Randalls and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2279

Randalls and Minister for Immigration and Border Protection (Migration) [2017] AATA 2279 (20 November 2017)

Division:GENERAL DIVISION

File Number:           2017/5463

Re:Victor Randalls

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:20 November 2017

Place:Sydney

The Tribunal sets aside the decision made on 8 September 2017 to exercise the discretion under s 501(1) of the Migration Act 1958 to refuse the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa and substitutes for that decision, the decision not to exercise the discretion under s 501(1) of the Migration Act 1958 to refuse the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa.

..........................[sgd]..............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – visa refusal – employer nomination visa – failure to pass character test – substantial criminal record – discretion to refuse application for visa – protection of the Australian community – the best interests of minor children in Australia – expectations of the Australian community – other considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958 ss 499, 501

CASES

Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499, Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

Reviewable decision

1. On 8 September 2017, the delegate of the Minister for Immigration and Border Protection (the Respondent)20 November 2017 refused the application made by Mr Randalls (the Applicant) for an Employer Nomination (Class EN) visa (the visa).

2. The Applicant seeks the review of that decision in this Tribunal.

3. The decision to refuse the visa was made under s 501(1) of the Migration Act 1958 (the Act). The Applicant had not satisfied the delegate that he passed the character test because he had a “substantial criminal record” (ss 501(6)(a) and 501(7)(d) of the Act) and the delegate decided to exercise the discretion under s 501(1) of the Act to refuse the application for the visa.

   The law

4. Section 501(1) of the Act 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.

5. “Substantial criminal record” is defined in s 501(7)(d) as follows:

   the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…

6. The decision under s 501(1) must be made in accordance with any written directions under the Act (s 499(2A)). Relevantly, that is Direction No. 65 – Migration Act 1958 – Direction under section 499, Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (Direction 65). The Preamble of the Direction sets out the objective of the Act and the direction itself, general guidance, and principles to be followed. Section 2 of the Direction gives guidance as to how to exercise the discretion. Part B of Direction 65 “Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application”.

   The issues

7. The Applicant concedes that he does not pass the character test because he has been sentenced to two separate sentences of six months’ imprisonment. The total of those terms was 12 months. Those sentences were suspended.  However that is not a relevant consideration in respect of s 501(7)(d).[1]  Further, if they were concurrent, as his Irish lawyer had noted in a letter dated 30 June 2016 to Mr Randalls, that makes no difference because the whole of each term is to be counted in working out the total of the terms.[2]

   [1] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113.

   [2] s 501(7A) of the Act.

8. The issue for the Tribunal is whether it should exercise its discretion to refuse the visa.

   Background

9. The Applicant was born in Ireland on 29 April 1975.  He is married and has three daughters who were born in 1995, 1999, and 2003.

10. He has the following convictions in Ireland.

11. In December 2002 he was convicted of careless driving, disqualified for three months, fined €400, and had an endorsement order for three years.

12. In July 2005 the Applicant was convicted of two offences on the same day.  He was convicted of not displaying an insurance disc in his motor-vehicle. That conviction was taken into account when he was convicted of failing to produce an insurance certificate for a motor-vehicle. He was fined €125.

13. In April 2007 the Applicant was convicted of not displaying an insurance disc in his motor-vehicle and fined €250.

14. In May 2008 he was convicted of exceeding built-up area speed limit 50 km/h and fined €300.  Later that month he was convicted of holding a mobile phone while driving and fined €50.

15. The Applicant had six convictions in 2009:

    ·In July: holding a mobile phone while driving, fined €150; failing to produce an insurance certificate for a motor-vehicle, fined €100; failing to produce NCT test certificate which was taken into consideration in relation to the other convictions.

    ·In September: failing to display a current tax disc in a vehicle, fined €150; holding a mobile phone while driving, fined €350.

    ·In November, failing to display a current tax disc in a vehicle, fined €300.

16. In 2011 the Applicant was convicted of five offences.  In February he was convicted of failing to display a current tax disc in a vehicle and fined €300. The other four offences relate to an incident where he was intoxicated, put in a police paddy wagon and assaulted police officers when he refused to get out.  He was convicted in October 2011 of the following offences:

    ·Intoxication in a public place; fined €200.

    ·Threatening/abusive/insulting behaviour in a public place; fine €500.

