Re Bustin and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1082
•31 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1082
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/237
GENERAL ADMINISTRATIVE DIVISION ) Re KYLIE BUSTIN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date31 October 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for further consideration, and directs that the discretion under s 501(1) to refuse a Sub-Class 309 spouse visa to Mr Bustin not be exercised.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Sub-Class 309 Spouse visa – decision not to grant visa where visa applicant fails character test – substantial criminal record – Ministerial Direction No. 21 – Alford guilty plea in US Court entailing no admission of guilt – weight to attach to conviction resulting from Alford plea – whether Tribunal can go behind conviction – primary and other considerations – significant time elapsed since serious offending – extent of visa applicant’s rehabilitation - visa applicant’s wife’s knowledge of offending prior to entering the relationship – close relationship between visa applicant’s wife and visa applicant’s mother-in-law – depressive illness of visa applicant’s mother-in-law – meaning of “family” – decision under review set aside.
Migration Act 1958, s 501(1)
Dyson Holdings Ltd v Fox [1976] QB 503
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475
North Carolina v Alford (1970), 400 US 25
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505
REASONS FOR DECISION
31 October 2005 Deputy President D G Jarvis 1. On 11 June 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to refuse to grant a Sub-Class 309 Spouse visa to Michael Bustin, the husband of Kylie Bustin. The delegate found that the visa applicant did not pass the character test under s 501 of the Migration Act 1958 (the “Act”). The delegate also exercised the discretion pursuant to s 501(1) of the Act to refuse to grant the visa. Kylie Bustin has applied to this Tribunal for review of the delegate’s decision.
Issues for the Tribunal
2. Under the relevant provisions of the Act, a person does not pass the character test if he or she has a substantial criminal record, and is taken to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of twelve months or more. Mr Bustin was sentenced to terms of imprisonment for terms exceeding this period following convictions by a court martial in 1981 for drug offences, and a conviction for incest in 1989. It was conceded at the outset of the hearing that he does not pass the character test.
3. However, under s 501(1) of the Act the power to refuse to grant a visa is discretionary. The only issue before the Tribunal is whether the discretion to refuse to grant Mr Bustin a spousal visa should be exercised. I have decided that in the circumstances of the present matter, this discretion should not be exercised.
Background Evidence
4. Mr Bustin gave evidence by video. On the whole I found his evidence to be reliable, and it is relevant to assessing his credit that he admitted to a conviction for three counts of interference with child custody notwithstanding that these matters were not included in FBI records. I accept Mr Bustin’s evidence except where otherwise stated in these reasons. I make the following findings from the evidence of Mr Bustin, witness statements which were tendered by consent, and the documentary material before me.
(a)Mr Bustin was born in the United States of America on 22 December 1954.
(b)His father and grandfather were military personnel, and as a family they had a commitment to army life.
(c) He joined the US Army at the age of seventeen, during the Vietnam war.
(d)He met his first wife, Patsy in 1971 when he was sixteen years of age. He married her in September 1973, and their first child, K, was born in January 1974.
(e)The relationship between Mr Bustin and Patsy ended in 1975. At the time of separation, Patsy was pregnant with a second child, A, who was born on 1 December 1975.
(f)Mr Bustin married his second wife, Vicky on 21 August 1975, and their child, Michael, was born on 8 March 1976.
(g)Around the end of 1977 Mr Bustin met his third wife, Anne. Their child, Michelle, was born on 1 July 1978. They married on 15 July 1980.
(h)In November 1979 Mr Bustin and his third wife were posted to Germany with the US Army, but to separate bases. His wife subsequently returned to the United States. Mr Bustin’s assignment in Germany was due to end in November 1981. However, together with most of his army colleagues at the time, he developed a recreational drug habit, and he was convicted of drug offences, sentenced to detention, and discharged from the Army before completing his assignment in Germany. I will refer further to these matters later in these reasons.
(i)Following his release from detention, Mr Bustin returned to Columbus, Georgia, US where his third wife and Michelle were living. They were divorced in late 1984 or early 1985, but reconciled and stayed together until late 1987.
(j)Mr Bustin established contact with his former wife, Patsy, and their daughters, K and A. He moved to Covington, Georgia in order to be closer to K and A. He was invited to look after K and A on occasions and he was willing to do that, even though previously he had agreed to a termination of his parental rights so that Patsy’s then husband might adopt the two girls. Patsy sought reconciliation with Mr Bustin, but he declined. She made a complaint to the Covington, Georgia authorities alleging interference with child custody as there were no orders in place allowing the children to reside temporarily with Mr Bustin. On 17 October 1988 Mr Bustin was arrested on a charge of interference with child custody. This charge was dismissed in March 1989, but further charges arose from his contact with his daughter A, to which I will refer below.
