Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 1336
•23 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1336
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1171
GENERAL ADMINISTRATIVE DIVISION ) Re NINA WAITS Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date23 December 2003
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 spouse visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Douglas Andrew Ferrie.
[Sgd] Deputy President J Block
CATCHWORDS Immigration – Character Test – Discretion – Expectations of the Australian Community – Whether discretion should be exercised in favour of the Visa Applicant
Migration Act 1958 – s 501
Direction No 21 – Direction – Visa refusal and cancellation under s 501
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
“SROO” v Minister for Immigration and Multicultural Affairs [2000] AATA 999
REASONS FOR DECISION
23 December 2003 Deputy President J Block PART A - PRELIMINARY AND GENERAL
1. The decision under review in this matter is the refusal on 9 June 2003 by a delegate of the Respondent of a Combined UF/BC (Subclass 309/100) Visa applied for on 6 February 2003 by Douglas Andrew Ferrie (“the Visa Applicant”); that application was sponsored by Nina Angela Waits, (“the Applicant”), who is his fiancee.
2. The Applicant was represented by Mr Nicholas Poynder of Counsel, instructed by Anne O’Donoghue & Associates, while the Respondent was represented by Mr Andrew Grimm of Blake Dawson Waldron, Solicitors.
3. The Tribunal had before it the T-Documents (numbering 227 pages) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
Exhibit A1 is a signed statement by the Applicant but in respect of which and due to a technology hitch, the paragraphs are not numbered;
Exhibit A2 is an unsigned statement by the Applicant which is the same as Exhibit A1 in all respects except that Exhibit A2 has numbered paragraphs whereas Exhibit A1 does not;
Exhibit A3 is a signed statement by the Visa Applicant but in respect of which and due to a technology hitch, the paragraphs are not numbered
Exhibit A4 is an unsigned statement by the Visa Applicant which is the same as Exhibit A3 in all respects except that Exhibit A4 has numbered paragraphs whereas Exhibit A3 does not;
4. Oral evidence was given by each of the Applicant, the Visa Applicant and the Applicant’s father Philip Waits. In the case of the Visa Applicant evidence was taken by telephone link to the United Kingdom.
5. In this case the documentary evidence is of particular importance for a number of reasons. In the first place and at the end of the hearing, the representatives of the parties agreed to dispense with oral submissions and to rely on their respective Statements of Facts and Contentions. In the second place and as is often the case where Mr Poynder appears, evidence in chief was presented in large part by having the witness attest the truth of his or her statement and then allowing the witness to be cross-examined. This works particularly well and saves time when the statements (as is the case here) are comprehensive. In the third place, the Visa Applicant’s conviction for manslaughter in the United Kingdom in 1991 was always bound to be an important factor in this case and so the judge’s sentencing remarks in respect of that conviction, are of particular relevance. For these reasons in particular I intend to commence by either quoting the content of or quoting from the content of a number of relevant documents.
6. The Applicant’s Statement of Facts and Contentions dated 3 November 2003 and which in effect constituted the Applicant’s closing submissions, reads as follows:
“APPLICANT’S STATEMENT OF FACTS AND CONTENTIONS
FACTS
1. The visa applicant, Mr Douglas Andrew Ferrie, is a citizen of the United Kingdom. He was born on 27 February 1955 in Morpeth, in the county of Northumberland.
2. The visa applicant had a successful career in the insurance industry and, by 1991, he was living in Sussex with his wife Linda and three children Sarah (dob 25.8.80), Melanie (dob 28.2.82) and Steven (dob 21.12.85).
3. In June 1991 the visa applicant was responsible for the death of his wife, as a result of which, in December 1991, he was convicted of manslaughter and sentenced to fifteen months imprisonment. The circumstances of the visa applicant’s conviction were set out in a statement provided to the Lewes Crown Court on 4 September 1991 (Section 37 Documents, pp. 69-82). The Court in sentencing the visa applicant took a lenient view of the of the offence (Section 37 Documents, pp. 66-68).
4. Upon his release from prison on 30 April 1992, the visa applicant took over the care of his three children, and in February 1993 he secured a job in Gloucester.
5. In March 1993 the applicant, who was then the nineteen year old daughter of close family friends who had since moved to Australia, stayed with the visa applicant when she was visiting the UK. By mid-1993 a relationship had developed between the visa applicant and the applicant.
6. In August 1993 the visa applicant made his first application for a visa to travel to Australia, on this occasion to be with the applicant to discuss their relationship with her parents in Perth. The visa applicant lodged his application in person at Australia House in London, disclosing his conviction, and he was granted a one year multiple return visa. The visa applicant travelled to Australia on 4 September 1993, returning to the UK on 13 September 1993 (Section 37 Documents, p. 204).
7. From 16 October 1993 until 22 October 1993 the visa applicant made a second trip to Australia to visit the applicant and her parents, travelling on his multiple entry visa (Section 37 Documents, p. 203).
8. On 14 February 1994 the visa applicant and the applicant were engaged to be married.
9. In April 1994 the visa applicant lodged an application to migrate to Australia. The visa applicant again disclosed his criminal conviction in the application. When this application was refused, the visa applicant’s solicitor advised that the reason for the refusal was because not enough time had elapsed since his criminal conviction.
10. On 6 December 1994 the visa applicant made another application for a visitor visa to Australia, on this occasion to spend Christmas with the applicant and her family in Perth. The visa applicant again lodged his application in person at Australia House in London, disclosing his conviction, and he was granted a three month visa. However, due to work commitments, the visa applicant did not use this visa.
11. In September 1995 the visa applicant made another application for a visitor visa to Australia. The visa applicant again lodged his application in person at Australia House in London, disclosing his conviction, and he was granted a three month visa. The visa applicant and the applicant travelled together to Australia on 23 October 1995, returning together to the UK on 13 November 1995 (Section 37 Documents, pp. 203 and 199).