    ·Assault; imprisonment six-months, suspended on condition of a €400 two-year bond to keep the peace.

    ·Assault; imprisonment six months, suspended on condition of a €400 two-year bond to keep the peace.

17. In December 2012 the applicant was convicted of failing to display a current tax disc in a motor-vehicle and fined €200.

18. The Applicant had applied for a Temporary Work (Skilled) visa (the 457 visa) on 27 July 2012 which was granted on 2 August 2012. His convictions were not disclosed in that application.  He arrived in Australia on 22 October 2012.  He declared his criminal convictions on the passenger entry card and was interviewed at the airport. During the interview he declared only one conviction in 2005 for speeding for which he received a fine. In 2015 when he returned to Australia after a holiday, he did not declare his convictions.

19. The Applicant has two convictions for driving offences in Australia.  The first offence was committed on 15 February 2013.  On 25 March 2013 the Applicant pleaded guilty to driving a motor vehicle whilst over the middle alcohol limit.  He was fined $700 with two months to pay or in default, 12 days imprisonment.  A conviction was recorded.  His next and last offence was committed on 23 May 2014.  On 11 June 2014 he pleaded guilty to the offence of driving under the influence of liquor and was fined $2,050 with 28 days to pay and, in default of payment, 28 days imprisonment. A conviction was recorded.  He was disqualified from holding or obtaining a drivers licence for 15 months from 11 June 2014.

    Consideration

20. Part B of Direction 65 states that there are three primary considerations and sets out factors relevant to each.  The primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    Protection of the Australian community

21. 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.[3]

    [3]  Direction 65, cl 11.1(1).

    The nature and seriousness of the conduct

22. It was not contended that the offences committed in Ireland were not classified as offences in Australia. The Tribunal finds that the two 2011 assault convictions were for violent crimes which are viewed seriously.[4] The offences were committed against government officials in the performance of their duties which are also viewed seriously.[5]  The sentences imposed for the assaults shows that the court viewed those offences seriously, despite the sentences being suspended. The Tribunal takes into account the sentences imposed in relation to the other convictions both in Ireland and Australia.  The fines and licence disqualifications, particularly for the 2014 offence, reflect the seriousness with which the courts viewed those offences.     

    [4]  Direction 65, cl 11.1.1(1)(a).

    [5]  Direction 65, cl 11.1.1(1)(b).

23. The Applicant has committed violent offences on one occasion in about August 2011. That is the only incident which constitutes “substantial criminal record”. He does not have a pattern of violent offending.  His other offences relate to motor vehicle use.  Intoxication was a factor in his offending in the August 2011 incident when he was charged with assault, and the two drink driving offences in Australia. Lack of funds and needing to work were factors common to a number of the offences committed in Ireland, about which the Applicant gave evidence. Those have not been factors in his offending in Australia.

24. Disregard of the law is a factor common to his offending from 2002 until 2014, putting aside the incident involving the assaults in 2011.  The Tribunal finds that that the Applicant was so intoxicated during the August 2011 incident that he did not know what he was doing and does not have a very good recollection of what actually happened. Taking into account the fine and length of disqualification, his 2014 offence is the most serious of the Applicant’s driving offences. He has not offended at all for more than three and a half years.  That is the longest period that he has not committed an offence since his first offence in 2002.

25. The Tribunal does not consider that the Applicant’s offending should be considered cumulatively, apart from the fact that the offending shows his disregard for the law over a period of 12 years. The driving-related offences in Ireland are of a different character to the offences committed in August 2011 which resulted in convictions including two for assault.  The drink-driving offences in Australia are also of a different character from the previous offences. The Applicant said that the 2013 offence occurred when he was moving his work vehicle 10 metres from the street to his driveway during a rainstorm.  The Tribunal infers that his conduct or his driving was such that it caught the attention of the police within that short distance.  The second was more serious, involving risk of harm to the public and the Applicant’s passengers to whom he gave a lift when his drinking exceeded the legal limit.  

26. The Tribunal takes into account the evidence before it that the drink driving limit in Ireland was .08 until October 2011 when it was reduced to .05 but does not accept that that somehow reduces the seriousness of the drink driving offences committed in Australia.  The Applicant did not leave Ireland until October 2012.  His most serious drink driving offence in Australia was his second such offence. 