(k)Mr Bustin met the review applicant, Mrs Kylie Bustin, in September 1994 when she was travelling through Hawaii. She is an Australian citizen. They were marred in Hawaii on 30 March 1997.
5. The applicant has the following previous convictions.
(a)On 19 January 1981, Mr Bustin was convicted by a US Army Court Martial of nine drug offences, namely conspiring to sell marijuana hash, conspiring to sell LSD, possession of LSD, selling LSD, possession of cocaine, solicit to sell marijuana hash, possession of marijuana hash, solicit to sell LSD and selling marijuana hash. He was sentenced to five years’ confinement, his rank was reduced to private, and he was dishonourably discharged from the US Army. He was paroled from Fort Leavenworth in the United States on 4 April 1983.
(b)In early April 1989, he was convicted by the Pike County Court of Zebulon, Georgia of three counts of interference with child custody. He was fined $800 and sentenced to serve ten months’ probation. (This conviction does not appear on the FBI’s records of Mr Bustin’s criminal history, but he acknowledged in his evidence before me that he pleaded guilty to the charges for these offences, and that he was convicted of them).
(c)On 4 October 1989, he was convicted of incest by the Dekalb County Court after he entered an Alford plea of guilty to that charge. He was sentenced to five years’ imprisonment and a probation period of five years. I will refer later in these reasons to the relevance of an Alford plea. He was released on his first consideration for parole after thirty months (which included ten months’ revoked probation for the counts of interference with child custody).
(d)On 9 February 1993, he was arrested in Hawaii on a charge of driving under the influence of intoxication. He was subsequently fined $150 and his driver’s licence was suspended for ninety days.
(e)On 14 February 2000, he was convicted by the County Court of Honolulu of one charge of assault. He was released on bail of $100 and put on seven days’ probation. This offence was expunged from his criminal record on 22 June 2001.
6. There was some confusion as to whether Mr Bustin was also convicted by the Dekalb County Court of two other charges, namely two counts statutory rape and contributing to the delinquency of a minor. The records of the FBI are unsatisfactory as to this issue. The records are apparently compiled from different sources. Paragraph 5 on page 105 of the T-Documents (exhibit R1) apparently relates to information provided by the Dekalb County Court, and indicates that the visa applicant was convicted by that court of incest following his arrest on 17 May 1989, but not of the two other charges to which I have referred. That information is consistent with Mr Bustin’s evidence before me. Other information in the FBI’s record indicates only that he was convicted of statutory rape. There is some ambiguity in Mr Bustin’s witness statement, and his father-in-law, Mr Williams, gave evidence as to the information provided to him by Mr Bustin to the effect that he was convicted of both incest and statutory rape. However, Mr Bustin was adamant in giving evidence that this was not the case. Having regard to the information at page 105 of the T-Documents which apparently emanated from the Dekalb Court, and to exhibit A7(d), which includes copy correspondence from Newton County Court to the applicant’s solicitors to the effect that charges two counts of statutory rape (as well as one count of interference with lawful custody) were dismissed for lack of evidence on 22 March 1989, I accept that his conviction was confined to a conviction for incest on 4 October 1989, and that the charges of statutory rape were dismissed.
7. In addition, when Mr Bustin completed the incoming passenger card on his arrival for a visit to Australia on 9 December 1998, he ticked the “No” box in response to the question “Do you have any criminal convictions?” He said he did this so as to avoid an embarrassing scene in front of his in-laws. This constituted an offence under s 234(1)(b) of the Act (although he was not charged with any offence arising out of this conduct).
8. Mr Bustin’s dishonourable discharge from the US Army meant that he was disqualified from employment by any Federal agency of the US Government. At the time of his discharge he had accumulated nine years, eight months and twenty-four days of Federal employment, but as a result of his dishonourable discharge he lost the right which he otherwise would have had to pension entitlements which would have accrued to him if he had remained in the service of the Federal Government for a total period of twenty years.
Legislation
9. Subsection 501(6)(a) of the Act provides in effect that a person does not pass the character test if the person has a substantial criminal record, and under subsection 501(7)(c), this is the case where (relevantly) a person has been sentenced to a term of imprisonment of twelve months or more.
10.Subsection 501(1) 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.”