12. In November 1997 the visa applicant made another application for a visitor visa to Australia, this time to travel with his son Steven, who wanted to see Australia. On this occasion the visa applicant made arrangements through a discount travel agency in London, and he obtained an Electronic Travel Authority visa (“ETA visa”). No request was made by the travel agency or the Australian authorities with regard to his conviction. The visa applicant, his son, and the applicant travelled together to Australia on 4 November 1997, returning together to the UK on 3 December 1997(Section 37 Documents, pp. 202-203, and 198).
13. In November 1998 the visa applicant made another application for a visitor visa to Australia, again through a discount travel agency. Once again no request was made about his conviction and he was issued with an ETA visa. The visa applicant and the applicant travelled together to Australia on 7 November 1998, returning together to the UK on 28 November 1998 (Section 37 Documents, pp. 202 and 197).
14. In March 2001 the visa applicant made another application for a visitor visa to Australia, again through the discount travel agency, and again no request was made about his conviction. He was again issued with an ETA visa. The visa applicant travelled alone to Australia on 20 March 2001, returning with the applicant to the UK on 6 April 2001(Section 37 Documents, pp. 202 and 196).
15. In August 2002 the visa applicant was reading the Department of Immigration web site with a view to obtaining permanent residence, when he ascertained that he should have declared his criminal conviction when previously applying for ETA visas to Australia.
16. On 18 October 2002 the visa applicant applied for another Visitor visa to Australia. As he was by now aware that he was required to disclose his criminal record, he did not apply for an ETA visa but instead returned in person to Australia House and declared his conviction (Section 37 Documents, pp. 43-45). This visa application was refused on 30 December 2002 (Section 37 Documents, pp. 83-89).
17. On or about 30 January 2003 the visa applicant applied for a subclass 309 Spouse (Provisional) visa (Section 37 Documents, pp. 90-112). The visa applicant declared his conviction in his application.
18. The visa applicant explained that, on his previous trips to Australia, he had failed to declare his convictions on his Incoming Passenger Card (“IPC”) because he wished to avoid the embarrassment of being questioned at passport control, and he had already provided these details to the Australian authorities (Section 37 Documents, p. 214).
19. On 9 June 2003 the visa applicant’s application for a spouse visa was refused by a delegate of the respondent (Section 37 Documents, pp. 5-15). The grounds for the refusal were as follows:
(a) The delegate found that the visa applicant did not pass the character test, due to his criminal conviction and his failure to declare his conviction (Section 37 Documents, p.7).
(b) The delegate considered that the visa applicant’s criminal conviction was a serious offence (Section 37 Documents, p. 9).
(c) With regard to the failure to declare his conviction, the delegate:
(i) Accepted that the visa applicant had declared his conviction to the Department in his two 1993 visa applications, and that he was not given a leaflet advising him of the need to disclose his conviction when he applied for an ETA three times, in 1997, 1998 and 2001
( Section 37 Documents, pp. 9-10).
(ii) Did not accept the visa applicant’s explanation for failing to declare his conviction on his IPCs on each of the six occasions that he had previously entered Australia (Section 37 Documents, p. 10).
(d) The delegate considered that there was a risk that the visa applicant may re-offend in a similar way that he did in 1991, albeit a “very low” risk (Section 37 Documents, p. 11).
(e) The delegate considered that the visa applicant may well fail to declare his conviction to the Department again (Section 37 Documents, p 11).
(f) The delegate considered that a refusal of the visa would underline the seriousness which the Australian Government views his manslaughter and it may deter others from engaging in similar conduct (Section 37 Documents, p. 11).
(g) The delegate considered that the Australian community would support a visa refusal to a person with the visa applicant’s criminal record and his other offences against the Act (Section 37 Documents, p. 12).
(h) The delegate did not consider that a visa refusal would necessarily be against the best interests of the visa applicant’s child Steven (Section 37 Documents, p. 12).
(i) The delegate considered that any distress caused to the applicant was outweighed by her awareness of his conviction at the time she entered into a relationship, her continuation of the relationship, her infrequent time in Australia over the past ten years and her ability to continue to return to Australia, her indication that she would continue to reside with the visa applicant in the UK if his visa was refused, and her close ties to the visa applicant’s family in the UK (Section 37 Documents, p. 13).
CONTENTIONS
Does the visa applicant pass the character test?
20. The character test is defined in s 501 of the Act, and relevantly provides that:
(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.
Note: "Character test "is defined by subsection (6).
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
21.By reason of ss. 501(6)(a) and (7) of the Act, the visa applicant cannot pass the character test.
Summary of the visa applicant’s conduct
22.In this case the following conduct by the visa applicant is capable of raising character concerns:
(a) His manslaughter conviction.
(b) His failure to disclose his conviction on six occasions when completing his IPC on entry to Australia: on 4 September 1993, 16 October 1993, 23 October 1995, 4 November 1997, 7 November 1998, and 20 March 2001.
(c) His failure to disclose his conviction when applying for ETA visas on three occasions: In November 1997, November 1998, and March 2001.
Should the visa applicant be granted a visa in spite of his inability to pass the character test?
23. Guidelines on the implementation of the character test are provided in Direction No. 21: Visa Refusal And Cancellation Under Section 501 dated 23 August 2001 (“Direction No. 21”). Part 2 of Direction No. 21 sets out guidelines for the exercise of the discretion to grant a visa even though the applicant may not have been able to pass the character test.
24. Three “primary considerations” are identified in paragraph 2.3 of Direction No 21:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
Protection of the Australian community:
25. Three factors are identified in paragraph 2.5 of Direction No 21 as being relevant to the “protection of the Australian community”:
(a) The seriousness and nature of the conduct.
(b) The likelihood that the conduct may be repeated.
(c) Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
The seriousness and nature of the conduct:
26. There is no doubt that the visa applicant’s crime of manslaughter was “very serious” within the meaning of paragraph 2.6(f) of Direction No. 21. However, the seriousness of this crime was heavily qualified by the actual circumstances of the offence, which were accepted by the Court in sentencing as having involved very significant mitigating factors. This was reflected in the unusually lenient sentence imposed on the visa applicant, a factor which is specifically referred to as being relevant: see paragraph 2.7 of Direction No. 21.
