearing, PLQY described the offence of which he was convicted in 2014 as being a small amount of drug that the police found on the floor of his car when they stopped him for failing to have his car registered. PLQY said at the hearing that he had nothing to do with the presence of the drugs that must have been there from some time in the past. The car was not registered, and had not been for quite some time, because it was an expensive car and he could not afford the registration. He made no mention that he was also charged with Possess Controlled Substance Paraphernalia or with driving a motor vehicle while unlicensed.
The consistency of PLQY’s offending while he is in the USA also shows a regularity that suggests an inability to comply with the law. It could be said, as PLQY does, that his offences are in the past and that they arose out of his drug addiction. PLQY’s view of his behaviour is not consistent with his statements that he is drug free or with his most recent convictions which date from 2014 and resulted from offences he committed in 2013. He has continued to breach Australian law. Apart from the traffic offences, to which he admits, as recently as 2 August 2017, PLQY pleaded guilty to, and has been convicted of, persistently breaching an IVO. His explanation that he did not understand the relationship between the orders of the FCC and the IVOs made by the Magistrates’ Court might be understandable in relation to his initial breach but do not explain why he has continued to breach the IVOs to the point where he has been found to have “persistently” breached them. There are FCC orders in place that allow him access to his daughters and that dovetail with the IVOs so that he picks them up and returns them at locations other than the family home.
The disparity between the offences of which PLQY was convicted in 2014 and his recounting of them at the hearing and his persistent breaches of the IVOs raise a question whether he is incapable of recalling his convictions accurately, whether he is careless in his recall or whether he deliberately misstates them. Whatever the answer, the further question is whether he is likely to change his ways. Although the nature of the offences he has committed in the USA differs from those in Australia, a pattern of offending that began when he was in his early 20s has continued into his late 40s. The fact that the pattern of his behaviour has continued over 20 years is one reason to regard PLQY’s conduct as serious. Another is the nature of the offences. Three of his convictions in the USA related to offences against the person: Battery with Serious Bodily Injury, Obstructs/resists Public Officer and Battery Peace Officer. Again, I have no sentencing remarks or police reports to explain what happened but battery is an offence that compromises the safety of another and shows lack of respect for that person’s rights and of the law. They indicate a lack of regard for another’s safety. PLQY is not said to have breached the IVOs by committing violent acts but his breaches also indicate a lack of respect for the rights of others and of the law. The law has authorised the Magistrates’ Court to make the IVOs to protect the rights of his wife and daughters but PLQY has persistently ignored them and, in doing so, ignored the rights of his family members and of the law. The pattern into which PLQY has fallen to date is of serious concern.
A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
Paragraph 11.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen reoffending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”
A.2.1 Consideration
I have referred to the pattern of PLQY’s offending. Is this a pattern that is likely to continue? Apart from the pattern of his offences themselves, which suggests a regularity and continuity that is concerning, the only evidence that examines the issue is found in the Forensic Psychology Report (Family Law) prepared by Dr Ben Jones, Forensic Psychologist. It was tendered on behalf of PLQY. I admitted it in evidence but subject to concerns about whether I was able to use a report prepared for proceedings in the Family Court. I note that the report is headed with the statement:
“This report was prepared in order to assist the parties and/or the court in relation to the future parenting arrangements for the children involved. Information contained herein is accurate at the time of assessment although may be subject to change. It may be an offence to reproduce, publish, or disseminate material contained in this report without the explicit approval of a court.”[68] (emphasis added)
[68] Exhibit B
On its face, the report is not a Family Report under s 62G of the Family Law Act 1975 (FLA) but an Expert Report governed by Part 15.5 of the Family Law Rules 2004 (FL Rules). It is addressed to PLQY’s solicitors and those acting for his wife. It is dated 9 March 2017. As that is the day before the FCC made the orders I have set out at [61] above on matters addressed in the report, I have decided that, on balance, it would have been admitted in evidence in that court. As a general rule but subject to the FLA, regulations and Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.[69] As there is no evidence produced by either PLQY or the Minister that the proceedings between PLQY and his wife were conducted in a closed hearing, I have decided that, on balance, they would have been held in open court.
