DECISION AND REASONS FOR DECISION [2001] AATA 276
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1583
GENERAL ADMINISTRATIVE DIVISION )
Re BAHMAN RABINKAH
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block
Date6 April 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Migration Act 1958.
..........(signed J. Block)............
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – whether failure to pass the character test – convictions and sentence for drug offences – protection of the Australian community – expectations of the Australian community – best interests of the child – hardship – seriousness and nature of conduct – risk to the community – deterrence.
Migration Act 1958 – ss 235, 499, 501.
Administrative Appeals Tribunal Act 1975 – s 37
Re Cafarella and Minister for Immigration and Multicultural Affairs [2000] AATA 30
Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 389
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
REASONS FOR DECISION
(a) The decision under review in this matter is the refusal dated 19 September 2000 by the Respondent of an application for a spouse visa by Anita Ismun (the "Visa Applicant"), in respect of which her husband, "the Applicant", was the sponsor.
(b) The Applicant was represented by Jill Vidler, solicitor, and the Respondent was represented by Marten Kennedy, instructed by Bridget Quayle, both of the Department of Immigration and Multicultural Affairs ("DIMA"). The Tribunal had before it the T Documents and also the Supplementary T Documents tendered pursuant to section 37 of the Administrative Appeals Tribunal Act, 1975 together with a number of exhibits as follows:
Exhibit # Description of Exhibit Submitted by
A1 Report of Dr Philip Tan Bee Lee dated 28 February 2001 Applicant
A2 Statement by Anita Ismun dated 18 March 2001 Applicant
A3 Statutory Declaration of Bahman Rabinkah dated 25 March 2001 Applicant
A4 Bundle of photographs Applicant
A5 Statutory Declaration of Fie Beattie dated 21 March 2001 Applicant
A6 Statement of Anita Ismun dated 16 February 2001 Applicant
A7 Medical Certificate from Dr K. Hamid dated 5 March 2001 Applicant
A8 The Straits Times, 17 March 2001 Applicant
R1 Bundle of documents – country information about Singapore Respondent
(c) It may be noted that the T Documents and the Supplementary T Documents are not numbered sequentially. Accordingly "T" references and "S" references should be construed as references to the T Documents and the Supplementary T Documents respectively.
(d) Some of the documents before the Tribunal refer to DIMA as the Respondent. However, the relevant decision was made by a delegate of the Minister for Immigration and Multicultural Affairs, and it is thus he who is cited as the Respondent in this matter.
I commence by gathering, in this clause 2, in order to set the scene and by way of background, a number of documents and exhibits which were furnished or tendered to the Tribunal:
(a) The Applicant's Statement of Facts and Contentions (undated but received in the Tribunal on 23 March 2001) reads as follows:"FACTS
The applicant's wife (the visa applicant) was born on 23 June 1962 and is a citizen of Singapore of Malay descent. Her mother died in October 1999 (T59 p209), but she continues to live in the family home with her father looking after her child, Shahrom, born in Singapore on 09 July 1996. This child is an Australian citizen by descent (T24 p93)
The visa applicant came to Australia on a visitors visa on 25 June 1990 (T56 p205). She continued to visit Australia on visitors visas for the next three years, meeting her future husband (the applicant) in March 1992 at Parramatta Police Boys Club where he was a Tae Kwan Do instructor. They lived together from the end of 1992 and they married on 6 May 1993(T23 p70).
The marriage was at a Sydney Registry Office. A formal wedding was planned to occur in Singapore at which both families were to be present. This did not take place because of the visa applicant's arrest.
The visa applicant was convicted on 14 December 1993 at Sydney District Court for 2 counts of supply of a prohibited drug. She was sentenced to 2 years and 3 months imprisonment and an additional term of 9 months (served concurrently) (T11 p35).
The visa applicant left Australia by a supervised departure on 16 November 1995 following her term of imprisonment (T19, p57,58).
The applicant and his wife lodged an application for a BC Spouse (Migrant) visa to Australia at the Australian Embassy in Singapore on 20 November 1996 (T23 p63; T24 p72). This visa was finally rejected on 19 September 2000 on character grounds (T54 p189).
CONTENTIONS
The visa applicant accepts that she was liable for deportation pursuant to s200 of the Migration Act 1958 ("the Act"). The Tribunal is bound to apply the Direction-Visa Refusal and Cancellation No 17, given by the Minister pursuant to s499 on 21 December 1998 ("the Direction"). The Direction requires the Tribunal to take into account certain factors which the government believes are important to the exercise of this discretion. Paragraph 2.2 of the Direction requires that the Tribunal engage in a balancing process that balances the primary considerations identified in the Direction with other relevant factors.The Direction does not preclude another factor, or factors, (for example hardship to the applicant or applicant's Australian citizen child) from outweighing a primary consideration, even where the visa applicant has committed a very serious offence. The Tribunal must assess the degree of hardship to the applicant and child in order that the offence by the visa applicant can be balanced against the protection of the Australian community. Each of the relevant considerations is discussed below.
PRIMARY CONSIDERATIONS
The Expectation of the Australian Community
The Direction makes it plain that the government considers that the expectations of the Australian community center on the need to protect it from unacceptable levels of risk of crime and to remove those who have committed crimes which would be considered "abhorrent". When considering the level of risk to the community, the Direction refers to three main factors: the seriousness of the crime, the risk of recidivism and the likelihood that deportation will act as a deterrent to others.The seriousness and the nature of the applicant's crimes
It is accepted that the offence is a serious one within the terms of paragraph 2.6 of the Direction. However paragraph 2.7 makes it clear that the sentence imposed should also be seen as an indication of the seriousness of the offence. Not all offences of "supply" are the same and the circumstances of the offence must be taken into account.The Tribunal is bound by the conviction and the factual findings supporting the elements of the offence. In the present matter, the papers from the District Court have been subpoenaed but not as yet obtained. The fact that the offence occurred in 1993 has meant there has been an extra delay. When the court transcripts are available further submissions will be made in relation to the Court's comments on the offence.
At the time of sentencing, Justice Court, stated that the visa applicant's two sentences were to be served concurrently and were to date from the time she had been in custody. He ordered that the visa applicant be released on parole on 16 November 1995 and saw no reason to specify that she be supervised whilst on parole.
The visa applicant had no previous offences and was not known at criminal records prior to this conviction. She pleaded guilty to both charges of supply of a prohibited drug.
The risk of recidivism
It is submitted that there is a low risk of recidivism. The visa applicant has never been accused of a criminal offence, either before or since the convictions for supply. She has expressed the deepest levels of remorse for her actions (T59 p207) and has been exemplary in her behaviour both in prison (T25 p100) and for the five and a half years since her release.The visa applicant was on day release from Mulawa after 8 months of her sentence and then on weekend release from Norma Parker until the time of her release from custody (T45 p153). She was employed whilst she was in prison and received excellent reports from all her employers (T25 p95-99)
The Delegate for the Minister of Immigration and Multicultural Affairs on 19 September 2000, wrote that "I have also considered statements addressing Ms Ismun's current good behaviour. I consider that there is little risk of recidivism" T55 p194)
The value of deterrence:
The offences by the visa applicant appear to have been isolated acts quite out of character with her normal life. Instructions are that she became involved because of the connection with a previous boyfriend who was involved with heroin dealing (T17 p46; T24 p83; T45 p153)He had arranged for a parcel to be picked up in the kiosk in Westfield Shopping Centre where she and her sister worked. There is no evidence that the visa applicant was a member of a gang involved in supply and distribution of prohibited drugs and she herself was not a user of prohibited drugs.