27. The visa applicant’s conduct in failing to disclose his conviction when entering Australia on six occasions is capable of being “very serious” under paragraph 2.6(c) of Direction No. 21 because it involves a false statement to the immigration authorities. The visa applicant gave various reasons for failing to declare his conviction on his IPCs. These really amount to the contention that he did not intentionally mislead the Australian authorities. It is submitted that the seriousness of the visa applicant’s conduct in this respect is mitigated by his broader conduct when applying for visas, which has been generally honest and forthright:
(a) The visa applicant, in all, made nine applications for visas to Australia. On the six occasion that he made an application in person, he disclosed his conviction: August 1993 (Visitor visa), April 1994 (permanent residence refused), December 1994 (Visitor visa not used), September 1995 (Visitor visa), October 2002 (Visitor visa refused), January 2003 (Spouse visa refused). The only time that he did not disclose his conviction was in his three ETA visa applications.
(b) It is submitted that the visa applicant’s explanation for failing to disclose his convictions on his three ETA visa applications should be accepted. The delegate accepted this explanation. There is no evidence that the visa applicant was provided with the leaflet containing information about the need to provide details of his convictions on his ETA visas. The visa applicant’s conduct, in ceasing to apply for ETA visas as soon as he found out that he was required to disclose his convictions, is consistent with this account.
28. Of course the visa applicant’s conviction should have been disclosed on his IPCs, as he has now accepted. However, on balance, it is submitted that this conduct, in all the circumstances, is capable of being regarded as not “very serious”.
The likelihood that the conduct may be repeated:
29. The evidence strongly suggests that there is no likelihood that the visa applicant’s criminal conduct will be repeated. All of the evidence, including the circumstances of the offence and the visa applicant’s faultless record before and since the offence, indicates that this was a tragic “one-off” incident that will not be repeated. There was no evidence whatsoever for the delegate to make a finding that there was even a “very low” risk that he would re-offend; at least no more than any risk that might apply to any other visa applicant.
30. The grant of a visa would obviate any need to avoid disclosure by the visa applicant of his conviction. However the Tribunal may have a residual concern, gauging by the visa applicant’s conduct with his IPCs, he may be tempted not to be completely open in other dealings with Australian government authorities. It is submitted that, for the reasons set out above, this is highly unlikely.
General deterrence:
31. The element of general deterrence, in the context of the protection of the Australian community, is directed to cases involving persons who have committed offences in Australia or in relation to their migration to Australia: see Patel v. Minister for Immigration [2002] AATA 78 at [47], per Gray J:
In the consideration of the cancellation of existing visas held by such offenders, or the possible grant of new visas to them, the decision-maker must have in mind the need to bring home to other non-citizens already in Australia the consequences to them of conduct that would cause them not to pass the character test. In this way, non-citizens in Australia will be dissuaded from such conduct if they wish to remain in Australia, either by retaining their existing visas or by applying successfully for subsequent visas. The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote.
32. In this context, deterrence will have no relevance to the manslaughter conviction. The suggestion that a person might refrain from a “crime of passion” (which was the delegate’s description – Section 37 Documents, p. 9) because of the possibility that he might at some unidentified time in the future be refused a visa, is altogether too remote in the manner suggested be Gray J.
33. In any case, it is submitted that the length of time since the offence was committed and the obvious rehabilitation which has occurred since suggests that the refusal of the visa on these grounds would serve no useful deterrent purpose: cf Richards v. Minister for Immigration [2002] AATA 90 at [33], per DP Handley.
34. The Tribunal will of course recognise that there is an element of general deterrence in refusing visas to applicants who have not complied with their obligation to observe the migration law. Reference has already been made to the factors which might be taken into consideration to balance the seriousness of the visa applicant’s conduct in this respect.
Expectations of the Australian community:
35. Paragraph 2.12 of Direction No 21 suggests that “visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.”
36. However, the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501. As emphasised by Deputy President McMahon in Leha v Minister for Immigration [2000] AATA 1054, at [2.12], there is “a general expectation in the community that the Act would be administered fairly and humanely”.
37. It is submitted that a member of the Australian community who was fully apprised of the circumstances of the manslaughter conviction (including the forgiveness extended to the visa applicant by his children and the family of his former wife), his reasons for “hiding” his convictions when entering Australia, and his genuine relationship with an Australian citizen, would be moved to support the grant of a visa.
The best interests of the child:
38. The visa applicant’s youngest son Steven, will turn eighteen on 21 December 2003. As such, he is still a “child” for the purposes of this application.
39. Relevant issues to be considered in relation to Steven will be his obvious closeness to the visa applicant and the applicant, his wish to stay with them when they migrate to Australia, and his wish to live in Australia himself.
40. It is submitted that it is in the best interests of Steven that the visa be granted.
Other considerations:
41. The following “other considerations” referred to in paragraph 2.17 of Direction No 21 weigh in favour of the visa applicant:
(a) Under paragraph 2.17(b), the visa applicant’s relationship is clearly genuine, characterised by mutual love, commitment and support.
(b) Under paragraph 2.17(c), the evidence is that a visa refusal would cause great hardship to the applicant. She would be unable to return to live in Australia with her family, including her aged grandmother and her ill mother.
(c) Under paragraph 2.17(h), the evidence is that the applicant has never committed any type of criminal offence other than that which led to his 1991 conviction. He has also realised the need to declare his convictions in his IPCs.
(d) Under paragraph 2.17(j), there are significant compassionate circumstances in relation to the visa applicant’s past, his current relationship, and the situation of the applicant and her desire to be with her family in Australia. There is a very real possibility that a visa refusal could lead to a breakdown in the relationship, if the applicant feels as though she has no choice but to return to Australia to assist her family.
(e) Under paragraph 2.17(k), the visa applicant had never previously been advised of the visa refusal provisions.