Consideration of Ministerial Direction No. 21
11. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take into account, as a guide to making its decision, Ministerial Direction No. 21 (the “Direction”). This is a direction made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (paragraph 2.2 of the Direction). I shall address the relevant considerations in the Direction in turn.
12.The three primary considerations in Direction No. 21 are as follows:
(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
First Primary Consideration - Protection of the Australian Community
13. In reference to the protection of the Australian community from the actions of criminals and lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of the continued stay of a non-citizen.
14. Seriousness and Nature of the Conduct The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also relevant to consider the sentence imposed as an indication of the seriousness of the offender’s conduct (paragraph 2.7 of the Direction), the extent of the person’s criminal record, including the number and nature of offences, the time between offences and the time elapsed since the most recent offence (paragraph 2.7(a)), and the repugnance of the crimes (paragraph 2.7(b)), and to take into account any relevant mitigating factors (paragraph 2.8(a)).
15. Paragraph 2.6 of the Direction sets out examples of offences which the Government regards as very serious. The examples include the distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs, as well as crimes against children, including sexual assaults involving children, regardless of whether there was overt violence or the threat of violence.
16. Under paragraph 2.7 of the Direction, I must take into account the sentence imposed for the relevant crime(s), and (by virtue of paragraph 2.8(a)) any relevant mitigating factors. With respect to Mr Bustin’s convictions for drug offences whilst serving in the US Army and for incest, he was released from gaol after serving substantially less time in custody than the terms of imprisonment to which he had been sentenced. However, this does not detract from the significance of the length of the term of imprisonment to which he was sentenced: Minister for Immigration and Multicultural and Indigenous Affairs v Hicks (2004) 138 FCR 475 at [13].
17. During his time in prison Mr Bustin participated in various drug rehabilitation counselling programmes and agreed to become a regular speaker to classes of the US Army Command and General Staff College in relation to his experiences with drugs whilst in the US Army. He also undertook the equivalent to the high school diploma, and following his completion of this qualification he undertook some evening college courses, and maintained this study after his release. He also undertook counselling and courses during his incarceration in Dekalb County following his conviction for incest, and he attained a science degree. He said he was a model inmate. He is currently working long hours as a carpenter, and undertaking an apprenticeship in carpentry with the Hawaii Carpenters' Union.
18. By virtue of paragraph 2.7(a) of the Direction, I must also have due regard to the extent of the non-citizen’s criminal record, including the number and nature of the offences, the time between offences, and the time that has elapsed since the most recent offence. Under paragraph 2.7(b), I must also consider the repugnance of the crime.
19. I accept the submission of counsel for the respondent, Mr Prince, that the drug offences for which Mr Bustin was convicted were indeed very serious, having regard to Mr Bustin’s admission that he played the central role in procuring and distributing the drugs to his army colleagues. However, I take into account that these offences took place in very different circumstances. Mr Bustin was in the US Army in Europe, in the midst of a drug culture which, on his evidence, in part existed because of the circumstances in which the US troops found themselves, and their concern about the potential risk of combat. I note that the offending also took place many years ago. There has been no suggestion of addiction with a resulting risk of recidivism. On the contrary, in his evidence before me Mr Bustin vowed that he would never take drugs again because he realized that his involvement with drugs had completely changed his life.
20. Detailed evidence was provided as to the events in 1988 and 1989 involving his former wife Patsy and his daughter A, which ultimately gave rise to the conviction for incest. In his witness statement (exhibit A2) and in his evidence before me, Mr Bustin said that his former wife and her then husband had been deliberately “dishonest” with authorities regarding a verbal agreement between Mr Bustin and Patsy regarding his daughter A staying with him, in order to “exclude” him from A’s and K’s life. He said this had happened after he spurned attempts by Patsy to re-establish their relationship.
21. Mr Bustin said that he later learned that A had been placed in a Georgia Baptist Children’s Home. He further said that A had told him that her mother had said she would not remove her from this home until A admitted having a sexual relationship with Mr Bustin. Certain information provided by the Newton County Superior Court to the applicant’s solicitors (exhibit A7(d) tends to support his denial that he has ever had a sexual relationship with his daughter. Whilst this information is not altogether clear, it appears that Mr Bustin was charged in October 1988 with interference with child custody, and on 3 February 1989 with two counts of statutory rape. However, as mentioned above, the documents provided by the Newton County Superior Court indicate that these charges were dismissed on 22 March 1989 for lack of evidence. Mr Bustin gave evidence before me that in March 1989 A testified at the committal hearing that she had not had a sexual relationship with Mr Bustin, and that she had previously made that allegation so that she could leave the children’s home in which her mother had placed her. Mr Bustin said that the charges against him were thereupon dismissed, and exhibit A7(d) contains information which confirms this.