27. The Tribunal accepts that the failure to disclose the Applicant’s convictions in his 457 visa application in 2012 was an error made in the office of the migration agent who prepared it.  The migration agent stated in an email dated 29 June 2016 that:

    This was an innocent error caused by this office.

28. The Tribunal accepts the Applicant’s evidence that he sent a copy of the record of his convictions in Ireland to a woman in the Human Resources section of the company that was going to employ him in Australia. 

29. The 457 visa application form also stated that the Applicant had had no assistance in filling out the form.  The Tribunal accepts that the Applicant did not fill out the form and had not seen it before the current matter arose.  How and why that answer was provided in the application is not apparent on the evidence.

30. The Tribunal was troubled by the Applicant’s evidence about why he disclosed one speeding offence in 2005 and no other convictions, particularly the assault convictions, during the interview at the airport in 2012. He said that that was the conviction that came to mind and he thought that was his most serious offence because he had people in the car with him. That driving offence occurred in 2008 and not 2005.  The Applicant told the Tribunal that he assumed that everyone would be aware of his convictions because he had provided the police clearance certificate. He could not remember the exact conversation he had but said that it was very short.

31. In the Applicant’s Statement of Facts, Issues and Contentions, his representative wrote that the Applicant instructed that disclosing the suspended sentences did not occur to him because the matter had been dispensed with and he had never considered them to be convictions that needed to be disclosed.   

32. A €400 two-year bond to keep the peace was imposed in respect of each of the assault offences.  That was the first time that the Applicant had been subject to a bond. He was still subject to the bonds when he left Ireland and arrived in Australia. He was legally represented in the court proceedings for the assaults. The Tribunal would expect that the terms of the bonds were explained to him at the time.  In his statutory declaration sworn 11 August 2017, the Applicant stated that he had to pay a number of fines/bonds when he was sentenced “for three offences” in October 2011.  He has expressed shame and remorse in relation to the assault incident in 2011 and said that it was the biggest mistake of his life.  Objectively, it was clearly the Applicant’s most serious incident of criminal offending.

33. The Tribunal does not accept that the Applicant had forgotten about the assault offences when he was interviewed at the airport when he arrived in 2012.  It accepts that he believed that his convictions had been disclosed in the application for the 457 visa but finds that when he arrived he did not want to put his and his family’s future at risk by disclosing them in case they were not allowed to enter the country. 

34. The Applicant said that in 2015, he completed the incoming passenger card after flying for 20 hours.  He was tired and wanted to get home.  When asked why he ticked no criminal convictions, he said that when speaking to the lady when he entered Australia in 2012, she said words to the effect that he did not have to disclose that conviction.  He also believed that he had disclosed his convictions because of providing his police clearance certificate before being granted the 457 visa. He said that he did not disclose his drink driving offences in Australia because he thought the Australian authorities would be aware of them and that he did not have to disclose them.       

35. The departmental record of the 2012 entry interview recorded that the Applicant disclosed a 2005 speeding offence and “No other convictions”.  It also stated:

    (Check on next arrival that this was a conviction and not just a fine. Was unable to locate pax to clarify as he had left the hall.  If not a conviction, ensure he knows not to declare on subsequent arrivals.)

36. The Tribunal does not accept that the Applicant’s recollection of the conversation was accurate.  It is clear from that record that he had not been told about the distinction between a conviction and a fine. This document was in the G documents provided to the Applicant with the delegate’s decision. His recollection may have been coloured by reading that document.

37. The Tribunal accepts that the Applicant may have thought then that the question on the passenger card only related to overseas convictions and that his previous convictions in Ireland were already known and therefore were unnecessary to disclose again.

38. The Tribunal notes that the Applicant disclosed his criminal record to the people who made the 457 visa application and when he made the application for his permanent visa.  It infers that it was the latter disclosure that resulted in the refusal of the visa. 

39. The Applicant did disregard Australian law in failing to fully disclose his convictions during the 2012 airport interview, which is a matter of concern because disregard of the law has been an ongoing aspect of his conduct.  

    Risk to the Australian community

40. Australia has a low tolerance of any criminal or other serious conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.[6] The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increase.[7] 

    [6] Direction 65, cl 6.3(6) and cl 11.1.2(2)

    [7] Direction 65, cl 11.1.2(1).