Not an abhorrent offence
Whilst there is no doubt that the offences are particularly serious, involving possible harm to other Australian citizens, users of prohibited drugs, there is nothing about the circumstances of her involvement which could be described as so abhorrent that the Australian community would demand her continued punishment. Whilst tragic in the consequences for the visa applicant's husband and son and other unknown victims of the crime, the trial judge sentenced her to a prison term which she served in order to pay her debt to society.The Best Interests of the Child
This is the second of the primary considerations and one which the Tribunal will consider in making its decision. The child is less than 18 years old so the consideration applies. The child is an Australian citizen by descent although he was born in Singapore because his mother left Australia when she was pregnant.The child has lived all of his life in Singapore with the visa applicant in her parent's house. The grandmother of the child died in 1999 and the child lives with his mother and grandfather.
The father of the child was present at his birth and has made regular visits to see his child since that time. He has made 10 trips to Singapore since the child was born and he stays for several weeks on each visit. The child is nearly 5 years old and is finding it increasingly upsetting not to have his father living with him all the time. Reports indicate that the child's asthma worsens after his father leaves and that he becomes moody and depressed asking constant questions about the whereabouts of his father.
Degree of Hardship to any Australian citizen
The applicant fell in love with his wife and married her in a civil ceremony before her arrest and conviction in 1993. Since that time there is documented evidence of his support and concern for her welfare and his losing several jobs because of his need to visit her every day during visiting hours whilst she was in prison. He has not wanted to know the details of her life before they met and has followed through his mutual vow on the Koran to care for her and be her husband for life. The applicant's wife became pregnant during her time on release from custody but he was confident in being able to sponsor her and the child back to Australia after her sentence was completed and her application processed (T45 p 153,154)The applicant and his wife applied for her return to Australia at the end of 1996 and they report that in the four years between application and refusal, the Australian post in Singapore were always very positive in their dealings with the couple. Even after correspondence from the DIMA office to say the visa applicant's character was being assessed, it was another three years before a decision was made. For any couple, who have a small child and who live in different countries, this would put an excessive strain on the marriage.
The visa applicant and applicant report that rather than their relationship dying because of their enforced separation and the difficulties of their lives, they are more committed to each other and their child than ever before. The applicant has a traditional view of his wife's role as mother to their son and homemaker and he prefers to support her from Australia rather than have her working and placing their child in some form of alternative care. He consequently continues to support her financially.
The applicant is in constant contact with the visa applicant by telephone and their documented telephone bills attest to this contact. This telephone contact is more important than ever because of the child's being able to talk to the applicant and share experiences with him.
The applicant has a painting business in Sydney which takes time to build up and maintain in a competitive environment. It is not something which presents as an alternative in Singapore even if he was allowed to stay in that country on the basis of his relationship with a Singapore citizen. The money he makes from his business is spent largely on his wife and child and his expectation of being able to provide for them in a certain level of comfort is not an option for him in Singapore. He does not possess the sort of skills which are necessary for a foreigner to make a living in Singapore. He came to Australia as a migrant from Iran, has become a citizen and feels deeply involved with his adopted country which he represents in his sport of Tae Kwan Do. He wishes to continue to make his life here in Australia and to be able to offer the same to his wife and child.
OTHER CONSIDERATIONS
Ties in Australia v Ties in Singapore
The visa applicant has her father and brothers in Singapore. Her mother died in Singapore in 1999. The visa applicant has friends in Singapore and it is her home. In comparison to being in Sydney with her husband and son, Singapore is no longer her preferred place to reside. Whilst her son is an Australian resident, life without his mother is not an option so he cannot realistically move to Sydney to live with his father. The visa applicant's sister and nieces live in Sydney and she maintains a close relationship with them.The offence is a serious offence but the visa applicant has expressed remorse and contrition for her actions. She has been an exemplary prisoner and in the five and a half years since her release she has not re-offended. She has been an excellent mother to her child and has maintained her relationship with her Australian citizen husband despite the problems of living in different countries. They see themselves as a family unit, as do their friends and families, and are trying to provide the most stable and positive environment for their child. The visa applicant and her husband wish to move on in their lives and by refusing her entry to Australia, she continues to be punished along with her child for years past her original sentence."
(b) The Respondent's Statement of Facts and Contentions dated February 2001 reads as follows:
"FACTS
Ms Ismun, the visa applicant, is a citizen of Singapore. She arrived in Australia on a visitors visa on 25 June 1990. She married Mr Rabinkhah, the review applicant on 6 May 1993 (T23, p70).
Mr Rabinkhah became an Australian citizen on 21 July 1993.
On 14 December 1993, Ms Ismun was convicted on 2 counts of supplying a prohibited drug at Sydney District Court. She was sentenced to 2 years and 3 months imprisonment with an additional term of 9 months (T11, p35).
On 4 February 1994, Ms Ismun was advised by the Department that due to her conviction she was an 'illegal entrant' and liable for deportation (T10, p34).
On 1 June 1994, in response to inquiries from Ms Ismun and Mr Rabinkhah, the Department again confirmed Ms Ismun's status as an 'illegal entrant'. The Department also advised Ms Ismun that she would be subject to an embargo period and character assessment (T14, p38).
At interview with the Department on 8 August 1995, Ms Ismun indicated she would be departing Australia voluntarily at the conclusion of her sentence (T17, p 52).
Ms Ismun fell pregnant in about September 1995 (T49, p169).
On 16 November 1995, Ms Ismun had a supervised departure from Australia, subject to an exclusion period. (T19, p 57,58)
On 9 July 1996, Ms Ismun and Mr Rabinkhah's son, Shahrom, was born in Singapore. He was registered as an Australian citizen by descent on 18 July 1996 (T24, p 93).
Below is a chronology outlining the progress of Ms Ismun's subsequent application for migration to Australia:
Date Event
Mid 1996 (undated) Mr Rabinkhah seeks waiver of exclusion period. (T21,p60)
30.08.96 DIMA responds indicating that no application has been received. (T22, p62)
18.09.96 Mr Rabinkhah applies to Sponsor Ms Ismun. (T23, p63)
1.10.96 Ms Ismun applies to migrate to Australia. (T24, p 72)
22.11.96 Letter sent by DIMA acknowledging application and seeking further information. (T28, p114)
26.11.96 Ms Ismun undergoes medical examination for Australian visa. (T31, p119)
11.12.96 Interview notes / questionnaire provided (T33, p125)
10.04.97 DIMA invites Ms Ismun to attend interview (T37, p133)
14.04.97 AFP confirm Ms Ismun's conviction (T39, p135)
19.05.97 DIMA confirms simultaneous interview arrangements with Mr Rabinkhah (T42, p140)
20.05.97 Interview conducted simultaneously in Singapore and Australia (T44, p145 and T45, p152)
12.97 – 01.98 Correspondence between High Commission in Singapore and Canberra re how to deal with character issues and best interests of Ms ismun and Mr Rabinkhah's son, Shahrom who is an Australian citizen. (T47, p159)
24.02.98 DIMA requests more information about relationship of child with Mr Rabinkhah. (T48, p163)
26.03.98 Additional information as requested received by DIMA (T49, p165)
11.06.98 Request from Mr Rabinkhah for DIMA to make a decision on MS Ismun's application. (T50, p 173)
01.06.99 Changes made to the Migration Act 1958 affecting decisions relating to applicants' character.
16.06.99 Minister makes direction under s499 of the Migration Act relating to decisions about refusing visas on character grounds.
04.08.99 DIMA writes to Ms Ismun inviting her to make comments relating to the exercise of the discretion to refuse her a visa. (T53, p187)
27.10.99 Response by Ms Ismun (T59, p207)
19.09.00 Notification of decision to refuse visa on character grounds. (T54, p189)
19.10.00 Application for review of decision in AAT (T1, p3)
CONTENTIONS
Legislation
In order to be granted a Subclass 309 Spouse visa, Ms Ismun must satisfy the relevant public interest criteria, including item 4001 of Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under section 501 of the Migration Act 1958 (the 'Act') to refuse to grant a visa.
(i) Migration Act 1958, section 501
Section 501 of the Act relevantly provides as follows:
(1) 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.