Conclusion
42. The Tribunal is therefore urged to set aside the decision under review.
3 November, 2003”
7. The Respondent’s Statement of Facts and Contentions dated 25 November 2003 and which in effect constituted the Respondent’s closing submissions reads as follows:
“Respondent’s Statement of Facts and Contentions dated 25 November 2003
INTRODUCTION
This application is for review of the decision of the Respondent delegate made on 9 June 2003 to refuse to grant a Partner visa subclass 309/100 ("the Visa") to Mr Douglas Andrew Ferrie ("the Visa Applicant"). The application for review has been filed by the Visa Applicant's de facto partner Nina Waits ("the Review Applicant").
The Visa was refused pursuant to section 501(6)(a) of the Migration Act 1958 ("the Act") on the basis that the Visa Applicant did not pass the Character Test due to his substantial criminal record within the meaning of section 501(7) of the Act.
The references given are to the pages of the section 37 documents ("Tp...").
FACTS
Date
Event
Ref
27.02.1955
Visa applicant born in Stannington, UK
Tp5, 46, 118
19.09.1974
Review applicant born in Lincoln, UK
Tp3, 114
21.12.1985
Visa applicant's son, Steven Ferrie, born in Carlisle, UK
Tp117
09.12.1991
Visa applicant pleaded guilty to and was convicted of manslaughter and sentenced to 15 months imprisonment
Tp62-3, 65-68
31.08.1993
Visa applicant granted a subclass 674 short stay tourist visa and travels to Australia on 4 September 1993 (for 10 days) and on 16 October 1993 (for 7 days)
Tp210-1
14.02.1994
Visa applicant and review applicant first meet in the UK and commence relationship
Tp98
06.12.1994
Visa applicant granted a subclass 674 short stay tourist visa
Tp210
04.09.1995
Visa applicant granted subclass 676 short stay tourist visa valid for one month from date of arrival. He travels to Australia on 23 October 1995 (for 22 days) and indicates on his incoming passenger card in response to the question as to whether he has any criminal convictions that there is no change to the answer he gave on his last visa application
Tpp41, 47, 209
20.10.1997
Visa applicant granted a subclass 976 electronic travel authority (visitor). He travels to Australia on 4 November 1997 (for 30 days) and indicates on his incoming passenger card that he does not have any criminal convictions
Tpp42, 208
20.08.1998
Visa applicant granted a subclass 976 electronic travel authority (visitor) and travels to Australia on 7 November 1998 (for 22 days)
Tp207
24.01.2001
Visa applicant granted a subclass 976 electronic travel authority (visitor). He travels to Australia on 20 March 2001 (for 18 days) and indicates on his incoming passenger card that he does not have any criminal convictions
Tpp40, 205
18.10.2002
Visa applicant discloses his manslaughter conviction on his application for a subclass 676 short stay visitor visa
Tp45
18.10.2002
Respondent's delegate seeks further information from visa applicant concerning his subclass 676 short stay tourist visa application
Tp48
13.11.2002
Letter to visa applicant inviting him to comment regarding possible refusal under s.501 of his subclass 676 visa application
Tp58
30.12.2002
Respondent's delegate refuses to grant a subclass 676 tourist visa to the visa applicant pursuant to s.501(6)
Tp83-9
31.01.2003
Visa applicant applies for the Visa sponsored by review applicant
Tp91-112
17.03.2003
Respondent's delegate seeks further information from visa applicant
Tp185
09.04.2003
Visa applicant's agent provides further information
Tp187
18.05.2003
Letter to visa applicant inviting him to comment regarding possible refusal under s.501 of the Visa application
Tp192
09.06.2003
Respondent's delegate refuses to grant the Visa
Tp5
22.07.2003
Application for review lodged with Tribunal
Tp3
LEGISLATION AND POLICY
Under subsection 501(1) of the Act the Respondent may refuse to grant a Visa if a person does not satisfy the Respondent that he or she passes the Character Test.
Under subsection 501(6)(a) of the Act, a person does not pass the Character Test if the person has a substantial criminal record as defined by subsection (7). Subsection 501(7) of the Act relevantly provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The factors to be considered in the exercise of the power in section 501 of the Act are set out in the Direction – Visa Refusal and Cancellation under section 501 – No. 21 made by the Respondent on 23 August 2001 pursuant to section 499 of the Act ("the Direction"). The Direction is binding on all decision-makers and the Respondent submits that the Tribunal is bound to apply the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
The exercise of the discretion in section 501 involves a two-stage process:
a consideration by the decision maker of whether or not the person passes the Character Test; and
if the person does not pass the Character Test, decision makers are to consider exercising their discretion to refuse an application for a Visa, taking into account primary and other considerations.
CONTENTIONS
Application of the Character Test
Part (a) – Character of the Visa Applicant
On 9 December 1991 the Visa Applicant pleaded guilty to and was convicted of the manslaughter of his then wife and was sentenced to 15 months imprisonment by the Lewes Crown Court, United Kingdom[1]. Accordingly, the Visa Applicant's criminal record meets the definition of substantial criminal record within the meaning of subsection 501(7)(c) of the Act. He therefore does not pass the Character Test.
Part (b) – Exercising the Discretion
If the Visa Applicant does not pass the Character Test, the Tribunal has discretion within section 501 of the Act to refuse the visa. The Direction provides that in the exercise of the discretion "a decision maker should have regard to three primary considerations and a number of other considerations" and that "decision makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations".
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Respondent contends that, taking into account the seriousness of the Visa Applicant's conduct, the risk that he may re-offend 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
The Visa Applicant was charged with the murder of his then wife by strangulation, committed on 9 December 1991 and pleaded guilty to the lesser charge of manslaughter for which he was convicted and sentenced to 15 months imprisonment. The Respondent notes that the crime was committed in circumstances where the Visa Applicant's then wife was having an extra-marital affair and at a time when the Visa Applicant was "reactively depressed". These circumstances were reflected in the sentence imposed[i]. Nevertheless, the court found the Visa Applicant criminally responsible for his actions and imposed a sentence which the Australian Government regards as "substantial".
The Direction states, at paragraph 2.6(f), that the offence of manslaughter is considered by the government to be very serious. Further, paragraph 2.7 of the Direction advises that it is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community.