41. The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct is apparent from the consideration of the criminal offences set out above. The Tribunal accepts that neither police officer suffered any significant injury in the August 2011 incident.  Indeed, both provided references for the Applicant which acknowledged his previous criminal history in Ireland but stating that he was, amongst other positive attributes, of reliable good character. No-one was injured in either of the drink driving offences in Australia.  No-one was injured by his driving offences in Ireland.  The Irish revenue was diminished to the extent that he had not paid government taxes and charges.

42. The Tribunal has had the benefit of written and oral evidence of Dr Kwok, a Clinical and Forensic Psychologist.  It takes into account that information and evidence from independent and authoritative sources should be given appropriate weight.[8]  The Tribunal finds that Dr Kwok is independent and authoritative in her field of expertise.  Her consideration was comprehensive and persuasive in relation to the matters she assessed.  The Tribunal accepts that she was not assessing the risk of the Applicant failing to disclose offences in the future. 

    [8] Direction 65 cl 8(2)

43. Dr Kwok’s conclusions were:

    ·The Applicant presents as low risk of re-offence.

    ·The Applicant presents as low risk to the Australian community.

    ·The Applicant does not suffer from a mental health condition, including alcohol use disorder, that will require treatment.

44. Dr Kwok refers to the Applicant being placed on the Interlock program for two years after his licence was restored following the 2014 offence and that he had completed the program the week before her assessment.  That program involves breathalysing the driver each before starting the vehicle. The Respondent provided information about the NSW Interlock program which applied to certain offences committed in this state after 1 February 2015.  The Tribunal accepts that the Applicant has not undergone any rehabilitation programs.

45. The Tribunal does not consider that the Applicant is likely to commit further serious offences such as he committed during the August 2011 incident.  It was one incident which was out of character for him. His previous and later offending was not of that kind.

46. His drink driving offences in Australia involved alcohol but were not violent offences or committed against government officials, although the second put his passengers and the public at risk of harm.  It is more than three years since he committed a drink driving offence, however, the Tribunal takes into account his period of disqualification and that after that he was on the Interlock program as described.  The Applicant has not been tested in relation to whether he will reoffend in relation to his drink driving, however, the Tribunal gives significant weight to Dr Kwok’s opinion and takes into account the evidence before it of the Applicant and his wife about his reduced drinking pattern and acknowledgment of the adverse impact of his drinking on his life as a consequence of the August 2011 incident in particular, and the two offences in Australia.

1. The Tribunal finds that there is a negligible risk that the Applicant will commit driving offences such as he did in Ireland in relation to use of a mobile phone and not paying taxes.  He has not committed such offences since leaving Ireland. 

2. The Tribunal finds that the Applicant is now fully aware of the importance of disclosing his convictions when requested and is unlikely to fail to do so in the future.

3. The Tribunal takes into account that it is considering the risk of harm in the context that the Applicant has applied for an Employer Nomination (Class EN) visa which is a permanent visa.  The application relates to a position that he has been nominated for by his prospective employer, who has been his employer since he first arrived in 2012. 

4. The statements in support of the Applicant from his employer, co-workers and friends are glowing to say the least.  A number of his work colleagues attended the hearing, along with his wife and three daughters. The employer is contributing financially to the costs of this case and sent to the hearing, from Mackay, the organisation’s Executive General Manager – Human Resources.  The Tribunal infers that his employer is well aware of his criminal offending, including his 2014 drink driving offence because he had to get a lift to work.  

5. The Tribunal found the Applicant not to be very articulate during the hearing.  It notes that Dr Kwok observed that he did not speak about his offending and alcohol use history as openly as his wife did.  Dr Kwok found that it did not appear to be a deliberate attempt by the Applicant to withhold information.  She thought that his embarrassment about those matters may explain “his lack of elaboration” on those topics.  The Tribunal formed the view that the Applicant was not being deliberately evasive or misleading.  It infers that he has been subject to considerable stress since the refusal of the visa, including being in immigration detention for some weeks.  Given the extreme importance of this matter to him and his family, the Tribunal finds that he was concerned not to say anything for fear it was the wrong thing to say.  The Tribunal does not draw any adverse inference against the Applicant from the manner in which he gave his oral evidence.    