Character Test
For the purposes of this section, a person does not pass the "character test" if:
the person has a substantial criminal record (as defined by subsection (7); or…
Otherwise the person passes the "character test".
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
… ; or
the person has been sentenced to a term of imprisonment of 12 months
or more; or…(ii) Migration Regulations 1994, Schedule 4 ("Public interest criteria and related provisions – Part 1 – Public Interest Criteria"), Item 4001
Item 4001 is a mandatory criterion for the grant of a subclass 309 Spouse visa (see clause 309.225).
Item 4001 provides as follows:
4001(1)
Either:
the applicant satisfies the Minister that the applicant passes the character test; orthe Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
The Respondent contends that due to her conviction on 14 December 1993 and subsequent prison sentence of 2 years and 9 months, Ms Ismun does not pass the character test.
Accordingly, the Minister's discretion to refuse the visa on character grounds is enlivened.
Policy
The Respondent submits that in the exercise of this discretion, the Tribunal is bound by Ministerial Direction No. 17, issued pursuant to section 499 of the Act. The Ministerial Direction provides guidance to decision makers in making decisions to refuse or cancel a visa under section 501 of the Act.
(i) Migration Series Instruction No. 254
Migration Series Instruction No. 254 ("The Character Requirement: Visa refusal and cancellation under section 501" – "MSI 254") was issued on 20 September 1999 and also provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act.
(ii) Ministerial Direction No. 17
Part 1 of the Ministerial Direction No. 17 (the 'Direction') provides directions on the application of the character test. The Respondent reiterates that Ms Ismun has a substantial criminal record for the purposes of the character test. Accordingly, Part 1 of the Direction is not relevant.
Part 2 of the Direction provides guidance on the exercise of the discretion to refuse a visa. In particular, paragraph 2.1 of the Direction provides that in exercising the discretion whether to refuse the application, regard must be had to primary and other considerations.
Paragraph 2.2 of the Direction provides that decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process that takes into account all relevant considerations.
Primary Considerations
Paragraph 2.3 of the Direction provides that in making a decision whether to refuse a visa, there are three primary considerations:
the protection of the Australian community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.The protection of the Australian community, and members of the community.
At paragraph 2.4 of the Direction, it is established that the Government wishes to take steps to protect the safety of the more vulnerable members of the community, such as children and young people. The Direction regards safeguarding against offences in relation to drugs as being of particular importance.
The Direction provides that the factors relevant to an assessment of the level of risk to the community of the entry of a non-citizen include:
the seriousness and nature of the conduct;
the likelihood that the conduct may be repeated (including any risk of recidivism); and
whether visa refusal may prevent or discourage similar conduct (general deterrence).The seriousness and nature of the conduct.
The Respondent notes that Mr Rabinkhah accepts that Ms Ismun's crime was serious and within the terms of paragraph 2.6 of the Direction, in that it relates to the trafficking of illicit drugs (heroin).
The Tribunal, at the request of the Respondent, has issued a summons for the files of the Director of Public Prosecutions and the files of the District Court in New South Wales in relation to Ms Ismun's offences. The Respondent intends to make further submissions in light of those files when they are received.
The Respondent nevertheless contends that any conviction for supplying a prohibited drug must be viewed as very grave indeed. The Direction makes the following comments about why the Government views such offences as being very serious:
2.6 (a)
Persons who embark upon drug related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
The Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australian's at risk, be viewed as completely unacceptable to the community; and
Offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Australian community.In relation to Ms Ismun, and in the absence of details of Ms Ismun's offending, it is the Respondent's submission that the following factors compound the seriousness of Ms Ismun's offending:
Ms Ismun's offence was committed in Australia while Ms Ismun was the holder of a visitor's visa. Accordingly, had her offence not been prevented by the authorities, the damage to the Australian community, particularly Australia's young people that is the express concern of the Australian government, would have been realised.
Ms Ismun was not herself a user of illicit drugs. The Respondent submits that it is open to conclude that Ms Ismun embarked upon drug-related crime for financial gain.
The offence involved a 'large commercial quantity' of heroin worth an estimated $1.6 million (T7, p31). (It is accepted by the Respondent that the evidence relied upon to establish this aspect of the offence is problematic, but it is envisaged that receipt of the above-mentioned files will clarify the details of the offence.)
The Respondent notes the explanation of the circumstances of the offence contained in the Statement of Facts and Contentions of the applicant. At this stage, the Respondent is not in a position to comment on the accuracy of that description.
The Respondent will make further submissions on the seriousness of Ms Ismun's offence in due course, but submits that the offence must be viewed as being one of the gravest seriousness.
The likelihood that the conduct will be repeated
The Respondent notes the remorse expressed by Ms Ismun, particularly at T59, p207. The Respondent also notes the evidence of good behaviour while in prison at T25, p100, p100a.
The Directions relevantly state at paragraph 2.10 that:
It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
Given that Ms Ismun's conviction, albeit a very serious one, is the only conviction recorded, the Respondent accepts that her risk of recidivism should be viewed as being low.
General deterrence
In light of the seriousness of the offence, the Respondent submits that to refuse to grant Ms Ismun a visa on character grounds would send an appropriate message to non-citizens contemplating dealing in illicit drugs.
The Directions point to situations where a person is involved in a criminal scheme as a situation where the general deterrence value of refusing a visa may be particularly relevant. The Respondent views it as unlikely that Ms Ismun was not involved in a criminal scheme as part of her offence, but will await the appropriate files and make a further submission on this point.
Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while they are in Australia. Ms Ismun committed a very serious offence while in Australia as a visitor.
The Respondent submits that the Australian community would expect that a person convicted of such a serious offence, involving such large values and quantities of illicit drugs, would not be permitted to migrate to Australia permanently.
The best interests of the child
Ms Ismun and Mr Rabinkhah have a son, Shahrom. Shahrom was born in Singapore and is now 4 years old. He is an Australian citizen by descent.
The Respondent submits that his best interests should be taken into account as a primary consideration.
The Respondent further accepts that his best interests will be served if he is to be raised by both his parents. However, the Respondent submits that it is not necessarily the case that this can only be achieved by granting Ms Ismun permission to migrate to Australia.
The Respondent submits that Singapore is a developed country that enjoys a high standard of living with a strong economy. It is open for Mr Rabinkhah to migrate to Singapore and unite his family there.
There is no evidence to suggest that it is in Shahrom's best interests, independent to living with both his parents, to be raised in Australia over Singapore. The Respondent submits that it may be in Shahrom's best interests to remain in Singapore where he has spent his entire life. The Respondent notes that Ms Ismun continues to live in her family home with her father, Shahrom's grandfather. The Respondent submits that it may be in Shahrom's best interest to maintain this stability.
The Respondent also notes that as an Australian citizen, there is no impediment to Shahrom entering Australia for study, work and visits as he grows older. The Respondent submits that there are regular and affordable air services between Singapore and Sydney.
In summing up the primary consideration to be taken into account in exercise of the discretion to refuse Ms Ismun a visa, the Respondent submits that the seriousness of the offence should outweigh the other primary considerations. In particular, while the Respondent accepts it is Shahrom's best interest to be raised by both his parents, it is submitted that this can be achieved without granting Ms Ismun a visa. Accordingly, it is submitted that this consideration should be given less weight.
Other considerations
Paragraph 2.17 of the Direction provides that other matters, while not primary considerations, may be relevant when considering whether to refuse a grant of a visa. These matters include:
These factors should be given less individual weight than that given to the Primary considerations:
the extent of disruption to the non-citizen's family, business and other ties to the Australian community; the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
in assessing the compassionate claims of the Australian partner, decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
family composition of the non-citizen's family, both in Australia and overseas;
(not relevant)
(not relevant)
(not relevant)
any evidence of rehabilitation and any recent good conduct;
whether the application is for a temporary visa or permanent visa;
the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.In relation to factor (c), the Respondent appreciates the difficulty faced by both Mr Rabinkhah and Ms Ismun in their present circumstances.
The Respondent also appreciates that there would be hardships involved if Mr Rabinkhah were to migrate to Singapore. However, the Respondent submits that those hardships can be weighed against the hardships to be faced by Ms Ismun and Shahrom in moving to Australia.
With the possible exception of Mr Rabinkhah's painting business, it is submitted that in all the circumstances there would be less disruption to the family unit if Mr Rabinkhah were to move to Singapore.
The Respondent notes that Mr Rabinkhah has taken no concrete steps to migrate to Singapore despite being entitled to do so as the spouse of a Singaporean citizen. The Respondent intends to adduce evidence to show that Mr Rabinkhah meets the criteria for grant of Singaporean permanent residency.
The Respondent also submits that there would be ample opportunity for employment as a painter in Singapore, or to establish a painting business in Singapore. The Respondent finds the applicant's contention that 'he does not possess the sort of skills which are necessary for a foreigner to make a living in Singapore' (at para 25) to be implausible.
The Respondent submits that travel between Australia and Singapore is relatively inexpensive, and it is open for Ms Ismun's sister and nieces to visit her in Singapore.
In summary, the Respondent contends that no other consideration has been raised by the applicant, and none would be sufficient, to outweigh the primary considerations of the protection of the Australian community and the expectation of the Australian community that non-citizens who have dealt in illicit drugs should be excluded.
The Respondent submits that the decision to refuse Ms Ismun a visa on character grounds should be affirmed.
The Respondent draws the attention of the tribunal to the decision in Ross v Minister for Immigration & Multicultural Affairs [2000] FCA 1716. In that case, His Honour Spender J found inter alia that an error of law had been made when the discretion under section 501(2) of the Migration Act 1958 was described in a submission to the Minister as a discretion to 'not cancel a visa'. His Honour characterised the effect of this description at paragraph 27:
It is apparent that the Minister believed that once paragraphs (a) and (b) of s 501(2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so.
His Honour indicated that the error of law arose as follows (at paragraph 29):
The basis for my conclusion in this case is simply stated: I do not agree with the contention for the Minister that a discretion not to cancel a visa is the same as a discretion to cancel a visa. In terms, s 501(2) is permissive: it confers a power to cancel a visa in the exercise of the Minister's discretion. The interpretation given to the section by the Minister, as evidenced by the explanations proffered to him by his officers and by what he said he decided, is that the section obliges him to cancel a visa unless he is satisfied that he should not. There is, in my view, an important difference between power and obligation.
And further at para 35
In my view, in this case the words of the Minister's decision indicate that he was unpersuaded that Mrs Ross' visa should not be cancelled. In my opinion, on its proper construction, s 501(2) of the Act does not permit the Minister to cancel Ms Ross's visa on the basis of that lack of persuasion.
The Respondent submits that the principle outlined by His Honour Spender J applies equally to the exercise of a discretion to refuse a visa under s501(2). Accordingly, the tribunal should be positively satisfied that the visa should be refused on character grounds before proceeding to affirm the decision of the Minister's delegate."
(c)The Respondent's Supplementary Statement of Facts and Contentions (also undated but received in the Tribunal on 27 March 2001) reads as follows:
"S1. The purpose of these Supplementary Facts and Contentions is to make observations and contentions arising from the documents summonsed by the Tribunal from the District Court of New South Wales. The Respondent has prepared supplementary tribunal documents including those documents which may be of assistance to the Tribunal.
S2. The Respondent is alive to the principle that it is not permissible for the Tribunal to go behind a conviction. The Respondent respectfully refers the Tribunal to Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 as authority for the following contentions of law. References to paragraph numbers refer to the decision as available from It should be noted that the decision in Ali referred to a s200 Deportation decision. It is the Respondent's submission that the same principles apply to decisions under s501 of the Act.
S4. For the purposes of establishing the foundation of the exercise of power, it is submitted that the Tribunal may not impugn or go behind either the conviction or the sentence. (MIMA v Ali para 42) It is the Respondent's submission that for the purposes of s501(7)(c) the conviction on its face establishes that Ms Ismun has a substantial criminal record and by operation of s501(6)(a) she does not pass the character test.
S5. The Respondent contends that the conviction on its face is also strong prima facie evidence of the facts on which it is necessarily based and throws a heavy onus on a person who seeks to challenge such facts. (MIMA v Ali para 43)
S6. However, the respondent acknowledges that the Tribunal is entitled to make its own assessment on the entirety of the conduct under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.
S7. It is in respect to this last principle that the respondent makes these supplementary contentions on the basis of the documents in the supplementary tribunal documents.
S8. The Respondent notes that at S (letter to judge) Ms Ismun indicates that she was involved in the operation of a monogramming business. This was in fact the location where she was detected trafficking in heroin. At no stage was Ms Ismun ever permitted to work in Australia. (ICSE record S…)
S9 At the relevant time Section 83 (1) of the Migration Act 1958 provided as follows:
83. Offences in relation to work
Where a person who is the holder of a valid temporary entry permit that is subject to a condition of the kind referred to in paragraph 23(4)(c) or 33(4)(c) [work restrictions] contravenes that condition, the person commits an offence against this subsection.
S10 It is submitted that prima facie, Ms Ismun has offended against the Migration Act. Ms Ismun has never admitted to contravening work restrictions placed on her visitor's visas in any dealings with the Department or with this Tribunal.
Risk of recidivism
S11 The Respondent submits that, while it is not necessary to establish that Ms Ismun does not pass the character test by having regard to her past and present criminal or general conduct due pursuant to s501(6)(c)(i) and (ii), her contravention of work restrictions has some weight in relation to assessing the risk of recidivism.
S12 It is the Respondent's submission that, although somewhat paling into insignificance in relation to her conviction for supplying a prohibited drug (heroin), her behaviour in Australia is suggestive of a general disregard for the law. The Respondent submits that while her risk of recidivism may be viewed as being low, it is not so low that it ought to be disregarded.
Seriousness of the offence
S13 The Respondent reiterates its contentions at paragraph 27 of its Facts and Contentions. The Respondent notes that Ms Ismun was denied bail due to the seriousness of the offence with which she was charged.
S14 (Drug certificate) confirms that the quantity of heroin involved in the offence was substantial.
S15 The Respondent notes that the circumstances of the offence as alleged by the prosecution suggests that Ms Ismun was heavily involved in the mixing, labelling and supply of the heroin. For example please see statement of Det Sgt McKay Rope
S16 It should also be noted that at the time of her initial police interview, ( Rope) she claimed she was minding the heroin for AHMED. AHMED was in fact the undercover policeman to whom she supplied the heroin. The Respondent submits that this explanation is reminiscent of para 16 of the Applicant's facts and contentions in that Ms Ismun claimed her ex boyfriend had arranged for the parcel to be picked up. It is the Respondent's submission that the prosecution evidence suggests that Ms Ismun was not merely a bystander in the offence through a connection with a third party.
General deterrence
S17 The prosecution evidence suggests a level of planning in the commission of the offence (same as above). The Respondent submits that this characterises the activity as part of a criminal scheme. Ministerial Direction 17 envisages involvement in a criminal scheme as being particularly relevant when assessing whether the likelihood that visa refusal would prevent like offences by other persons.
S18 The respondent contends that the information contained in the summonsed files as reproduced in the supplementary tribunal documents confirms its earlier contentions in relation to the severe gravity of the offence. It is the Respondent's submission that the seriousness of the offence should outweigh all other considerations and that Ms Ismun should be refused a visa."
(d) Exhibit A2, which is a letter dated 18 March 2001, addressed to Ms Vidler by the Visa Applicant, reads as follows:
"Sometime around end of 1990, I met Jalal Issa in a disco at park royal hotel parammatta. He is in a leather jacket bussiness of which he sew it himself from home (Bankstown) where his backyard garage he turn it into sewing room. While I'm with him he does not show any sight of being an addict or doing any illegal thing. After being with him about 8 months, a friend saw me with him warned me to be careful of him as he been in jail for drugs. I confronted him and he admit but he says it was a long time ago and not to worry about it. Slowly I withdraw myself from him giving him reason that I need to concentrate on my family bussiness. He wasn't happy with the breakup (Nov. 1991) but he say he hope it is not for other man. He does not leave me alone but keep visiting me at the shop every 4 or 5 months and always ask if I'm seeing anyone special as I refuse going out with him again.
One day he turn up at the shop I told him that I met an iranian guy and I'm happy with him. I also told him not to visit me again at the shop. He was mad and refuse to believe that I have a boyfriend and say that I was just saying that because I want to get rid of him. He was so unhappy anyway before he left he say I mess-up with a wrong guy and he walk off. Suddenly one day, he appeared at the shop again I was busy serving customer, he pass me a shopping bag and say he be back. As my shop is a kiosk several regular customers would ask me to mind their shopping bag. When he did not come back for the bag I call his house but his mum say police get him. I was shock, nervous and confuse. Then his mum came crying to the shop with her daughter wanting me to visit his son. I refuse but his mum keep coming and I wanted to give the parcel to them but they say they can't take it and I must go and see her son. Upon visiting him, I told him that I wanted to flush it in the toilet. He warned me that if I do that I will owe him lots of money and I cannot return it to his family because his family and relative are all been watch. I told him I don't want to be in trouble. He said no one will be in trouble as nobody knows about it. I have to follow his instructions because even he's inside but don't forget his family and relatives are outside watching me. I am shocking to hear all those words from him. All I want is to get rid of the stuff and now even my family is being threatened. He and his mum pressure me so much as they need the money for his bail. I was very scared, nervous, panic, cannot think anymore and at the same time do not want anything to happen to my family. I was too scared that I couldn't handle it myself so one month before I see ahmad (undercover) I get my sister involved. She advised me to just report it to the police but I told her he will destroy us and all our family. I told my sister she must keep this to herself and just help me. He promise to leave me alone as long as I do the thing that he want me to do. He told me his cousin from queensland name ahmad will come and pick it up from the shop. Two days before ahmad came I have to mix the stuff with sugar as instruct by Jalal then I left it at ahmad myself which happen to be the undercover where I was arreested.
It was the worst nightmare of my life and the most dreadful thing I've done which I am so embarrassed. I deeply regretted my action and I have hurt too may people, I pray everyday asking god for forgiveness."
(e) Exhibit A3 is a statement dated 25 March 2001 by the Applicant; it reads as follows:
"On 9 May 1991, I arrived in Sydney. It is a beautiful city; it is very different from where I come from in Iran. Here I am living in a foreign country with a different language spoken, different culture and traditions. I have no relatives, no family and just a few friends. I spent most of my time training Tae Kwon Do at Parramatta Police Boys Club. I went to English class to learn to speak English at Villawood Hostel.
In March 1992, I met Anita, my wife at the Police Boys Club, where she sent her nephew to train Tae Kwon Do and then I saw her at the shop where she worked. Meeting my wife was the most beautiful and happiest thing that ever happened to me. My father died when I came to Australia and part of me died with him. I was in the Army and was in the Iran/Iraq war for 2 years. Most of my army friends got killed in front of me. It was horrible. I cannot sleep or eat and I get nightmares. I was registered with the United Nations as a refugee and was accepted as part of the offshore refugee/humanitarian program as a permanent resident to Australia.
When I met my wife, I began to have a life again. She has helped me going through my hard times. She made me very happy as she's loving, caring, understanding and made me feel very comfortable being with her. We hardly spent time with friends, as we are very happy to be at home spending time with each other. We went places like Darling Harbour, the Blue Mountains and down the coast for relaxing drives. We do most things together like housework, cooking, shopping and washing.
Three months after knowing her I moved in with her and we got engaged on Christmas Day 1992.
Anita is very close to her sister Fie. She looked after her children as though they were her own. I met Anita's nephews and we all wet out together, it really felt like having a family. I met her mum and one of her brothers with his family. They came from Singapore and they are very nice to me.
Sometime in January 1993, we both moved to a new flat on Great Western Highway, Parramatta. We got married on 6/5/1993 inviting only a few close friends and her sister and children. We made plans for a big wedding celebration in Singapore. My family was going to join us there and as I hadn't seen them for 7 years it was going to be great.
I was shocked when she was arrested. I was at work when it happened and I did not know anything. I went to the Police Station to find out what had happened. No one could give me any information. I was losing my mind: this couldn't be happening; it was like a nightmare and I was shattered and broken hearted. One minute she is there making me happy and the next she is gone and I couldn't understand why.
The first time when I visited her, she told me what happened. I was so hurt and angry. I wish I had known about it and could warn her of the danger she was in. the wedding that we were going to have and meeting the rest of her family and joining my family in Singapore was completely destroyed. I felt I did not want to live. Her mum and brother came from Singapore and looked after me. I visited her every time I am allowed to. I lost my job because I cannot concentrate and needed to be with her. We cried every time we are together. I just cannot cope being away from someone I love so much. We promised to be strong and see what happened.
My mother flew over in 1994 from Iran to see me and visit my wife. I was glad that she was understanding and accepted her and my mum knows how much I love my wife. Later my wife got transferred to Norma Parker, minimum security where I could visit her everyday. Eventually she got into the work release programme where she is working at a factory as a machinist and weekend release where she is allowed to come home. We both decided we wanted a baby, but no luck. God is great as my wife got pregnant before she had to go back to Singapore. I was so happy she was pregnant but not that she had to leave.
Having a son is the greatest gift from God. I love them both very much and will try my very best to bring them both here in Australia. This is my country which I love and since I am a citizen I want to spend my life here. It was a big struggle to get to Australia and make my life here and I want to be here and be able to bring up my son in Australia with his mother. I pray every night that they will be allowed to come back into the country and into my life."
(f) Exhibit A1 is a medical report by Dr Philip Tan Bee Lee, dated 28 February 2001, in respect of Shahrom (son of the Applicant and the Visa Applicant, who is now 4 years old, and who is referred to as "Shahrom" or as "the child"); it reads as follows:
"Master Shahrom has been a patient of this clinic since 1996 to date. Other than the common childhood illness, he has also been diagnosed to have asthmatic bronchitis. The asthmatic attacks is often brought on when he is suffering from a bout of the flu and other viral infections. He often presents with varying degree of breathlessness and chesty coughs.
It was necessary for him to be referred to the hospital on 2 episodes in September 1997 and April 2000 due to the excessive breathlessness and coughs. According to the mother, the child often gets sick whenever the father has to travel overseas. It is known that asthmatic attacks can be brought on by stress.
The patient was last review on 26/2/2001. His condition then was stable and it was noted that he is currently not on any long term medications."
In respect of the evidence of the Visa Applicant, given by telephone link from Singapore:
(a) She first came to Australia in 1990 on a visitors visa, which was more extensive than is usually the case; it was a multiple entry visa for a period of 5 years and pursuant to which she was obliged to leave the country every 6 months. Her sister, Fie Beattie ("Fie"), and her family were already resident in Australia; the Visa Applicant's parents, four brothers, and grandmother were and still are (excepting only for her mother and grandmother who died subsequently) resident in Singapore.
(b) Not long after her arrival in Australia, the Visa Applicant became the proprietor of an embroidery business in the Westfield Shopping Centre in Parramatta. That business was established primarily for the benefit of Fie; however, Fie's marriage was then in difficulties (and it has since ended) and the business (established with funds provided by the Visa Applicant's parents) was put in the name of the Visa Applicant in order to avoid possible adverse claims by Fie's husband. The Visa Applicant helped look after Fie's children; in addition she helped in the business, from which she derived, on a somewhat ad hoc basis, fully taxed (because she had a tax file number) income from time to time.
(c) The Visa Applicant became involved with a man named Jalal Issa ("Jalal"). She did not know that he had a history of drugs but after a number of months, and after being warned by a friend that he had a drug history (including a gaol sentence), she endeavoured to break off the relationship. To do so proved to be more difficult than she could have imagined. Jalal was very unhappy about the Visa Applicant's desire to break with him, and repeatedly contacted her in an endeavour to resume relations. This was so even after, in 1992, the Visa Applicant met the Applicant and commenced a relationship with him, which led to her marriage to him in May 1993.
(d) In October or November 1992 Jalal left a parcel with the Visa Applicant. She was serving a customer at the time in the premises (a kiosk) on which the business was conducted. He said that he would be back to collect it later that day. She said that because the business was conducted from a kiosk it was not uncommon for persons to leave parcels with her for custody purposes for brief periods, such as when on their way to the major tenants in the Westfield Shopping Centre.
(e) Jalal did not return to collect the parcel. She tried to contact him on his mobile phone, without success. She then contacted his mother ("Ms Issa") who said that he was in gaol.
(f) It was then that she opened the parcel. It contained what she described as "white stuff" and being, she assumed, drugs. She had at the time no knowledge of drugs; she was not and never has been a user of drugs. She was naturally enough very frightened and nervous.
(g) Ms Issa came to the kiosk the next day, accompanied by a woman described as a cousin. She refused absolutely to take the parcel, and demanded that the Visa Applicant visit Jalal in gaol.
(h) The Visa Applicant then visited Jalal in gaol. She told him that she wanted to get rid of the contents of the parcel and intended to flush it down the toilet. Jalal said that the contents would furnish the money which would provide him with bail, and that "she would owe him a lot of money" if she got rid of it. He also threatened that if she did get rid of it he would arrange for the killing of her and her sister and her sister's family. She believed his assertion that he had relatives and friends outside gaol who could ensure that this occurred.(i) I do not think it necessary to recite in detail the events over the next months, because to do so would be repetitious; I refer in this context to Exhibit A2 set out in paragraph 2(d) of these Reasons. She did as she was told by Jalal precisely because she was terrified of him and the consequences of not following his orders. She visited Jalal in gaol, and took instructions from him as to the manner in which the white powder (which was heroin) was to be mixed with sugar. She was told that she was to give 350 grams to Ahmad, who would pay her $20,000 for this quantity. There were a number of gaol visits to Jalal. At no stage did she tell the Applicant of her visits to the gaol. Nor for that matter did she dare to go to the police; as set out previously she also did not are to flush the powder away.
(j) There were visits by Ms Issa, and also the cousin, neither of whom was prepared to accept the parcel or any of its contents.
(k) In June 1993 (after her marriage to the Applicant) the Visa Applicant handed over approximately 350 grams to Ahmad who paid her $20,000; that money was collected by Ms Issa two days later.
(l) The Visa Applicant was told (two weeks later) by Ms Issa that she must again visit Jalal in gaol, that more money was needed, and that Ahmad would come again to collect heroin and to pay for it.
(m) The Visa Applicant emphasised that she knew nothing of the harm caused by drugs although she learned about it afterwards in gaol. She said also that she neither expected nor received any financial reward of any kind.
(n) In August 1993 the second parcel was handed over. On this occasion the Visa Applicant was arrested, and her home and the kiosk were searched. Ahmad also was arrested although he was, it would seem, an under-cover policeman; the Visa Applicant doubted whether that arrest was genuine.
(o) The Visa Applicant from gaol at last disclosed to the Applicant what had been happening. A number of lawyers were consulted; at this distance in time it was impossible to ascertain what advice they gave. The Visa Applicant said that money was required in amounts which she could not raise. She eventually consulted Legal Aid, who advised her to plead guilty on the basis that if she did so, her sentence would be far less than would otherwise be the case if she pleaded not guilty and were found guilty. She accepted that advice and pleaded guilty, receiving a sentence of 2 years and 3 months, with an additional term of 9 months. Her sister was also arrested, convicted and sentenced. Orders for payment of $1,000 and $19,000 were made against her sister and her respectively. In her case she did not pay the amount ordered because, so she said, machines were taken in order to satisfy the debt.
(p) It will be seen that the Visa Applicant had in her possession a large quantity of drugs (heroin) for a period which commenced in October or November 1992 and lasted until the first sale in June 1993. The Visa Applicant's evidence was that she did what she was told simply because she was terrified of Jalal and feared fatal consequences for herself and her sister's family if she did not do exactly as she was told.
(q) I must of course accept both that the Visa Applicant was correctly convicted and also that she was correctly sentenced; I will refer to relevant case authority later in these Reasons. It must be noted that in fact the Visa Applicant did indeed "deal", in that she handed over drugs in exchange for money.(r) This evidence by the Visa Applicant was subsequently criticised by Mr Kennedy as inherently improbable. When one considers it, in all its naivety and apparent foolishness, that conclusion appears to be just. I have reflected on it and the manner in which it was given, and have come to the conclusion that, however unlikely it may sound, it was in fact true. This unfortunate young woman found herself in a situation perceived by her (however stupidly and however wrongly) to be untenable. She did as she was told, resulting in convictions and heavy sentences for herself and her sister. Her remorse was heartfelt and in my view genuine.
(s) Once in gaol, the Visa Applicant proved to be a model prisoner. Within a comparatively short time she was doing voluntary work helping handicapped people. She was approved for day release, and then for weekend release well prior to the due date for release. The T Documents contain glowing references, at T25 pp. 97, 98 and 100. I quote the references by Holroyd Disabilities Services (at T25 p 99) and by the Department of Corrective Services (at T25 p 100) as follows:"Anita Ismun has been a volunteer at our service during a five month period, from July 1994 till present. During this time I was impressed with the quality of the work that she had performed while being with the service.
She has been assisting in the running of respite programmes on a Thursday by providing personal care and assistance towards people with physical disabilities by feeding them, helping them to make purchases for themselves, being able to communicate effectively with them, ensuring that their wheelchairs are safely secured within the vehicle and in other duties which helps the project to run smoothly.
I have found her to be enthusiastic, reliable, hard working and works well without supervision. I wish her all the best for her future and I can recommend her as a valuable asset in any agency she works in."
(T25, p.99)"This is to certify that Anita Ismun worked in the Cortex Business Unit at the Norma Parker Correctional Centre from 18/2/94 to 28/11/94, at which time she was successful at entering the Work Release Programme.
The Cortex Unit is mainly engaged in the production of high quality theatre garments for use in Hospitals throughout Australia. Anita proved herself to be a talented and precise sewing machinist, who showed a lot of pride in her work. Anita also helped in the training of new employees in the shop, showing them the correct way of assembling and sewing the garments.
Anita was always polite and helpful and set an excellent example for the other inmates."
(T25, p.100)(t) On her release from gaol in November 1995, the Visa Applicant returned to Singapore, having previously acquired her own air ticket for his purpose.
(u) The child who was born on 9 July 1996 and was conceived in or about September 1995, when the Visa Applicant was on weekend release. He was conceived at a point in time after the receipt of a letter from DIMA to the Applicant dated 1 June 1994, and which reads as follows:"I refer to your letter of 23 May 1994 and to an enquiry at a departmental counter by your husband, Rabinkah Bahman.
Your status in Australia is that of an illegal entrant and you will be interviewed closer to your release date. You will be given an opportunity at that time to explain your situation.
Your husband has asked how he can sponsor you back to Australia after your release.
Enclosed is a pamphlet on sponsorship to Australia. You should be aware that illegal entrants who are removed from Australia are subject to embargo periods, before which they cannot apply to return. You should also be aware that persons who apply to migrate to Australia are subject to a good character assessment."