Paragraph 2.7(b) relevantly provides that crimes involving violence are especially repugnant to the whole community.
The Respondent contends that the seriousness of the Visa Applicant's conduct is compounded by the fact that he failed to declare his conviction to Australian Immigration authorities on 6 occasions between 4 September 1993 and 20 March 2001.
The Direction states, at paragraph 2.6(c), that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. Having regard to the Direction, the Respondent contends that the Visa Applicant's conduct, by indicating on his incoming passenger cards, in response to an unambiguous question, that he did not have any convictions (when he knew he did), is very serious.
The Tribunal in the past has also treated immigration malpractice as very serious. In Lachmaiya v DIEA (1994) 19 AAR 148, Deputy President McMahon noted, at paragraph 35, that:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications ...Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld."
The Respondent notes that the Visa Applicant has provided a number of explanations in response to the Respondent's allegation that he failed to declare his convictions to the Australian Immigration authorities, namely:-
That he declared his conviction when applying for visas in Australia 1993 and September 1995;
That he did not think it was necessary to disclose his conviction again on subsequent occasions;
That he thought his conviction was regarded as "spent" and therefore it was not necessary for him to declare it; and
That he failed to declare it out of "embarrassment" and to avoid the "prospect of being questioned by Customs officials on very personal and private details while others are queuing behind at Passport Control".
The Respondent contends that the Tribunal ought not to accept these explanations for the following reasons:
There is no evidence of the Visa Applicant having disclosed his conviction in relation to his previous successful visa applications. The only evidence before the Tribunal of the Visa Applicant having declared his conviction is in his subclass 676 short stay visitor visa application[ii] and in his application for the Visa the subject of this review[iii], both of which were refused pursuant to section 501 of the Act. The Respondent contends that the Tribunal ought to find that the Visa Applicant did not disclose his conviction in his previous successful visa applications.
The subclass 976 electronic travel authority (visitor) visas granted to the Visa Applicant on 20 October 1997, 20 August 1988 and 24 January 2001 were each subject to condition 8528 which provides that the holder must not have a criminal conviction for which the sentence is for a total period of 12 months or more. Accordingly, the Respondent contends that those visas simply could not have been granted to the Visa Applicant had the Australian Immigration authorities been aware of his conviction.
The Respondent contends that it is inherently unlikely that the Visa Applicant disclosed the existence of his conviction on previous occasions in light of the fact that on those occasions when the Tribunal can be certain that the conviction was disclosed the visa application was refused.
The Visa Applicant's explanation for failing to declare his conviction in earlier visa applications on the basis that he understood his conviction was "spent" and therefore was not required to be disclosed, is inconsistent with his subsequent disclosure of his conviction in his subclass 676 short stay visitor visa application made on 18 October 2002 and the current visa application made on 31 January 2003. In any event, the Respondent contends that the question on the incoming passenger card is unambiguous, viz. "Do you have any criminal convictions? Yes/No".
The Respondent contends that the embarrassment an applicant for entry into Australia might feel for his or her criminal history should not be accepted by the Tribunal as a sufficient excuse for failure to be open and honest with Australian Immigration authorities in relation to a matter which is clearly important to them.
The Respondent contends that, in light of the above, the Visa Applicant's conduct demonstrates a deliberate attempt to conceal the existence of his criminal past from the Australian Immigration authorities. The Respondent further contends that it is open to the Tribunal to find that the most plausible explanation for this conduct is that the Visa Applicant knew that such information was important to the Australian Immigration authorities and feared that if such information became known to them he would not be permitted to enter or stay in Australia - as has been the case on those occasions on which the Tribunal can be certain that the Visa Applicant's criminal history has been disclosed.
The Respondent contends that the Tribunal ought to regard the totality of the Visa Applicant's conduct as very serious.
The risk of recidivism
In Beale and Minister for Immigration and Multicultural and Indigenous Affairs (AAT) [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
"In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community."
The Visa Applicant has shown a disregard for Australian laws in order to obtain advantages for himself. The Respondent contends that this conduct, which has occurred on more than one occasion, indicates that there is a real risk that the Visa Applicant will not respect Australian laws if he is allowed to enter Australia.
Further, in respect of the Visa Applicant's manslaughter conviction, the Respondent accepts that the offence was committed under extenuating circumstances. Nevertheless, the Visa Applicant has demonstrated a capacity to take the life of another human being, albeit under extreme circumstances. Accordingly, the Respondent contends that it is not open to the Tribunal to find that there is no risk that the Visa Applicant could commit a further act of violence or "crime of passion" and that even if the Tribunal was to find the risk of the Visa Applicant re-offending in that manner to be very low, the Respondent contends that any risk of that kind is too great a risk to impose on the Australian community.
The Respondent also notes that the Visa Applicant has only recently claimed to feel remorse in respect of his immigration malpractice. Previously, he has sought to justify his actions with explanations which, as discussed above, the Respondent contends are unconvincing and in some respects implausible and ought not to be accepted by the Tribunal. Accordingly, the Respondent contends that the Tribunal ought to place little weight on the Visa Applicant's claims of remorse.
For these reasons, the Respondent contends that the Tribunal ought to find that there is a risk that the Visa Applicant may breach Australian laws in the future if it suited him to do so.
General deterrence
The refusal of the Visa will send a clear message to others that conduct of the type engaged in by the Visa Applicant will be likely to prevent the grant of a Visa.
In Re Ayaad and MIMA [2000] AATA 935 at paragraph 47, Purvis DP stated that:
"These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered."
Expectations of the Australian community
The Respondent contends that, in light of the serious nature of the Visa Applicant's criminal conviction together with his failure to disclose the existence of that conviction to Australian Immigration authorities, despite having numerous opportunities to do so, the Australian community as a whole would both expect and support the refusal of the Visa to the Visa Applicant.
The Respondent also notes Deputy President McMahon's finding in Haines v MIMA 2000 AATA 575 at [26]:
"The community's expectation is that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled".
Best interests of the child
There are no children from the relationship between the Visa Applicant and Review Applicant. However, the Visa Applicant's son born on 21 December 1985 has indicated an intention to migrate to Australian with the Visa Applicant. The Visa Applicant's son will turn 18 years of age on 21 December 2003. Accordingly, to the extent that he remains a "child" for the purposes of this application the Tribunal is bound to regard his best interests as a primary consideration.
The Respondent contends that refusal of the Visa is not inconsistent with the Review Applicant's son's best interests. In this regard, the Respondent notes that his formative years were spent in the United Kingdom, his siblings, aunts, uncles and grandparents all reside in the United Kingdom, apart from the Visa Applicant (who is usually resident in the UK) he does not have any family in Australia, he has only visited Australia once in 1997 for 4 weeks and currently resides in a country which enjoys facilities and opportunities equivalent to those available in Australia.
The Respondent notes the Review Applicant has raised the possibility that she may return to Australia to be with her family even if the Visa is refused. If in that event the Visa Applicant's son is separated from the Review Applicant, the Respondent accepts that the emotional hardship that he may suffer as a result would not necessarily be consistent with serving his best interests. However, the Respondent contends that in light of his age and the other factors noted above, it is open to the Tribunal to find that such separation would not adversely impact upon his best interests. Certainly, at his age the impact would be limited.
Further, the Respondent contends that this consideration does not outweigh the other primary considerations referred to above.
Other considerations
With respect to the other considerations listed in paragraph 2.17 of the Direction, the Respondent contends that the Tribunal should have regard to the following:
Apart from the Review Applicant's family, the Visa Applicant does not have any other family, business or other ties to the Australian community;
The Visa Applicant is in a genuine de facto relationship with the Review Applicant;
The Respondent accepts that the Review Applicant's family members in Australia may suffer some emotional hardship if the Visa is refused and the Review Applicant chooses to remain in the United Kingdom. However, the Respondent contends that the Tribunal ought to give this little weight as the Review Applicant has chosen to spend the best part of the last 10 years in the UK so has been apart from her family for a long time by her own choice. Further, there is no evidence that they would suffer any financial hardship. Nor is there any evidence that the care and support which the Review Applicant proposes to provide to them if the visa is granted (and possibly even if the visa is refused,) is necessary to ensure their future care.
It is open to the Tribunal to find that if the visa is refused and the Review Applicant chooses to relocate to Australia without the Visa Applicant then she would suffer emotional hardship. However, the Respondent contends that the Tribunal ought to give this little weight, as any hardship so caused would be as a result of a deliberate choice on the Review Applicant's part.
In addition, the Respondent contends that visa refusal would not necessarily result in emotional hardship to the Review Applicant if she choses to remain in the UK as she has been apart from her family as noted above for the last 10 years by her own choice. Further, there is no evidence that there is any legal impediment to the Review Applicant visiting her family in Australia. Nor is there any evidence of any legal impediment to her family members visiting her in the United Kingdom;
Apart from the Visa Applicant, the Review Applicant's family all reside in Australia. The Visa Applicant's family all reside in the United Kingdom;
With respect to whether there is any evidence of rehabilitation and any recent good conduct, the Respondent notes that the Visa Applicant has remained conviction free for the last 12 years. However, his immigration malpractice referred to above was repeated on a number of occasions in that same period;
The application is for a temporary visa. However, it is open to the Tribunal to find that should the Visa Applicant be granted the visa he would in due course apply for a permanent visa based upon his relationship with the Review Applicant;
The Visa Applicant has previously been refused a subclass 676 tourist visa on character grounds. No review was sought on the Visa Applicant's behalf in relation to that decision. There is no evidence that the Visa Applicant's or the Review Applicant's circumstances have significantly changed since the refusal of that visa.
The Respondent contends that on balance, the other considerations referred to above are equivocal in respect of either the grant or refusal of the visa. In any event even if the Tribunal were to find that the other considerations weigh in favour of the Visa Applicant, the Respondent contends that the other considerations do not outweigh the primary considerations of the need to protect the Australian community, including the integrity of the Australian Immigration system, and the expectations of the Australian community.
CONCLUSION
The Respondent contends that the Visa Applicant does not pass the Character Test as a result of his substantial criminal record. The primary considerations of the protection and expectations of the Australian community outweigh any hardship to the Visa Applicant and Review Applicant such that the discretion in section 501 should not be exercised in the Visa Applicant's favour.”
8. The sentencing remarks of Mr Justice Buckley who presided at the Lewes Crown Court in the United Kingdom when sentence was passed appear at Tp67 and Tp68; they read as follows:
“HR JUSTICE BUCKLEY: Douglas Andrew Ferrie he Court has heard and listened to a very moving account of events that led up to this tragic incident.
I have had placed before me medical evidence, strong medical evidence, from more than one doctor to the effect that your responsibility and perception of your actions was very substantially impaired. I am told – and I have no reason to doubt – that your own recollection of events immediately before your wife’s death has gone but the fact remains that a life has been taken and inevitably the Court must take a very serious view of such a matter.
Public perception is not limited to your immediate family and friends, although, of course, I use their reactions as some touchstone.
I am also, of course, taking into account the urgent needs of your children. I take into account your good record, your plea, your co-operation and perhaps above all, the resilience you showed almost to the end in the face of what Mr Townend, on behalf of the Prosecution, has recognised would have amounted to provocation in point of law. The plea which he has accepted is, of course based on diminished responsibility and medical evidence.
At the end of it all I take the view that I would be failing in my duty if I did not mark what has happened by a prison sentence. However, I do feel that there is room for the Court to take a merciful view in all the circumstances and keep that sentence as short…(some of the words are illegible)…consistent with my duty.
In all the circumstances, the sentence I pass is one of fifteen months imprisonment.”
9. I note that in accordance with Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 I am bound by the remarks and conclusions of the sentencing judge. I note furthermore that the sentencing judge had before him strong medical evidence to the effect that the Visa Applicant’s responsibility and perception was very substantially impaired. The facts in this case are reminiscent to a considerable extent of those in “SROO” v Minister for Immigration and Multicultural Affairs [2000] AATA 999, a decision by me handed down in 2000, and in which I found that the applicant in that case should not be refused Australian citizenship on the grounds of character. The facts are similar to an extent which might be categorised as eerie. In each case a faithless woman was strangled by her husband in circumstances which, at the very least could be construed as severe provocation. In each case there was strong evidence of diminished responsibility. In each case a custodial sentence was imposed. In the case of the Visa Applicant the sentence was 15 months; a period of ten months only (with time off for good conduct) was served. It may be noted that the Visa Applicant was charged with murder but that he was convicted of manslaughter. The Visa Applicant refused (midway through his sentence) a transfer to a minimum security prison because it would take him too far away from his three young children.
10. A very lengthy statement by the Visa Applicant was prepared at the time of his conviction. It appears at T69 to T82. I set out only the contents of Tp70 to Tp73 commencing with the third paragraph on Tp70 and ending with the numbered clause five on Tp73 as follows:
“When I learned of her latest affair with Martin Yorkshire on the 20 May 1991, six weeks before Linda died, I was obviously deeply hurt again, but my reaction was that I still love my wife very much and I hoped our marriage would again survive. More than anything, I wanted to re-assure Linda of my feelings, be strong and stable for her to lean on in this difficult time and look to the future with optimism and understanding. During this six week period, Linda and I had many thorough conversations about the situation and she confided to me, in great detail, the many aspects to her relationship with Yorkshire. It became obvious that this was not a normal, loving relationship by any standards. For Linda it was a very one-sided, obsessive relationship with her wanting more from it than Yorkshire was prepared to give. As a result, many awful things were inflicted on Linda as she was used and reused when Yorkshire took advantage of this situation over a period of six to nine months. Some of the worst examples are:
(1) Yorkshire said to Linda one day in late April, early May (before I knew of the affair) that he thought our nine year old daughter – Melanie, would be “a little cracker when she was older” and he would “Love the chance to have sex with her”. He then said “would’nt that be something, to have had both Mum and daughter?” Linda was shattered that he could stoop so low and say something as perverted as this. That same day, she consumed nearly a bottle of gin and when I arrived home from work I found her in a terrible state and had to take her to hospital with alcohol poisoning. She explained to me at the time she was merely depressed.
(2) Yorkshire never made a secret of the fact to Linda that he had many intimate relations with other females, mostly married like herself. Throughout their relationship he would not only compare the merits of each one to Linda, but would very coldly dismiss Linda and instruct her when to “keep out of the way.” Apparently, Linda used to constantly monitor the “traffic” at Yorkshire’s house and note all the female activity. On one occasion when she was told to “keep out of the way”, Yorkshire even had the audacity to suggest to Linda that she took refuge with a friend of his who had told him how attracted he was to her. She lowered herself to do this and had a brief sexual encounter with the friend before being told he did not want to repeat it in case his girl-friend found out.
(3) Yorkshire had been violent towards Linda on several occasions, although I have only ever seen one large bruise on her arm that was caused by him (see my police statement). She told me he was forcibly removed her from his house “more than once.” The fact that he physically bruised Linda, who has always been very precious to me, hurt me much more than any sexual relationship. Linda also told me that he had fought and punched a previous long term girl friend (Sarah Whitcher) many times over a long period.
(4) About a week before we went on holiday and the phone contacts from Yorkshire to Linda were still continuing she decided to write down a list of the more awful things that Yorkshire had said to her during their relationship. The objective was to tape this list to the wall above our telephone so that she would remind herself of the type of person Yorkshire was every time he phoned. She was aware he could exert undue influence over her and she felt she needed this reminder in order to resist. There were about 12 phrases, some of which were:
(a)You are a neurotic tart
(b)Sod off back to your husband
(c)You are no where near the class of Debbie (another girl friend)
(d)Get back to what you are good at – cleaning
(e)You are just a wet wanker
(f) I’ll have Nicky’s virginity before the year is out, you watch (a 15 year old next door neighbour of his)
(g)You are too much of a whore for your own good.
This list was stuck up in our hall, above the phone, for all to see, not just myself, but our children and my friends or neighbours who popped in! If I had torn it down, I would have been accused of interfering with what she felt she had to do. Also, I wanted to believe it would help her resist Yorkshire.
I do not think anyone can imagine what the children and I felt about seeing this list every day (it was destroyed by Linda on the day we left for our holiday).
(5) In April, Linda stole a document from Yorkshire’s house which could be used in evidence against him to prove he had illegal possession of goods worth about £2,500. I am told he had stolen these goods himself and his associates were all aware of this. I also believe Yorkshire has a previous criminal record. The point is, Linda felt that she needed this “leverage” against Yorkshire in case he tried to threaten her or get nasty with her. This document is still at my house.”
PART B – THE EVIDENCE OF THE APPLICANT
11. I do not think that I need to go into great detail as regards the evidence of the Visa Applicant. Suffice it to say that her evidence was entirely credible and I accept it. Questions were put to her by Mr Grimm which asked her to hypothesise disbelief as to certain aspects of it by the Tribunal. There is no aspect of her evidence which I do not believe.
12. In respect of Exhibit A4 I include its contents but limited to clauses 13 to 34 (both inclusive) as follows:
“Our visits to Australia and visa applications
13. As I very much missed my family in Australia and my home, I knew I would be travelling back and forth to Australia as much as was reasonably possible. I also hoped Doug would travel and spend time with me and my family in Australia as well.
14. I returned to Perth on 24 August 1993 to visit my family. Whilst I was in Perth, Doug went to Australia House to apply for a visa to be able to join me in Perth. I do distinctly remember Doug telling me that he went to Australia House as he mentioned that he went with his son, Steven, to make a day-out of the trip to London. He also confirmed to me that he had fully declared his conviction but they showed no concern of this and issued him with a visa over the counter.
15. Doug arrived in Perth separately on 4 September 1993 for a short visit and then again on 16 October 1993, using the same 'multiple travel' visa. When Doug arrived in Australia these times, I was not surprised he was granted a visitor visa. Prior to him applying for a visa, we did not discuss the possibility that Doug might not get a visa due to his recent criminal record. To be totally honest, I did not even think his criminal record could have been an issue for granting a visitor visa.