   Best interests of minor children in Australia

6. The Tribunal accepts that it would be in the best interests of the Applicant’s 14 year old daughter not to refuse the visa. After having some difficulty settling into Australian life, she is well-settled.  It would be very disruptive for her to return to Ireland, although the Tribunal accepts that she would have the support of the Applicant and her other family members, unless one or more of them obtained a visa independently of the Applicant, and her extended family there.

   Expectations of the Australian community

7. The Tribunal has carefully considered the offences in this case and the Applicant’s conduct in relation to disclosing his convictions, but does not consider that the Australian community would expect that the Applicant should not be granted a visa. In making that finding, the Tribunal has taken into account that the Australian community expects non-citizens to obey Australian laws while in Australia and that the Applicant has been convicted of offences in Australia and in Ireland, and not fully disclosed his convictions during the 2012 interview.  However, considering the nature of those offences and of his conduct in relation to disclosing convictions to the Department, and the risk of reoffending and such conduct in the future as discussed earlier in this decision, the Tribunal does not consider that this is a case where those offences and that conduct are such that the Australian community would expect that the Applicant should not be granted a visa.

8. The Tribunal has also taken into account the Applicant’s excellent work history in Australia since his arrival in October 2012, and the many references provided to support him. Notably, those include two from his two police victims in Ireland.  Finally, he has tremendous support from his employer, as described earlier in this decision, who is aware of his criminal offending, and in particular, of the August 2011 incident and the 2014 drink driving offence.

9. The Tribunal turns to the other considerations which are generally to be given less weight than the primary considerations.[9]  

   Impact on family members

   [9] Direction 65, cl 8(4)

10. The consideration, Impact on family members, only applies where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.  The adverse impact on the Applicant’s family was recognised by the delegate. The Tribunal acknowledges that there will be an adverse impact if the Applicant’s visa is refused.  However, as the delegate noted, none of his wife and children are Australian citizens or permanent residents or have a right to remain permanently.  This consideration must be given no weight.

    Impact on victims

11. The Tribunal finds that the consideration Impact on victims only applies in relation to the impact on members of the Australian community.[10]  The victims of the August 2011 incident were not members of the Australian community.  There have been no victims of the Applicant’s offending in Australia. There are no family members of victims in Australia.  The Tribunal gives this consideration no weight.

    Impact on Australian business interests

    [10] Direction 65, cl 12.3

12. Direction 65 provides that the consideration Impact on Australian business interests “would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia”.

13. Taking into account the written and oral evidence of the employer’s Executive General Manager – Human Resources, (the employer’s witness) the Tribunal finds that although this is not a case where the delivery of a major project or delivery of an important service in Australia would be significantly compromised if the Applicant visa were refused, it is a case where weight should be given to the employment link.  It is a business based in regional Queensland. The Applicant is the employer’s mostly highly skilled manager in relation to a particular form of scaffolding. He has trained hundreds of other people during his employment.  Many of those he trained, about 50 people, continue to deliver ongoing long term contracts in that region.  The Applicant was moved to New South Wales about two years ago. The employer would struggle to replace him which would negatively impact the business.  The employer has no other employee in New South Wales who can do what he did.  It has undertaken short term contingencies to organise operations to satisfy clients while not having his involvement. The employer’s witness foresaw considerable difficulty and expense in replacing the Applicant in the long term.  

    Conclusion

14. For the above reasons, the Tribunal finds that the consideration weighing in favour of not exercising the discretion to refuse the Applicant’s visa outweigh those considerations which weigh in favour of exercising the discretion to refuse the visa.

    Decision

15. The Tribunal sets aside the decision made on 8 September 2017 to exercise the discretion under s 501(1) of the Act to refuse the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa and substitutes for that decision, the decision not to exercise the discretion under s 501(1) of the Act to refuse the Applicant’s application for an Employer Nomination (Permanent) (Class EN) visa.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member.

............................[sgd]............................................

Associate

Dated: 20 November 2017

Date of hearing:	7 November 2017
Counsel for the Applicant:	Ms T Baw
Solicitors for the Applicant:	Mr R Gunn, Carina Ford Immigration Lawyers
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitors