Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 458
•14 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 458
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/5
GENERAL ADMINISTRATIVE DIVISION )
Re Sharon Jupp
Applicant
And Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr J Block, Deputy President
Date14 June 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Douglas Simon Beale.
[SGD] Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – visa application- spouse visa – character test – primary considerations – manner in which direction 21 should be interpreted- criminal convictions- the risk of re-offending- discretion that the Tribunal may exercise if applicant does pass the character test – necessity of balancing the primary considerations of protection of the Australian community and the expectations of the Australian community against the best interests of a child and any other considerations - discretion to be applied in favour of the applicant
Migration Act 1958 sections 501(1), Direction No.21
Administrative Appeals Tribunal Act 1975, sections 37
Karl Crossan & Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 328
Lam & Minister for Immigration and Multicultural Affairs [1999] AATA 56
REASONS FOR DECISION
Mr J Block
A. PRELIMINARY AND GENERAL
1. (a) This is an application to review a decision made on 14 March 2000 by a delegate of the Respondent, refusing a spouse visa to Douglas Simon Beale ("the Visa Applicant") and in respect of which his wife, Sharon Jupp ("the Applicant") was his sponsor.
(b) Mr Ray Turner of Yandell Wright Stell Lawyers appeared for the Applicant while Mr Nathan Cureton of Blake Dawson Waldron, Solicitors appeared for the Respondent. The Tribunal had before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with two exhibits being:-
Exhibit A1 – Psychiatric Report dated 6 May 2002 by Doctor O A F Ahmed of Harley Street, London; and
Exhibit A2 – Statement (and which does not bear a date) by the Visa Applicant's mother in-law, Miriam Rook, who resides in and is a magistrate in London.
(c) Oral evidence was given by each of the Applicant, the Visa Applicant (by telephone link to the United Kingdom) and by Mrs Rook.
2. (a) The Respondent's Statement of Facts and Contentions dated 15 May 2002 contains the usual helpful chronology; it is set out in full in these reasons as follows:" RESPONDENT'S STATEMENT OF FACTS AND CONTENTIONS
FACTS1. The Applicant was born on 28 October 1964 (Tp 53).
2. The Visa Applicant was born on 11 May 1958 (Tp 39).
3. The Visa Applicant admits to having been convicted of three crimes in his Statement of Facts and Contentions at paragraph 3.
4. In April 1996, the Visa Applicant first met the Applicant in the United Kingdom (Tp 71).
5. On 4 September 1996, the Visa Applicant initially entered Australia on a visitor visa (Tp 138).
6. On 22 November 1997, the Visa Applicant married the Applicant (Tp 58).
7. On 9 June 1998, the Visa Applicant made an application for a spouse visa based on his marriage to the Applicant (Tp 73).
8. On 5 December 1999, the Visa Applicant and the Applicant last departed Australia for the United Kingdom and have been resident in the United Kingdom since that time (Tp 137 & 138).
9. On 14 March 2000, the Visa Applicant's application for the spouse visa was rejected by a delegate of the Minister (Tp 5). CONTENTIONS 1. The factors to be considered in the exercise of the power in section 501 of the Migration Act 1958 (the "Act") are set out in the Direction – Visa Refusal and Cancellation under section 501 – No. 21 made by the Minister pursuant to s.499 of the Act ("the policy"). The Respondent contends that the Tribunal is bound to apply the policy (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583). 2. The exercise of the discretion in s.501 involves a two-stage process: (a) a consideration by the decision maker of whether or not the Applicant passes the Character Test; and (b) if the Applicant does not pass the Character Test, a consideration by the decision maker as to whether the discretion should nevertheless be exercised to grant a visa, taking into account primary and other considerations. PART (a) – APPLICATION OF THE CHARACTER TEST Character of the Visa Applicant 3. The Respondent contends that the Visa Applicant does not pass the character test based on his criminal conduct: committing theft in 1983; committing theft in 1984; and committing attempted robbery, possessing a starting pistol with intent to commit robbery in 1984. 4. The policy indicates, at paragraph 1.3, that one of the four factors to be considered in regard to whether or not a non-citizen passes the Character Test under subsection 501(6)(a) of the Act is whether the non-citizen has a substantial criminal record. Substantial criminal record is defined in subsection 501(7)(c) as including where the person has been sentenced to a term of imprisonment of 12 months or more. 5. The Visa Applicant was sentenced to a period of imprisonment of four years plus two years to be served concurrently. Accordingly the Visa Applicant's criminal record meets the definition of substantial criminal record. The applicant therefore does not pass the Character Test PART (b) – EXERCISING THE DISCRETION 6. If the Visa Applicant does not pass the Character Test, the Tribunal nevertheless has a discretion to decide whether or not to allow the Visa Applicant to remain in Australia. In exercising that discretion, the Tribunal must have regard to a number of "primary" and "other" considerations as outlined in the policy. Primary Considerations Protection of the Australian Community 7. The respondent contends that, taking into account the seriousness of the Visa Applicant's conduct and the need to deter others from similar conduct, the protection of the Australian community weighs against the discretion being exercised in favour of the Visa Applicant. Seriousness of the conduct 8. Paragraph 2.6 of the policy sets out examples of offences, which are considered by the Government to be very serious. These include armed robbery (2.6(e)), serious thefts (2.6(l)) and convictions for attempting to commit such offences (2.6(o)). Paragraph 2.7 indicates that the sentence imposed for a crime is also an indication of the seriousness of the offender's conduct against the community. 9. The Respondent contends that on the basis of these criteria, the offence of attempted robbery and possessing a starting pistol with intent to commit robbery, for which the Visa Applicant received a sentence of four years of imprisonment plus two years imprisonment to be served concurrently, is serious conduct. This is evidenced by the fact that the sentencing judge treated the offence as serious enough to warrant a sentence given. The Respondent also contends that the Visa Applicant has not provided any relevant evidence of mitigating factors, as required to be considered by paragraph 2.8(a) of the policy. 10. The risk of recidivism 11. The Respondent concedes that the risk of recidivism is not high. However, as a result of the seriousness of the offences committed by the applicant, the respondent contends that any risk of recidivism is unacceptable. Given that the applicant was prepared to embark on such serious offences in the past, the Tribunal cannot be satisfied that he will not do so in the future. General deterrence 12. Pursuant to paragraph 2.11 of the policy, the Respondent contends that the refusal of the visa to the Visa Applicant will send a clear message to others that conduct similar to the Visa Applicant's is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct. Expectations of the Australian community 13. The Applicant has committed offences in the light of which the Australian community would expect that he would not be granted a visa. The Respondent contends that the Australian community regards offences of attempted robbery and possessing a starting pistol with intent to commit robbery as serious, as evidenced by their inclusion in paragraph 2.6 of the policy outlined above. The Respondent, therefore, contends that the expectations of the Australian community weigh against allowing the Visa Applicant being allowed to enter and remain in Australia. Best Interests of the Child 14. The policy also requires that consideration be given to the best interests of any children who will be affected by the decision in relation to the refusal of a visa to the Visa Applicant. The Visa Applicant and the Applicant have one child. It is claimed in the Applicant's Statement of Facts and Contentions at paragraph 2, that the Applicant is pregnant with the couple's second child. No evidence has been provided of this claim and accordingly the Respondent contends that the best interests of any second child is not a factor to be taken into consideration by the Tribunal in this matter (see below).. 15. Paragraph 2.15 of the policy indicates that the best interests of a child will generally be served if the child remains with its parents. There is no evidence that any of the countervailing considerations set out in this paragraph apply in the current case. Accordingly the Respondent contends that the best interests of the child in this case will be served if it remains with its parents. 16. Paragraph 2.16 of the policy sets our further factors, which the Tribunal is required to take into account when considering the best interests of the child. Pursuant to these factors, there is no evidence to suggest that if the Visa Applicant is refused a visa the child will be separated from him. The Applicant and the child could continue to live in the United Kingdom with the Visa Applicant. There is also no evidence to suggest that the child has spent any time in Australia. In relation to paragraphs 2.16(h), (i) and (j), if the decision under review is affirmed the Respondent contends that the child would not suffer any disadvantage in relation to its education or health and that it would not have to face any language or cultural barriers if it were to continue being resident in the United Kingdom. 17. On the basis of these considerations the Respondent contends that there would be no significant impact on the best interests of the child in this case if the decision to refuse the Visa Applicant a visa is affirmed. Further, it is contended that the seriousness of the offences committed by the Visa Applicant outweigh the need (if any) for the Visa Applicant to relocate to Australia in the best interests of his child. Rights of the Unborn Child 18. The respondent contends the rights of the applicant's unborn child should not be taken into consideration as a primary consideration (see Ly v Minister for Immigration and Multicultural Affairs [2000] AATA 339 and Hohua v Minister for Immigration and Multicultural Affairs [2001] AATA 102. Rather, the respondent contends that, at this stage, the fact of the applicant's pregnancy should be included when considering the interests of the applicant as a secondary consideration. Other Considerations 19. The policy also indicates, at paragraph 2.17, that there are other matters, although not primary considerations, which may be relevant when considering the issue of visa refusal. These matters are generally to be taken into account but are to be given less weight than that given to the primary considerations. 20. In this case one such relevant factor (in 2.17(b) of the Policy) is that the Visa Applicant is in a genuine relationship with an Australian Resident, the Applicant. This may be a factor that weighs in favour of the Tribunal exercising its discretion in favour of the Applicant. However it is only a secondary consideration. Further, the Respondent contends that while the Applicant states, in her Statement of Facts and Contentions at paragraph 10, that she intends to live in Australia, no evidence has been provided to indicate that she could not continue to live in the United Kingdom, her country of birth and the place where both she and the couple's child are currently resident. In any event, the hardship to the applicant is limited to emotional hardship in not be able to have regular physical, as opposed to telephone communication, with her Australian relatives. 21. Another secondary consideration to be taken into account by the Tribunal is any hardship to the Applicant and the Visa Applicant if the delegate's decision is affirmed. It is conceded by the Respondent that if the Visa Applicant is refused a visa and the Applicant returns to Australia, both parties will suffer hardship in being separated. However, as noted above, the Applicant and the couple's child are currently resident in the United Kingdom, with the Visa Applicant and his family have never been resident together in Australia. The Applicant has stated that she knew of the Visa Applicant's criminal convictions before marrying him (Tp116). Therefore, the Respondent contends that she was aware that he was of character concern at the time of their marriage. On this basis the Respondent contends that any hardship to the Applicant or the Visa Applicant, such that there may be, is outweighed by the seriousness of the offences committed by the Visa Applicant. 22. Pursuant to paragraph 2.17(h) of the policy, the Visa Applicant claims that he has been rehabilitated. This claim is supported by psychiatric evidence (report of Dr Ahmed provided by the Applicant), his 17 year history of not being convicted for any further offences and his work history. These factors may weigh in favour of the discretion being exercised in the Visa Applicant's favour. However the Respondent contends, as secondary factors, they are outweighed by the seriousness of the Visa Applicant's offences. 23. Overall, in regard to the secondary considerations, the Respondent contends that they are outweighed by the primary considerations. CONCLUSION. 24. The Respondent contends that the Visa Applicant does not pass the character test as a result of his past criminal conduct. The primary considerations of the protection and expectations of the Australian Community outweigh any hardship to the Applicant and the Visa Applicant such that the discretion to allow the Visa Applicant to enter and remain in Australia, despite the finding that he does not pass the character test, should not be exercised in his favour. 25. The decision under review should be affirmed."
(b) I also include, by way of balance, the Applicant's Statement of Facts and Contentions dated 3 May 2002 as follows:-
"APPLICANTS STATEMENT OF FACTS AND CONTENTIONS
FACTS
1. Mr Douglas Simon Beale (the Visa Applicant) married Ms Sharon Christina Jupp
(the applicant) on 22 November, 19972. Mr Beale and Ms Jupp have one child and Ms Jupp is pregnant with the couples'
second child3. Mr Beale has been convicted of the following offences
a. 1983 Theft, fine 50
b. 1984 Theft, fine 50
c. 1984 Attempted Robbery, possessing starting Pistol with intent to commit
robbery, 4 years imprisonment plus 2 years imprisonment to be served concurrently4. The decision maker found "I consider that there would be very little risk of recidivism in this case"
CONTENTIONS
5. Mr Beale is currently of good character
6. The Australian community has nothing to fear from Mr Beale as he is currently of good character
7. There is an acceptably low level of recidivism in this case
8. There is no evidence to find, nor any reasonable basis for an inference, that there would be any deterrent effect in the refusal of a visa to Mr Beale
9. The Australian community would not expect that a person with Mr Beale's history would be refused a visa
10. Ms Jupp has expressed a clear intention to live in Australia with her children. The best interest of the children call for the continued union of the family which can only be achieved by the grant of the visa sought by Mr Beale
11. This is not a case of balancing relevant considerations, all such considerations are in favour of the grant of a visa to Mr Beale."
(c) The documents contain a large number of favourable references and reports concerning the Visa Applicant. They are helpful in particular because they are in general terms relevant, and because they address one of the most important factors in this case, and which is the Visa Applicant's criminal record (referred to in clause 3 of the Respondent's Statement of Facts and Contentions). I intend to set out in full only two of them, the first of them being Exhibit A1 which reads as follows:
"I am a consultant psychiatrist of more than twenty-five years experience in the diagnosis and management of mental disorders. I am a specialist in the treatment of drug addiction and used to be a director of addiction services for the Medway Health Authority, Gillingham Kent, between 1986-1994. 1 have extensive experience in dealing with drug addicts. I have wide experience in assessing and reporting to courts about offenders, especially those who had drug addiction problems
This report is prepared on request from Mr. Beale's general practitioner, Dr. J. M. Stanford, who informed me that the report was requested by Ray Turner, Mr. Beale's lawyers in Sydney. The report will be used in support of his re-application to the Australian authorities to grant him permission to immigrate to Australia. He told me that his first application was rejected on ground of his history of mental disorder and criminal record.
I relied in preparing this report on the following:
1. An assessment interview of Mr. Beale on 20.03.02
2. A letter from his family doctor (Dr. J. M. Stanford)
3. Copies of correspondence from The Bethlem Royal hospital & the Maudsley
Hospital date 2nd of June 19824. Copies of correspondence from the Drug Dependency Centre, Woodfield
Road, London W9.5. Copy of a report by Dr. David Lord.