22. Mr Bustin also described further events which occurred late in January 1989, and which later resulted in his being charged with and convicted of incest. He said that he had received a phone call from A from the children’s home in Georgia. She said that because there were “devil worshippers” there she was planning to run away from the home that night and was going to meet a seventeen year old boy just after midnight. Mr Bustin said that he was very concerned for her safety and arranged to meet her on a highway near the home. He later did so and found that his daughter had two other girls with her. He reluctantly took the other girls with him. He said that his initial thought was to drive the girls to the Sheriff’s office in the nearest town, but thought that if he did so, he would be immediately arrested and jailed for picking up the children regardless of his reasons. He decided to book in with the girls to a motel close to his place of work where he was due to start again at 6:00 am that day.
23. He said that the girls were uncooperative. He gave further evidence as to his attempts to return the girls to their relatives and as to staying in motels on two further nights, but the police became involved. After he had returned one girl to her parents and was able to “trick” his daughter A and so take her to her aunt’s home, he went to the Dekalb County Sheriff’s office to speak to a policeman who had been trying to contact him. He was arrested and was held in the Pike County Jail between 2 and 4 February 1989. He was then charged with three counts of interference with child custody for picking up the three girls from the children’s home. These charges resulted in the three unrecorded convictions referred to in paragraph 5(b) above.
24. He said that at this time his former wife Patsy “was able to persuade A to accuse (him) of basically anything she wanted to, as A was extremely angry with (him)”, and “felt betrayed and tricked” (exhibit A2, paragraph 112). He said that in May 1989 he was arrested in Dekalb County and charged with incest at the motel near his place of work to which he had gone after picking up the three girls from the highway near the children’s home. His evidence is confirmed by that portion of the criminal record which appears at page 105 of exhibit R1 which apparently emanated from the Dekalb County Court. (This portion records that he was arrested for the offences of incest and statutory rape on 17 May 1989, and was convicted of incest). Mr Bustin said further that A had been released from the children’s home as a reward for falsely accusing him of inappropriate sexual behaviour.
25. Mr Bustin said that on 4 October 1989 he pleaded not guilty in the Dekalb County Court to charges of incest and statutory rape. His witness statement records:
“On 4 October 1989 (A) tearfully testified that she had consensual sex with me on 30 January 1989. (A) and I both knew that was false, and (A) testified in Newton County in March 1989 that we never had a sexual relationship.” (exhibit A2, paragraph 124).
He said that after hearing A’s testimony in the Dekalb County Court, he decided he faced a real risk of being found guilty on the charges, with the likely result that he would be sentenced to twenty years in prison.
26. It appears that in some criminal jurisdictions within the United States, defendants may enter what is called an “Alford” plea. On the limited information before me, I understand that this plea takes its name from the United States Supreme Court case of North Carolina v Alford(1970), 400 US 25, and that it allows the defendant to actively maintain his or her innocence, and so avoid the risk of a more severe penalty following a conviction after a contested hearing, while conceding that nevertheless there is sufficient evidence before the court to produce a conviction. I understand further that the plea requires a determination by the Court that there is a factual basis for the plea, but that this inquiry is to enable the court to be satisfied that the guilty plea has been entered intelligently and voluntarily, so as not to contravene the United States Bill of Rights. The court’s inquiry does not, however, entail the making of any factual finding of guilt, as I understand it.
27. Mr Bustin said his legal adviser told him that an Alford plea could be entered without an admission of guilt and that this would, as he understood it at the time, reduce the penalty to one-fourth of the sentence, and that he would be eligible for parole after serving one-third of that time, that is about twenty months. He further said that he could tell that the situation was incredibly distressing for A, and he wanted the matter over and done with so she could resume a normal life without pressure to tell lies about him. For these reasons he decided to enter the Alford plea, but he said:
“I want to emphasis(e) that an Alford plea is not an admission of guilt. So basically what I am telling you is that I never admitted that I was guilty. I maintain my innocence to this moment and I was not found guilty by a jury.” (transcript, 16.06.05, page 10, line 12)
28. Counsel for the respondent submitted that a plea of nolo contendere (or no contest, those Latin words meaning literally “I do not wish to contend”), was available to Mr Bustin in relation to the charges involving his daughter to which I have referred above, and that I should consider his failure to enter this plea as inconsistent with his denial that he committed incest. I understand that a plea of nolo contendere can be distinguished from the Alford plea in that according to an extract from the Georgia Criminal Code which Mr Prince provided to me, a plea of nolo contendere must not be used “against the defendant in any court or proceedings as an admission of guilt or otherwise or for any purpose”, whereas an Alford plea was more detrimental to a defendant because it could be used as evidence of a similar act in later criminal proceedings.