[69] FLA; s 97(1)
In view of those two findings, I have decided that I am not prevented from having regard to Dr Jones’ report by a “Harman undertaking”. The Harman undertaking is a reference to the principles set out by the House of Lords in Harman v HomeDepartment State Secretary[70] (Harman) by the House of Lords. They are principles that were considered by the High Court in Hearne v Street.[71] Justices Hayne, Heydon and Crennan said:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise ..., to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery ..., answers to interrogatories ..., documents produced on subpoena ..., documents produced for the purposes of taxation of costs ..., documents produced pursuant to a direction from an arbitrator ..., documents seized pursuant to an Anton Piller order ..., witness statements served pursuant to a judicial direction ... and affidavits ...”[72] (emphasis added)
[70] [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338; Lords Diplock, Keith of Kinkel, and Roskill; Lords Simon of Glaisdale and Scarman dissenting on whether the undertaking came to an end when discovered documents are admitted in evidence.
[71] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[72] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [96]; 154; 632; 1276 (footnotes omitted)
Dr Jones’ report refers to a psychiatric assessment regarding both PLQY and his wife by Associate Professor Peter Doherty. With regard to PLQY, Dr Jones quoted from Associate Professor Doherty’s assessment of PLQY, who said that, apart from substance use disorder that was then in remission:
“… In my opinion there are significant problems in the father’s personality. The personality problems will be demonstrated in the father’s inability to maintain interpersonal relationships, the difficulties he will have in meeting societal expectations and norms and in the conflicts he will have with authorities. In my opinion, he will not be reliable or consist [sic], and he may be unstable in mood and prone to blame others for his problems. In my opinion, he has largely failed, up till now, in his occupational endeavours and in his interpersonal relationships.”[73]
[73] Exhibit B at [15]
Associate Professor Doherty’s assessment is consistent with the pattern of offending that I have identified. Putting aside regularity of offending as a ground for finding that his conduct is of serious concern, what of the conduct itself? His wife did not give oral evidence but there is written material in which she expresses concerns about her physical safety and refers to previous incidents as the basis for her concerns. PLQY denies that he has given her reason to have concerns. This is not the appropriate circumstances in which to attempt to resolve whose view of events, if either, is correct but, whoever is correct, PLQY has acknowledged that he has behaved contrary to the IVOs by pleading guilty to persistently breaching IVOs.
Having regard to the course of PLQY’s conduct over many years and to Associate Professor Doherty’s assessment as quoted by Dr Jones, I find that PLQY is likely to repeat the conduct he has engaged in the past and leading to his breaching IVOs. My finding is supported by his seeming lack of understanding of the offences of which he had been convicted, his failure to disclose, or to disclose fully, his previous criminal history in response either to a standard question on an Incoming Passenger Card or to a request for information directed specifically to him by the Department. It is also supported by his continuing to hold the view that the orders of the FCC are superior to those of the Magistrates Court. He does not appear to read those parts of the IVOs made under s 68R of the FLA and suspending the parenting orders made on 24 January 2014.
At one level and putting aside any risk to his family, the harm that PLQY may cause to the general Australian community may seem small. After all, he is well regarded by his friends and his father’s friends. Mr John Woodard, for example, speaks of PLQY’s illegal drug use in the past and of his motivation to remain drug-free so that he can be free to act as a loving father to his daughters. He detected no tendency in PLQY to commit domestic violence. It is Mr Woodward’s:
“… considered assessment that Dominic no longer demonstrates major character flaws that would require Australian authorities to continue denying him regular access to his beloved daughters in Australia as ordered by the Federal Circuit Court in June 2017.