BACKGROUND:
He was born in Edgware, near London and was the youngest of 6 children. He had a normal happy childhood. He was a healthy child and had normal schooling until his father 's death when he was 17. That was the turning point in his life. He was extremely distressed and could not cope with the loss. He turned to drugs as an escape from the pain of his grief. He was prescribed Diazepam, but he started using Amphetamine and cannabis as well as cocaine. He experimented with any drug; he just wanted to get rid of the pain. Then he discovered Heroin; this drug relaxed him and eased his pain. He coped better with his grief, but he became an addict.
He, like most addicts, started stealing in order to finance his expensive habit. He was arrested for stealing from shops and breaking into a chemist shop to steal drugs. He was put on probation for 1 year. In 1983 he was arrested and convicted for armed robbery and was sentenced for four years imprisonment. He spent two years and eight months in jail after which he stopped using drugs and worked for a transport company then moved to GC Marconi where had a managerial job for three years. Then he worked for a Motor cycles Courier Company until 1999. He has been studying Digital Media for the past two and a half years as well as being a house-husband, raising his child.
He met his wife in 1995, after his release from prison. She is 6 years younger than him, but they have a happy marriage. She stabilised his life and helped him settle down. He is a changed man since he met her. At the present time he is studying at the London Institute for Digital Media studies. His wife works as a marketing manager in a publishing company. His wife is very keen on immigrating to Australia as she fell in love with that country. He felt guilty that his application was turned down because of his foolishness as a teenager and as a young man.
DRUG AND FORENSIC HISTORY
He started experimenting with drug use at the age of 17 following his father's death. At that time he started with Diazepam and similar benzodiazepines, and then he started to smoke cannabis. However he was grief stricken and felt totally alienated. He experimented with other drugs and soon discovered Heroin, which he found effective and relaxing. He became addicted and started to shop lift and steal in order to finance his habit. Meanwhile he sought treatment. He was referred to Dr. Michael Trimble who tried to detoxify him using Physeptone in January 1981. After that he was referred to the Drug Dependency unit at St. Mary Hospital and was assessed by Dr. Das Gupta in March 1981. Dr. Gupta prescribed Methadone mixture and started a three months detoxification programme.
He succeeded in abstaining from drugs for 8 months, but relapsed in early 1982 when he was referred to the Maudsley Drug Dependency Unit. He was assessed, then was admitted to the Bethlem Royal Hospital, on 13th April 1982. Dr. Drummond described him as highly motivated and to have had good insight. He cooperated with the treatment programme and was discharged on May 21st. (He spent about 6 weeks in hospital). He was successfully detoxified after discharge from hospital he remained abstinent for a number of months, and then he relapsed.
He was arrested in 1983 for armed robbery on a chemist shop. He was trying to steal drugs. He was sentenced to 4 years imprisonment. In gaol he stopped using drugs. That imprisonment woke him up and he realized that he did not do much with his life. He served 2 years and 8 months in jail. After his release he was determined to stay drug free and sought work. He was successful in changing his lifestyle completely.
In his letter of referral Dr. Stanford, his family doctor, wrote, "I have enclosed copies of the correspondence that appears relevant to his problems, from the records that I have in my possession with respect to Mr. Beale's clinical records there is no reference to his drug using after January 1983... .etc"ASSESSMENT AND MENTAL STATE EXAMINATION ON 20.03.02
Mr. Beale was casually dressed, but was neat. He was pleasant in manners and appeared relaxed. He described his problems with the immigration to Australia and said that his wife is very keen on that. He felt guilty that his application was rejected because of his history when he was young.
His speech was normal and his mood was normal. There was no evidence of any psychiatric disorder and he was alert and coherent. There was no evidence that he was using drugs and from the history I was convinced that he had come to terms with his drug abuse a long time ago.CONCLUSIONS:
1. Mr. Beale's record and history suggest that he was a drug addict between the age of 18 and 23.
2. He behaved at that time like a typical addict who resorted to criminal activities in order to finance his addiction.
3. There is no evidence from his history that he has committed any crime which was not drug related.
4. Mr. Beale sought help over a two years period with limited success. He had periods of abstinence and relapse. Once again this is typical of drug addiction, which could be described as a chronic relapsing condition.
5. The other typical thing about Mr. Beale is that he conforms to the majority of drug addicts who normally start experimenting with drugs in their teens and become addicted then they go through periods of criminal activity and eventually come to terms with theft addiction when they are over thirty or thirty five. Of course there are people who continue till they are much older, but Mr. Beale stopped using Heroin and other drugs in 1983. He has been successful in maintaining his abstinence for the past 19 years.
6. In my opinion Mr. Beale is not mentally ill. He is not a drug addict any more and he has not offended since 1983. I am convinced that his criminal behaviour was due to his drug addiction and he is no longer an addict or a criminal.
7. There is no evidence from the available information that he is likely to relapse. I am of the opinion that he is a stable and a responsible person. His marriage and child contribute in enforcing his feeling of responsibility and stability."
(d) I quote in full secondly, T34, p132 which is a reference by the Visa Applicant's father in-law, Edward Rook, which reads as follows:
"I have been asked to give a reference for Mr Douglas Beale and from my records it seems that one was submitted to the High Commission on the 7th May 1998. However I am pleased to give another reference to update you on this gentleman.
I have known Mr Beale for some seven years as a friend, but as of late as my stepson in-law. My own wife passed away in 1996 and I remarried in 1998 to Mrs Jupp the mother of Mr Beale's wife. He was working as a delivery courier, but has now completed a course in graphic design and is already obtaining work from a large International publishing Co.
Since last giving him a reference, he has appraised me of his past record and his conviction and sentence, despite this I strongly feel that as some twenty years have passed and there has been no further trouble of any description, credit should be given for this change in his lifestyle.
Mr and Mrs Beale now have a young son and a stable lifestyle. Both of them are industrious and hard working. Mrs Beale intends returning to work as a journalist with a world wide magazine, and they are both doing all they can to improve themselves, which is much to their credit.
As a Magistrate of some thirty years and at present Chairman of the Croydon Bench I am very careful as to whom I give a reference. Mr Beale is now "family" and would have understood if I had not agreed to write, but from what I see he is now a good member of society, doing the best for his wife and son."
(e) Mr Rook's reference is relevant, despite the relationship between him and the Applicant, in particular having regard to his position as present Chairman of the Croydon Bench (of the Magistrates' Court) of which Mrs Rook is a also a member.
(f) I would add that the content of Exhibit A1 is supported by an earlier psychiatric report issued by Dr David Lord in Western Australia on 27 May 1999 (T19, pp 103-104).
(g) Generally as to character references, I refer to T Documents, T7, pp 62-70 inclusive, and also T34 commencing at page 128 which contains another batch of references, including the reference by Edward Rook previously referred to.
B. THE EVIDENCE
3. In respect of the evidence of the Applicant: -
a) The Applicant is 37 years old. Her school education took place in England where she obtained nine O levels and three A levels. Her A level results were not brilliant but they were sufficient to gain her a place at Trent Polytechnic, where in 1987 she completed a BA honours degree in modern European Studies focussing on international relations.
b) Having graduated from the Polytechnic, the Applicant then travelled extensively through Australia as a backpacker; it was at that time that as she put it "she fell in love with Australia".
c) The Applicant returned to the United Kingdom in 1989 in order to commence her career. She started at Maxwell Publishing as a trainee advertising executive and then moved into marketing. She stayed with Maxwell Publishing for about two years.
d) In 1991 the Applicant moved to the Rickbell group in its magazine division where she was closely involved in the launch of "Business Car Magazine".
e) It was at or about this time that the Applicant began to consider returning to Australia but this time as a migrant. She realised that her qualifications were such that she might not have sufficient points and bearing in mind that her degree focus was on international relations. It was for this reason that she embarked on a course of study in marketing and obtained a post graduate diploma in marketing after one year from a college in Hammersmith and Fulham.
f) Having obtained her diploma in marketing, the Applicant continued to work, but put in an application for residence in Australia; that application would have gone in, in either 1992 or 1993. However, when the residency was granted, she could not then leave for Australia because her father had been diagnosed with cancer. He died in April 1995 and she left for Australia in October 1995, having previously, through the internet, arranged for employment with Business Sydney.
g) The job in Sydney started in October 1995 and her mother visited her for a month in February 1996. In April 1996, the Applicant returned to the United Kingdom for a short period on holiday to be in the United Kingdom on the anniversary of her father's death. It was at this time, that she again came into contact with the Visa Applicant whom she had met previously but with whom she had not had a romantic involvement. In April 1996, and when she met him again, she felt very differently. She returned to Sydney in April 1996 and the Visa Applicant visited her in Australia in September 1996. It was at or about this time that the Applicant and the Visa Applicant decided to marry. However, the Applicant for sentimental reasons wanted to be married in England from her mother's home. She continued to work in Sydney until December 1996, after which time she returned to the United Kingdom in order to marry, firstly in a humanist ceremony, followed at a later stage by a legally binding ceremony in a registry office.
h) The spouse visa application was filed in 1998. In order to preserve her residency status in Australia, the Applicant had to be back in Australia by December 1998. It is for this reason that the Visa Applicant and the Applicant came to Australia together, the Applicant as a returning resident and the Visa Applicant as a visitor on a visitor's visa, which with renewals extended to about one year. It was during this year that the couple travelled extensively through Australia, although on occasions, the Applicant worked, and sometimes as a waitress. She was particularly keen that the Visa Applicant should have the same extensive experience of Australia as she had obtained during her earlier travels. The Applicant also said that during this period the Visa Applicant started to feel as she did about Australia.
i) By the end of 1999, the visa application by the Visa Applicant had not been processed and the Applicant was faced with a difficult choice. She could have remained in Australia where she could have obtained Australian citizenship within a matter of months or she could return to the United Kingdom with her husband. She chose the second alternative so as not to be parted from her husband, and more particularly as she knew at the time that she was pregnant.