(T14, p.38)
It is also relevant to note that the child was conceived prior to the spouse visa application. The Visa Applicant and the Applicant were under the impression that if she went back to Singapore of her own accord and at her own expense, there would be no obstacle to his sponsoring her back to Australia. That view was of course mistaken; she said that it was based on advice obtained from DIMA in Chatswood.
Once back in Singapore, the Visa Applicant and her son lived with her family, in a flat provided by her parents. She worked as a sales assistant for a period of nearly a year, but resigned from that position in consequence of pressure from the Applicant that the child needed her full-time care.
(w) The Visa Applicant said that the Applicant had sent her money regularly, that he had visited her 10 times in Singapore, that he is as passionately devoted to the child as the child is to him, and that the child, who suffers from asthma, suffers attacks resulting from stress when his father, the Applicant, is obliged to return to Australia.The Visa Applicant is not inarticulate. She said that she very much doubted whether the Applicant could obtain rights of residence in Singapore. Apart from any other considerations, it is only she who could sponsor him, and moreover that to do so requires her to produce evidence (through tax returns) of working continuously in Singapore for 3 years. She doubted in any event whether the Applicant, who is a house painter, could obtain employment in Singapore. Although Singapore is a wealthy and developed country it offers benefits to the well qualified, while employing third world persons to do menial work. The construction industry is managed by the Chinese community, and a job in construction for someone who speaks no Chinese might be very difficult to obtain. She spoke of experiences of friends where residency permit applications were refused on numerous occasions, and where, in one case, and even where it was granted in the end after many applications, the man to whom it was granted could find no work. She said that even if he did find work in Singapore, which appeared unlikely, it would be at a rate much lower that that applicable in Australia.
(y) Reverting for a moment to the evidence of the Visa Applicant as to her relationship with Jalal's parcel, the Tribunal inclines to the view that the fact that she held on to the parcel for so many months is capable of being construed as pointing to the truth of her version. To retain so large a parcel for so many months in her own business kiosk was so ill-advised and imprudent that this is possible. Another and much darker reason is also possible, but the Tribunal thinks, having heard the Visa Applicant, that the former is entirely feasible.
(z) In summary, the Tribunal considers that on her evidence, to characterise this naïve and rather foolish young woman as a hardened dealer in heroin for profit, would quite simply be altogether incorrect.
(a) This is a convenient juncture for me to deal with the convictions and sentence. I have previously made it clear that I must accept the correctness of each (Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 389).
(b) I refer in particular to clauses 20 and 21 of the judgment of the Federal Court in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 where Branson J cited the decision in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 as follows:"20 In Minister for Immigration & Ethnic Affairs v Gungor the Full Court (Fox, Fisher and Sheppard JJ) similarly took the view that the Tribunal erred in departing from the view of the facts necessarily adopted by the jury in reaching its verdict in respect of the offence upon which the Minister's decision to deport was based. Fox J at 445-446 observed:
"What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge), should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. ... While it stands, the conviction must be conclusive so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury."
21 In Gungor Sheppard J at 468 concluded that it was not open to the Tribunal to go behind the conviction or to set at nought the conviction upon which the deportation order was based. At 469 his Honour said:
"[T]he Tribunal remains entitled, indeed bound to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction.
...
I would add that a compensating benefit which results from the adoption of the view which I have proposed is that apparent unevenness between the decisions of the criminal courts of this country and those of the Tribunal will be greatly reduced, if not eliminated. I am satisfied that that would be in accordance with the intention of the legislature."
Fisher J agreed generally with the reasons of both Fox and Sheppard JJ. "
(c) That said, the Tribunal does have a (limited) right to examine a conviction, but only to enable it to make its own assessment of the nature and gravity of the relevant criminal conduct. I refer to clause 19 of the judgment in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, reading as follows:
"19 The respondent also referred to the decision of the Full Court of this Court (Fisher, Davies and Lockhart JJ) in Minister for Immigration & Ethnic Affairs v Daniele. In Daniele the Tribunal had reviewed the evidence led at the trial of the respondent and the trial judge's summing up to the jury. The Tribunal had concluded that a later decision of the High Court indicated that if the jury had been properly instructed on the basis of the law as then defined by the High Court, the respondent might well have been acquitted by the jury. Fisher and Lockhart JJ at 358 observed:
"The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial."
The decision of the Tribunal was set aside."
(d) And lastly clauses 37 and 38 of that judgment read as follows:
"37 In each of Gungor, Daniele and SRT, the Full Court of this Court identified as a policy consideration the undesirability of administrative decisions being based on considerations inconsistent with criminal convictions and sentences. In none of these cases was it necessary for the Court to explore whether (and if so, why) the policy consideration is of less significance where the relevant conviction and sentence does not provide the basis for the exercise of a statutory power.
38 The policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice. Other relevant matters include the following. A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt. For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence. "
(e) It follows then that although I am bound to accept the conviction and sentence, I may have regard to the criminal conduct in question for the purpose of weight where that consideration is relevant.
Dr Tan gave evidence, also by telephone link from Singapore. His evidence was not by any means conclusive. He noted that the child suffers from asthma and that it might be caused by stress. He thought it possible that the child may in time grow out of it. At the same time, asthma attacks have led to hospitalisation, and the child clearly suffers stress when his father leaves. The doctor's evidence was cautious and indeed properly so; at the same time it does indicate a need by the child for his father, which must be given due consideration.
In respect of the Applicant's evidence:
(a) He is an Australian citizen; he came here from Iran as a refugee after having served in the Iranian army against Iraq in war, in which the casualties on both sides were enormous. He suffers terrible nightmares in consequence.
(b) He behaved altogether correctly in relation to the Visa Applicant. Before marrying her he contacted her parents in the customary manner. It is of great importance to him that both are Muslims and firm in their religious convictions.
(c) He has supported his wife and son in a commendable manner. His devotion to both of them cannot be the subject of any doubt.
(d) He said though that he would not contemplate joining his wife in Singapore. His motives were in some respects confused, mixing his devotion to Australia with his perceptions of the economic disadvantages which would result. It is likely that he saw a move to Singapore as being difficult from an economic point of view, and because he would not be able to earn as good a living for his family in Singapore.This brings me then to a consideration of Direction No. 17 – Visa Refusal and Cancellation Under Section 501 ("the Ministerial Direction") which is binding on me pursuant to section 499 of the Migration Act 1958 ("the Act"). Clause references in this paragraph should be construed as references to numbered clauses in the Ministerial Direction.
(a) Ms Vidler fairly and properly conceded that the Visa Applicant does not pass the character test; this is so because of the criminal convictions to which I have referred, and having regard to section 501(7) of the Act. This being so, evidence of recent good conduct is irrelevant; similarly the character references in the T Documents need not be considered.
(b) Accordingly, the only issue between the parties is as to whether or not I should exercise the discretion set out in Part 2 of the Ministerial Direction.
(c) Clause 2.3 provides the primary considerations are:"(a)The protection of the Australian community, and members of the community;
(b) The expectations of the Australian community; and
(c)In all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."
(d) Leaving aside clause 2.3(c) for the moment, clause 2.3 must be read in conjunction with clause 2.5, which provides that in assessing the level of risk to the Australian community, the following factors are relevant:
"(a) The seriousness and nature of the conduct;
(b)The likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
(d)There can be no doubt that the relevant convictions and sentence place them in the very serious class within clause 2.6(c). We are here concerned with a quantity of heroin the street value of which was $1.6 million. I did not have the sentencing remarks of the judge before me. It might be thought that the sentence in question was light for someone charged with and convicted of crimes of this magnitude. It would appear that the Visa Applicant pleaded guilty and the sentence was imposed; I do not know whether anything was said in mitigation. As to whether the Visa Applicant's account of how the events in question came to occur was put to the judge is not known except that it seems likely that it was not.
There must be some possibility that if her case had been properly presented (and it seems clear enough that it was not) the sentence might perhaps have differed.
I have previously in these Reasons commented on the contention by Mr Kennedy that her version was inherently improbable. It is in many ways a version which is decidedly odd. But there are in my view factors which lead me to think that it was true. It amounts of course to a claim of duress. Jalal was a man with a drug history; the Visa Applicant had no history at all of drugs, or for that matter any other convictions of any kind, in Singapore or in Australia. Perhaps the most significant feature is the large quantity of heroin involved. The very size of the consignment connotes a dealer in drugs, someone who is accustomed to drugs, their usage and dealings in them, and who derives profit from doing so. The evidence of the Visa Applicant leads me to consider that to characterise her as a large scale drug dealer is simply ludicrous. She came to Australia as a young woman to visit her sister. She went back to Singapore, where she has lived a completely blameless life as a caring mother. She worked for a while and resigned her job at the insistence of her husband. Would a large scale drug dealer have behave in such a fashion? The answer has to be a resounding no. That the Visa Applicant behaved naively and even stupidly cannot be doubted. But to view her as a hardened criminal is simply not acceptable. It is true that she worked in the kiosk in breach of section 235 of the Act for a comparatively brief period. Once caught in the toils of the law by her fear of Jalal and his mother, she simply pleaded guilty. As a prisoner she behaved in an impeccable fashion. And when released she immediately went back to Singapore.
It is against this background that I am entitled, I believe, without impugning either the convictions or the sentence, to consider just how serious her conduct was. It is in this light that I believe that I am entitled to regard it as more stupid than as very serious.
My views would of course be very different if she were a hardened dealer in drugs. In that event I would regard her offences as very serious indeed, and it would be difficult indeed to persuade me that there would be any considerations which would outweigh such heinous behaviour. But this is a case of an entirely different nature. I would add that I found the Visa Applicant credible as a witness.
(f)The Respondent accepted that the risk of recidivism is minimal. What then of the risk to the Australian community and its expectations? In Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717 Deputy President McMahon said, at clause 33:
"… It is not possible to have objective evidence of the expectations of the whole community. As the delegate is entrusted with coming to his own view on the nature of those expectations, so also I must apply my mind to what I understand the community expects…. Above all, I consider that there is an expectation in the Australian community that the legislation will be administered in a fair and humane manner."
And he said at clause 34 of his decision in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054:
"Paragraph 2.12 gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely."
I believe that the Australian community would expect that a drug dealer in heroin of this quantity would in the ordinary course never be allowed back into Australia. But I also believe that the Australian community would adopt an entirely different attitude were it to be aware of all of the background circumstances, and would come to a different conclusion. The Visa Applicant after being a model prisoner left for Singapore; years have passed during which time the devotion between her and the Applicant has not diminished, and during which time the child has grown and done well in her care. She said that he is high in his class at his kindergarten school, helped by the tuition which she gives him at home. I do not consider that she does pose any risk to the Australian community. In the same context, and for much the same reasons, I do not think that deterrence is a relevant factor in this case.
(g) As to clause 2.3(c) (read with clause 2.17), the interests of the child are plainly such that he needs both his parents. The evidence before me was that although he lives in comfortable enough circumstances (partly in consequence of a rent free flat provided by the Visa Applicant's family) he is emotionally less secure. The medical evidence indicates stress-related asthma caused in particular when his father leaves. He may grow out of it, but in the meanwhile it is a real problem and one which has resulted in hospitalisation on two occasions.
(h) I am required under clause 2.17 to take into account hardship to the Applicant. There can be no doubt that there is very real hardship. Nor do I believe that it would be easy (or perhaps even possible) for him to move to Singapore even if he were willing to do so. There was evidence before me that Singapore gives residency visas to the well-trained, while placing low value (in their points system) on family reunion. And, as I have said, the Visa Applicant, who is his only possible sponsor, does not currently have the necessary qualifications.
I confess to the fact that I have to some extent found this case difficult. When one is faced with the question of whether or not to grant a visa to a convicted dealer in $1.6 million worth of heroin, one's natural inclination is to take the view that it would require altogether compelling countervailing considerations before one could grant the visa. But on analysis the reality is very different. Once I accept the rather bizarre chain of circumstances which led the Visa Applicant to a heavy prison sentence, it becomes clear that to characterise her in this light would be both wrong and unfair. One might think indeed that she has paid a terrible price (not forgetting harm to her sister, who also went to gaol) for her terror of Jalal and his family. I cannot help but feel that it is likely that, if she were a drug dealer, something adverse (even if only suspicion) to her would on investigation have emerged, either in Australia or in Singapore. But it did not; to the contrary, we have a picture of a rather submissive and in some respect ingenuous woman caught up in a web of intrigue, and unable to extricate herself. That she did not take the sensible course of going to the police is against her, but not in my view fatally so.
I think it proper to say that this case turns, as always, on its own particular facts. I think that I should make it clear that if I had found that she was a dealer for profit in heroin, the countervailing considerations would not have been sufficient for the grant of a visa. The primary considerations would have been such that the risk to the Australian community would have been too great, and as regards deterrence, I would have taken the view that to grant a visa would have sent entirely the wrong message. The interests of the child, and hardship to the Applicant, would not have been sufficient, notwithstanding the fact that this child needs his father more than many, and notwithstanding the fact that the Applicant did not know of her conduct until after marriage. Considerations of the kind contained in Re Cafarella and Minister for Immigration and Multicultural Affairs [2000] AATA 30 (as to when the child was conceived) would not have been relevant. It is precisely because, despite the convictions and sentence, I have come to the conclusion that her conduct was more foolish than criminal, that she is no threat to the Australian community, that deterrence is not a relevant factor, and because I believe that a fully informed Australian community would not expect me to refuse a visa, that the countervailing considerations are such that I can and should find in her favour. I am of course aware that this decision may seem somewhat controversial. I emphasise that, having heard the Visa Applicant at length, I am convinced that her version of events is true, despite the criticism of it by Mr Kennedy. I should add that this case was conducted in a manner which reflects credit on both Ms Vidler and Mr Kennedy.
This then is a case where in my view the discretion in Part 2 of the Ministerial Direction can and should be exercised in favour of the Applicant. This being so, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Migration Act 1958.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block.
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 29 March 2001
Date of Decision 06 April 2001
Representative for the Applicant Ms Jill Vidler, SolicitorRepresentatives for the Respondent Mr Marten Kennedy &
Ms Bridget Quayle (DIMA)
- AGLC
- Rabinkah and Minister for Immigration and Multicultural Affairs [2001] AATA 276
- Case
- [2001] AATA 276
- Decision Date
CaseChat Overview and Summary
The legal issues before the AAT were whether the visa applicant had failed to pass the character test under section 501 of the Migration Act 1958, and if so, whether the refusal of the visa was justified. The AAT had to balance the primary considerations against other relevant factors such as the degree of hardship to the applicant and her Australian citizen child. The AAT also had to consider the seriousness and nature of the applicant’s conduct, the risk of recidivism, and the value of deterrence in the context of the applicant’s previous drug-related convictions and her subsequent behaviour.
The AAT found that while the applicant's drug-related convictions were serious, the sentence imposed and her exemplary behaviour both in prison and post-release demonstrated a low risk of recidivism. The AAT also found that the best interests of the child, who was an Australian citizen, favoured reuniting the child with his mother and that the degree of hardship on the family due to the prolonged separation was significant. The AAT considered these factors in the context of the expectations of the Australian community and concluded that the refusal of the visa was not justified. The AAT remitted the matter back to the Minister for reconsideration, taking into account the findings and recommendations of the AAT.
The court ordered that the decision of the AAT be upheld, and the matter be remitted to the Minister for reconsideration. The Minister was directed to consider the primary and other relevant factors, including the degree of hardship to the applicant and her Australian citizen child, and make a decision that balanced these considerations appropriately.
Orders
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Background
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