29. On reflection, I do not attach much significance to Mr Prince’s argument about the alternative nolo contendere plea. There was no clear evidence before me as to the circumstances in which this plea might have been available to Mr Bustin, or as to whether the availability of the plea was explained to him or ever considered by him. In addition, I am not sure that there is any material difference between the two pleas for present purposes. As I understand it, both pleas entail either an express protestation of innocence or an express non-admission of guilt.
30. This Tribunal is bound to accept the fact of the conviction and the sentence imposed, as these matters enliven its discretion under s 501(1) of the Act (Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 and Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313). However, as I have said above, although he was convicted of incest, Mr Bustin maintains that he is innocent. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, the Full Federal Court considered the Minister’s power to deport, and said:
“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. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.”
31. As appears from the analysis by Branson J in Ali (supra) of a number of later cases, there are limitations on the extent to which this Tribunal can investigate the facts upon which a conviction is based. The issue is affected by whether the relevant conviction is the foundation of the exercise of the decision-maker’s power to deport a non citizen, or in this case, to grant or refuse a visa.
32. In the present matter, the conviction for incest does not in itself form the basis of the power to refuse the visa, because the earlier conviction in 1981 also resulted in a term of imprisonment of twelve months or more. I consider that the fact that the visa applicant’s conviction was based on an Alford plea does not necessarily mean that I am bound to find that the facts necessary to support a conviction for incest existed. There is no evidence before me of a charge to a jury setting out the facts which they must necessarily accept in order to record a conviction. Nor has there been any determination by a jury. There is no evidence before me from A or from the other two girls whom Mr Bustin picked up with A, or from Patsy or her then husband. I have not been provided with a copy of the Judge’s sentencing remarks. Mr Bustin has given a detailed account of the events which gave rise to the charge, and his evidence as to A’s testimony in March 1989 to the effect that she had never had sexual relations with her father is consistent with the evidence of the dismissal of the charges of statutory rape and contributing to the delinquency of a minor.
33. I consider that on the authorities to which I have referred above, I must accept that the visa applicant has been convicted of incest and that he was sentenced to five years’ imprisonment. However, in the unusual circumstances of the present matter arising from the utilisation of the Alford plea and the evidence as to the relationship between the visa applicant and his former wife and two daughters, I have serious doubts as to whether all of the available evidence relevant to the charge of incest would have resulted in a conviction for that offence, (although I am not in a position to make any definitive finding to that effect, for the reasons I have given). Incest is of course a most serious and repugnant crime and a conviction for incest would ordinarily count very heavily against a visa applicant. However, because of the circumstances to which I have referred, I place less significance on that conviction than would otherwise have been the case.
34. I next refer to Mr Bustin’s other offending, namely his arrest on a charge of driving under the influence of intoxication in 1993, and his conviction for assault in 2000. I note that he received a combination of either a fine and/or probation in those matters, and that the latter conviction was expunged from his record in 2001. The former offence in itself is not regarded by the Direction as serious, and occurred more than twelve years ago.
35. Mr Bustin gave evidence of the circumstances surrounding the conviction for assault. He said that he had been working as the on-site resident manager of a rental unit and had “a problem tenant”, a Ms Lisa Naope, whom he was endeavouring to serve with an eviction notice. He said that on 14 February 2000, he observed her return to her residence, but she appeared to be under the influence of alcohol or drugs. He said that during a brief conversation with her, her eyes began to roll back in her head and she began to fall to the ground. He said he then tried to grab her by the arms to prevent her from falling backwards, but that when he did this she became enraged and began shouting, and said she would have him charged with assault. He said he was subsequently arrested and charged with assault. He said that his reason for entering a plea of no contest to the charge was because he wished to avoid any further inconvenience that might arise from the incident, as he said the tenant had made similar allegations against other people in the past, and she was aware of all the procedures in proceedings such as these.
36. He was told that the resulting penalty of seven days’ probation was “the lowest level misdemeanour possible” (exhibit A2, paragraph 138). This penalty, and the sentences imposed for the conviction in 1993, indicate that the last two offences were regarded as of a relatively minor nature, and I do not think they weigh heavily against the visa applicant.
37. For the reasons referred to above, and taking into account in particular that the conviction for incest resulted from an Alford plea, I am inclined to think that given the time elapsed since the visa applicant’s most serious offending and his relative good conduct over a considerable period of time, his prior convictions are on balance of only moderate weight in considering an exercise of discretion adverse to the visa applicant.
38. Likelihood of Repetition of the Conduct, and Risk of Recidivism The second of the three factors referred to in paragraph 2.5 of the Direction is the likelihood that the conduct may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, 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.
39. The visa applicant’s early criminal history is of a most serious nature. His convictions for drug offences and his conviction for incest are convictions for very serious crimes. Further, as counsel for the respondent submitted, the drug offending took place over a considerable period of time, and the applicant was aware this behaviour was against the law. However, I have referred above to the circumstances in which the drug offences occurred, and following the visa applicant’s determination to avoid drugs after his convictions, there is no suggestion that he has committed any further offences entailing illicit drugs. There has been no repetitive pattern in the nature of the offences for which the visa applicant has been convicted. I have also referred above to my views as to the relevance of the incest conviction following his making an Alford plea. His last conviction occurred nearly five years ago and resulted in a minor penalty, which is consistent with his description of the circumstances surrounding that offence.
40. The visa applicant has no recent convictions. He has regular employment and has undertaken an apprenticeship to become a carpenter with the Hawaii Carpenters' Union. He has established a lasting relationship with the review applicant, Kylie Bustin, and they have built a life together in Hawaii. I therefore think that the risk of recidivism in this matter is low.
41. General Deterrence The third of the three factors relevant to an assessment of the level of risk to the community is general deterrence, that is, whether the refusal of the visa may prevent or discourage offences by other persons (paragraph 2.5(c)). Of course, any deterrence would depend on the publicity given to any refusal of a visa. In the present matter, if the application is refused, that would presumably not become known to friends and acquaintances of the visa applicant, because he would not want to disclose that his application was refused because of bad character. Further, the fact of a refusal of the visa would enable the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) to point to an established precedent. Indeed, it could give some publicity to the precedent in order to reinforce the view which the Government has as to the seriousness of crimes involving the trafficking in illicit drugs of dependence or addiction, and sex offences, involving young children, as well as the Government’s policy of taking reasonable steps to protect the Australian community from such crimes. However, there is no evidence that the general deterrent effect would be significant if the visa is refused, and I attach little weight to this aspect in the present matter.
42. Having had regard to all of the factors relevant to the first primary consideration, I consider that this would not in all the circumstances necessarily point to an exercise of discretion adverse to the visa applicant.
Second Primary Consideration – Expectations of the Australian Community
43. This second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or refused. This was recognised Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases.
“Community expectation will of course mean different things to different people. I think the phrase “community expectation” is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
I also take into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
44. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. In considering whether to issue visas to non-citizens, Mr Prince submitted that the Australian community would expect to be protected against a pattern of offending of the kind committed by the visa applicant.
45. As against those submissions, I take into account that Mr Bustin’s incest conviction was more than fifteen years ago, and his drug convictions were nearly twenty five years ago. Since that time he has made a genuine effort to move past the mistakes of his early life and to better himself by becoming a valuable member of his community. He acknowledged repeatedly in his evidence that his actions during his time in Europe were highly imprudent, and I have referred earlier to his participation as a speaker to US Army College classes about drugs, to the educational study he undertook while in prison and subsequently, as well as to his current studies as an apprentice carpenter and settled life in Hawaii.
46. I have already addressed in some detail the circumstances surrounding his conviction for incest and the relevance of the Alford plea. While I accept the fact of the conviction, its relative weight is less than it would otherwise be had it not been the result of such a plea. I have also made reference above to the remainder of Mr Bustin’s criminal conduct and the weight with which that offending may be viewed.
47. I also note that there are good employment prospects for both Mr Bustin and Kylie Bustin should the couple return to Australia. Mrs Bustin’s father, Mr Williams, gave evidence that he operates a successful employment and labour market consultancy business, and upon her return to Australia Mr Williams has undertaken to provide immediate employment to Mrs Bustin, and further that he would facilitate Mr Bustin’s entry into the Australian work force.
48. Whist it is difficult to determine the expectations of the Australian community in matters of this kind, I am inclined to think that if fully apprised of all of the relevant circumstances of this case, the community would not be concerned about the grant of a spouse visa to the visa applicant.
Third Primary Consideration – Best Interests of a Child or Children
49. This part of Direction No. 21 provides for a number of considerations that are relevant to the interest of children of non-citizens. I have referred above to Mr Bustin’s children. Paragraph 2.13 of the Direction provides that this consideration applies to children less than eighteen years of age. As Mr Bustin’s youngest child was born in 1978 this consideration is not relevant to the present facts. The position of Mr Bustin’s children must be considered under paragraph 2.17, to which I will refer below.
Other Considerations
50. I now refer to such of the other considerations included in paragraph 2.17 of Direction No. 21 as are relevant to the present matter. In doing so, I take into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
51. Whist the Direction provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; and in particular, one or more of the “other considerations” may outweigh a primary consideration if the facts of a particular matter warrant this result. I refer in this regard to my analysis of relevant authorities in Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at [53] to [54].
52. The first “other consideration” which is relevant is that referred to in paragraph 2.17(a), namely the extent of disruption to the non-citizen’s family, business and other ties to the Australian community.
53. Mr Bustin has no business or financial ties to the Australian community, and therefore that aspect of the Direction is not relevant to the present application.
54. The word “family” is not defined in Direction No. 21. However, I consider that the review applicant, Mrs Bustin, would be regarded as part of Mr Bustin’s “family”. I refer in this regard to Dyson Holdings Ltd v Fox [1976 QB 503] , where in a case concerning the rights of a mistress, James LJ stated, at page 1035:
“[m]any changes have their foundation in the changed needs and views of society. Such changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word “family” is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony.”
55. I accordingly think that Mr Bustin has family ties to the Australian community, and in considering the extent of disruption to those ties I may consider the effect on Mrs Bustin, her parents and other close relatives if the visa is not granted.
56. I also refer to paragraph 2.17(b) of Direction No. 21. This refers inter alia to genuine marriage to an Australian citizen and goes on to provide that:
“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.”
57. Mrs Bustin was born in Adelaide. She has spent the majority of her life living in Australia. Mrs Bustin attended Salisbury East High School and completed Year 10. She then worked at the Department of Employment and Industrial Relations in Adelaide between 1985 and 1997. She is an Australian citizen, and while she has lived in the United States since February 1997 I accept her evidence that she continues to think of herself as an Australian.
58. Mrs Bustin remained in Australia until 1994 when, following the dissolution of her first marriage, she went overseas. During her first trip to the United States she met the visa applicant, Mr Bustin, and throughout 1994 to 1997 she travelled a number of times between Australia and the Untied States. In early 1997 Mrs Bustin moved to Hawaii, and she and Mr Bustin married on 30 March 1997. Since that time she has made several trips home to offer support to her mother following a number of serious family illnesses and unexpected deaths to which I will refer below.
59. I find that Mrs Bustin has a very close relationship with her mother, Mrs Williams. While Mrs Williams’ son Brett resides in Australia, and although her husband is also very supportive, Mrs Williams has singled out her daughter as her primary source of emotional support. I accept Mrs Bustin’s evidence as to the importance to her of being available to support her mother emotionally, and that she finds it difficult to provide the level of support she believes her mother requires over the telephone.
60. It is clear that Mrs Williams is a vulnerable person and that she relies heavily upon her family, most particularly upon her daughter Mrs Bustin, for emotional support. Mrs Williams is affected strongly by certain negative occurrences in her life referred to in evidence before me, and she does not cope well with stress or traumatic events. These matters are confirmed in a report dated 28 September 2004 from a psychologist, Timothy Roberts (exhibit A5) and by oral evidence he gave in the proceedings. I find from the evidence before me that Mrs Bustin has been her mother’s primary source of support during these times.
61. Mrs Williams’ mother, Eileen Nobbs, has suffered from both breast cancer and subsequently uterine cancer but has recovered from both these conditions. Mrs Bustin is one of six grandchildren of Mrs Nobbs, but she has an especially close relationship with her grandmother, and telephones her at regular intervals of between two to four weeks. Mrs Bustin has travelled overseas with her grandmother on a number of occasions, and following the end of her first marriage she lived with her grandmother for a period of time.
62. In 2000, Mrs Williams herself was diagnosed with breast cancer and following a lumpectomy and radiation treatment also recovered from this condition. Although Mrs Bustin did not return to Australia immediately upon her mother and grandmother being diagnosed with cancer, I accept that she was nevertheless a major source of support to both women during this time, and she did return to Australia approximately eleven months later in response to concerns arising from their condition. I further accept that Mrs Bustin has concerns that future health issues may arise for her mother or her grandmother, and that she would find it difficult to offer support and to cope if she were living in the US.
63. In December 2003 Mrs Williams’ brother Stephen and his wife Julie were killed in a car accident while travelling to visit Mr and Mrs Williams for Christmas. Mrs Bustin again returned to Adelaide to attend the funeral, and to offer support to her mother.
64. I accept that Mrs Bustin is a major source of emotional support to her mother, and that she shares an especially close relationship with her grandmother, despite the distance that separates them.
65. There is no evidence before me that the members of Mrs Bustin’s immediate family could reside in the United States, and I find that Australia is the only place the family would be able to live together again. Whilst Mr and Mrs Williams have travelled to the United States in the past to visit their daughter, and Mrs Bustin has returned to Australia a number of times, that the expense of travel of this nature will become more difficult for Mr and Mrs Williams in subsequent years, especially following Mr Williams’ expected retirement within the next few years. I find that a decision to refuse the visa would be disruptive to Mrs Bustin’s immediate family.
66. The above considerations are also relevant to the “compassionate claims” of Mrs Bustin, which are referred to in paragraph 2.17(b) of Direction No. 21. This paragraph requires me to consider the circumstances under which their relationship was established and whether Mrs Bustin knew that Mr Bustin was of character concern at the time of entering into or establishing their relationship.
67. Mr and Mrs Bustin have been married for five and a half years, and have made a life for themselves in Hawaii during that time. Prior to their marriage in 1997, Mrs Bustin travelled to the United States a number of times to see her future husband. In his evidence before me, Mr Bustin said that he first spoke to his future wife about his criminal convictions in 1996 when they first began having discussions about getting married. Mr Bustin stated that he had told her about his drug related convictions and also about his conviction for incest at that time. The criminal convictions of the visa applicant are indeed serious, and I note that two years is a long time to have remained silent given the significance of the convictions, and the development of their relationship to the point of discussing marriage. Whatever conjecture may be made about the appropriate time to have communicated the relevant information to Mrs Bustin, Mr Bustin nevertheless did make her aware of his past at that point in their relationship, and before they were married.
68. Paragraph 2.17(d) of Direction No. 21 requires me to consider the family composition of the applicant’s family, both in Australia and overseas. Mr Bustin’s four children all live in the United States. He has had no contact with his first two daughters K and A since 1989, and has had minimal contact in the last few years, by way of an occasional telephone call, with his other two children, Michael and Michelle. In addition, all his children have reached adulthood and are not dependent upon him in their day-to-day lives. There is no evidence before me that his children could not visit Australia to see their father should they so wish. In light of these circumstances I find that there will be minimal disruption to the lives of the visa applicant’s children regardless of the outcome of this application, and therefor I attach little weight to this factor.
69. The final relevant consideration under this heading is evidence of rehabilitation and any recent good conduct (paragraph 2.17(h) of the Direction). There is evidence of these matters in this case (see paragraph 40 above). This consideration is favourable to the applicant.
70. On my above analysis, I think that this is a matter where the relevant “other considerations” are favourable to the visa applicant, and would lead to a grant of the visa.
Conclusion
71. I am required by paragraph 2.2 of Direction No. 21 to have due regard to the importance placed by the Government on the three primary considerations, but also to adopt a balancing process which takes into account all relevant considerations. I have had careful regard to the considerations set out in the Direction. I am mindful that the visa applicant has committed a number of serious crimes, some of which involved the interests of a child. However, I have referred above to the circumstances in which the drug offending took place, and further to the evidence regarding the visa applicant’s Alford plea with respect to the incest conviction, and I have concluded that this first primary consideration does not weigh heavily against the applicant. I do not think that the Australian community would be put at risk by the grant of a spouse visa in this matter.
72. The visa applicant started a new life in Hawaii, he has married, has undertaken high school and college studies, and an apprenticeship. He has obtained work on a regular basis, and except for the matter referred to in paragraph 7, has been of good behaviour in recent years. For the reasons I have mentioned, I am inclined to think that the second primary consideration would not support a refusal of the visa. I further consider that various of the “other considerations”, including the hardship to the review applicant, Mrs Bustin, are important in the present matter, and support the grant of the visa. After considering all of the evidence before me, I have decided that it is appropriate in the present matter to exercise the discretion under s 501(1) in the applicant’s favour.
Decision
73. I set aside the decision under review and remit the matter to the respondent for further consideration, and direct that the discretion under s 501(1) to refuse a Sub-Class 309 spouse visa to Mr Bustin not be exercised.
I certify that the 73 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
B Bills Admin AssistantDate/s of Hearing 14, 16 and 17 June 2005
Date of Decision 31 October 2005
Counsel for the Applicant Ms J McGrath
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent Australian Government Solicitor
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