j) On her return to the United Kingdom, the Applicant worked on a three- months contract from January 2000. In March 2000, she took up a position with the Readers Digest Association where she has worked ever since. She has done well at the Readers Digest Association, so much so that she has been able to procure some work for the Visa Applicant and also, so she said, to enable her to believe that she would be able to obtain a position with the Readers Digest in Australia.
k) The Applicant said also that during this period, she and the Visa Applicant kept in touch with the Department of Immigration Multicultural and Indigenous Affairs ("DIMA") to whom character references were furnished on various occasions. A medical test taken at the request of DIMA indicated that the Visa Applicant had Hepatitis C in his bloodstream.
l) The Applicant said that although her husband did not achieve her standard of educational qualification, he did have various jobs, including one as an independent contractor courier. She said that she believed, although she did not know him at the time, that his criminal record could be attributed to the fact that he was a spoilt child and the youngest of six, who was much affected by his father's death when he was in his late teens.
m) After her son Toby was born in 2000 and after her maternity period of three months expired at the end of that year, the Applicant went back to work while he became a house-husband looking after the baby whilst studying one day a week at the London Institute, in courses which could lead eventually to his becoming a graphic designer.
n) The Applicant believes that her husband has artistic talent. She said that his artistic qualifications and abilities were such that she had been able to get him some work from Readers Digest. She thought that the work in question was mainly computer related; (the Visa Applicant when he came to give evidence said that while some of the work was computer related, more of it was artistic in the ordinary sense).
o) The Applicant said of the Visa Applicant, that he is a caring and gentle man and in no way recognisable as a perpetrator of the youthful drug-related activities, which led to his imprisonment in 1983.
p) The Applicant said that she had kept up her connections with Australia and firmly believed that she would easily obtain employment here, and probably with Readers Digest. She said also that in Australia she would be able in time to start her own business which could include her husband, something which would be much more difficult in the Untied Kingdom. She said furthermore, that she felt "spiritually" tied to Australia, a country, so she said, which is far more egalitarian and much more of a meritocracy where one's school and university did not in anyway limit one's future. She felt that she and her family would do better in Australia than in the United Kingdom, that Toby would thrive in the warmer climate and that educational opportunities for her children (and she is currently pregnant again) would be better in Australia.
q) The Applicant was in general a most impressive witness, one who to my mind was quite transparently honest. Her devotion to her family of which she is clearly the leader, cannot be doubted. I accept moreover that the fact that her children would be at a distance from both sets of grandparents (and both her mother and her husband's mother have remarried) would be compensated for to an extent at least by visits from her mother and stepfather (who are clearly affluent) and by return visits to the United Kingdom. Although her brother and her husband's four surviving siblings all live in the United Kingdom, there are family members being aunts and cousins resident in Australia to whom the Applicant is close.
r) I do not doubt the genuineness of the Applicant's desire to return to Australia, although noting that some of her views of Australia may not be totally accurate and may perhaps be characterised as "rose-coloured'. It must be remembered that much of her time in Australia was spent as a tourist rather than as an employed person and that her work experience in Australia does not remotely compare with her work experience in the United Kingdom where she is clearly doing very well. On the other hand, her work experience in the United Kingdom is mainly in the area of magazines and, so she told the Tribunal, Australia has more magazines per capita than any other country. The Applicant lives with her family in Hampstead in rented accommodation and owns real property elsewhere which is rented to a tenant.
s) I have some doubts as to whether she is correct when she describes England as a place where one's University and school dictate one's future progress; this may perhaps be true of some careers but by no means all of them. I have doubts also as to whether her children will have more or better educational opportunities in Australia. Australia's HECS system is comparable in some respects with the UK council grants system but differs in that under the former there is a loan, which must eventually be repaid. These minor reservations as to some aspects of the Applicant's evidence do not detract from her general credibility.
t) It must be noted also as a general observation (and as a relevant factor in the balance) that the Applicant's connections with Australia are in some respects tenuous; she is not a citizen and indeed, she is not even currently a permanent resident; she is in reality a former resident who is entitled, provided that she acts in time, to again become an ordinary resident of Australia.
4. The Visa Applicant although not as well educated or as articulate as his wife was not in the end any less credible. In respect of his evidence:-
(a) He was the youngest of six children, the others being considerably older. He was much affected by the death of his father to whom he was very close. His father's death, in turn resulted in drug use and addiction which in turn lead eventually to heroin addiction. All of the Visa Applicant's convictions were drug-related, in that he was seeking money to buy drugs and some of the convictions (and including the attempted armed robbery) involved a chemist shop.
(b) The attempted armed robbery resulted in a sentence of four years (of which he served two years and eight months) and occurred in concert with two others. One of them had a replica pistol which could fire caps. There were two people in a chemist shop both of whom were employees; one of them ran out of the shop and this caused all three members of the criminal group to take flight and run away; the Visa Applicant was caught asleep in the getaway car which in fact belonged to one of his two accomplices. He said honestly that there were some additional shoplifting offences which could have been taken into account at the time of the attempted robbery conviction but were not, because, according to the presiding judge, they paled into insignificance when compared to the attempted robbery.
(c) I do not think that it is necessary to go into the Visa Applicant's work history in detail. He has had over the years a variety of jobs and in some cases has been promoted into higher positions. One job ended in redundancy. He described himself, contentedly enough, as a house-husband, happy to be looking after his son while studying one day a week in subjects connected with graphic design and animation. As to why there were a number of different jobs over the years, and leaving aside the fact, that in only one of them he was made redundant, was not explained. By way of one example only, after his release from jail, he worked as a van driver for Marconi, commencing in 1987, being promoted to transport supervisor in 1989, and being further promoted to transport administrator in 1990. It is that job which was succeeded by a job at Express Dairies where the redundancy occurred. His work experience also involved a short period selling motorcycle leather for Auckland Leatherwear which took him all over Europe. The motorcycle courier experience referred to earlier in these Reasons lasted from 1996 to 1999.
(d) Since commencing studies at the London Institute, the Visa Applicant has obtained a certificate in Digital Origination, a diploma in Digital Media Production, and is currently studying for a certificate in Animation Production.
(e) Although, before being sentenced to a term of imprisonment, the Visa Applicant had attempted without success to rid himself of his drug addiction, he did manage to do so whilst in jail. As he described it, the shock of incarceration brought him to his senses and the realisation that if he were to have a life at all, it would have to be drug-free. He received the maximum sentence remission for good conduct. Since being released for good behaviour there have been other potentially traumatic incidents in his life, and perhaps most relevantly the death at a comparatively early age of his sister Carol, with whom he lived after his release from jail. None of these unfortunate incidents took him back into the drug world.
(f) The Visa Applicant told the Tribunal about his relationship with his siblings, some of whom were much older then he is and in reality in the main of a different generation. His sister in-law, who lives nearby cares for Toby on the day each week when he goes to college. The Visa Applicant is close to his mother and stepfather, seeing them at least once a week. When cross-examined as to the fact that he would be leaving them to come to Australia, if he got the visa, he said that he hoped to be able to visit them at least once a year.
(g) The Visa Applicant was also overall and in general terms an impressive and credible witness.
5. I need not deal in detail with the brief evidence of Mrs Rook; she spoke favourably of her son-in-law, the Visa Applicant, and despite the relationship, and in the absence of any contradiction, her evidence should be accepted. She was previously a Magistrate and has recently retired from a senior nursing position. She and her husband have an extensive social life (focused to some extent on golf). She said that she intended to visit her daughter's family regularly and for extended periods, in Australia.
6. It is perhaps relevant to note that the Visa Applicant always and at all times in his dealings with the immigration authorities made a full disclosure of his criminal record.
C.DIRECTION 21
7. I turn now to deal with Direction 21, headed Direction-Visa Refusal and Cancellation under section 501-21 (referred to in brief as "the Direction").
(a) I commence by noting that it is plain enough (as Mr Turner fairly conceded) that the Visa Applicant's criminal record has the effect that he does not pass the Character Test. I am thus required to consider the discretion in Part 2 of the Direction; (before doing so I note that clause 1.9 of the Direction is not relevant since it relates in its terms to a consideration of character under section 501(b)(c)(ii) of the Migration Act 1958 ("the Act").
(b) The clauses in Part 2 which are of particular relevance in this case are clauses 2.3; 2.5; and 2.12 of the Direction, which are set out in full in these reasons as follows:"PRIMARY CONSIDERATIONS
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
2.4…..
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(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).Expectations of the Australian community
2.12 The Australian community citizens expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because of the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect."
(c) I should also note, and again by the way of preface, that if I were to affirm the decision under review (thus obliging the Applicant and her family to remain in the United Kingdom, and it was clear that this would in such event be the inevitable result) there would be no hardship of any kind to anyone within clause 2.17 of the Direction. The Applicant and the Visa Applicant are satisfactorily settled, in the United Kingdom; all of their close relatives (parents and siblings) are residents in the United Kingdom. The Applicant's "love affair" with Australia cannot be relevant in these particular circumstances.
(d) There was considerable discussion of the manner in which the Direction should be interpreted. Mr Cureton argued that the three sub-clauses in clause 2.5 should be construed disjunctively, notwithstanding the word "and" at the end of sub-clause (b). There was even more discussion as to the manner in which clause 2.12 should be interpreted. Mr Turner argued that the second sentence should be interpreted on the basis that the words "or where the non-citizen has been convicted (and following)….." should be interpreted on the basis that they are confined to cases of significant risk. I do not agree with either contention. There is no warrant for interpreting clause 2.5 disjunctively; equally there is no warrant for interpreting clause 2.12 (second sentence) in the manner contended for by Mr Turner. On the other hand, it is significant in my view that the third sentence of clause 2.12 is permissive only, employing as it does the word "may" and not the word "must".
(e) I do not believe in any event, in general terms that it was ever intended that the Direction should be interpreted in strict fashion as if it were a statute. The Direction is (and no doubt necessarily so) general in its terms and does not admit of an interpretation in this manner. What exactly, for example, is encompassed by the references in it to the "Australian public?"
(f) In the same context, I do not agree with clause 31 of the Respondent's Statement of Facts and Contentions, which in any event is not fully in accord with clause 33 of the same statement. In particular, I do not believe that one starts with failure of the Character Test as a form of prima facie disqualification which can be balanced, if it all, only by favourable secondary factors, and such as for example a favourable application of the hardship provisions in clause 2.17.
(g) In my view, it is necessary in the first instance to examine the primary considerations in order to achieve the balance which Part 2 of the Direction requires.
(h) I can, I believe, discount clause 2.3(c). Toby (and his coming sibling) will remain with their parents wherever they live. Mr Turner spoke of duty a "mother knows best" approach in relation to the Applicant's belief that Toby will be better off in Australia and will have better educational opportunities in Australia. I do not believe that this contention is, in this context, correct.
(i)I turn now to consider clause 2.3(a) and 2,3(b) and I commence with 2.3(a). It is in this context that in considering clause 2.5 (which is bound up with clause 2.3(a)) that I must have regard (conjunctively and not disjunctively) to all three of sub-clauses in clause 2.5.
(j) As regard clause 2.5(a), the conduct was unquestionably serious; armed robbery or even attempted armed robbery can never be treated otherwise than as serious. That said this particular attempted armed robbery was much less serious than most; in particular, the method of execution was inept and amateurish. It is relevant in this context that all of the offences were drug- related and that the Visa Applicant has been free of drugs and indeed free of any form of criminal conduct for nearly 20 years. It is in this context that paragraph 40 of the decision in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 can usefully be repeated event though that decision was handed down before the Direction came into force. Paragraph 40 of that decision by Mathews J as President of this Tribunal, is in my view at the very least persuasive, and reads as follows:"40. The final matter to be considered under this head relates to the extent of the applicant's rehabilitation. This concept combines a number of factors, not the least being the commission of further offences. It goes without saying that the longer a person displays a law-abiding lifestyle, the more significant this factor will become. In this case, the applicant was still in prison when the respondent's delegate refused his application, and this issue did not realistically arise. When the previous Tribunal gave its decision, the applicant had been at large for a little over a year. It is now over two-and-a-half years since his release from prison and the fact that he has continued to live an apparently quiet, hardworking, and domestic-orientated existence is a more significant issue."
(k) As to clause 2.5(b), the Respondent accepts that there is "very little risk of recidivism" (T4 at p10). I agree that the risk if any is minimal. Mr Turner contended, correctly in my view, that the refusal of a visa in these circumstances would have little or no effect (deterrent or otherwise) on youthful drug addicted criminals in Australia; this contention was made in the context of clause 2.5(c).
(l) All of this being so, the primary consideration contained in clause 2.3(a) (read with clause 2.5) of the Direction is not negative in relation to the Visa Applicant. On the contrary all of the medical and other evidence before me indicates a complete and total rehabilitation and so that the Visa Applicant is now a caring and dependable spouse and father. The gap in time since 1983 is long and indeed far longer than in some other cases; see for example in this regard Karl Crossan and the Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 328. Failure of the Character Test cannot of course constitute a ground for automatic disqualification, since otherwise the Direction would in large part be otiose.
(m) Clause 2.3(b) (read with 2.12) is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. If told only and concisely that a person incarcerated for armed robbery was seeking to come to live in Australia, there might well be a general view that this should not be allowed. On one facile view, these are the facts in this case. They entirely ignore the fact that the event happened nearly 20 years ago, since which time there has been a complete rehabilitation transforming a young drug-addicted person into a responsible family man. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.
(n) The primary factors are then if anything neutral or in favour of the Visa Applicant. This is so in particular because the risk of recidivism is slight (and probably nil), because the Visa Applicant poses no threat to the Australian community, and because he has indeed reformed. This being so, the fact that there is no hardship within clause 2.17 of the Direction does not matter. The Applicant's connection with Australia is not one which even remotely connotes hardship.
(o) Both solicitors referred me to the "abhorrence test" which is relevant in deportation matters. Leaving aside the fact that test and the direction referable to deportation are of limited relevance in a matter such as this, I consider that the degree of revulsion which a given criminal record might occasion could be relevant. But this said, there is a very sharp distinction, even in this limited context, between a failed (and incompetent) attempted armed robbery and for example dealing in hard drugs such as heroin. All of this is so self- evident that I mention it only because it was raised before me.
D.CONCLUSION
8. In all the circumstances the decision under review must be set aside and the matter remitted to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Douglas Simon Beale.
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal
Signed: S. Swamy .....................................................................................
AssociateDate of Hearing 29 May 2002
Date of Decision 14 June 2002
Solicitor for the Applicant Ray Turner
Solicitor for the Respondent Nathan Cureton
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