Further, it is also my opinion that Dominic poses no threat, either to members of his immediate family, or to the wider Australian community. The stringent processes and resulting decisions of the Federal Circuit Court only serve to reinforce that belief.
Finally, I wish to state for the record that, based on my interaction with Dominic and his family, I am firmly of the opinion that he has clearly demonstrated that he is more than capable of being a good father to his young children.”[74]
[74] Exhibit J at 4
PLQY’s friend, Mr Louis Stearns, has known him since February 2003 and has seen him in the USA with his wife and daughters. Mr Stearns did not want to say that PLQY is a saint for he is not but he did want to say that he was not a threat to his children or to their mother. He expressed his views that information presented in support of the first IVO was false and his wife was using him as a pawn to keep him out of the country so that the amount of money she receives would not be affected. PLQY pays for the private tuition fees for his children. Mr Stearns concluded:
“… Dominic has not broken the laws of your country. His character should not be in question, if anything it should be strengthened by the fact that he did nothing for Immigration to regret allowing him in the country and continually renewing the visa.”[75]
[75] Exhibit F
Mr David Austin has known PLQY since they were small children. He said of PLQY:
“In all the years I have known Dominic, he has always been one of my true friends. He has never stole from me, threatened me, offered drugs to me, or been negative to me. I know about his checkered past and all the trouble he has been in and to his credit, I hear he has been clean now for some time, and wants to move forward with his life and be a good father to his kids.
I believe Dominic’s troubles stem from not having a father present in his life for I remember him constantly going abroad to one boarding school to another growing up. I thought this was the way of life for rich people and was always confused by it. Another is the seemingly unlimited amount of money that was provided to him that I believe aided him in continuing his drug obsession. This has affected more than one member of his family unfortunately in one way or another.
I do not know the relationship he has with …[his wife] but from what I’ve seen when they were together, they were a happy couple with normal ups and downs that all of us go through in keeping together a strong marriage. I do know that I have never seen them get physical with one another, or anyone else for that matter. Dominic loves his kids and will do anything for them. If you look that all he’s been doing in the last 3 to 5 years trying to see them, you would understand. He could’ve just walked away from it all and started anew here in the States. Again, he loves his kids.
I do not know exactly what you see in him other than his past, but his future would be brighter if he was given a chance, and to see his three lovely daughters.”[76]
[76] Exhibit G
Mr Bryan Clift has known PLQY and his family since 1971. PLQY’s father was often absent because of his business dealings and PLQY and his brothers spent a lot of time at the Clift family home. Mr Clift blames PLQY’s troubles with the law on his “hanging around the wrong people”.[77] He thought that PLQY behaved in a misguided way in order to gain his father’s attention. PLQY has told him that he regrets his past choices and that he went on to turn his life around. Mr Clift writes of PLQY’s having “… great success with his father’s company … writing one of the biggest policies ever. …”.[78] His meeting his wife was a moment for PLQY to have his own family and Mr Clift saw his excitement, pride and feeling of belonging when his eldest daughter was born. His children are central to his being and he cannot live without them. Mr Clift wrote:
“It is the collective wish of his friends, family and children that the Australian authorities do what is appropriate for the good of all interested parties in granting Dominic the right that is unequivocally his: To be a loving and devoted father. Nothing more.”[79]
[77] Exhibit H at 1
[78] Exhibit H at 1
[79] Exhibit H at 2
Based on the evidence of Mr Woodward, Mr Stearns and Mr Austin as well as his own, I have no doubt that PLQY cares deeply for his daughters and wishes to be with, and care for, them. I have no doubt that he is a fine host and good company. What Mr Woodward, Mr Stearns and Mr Austin do not address is their friend’s lack of regard for Australia’s laws. While they attribute some reason for his offences in the USA to his home life, which was one of privilege, they do not address why he would persist in thinking that the orders of the FCC outweigh those of the IVOs so that he can, in effect, ignore the IVOs. That remained his view at the hearing even though he had pleaded guilty to an offence of persistently breaching IVOs. It is PLQY’s apparent lack of understanding and his persistent breaches of the immigration laws and of the IVOs that leads me to conclude that his conduct should be regarded both as continuing and as serious.
B.Best interests of minor children in Australia affected by the decision
There are three minor children in Australia whose interests are relevant in this case. I must decide whether refusal of their father’s visa is, or is not, in their best interests.[80] To the extent that their interests differ, the interests of each child must be considered separately.[81] Paragraph 11.2(4) provides that, where relevant, the following factors must be considered:
[80] Direction No. 65 at [11.2(1) and (2)]
[81] Direction No. 65 at [11.2(3)]
“a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative effect on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
B.1 Consideration
I find that all three children are dual citizens of Australia and the USA. They are now aged 6, 5 and 4 years. Ms Jackson, who appeared for the Minister, conceded that it is in the best interests of the children that PLQY be granted a bridging visa for which he has applied. She submitted, however, that this factor should be given limited weight.
PLQY is, I find, deeply attached to his children even though he has been unable to spend protracted periods of time in Australia since he and his wife separated for the final time in 2014. His stepmother married his father in 1986 when PLQY was 17 years of age. She writes that she and her husband visit Australia every year and spend three months or so here. They have seen PLQY during those visits and spent time with him and in the house that he set up for the children. In all her years as a member of the family, she has never seen her stepson bully or hit anybody. She has seen her stepson with his daughters and has seen how happy they are with him. They love their father.[82] Her evidence is consistent with that of Mr Justin Miller who lived next door to PLQY and his wife when they were still together. He regarded PLQY as a good husband and a fantastic and attentive father.[83]
[82] Exhibit E
[83] Exhibit C
Dr Jones reports that the children are comfortable around PLQY, are interested in him and want to spend time with him. At the same time, PLQY has not had daily involvement in their lives and has not had to enforce boundaries or deal with challenging behaviour. That has affected his relationship with the children and Dr Jones recommended that they will all take time to get to know each other. Should PLQY secure permanent residence in Australia, Dr Jones saw it as reasonable to work towards a situation where the two older girls spent three or four nights each fortnight with their father although not necessarily consecutive nights. Contact with his youngest daughter, who has Down Syndrome but who has been described as high functioning in terms of her cognitive development, would need to be more gradually introduced to accommodate her needs. Dr Jones supported the continuation of the co-parenting order given that the children did not appear to have been disadvantaged by that to date. The children might benefit from the father having input into important decisions in the children’s lives.
In light of Dr Jones’ report, I find that it would, on balance, be in the best interests of the children if PLQY were to be in Australia and he were to have more regular contact with his daughters as they grow up. His report reflected that they are still very young children and the good that would come from being exposed to their father’s physical presence in Australia would be tempered by the degree of egocentricity that he displays and that potentially impairs his ability to appreciate things from the perspective of his children. That said, it is also apparent from PLQY’s evidence that he has maintained contact with his daughters by other means during his absences and that they remain comfortable with him despite his physical absence from them.
C.Expectations of the Australian community
Paragraph 11.3(1) of the Direction states that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable 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 of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.”
C.1 Consideration
The Australian community is not unsympathetic to people who come to Australia as visitors and find that they would like to stay for any number of reasons. Not the least of those reasons is that they think that they have found love as PLQY did. It provides for them to apply for various permanent visas that would permit them to remain in Australia to pursue whatever it is that has captured their attention. A partner visa is an example of a visa of that sort.
What the Australian community expects from those who seek to stay in Australia is that they act honestly in completing their applications for visas that would allow them to enter Australia whether they are temporary or permanent visas. Whether they do, or do not, is both an indication of the person’s integrity and respect for the country he or she seeks to enter as well as an indication that he or she will comply with Australia’s laws for its immigration laws are simply one aspect of those laws. The Australian community also expects that a person will not use those laws to enable a person to live in Australia on what is virtually a full-time basis but by means of temporary visas. PLQY had arranged his affairs after he met his wife in 2005 on the basis of temporary visas. He was warned by the Department in a letter dated 22 July 2015 that Visitor visa holders cannot stay in Australia on consecutive visitor visas or a visitor visa, Working Holiday or Work and Holiday visa for more than 12 months, except in exceptional circumstances. Before then, he had already shipped his household goods to Australia and, in applying for a temporary visa, explained that he wanted to live in Australia permanently.
PLQY has met none of these expectations. He has failed to reveal his past criminal history when completing Incoming Passenger Cards. On his own admission, he failed to do so in 2016, which was long after he had been made aware when applying for a partner visa in 2011. He has also failed in response to direct requests for information and I have referred to the occasion in June 2015 when applying for a sc 600 visa and to the earlier occasion in May 2011 when he applied for a partner visa and associated Bridging Visa. PLQY has not complied with the IVOs made by the Magistrates’ Court.
He has attempted to establish a home in Australia as the holder of temporary visas. In this last matter, his actions are somewhat understandable given that the order of the FCC is framed in terms of his having access providing he is in Australia for a block of at least 90 days at a time. Temporary visas such as an sc 600 visa have permitted him to remain in Australia for that period of time.
Secondary considerations
Paragraph 12 of Direction No. 65 requires me to take into account other relevant considerations. Those considerations include, but are not limited to, international non-refoulement obligations, impact on family members, impact on victims and impact on Australian business interests. International non-refoulement obligations do not arise in PLQY’s situation and nor does the impact of refusal of a visa on Australian business interests for he is neither employed nor engaged in business endeavours in Australia. What are relevant are those in paragraphs 12(1)(b) and (c) being the impact on family members and the impact on victims.
A. Impact on family members
Paragraph 12.2(1) of Direction No. 65 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.
A.1 Consideration
If PLQY is refused a visa, his children will not be able to see him in Australia. They may see him in the USA where he and they are citizens. The children’s mother has taken them to the USA in earlier times. Finances have not proved a difficulty for PLQY in the past although I am not aware of his present circumstances. PLQY and his wife are still able to communicate by telephone or other means about the children although they do not seem to be able to do so face to face. Even though he would not be in Australia, continued communication at that level would enable PLQY to carry some of the responsibility for the children that he and his wife share by virtue of the FCC’s order dated 24 January 2017. It would not be responsibility for their day to day care but he would be able to take shared responsibility for broader issues such as their schooling and health issues. As Dr Jones noted in his report, PLQY and his wife retain a level of emotional regard for each other and appreciate that they have an ongoing shared connection through their daughters. That should provide a foundation on which to build a basis for continuing communication.
B.Impact on victims
Paragraph 12.3(1) states:
“Impact of a decision to grant a visa [on members] of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.”
B.1 Consideration
If PLQY were granted a visa, the oral evidence he gave persuades me that he would continue to behave as he has in the past. He lacks understanding of the relationship between IVOs and the orders of the FCC and persists in resolving what he sees as inconsistencies between their orders by reference to which he regards as the superior court. This is despite clear reference in the IVOs to the provision of the FLA under which the Magistrates’ Court is suspending the operation of the parenting orders made by the FCC. Whether as a result of his misunderstandings or not, he has persisted in his breaches of the IVOs.
His approach in this matter is consistent with his approach to Australia’s migration laws and to the need to disclose his criminal history. On the papers that I have, he never gave an accurate and fulsome statement of his previous offences. In saying that, I acknowledge that he may have obtained the formal statements from the Federal Bureau of Investigation (FBI) in the USA and the Department of Justice in the State of California but he has never brought himself to acknowledge accurately his past offending in his dealings with the Department.
Decision
On the evidence that I have, PLQY was a young man who was brought up in a family where he had all the comfort and opportunities that money could buy. His friends have said that his father was often absent so that he could make that possible for his son. Whether that is so or not, I do not need to determine, but what I do find is that, even though he was not convicted of offences until he was in his early twenties, he lost his way in his way when he was a much younger person when he started taking drugs and has never found a clear path forward. On his own evidence, I find that he has independent means. A consequence of that is that he has not had to find the discipline either to attend a place of work or to work on a regular basis in order to maintain himself. He has not had to learn how to accommodate others and to live by society’s rules that do not suit him except when incarcerated or under supervision at Fire Camp. As he said, when he was referred to Drug Court and released, he returned to prison on several occasions when he was found to have used illicit drugs.
That may seem a harsh conclusion but failure to reveal his past convictions and to persist in describing them inaccurately is consistent with his behaviour in the USA. It is consistent with PLQY’s not taking responsibility for himself and his actions. He left the USA contrary to the conditions of his probation and did not reveal his criminal convictions on his Incoming Passenger Card. PLQY blames his father for advising him not to but, although his father did not give evidence and was not questioned about this matter, I am not prepared to find that he gave that advice. I am not prepared to do so because I note that none of PLQY’s friends who have given character references on his behalf refer to his breaches of Australia’s migration laws or of the IVOs. These omissions suggest that PLQY has not told of them. If that is so, it would be consistent with PLQY’s choosing not to reveal his past criminal history to Australian migration officials. He would rather present himself as a person whom Mr Miller described:
“… As far as I’m aware he hasn’t been in any form of trouble since I have known him. I’m really finding it quite difficult to understand how he is supposed to be a threat to anyone let alone an entire community. Dominic will engage in conversation with anyone and everyone and after 5 minutes of conversation it will seem like he’s been your best Friend for years, he brings a certain warmth and a uplifting aura to any room or situation.”[84]
[84] Exhibit C
What PLQY has done since he met his wife in 2005 is to build a family on the basis of tourist visas and he has done so despite the warning that he received from the Department and despite knowing that, by the conditions that attach to them, he is permitted to remain in Australia for quite definite and short periods of time. This did not present as a problem in the early days of their relationship but it is a problem that is very much to the forefront for him in recent years. Consistent with his previous behaviour in not being able to live by society’s rules that do not suit him, he moved his furniture and household goods to Australia as if he were living here permanently before he sorted out the basis on which he could remain here.
Despite his three convictions for offences against the person in the USA and despite some suggestion that there might have been domestic violence incidents between him and his wife in the past, I do not find that PLQY is a risk of committing further crimes of physical violence to a person in the future. What I do find is that he is likely to commit further offences of breaching any IVO that is made against him and of not being open and honest with officials about his past history. The Australian community would be intolerant of his doing so and particularly in view of the history of his past behaviour.
To refuse PLQY a visa would mean that he cannot see his daughters in Australia but that has been the situation for some time. Despite his absence, they still know who he is and he can maintain contact by electronic means such as Skype, Facebook, Instagram, WhatsApp and so on. He and his wife can continue to share parental responsibility and can build on the bond that they have for they have been able to communicate by electronic or telephonic means in a way that they have not been able to do face to face. The children are citizens of the USA and, in due course, arrangements could be made for them to visit their father.
Having regard to all of the matters that I have considered in these reasons, I have decided that PLQY’s current application for a visa should be refused. I therefore affirm the decision of the delegate dated 7 August 2017 to refuse PLQY’s application for a Bridging E (Class WE) visa.
| I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.........[sgd]............................................................
Associate
Dated: 30 October 2017
| Date of hearing: | 9 October 2017 |
| Counsel for the Applicant: Solicitor for the Applicant: | Mr Angel Aleksov Ms Claire Stratton |
Solicitor for the Respondent: | Ms Melinda Jackson |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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