16. On these occasions I had no knowledge about his false Incoming Passenger Card. This was not something we discussed as we had so many different issues on our minds at the time.
17. In April 1994 when we chose to make an application for an Australian permanent visa for Doug we did discuss the effect of Doug’s criminal record. I do remember seeing the section Doug had completed declaring his criminal conviction. At this time, I did not believe Doug's criminal conviction would effect Doug being granted a visa. I believed this to be true as he had been given a visa by Australia House in 1993.
18. I was totally devastated and shocked when Doug’s visa was refused. We received a letter from our agent who had helped us complete the application and in this letter he stated he believed the application was turned down due to Doug's recent conviction. He said he believed that if more time had elapsed he thought he would have been granted a visa. After reading this I believed there was hope for a visa being granted in the future. I knew Doug would never commit another crime in the future and I believed, with time, this would show he is no threat to others in any way. I also believed, as Doug had been allowed to enter Australia on a number of visitor visas, this showed Australia House's opinion that he would not be a threat to anyone, otherwise he would not have been allowed to enter the country at all. I was happy in the knowledge, that if Doug was harmless in their eyes on a visitor visa, he was harmless to others on a permanent visa.
19. In October 1995 Doug and I went to Australia House for Doug to apply for another visitor visa. Again I know he fully declared his criminal conviction. The visa was approved, although restricted for one month travel only. We thought this was because of the fact we had recently had an application for a permanent visa refused. Once we had this visa, we arrived together in Perth on 23 October 1995. On this occasion I did see Doug's completed Incoming Passenger Card. To be totally honest I did not say anything about it to Doug, although I now know I should have. In my mind, I thought Doug must have felt it would be a daunting process to be questioned by Customs regarding his past. I knew Doug was travelling on the correct visa as he had declared his criminal conviction to Australia House when applying for this visa. I knew Doug would not be refused entry, but I knew if he had declared the conviction on the incoming passenger card, this would delay him at Customs. As I thought it would not effect the outcome, I did not like to put Doug in a difficult situation for him to be questioned by customs about his past, so I did not mention it.
20. I do remember thinking the Incoming Passenger Card was to track visitors entering and exiting Australia and so at the time I did not think this was important. I knew Doug would exit Australia in the required time, so I did not think this would be a problem. But I do give my full apology for this, as I now realise it is an important document and even though he was travelling on a correct visa, the Incoming Passenger Card should still be completed correctly.
21. In 1997 we again decided to go to Australia. I recall phoning a discount travel agency to book a flight to Perth for myself, Doug and Steven. When I was inquiring about tickets, I explained to the operator that I was travelling with two non-Australians. The travel operator told me there was no longer any need to apply directly to Australia House, as there is a new system, called ETAs. I gave both Doug Ferrie and Steven Ferrie's name and I was told to hold the line. When she came back to the phone, she said both ETA visas had been approved. We then booked the flights. When we later received the plane tickets in the post we also received an electronic confirmation sheet saying ETA approval. I do remember Doug taking this with him on his flight, in case Customs wanted to see he was approved.
22. There was definitely no sheet or pamphlet explaining anything about ETAs with our flight tickets. Myself and Doug had no reason to discuss whether Doug should be declaring his criminal conviction, as I believed the ETA was a check to see if each individual should enter the country or not. I had no reason to doubt a visa would be granted, as at this stage three previous visas had been granted. I believed the Australian authorities had changed the system, from paper visas to electronic visas like the travel operator had told me. I did not think I had to declare Doug's conviction on the telephone to the travel operator, as I believed this would be checked through the ETA check. I remember telling Doug the paper system had been replaced by electronic visas. I also told him once the booking was complete, that he had ETA approval.
23. The same method of travel was used in 1998 and 2001. Each time our tickets arrived, we never had any details explaining about ETAs.
24. When I travelled with Doug on 4 November 1997 and 7 November 1998 I did see Doug's completed Incoming Passenger Card and saw he did not declare his criminal record. I naively did not think there was a problem with this, as I again knew Doug was travelling on a correct visa and believed Australia House were well aware of Doug's conviction. I also knew Doug would not outstay his three month restricted stay. I now know I should have said something to Doug and I am truly sorry I didn't. Myself and Doug have since spoken about this and I can honestly say, he would never not declare his criminal record on an Incoming Passenger Card any time in the future.
25. Early in March 2001 I travelled alone to Perth and Doug followed me and arrived in Perth on 20 March 2001. As I did not travel with Doug I had no knowledge of his Incoming Passenger Card. As I had booked Doug's ticket for him before I left for Australia and had been told his ETA was approved by the Travel operator, I was content in knowing Doug was on a correct visa, which meant Australia House was aware of his conviction. We did not discuss his Incoming Passenger Card details at any time.
26. In August 2002 Doug told me he had been looking at the DIMIA website on the internet. He told me he read that people with criminal convictions or health problems should not travel on an ETA. After I read this detail for myself on the website we discussed this at length. We were so shocked and couldn't believe the mistake I had made. I again told him what the travel operator had told me on the phone and he was telling me he remembered when I booked the tickets and told him the operator had said he had been approved. I felt terrible for the mistake I had made. May I please say, I am extremely sorry for not thinking to question the travel operator regarding ETA's. This was an honest mistake on my part, and I feel awful that down to my actions Doug travelled unknowingly on a false visa. I would never approve of Doug travelling on a false visa.
27. As soon as we both knew the ETA system didn't apply to Doug we both agreed in future we would apply to Australia House for a paper visa, as Doug had previously done on many other occasions before the ETA system was in place. In October 2002 both myself and Doug wished to go and visit my family again in Australia. As we now knew the ETA was not applicable to Doug, we both went along to Australia House in person to apply for a paper visa for him. I was very surprised when this was refused, after they had considered it for nearly three months, as Doug had been granted a visa a number of times in the past. I couldn't understand why visas had been granted in the past, but he was being declined a visa now. The only thing which had changed was time, and we thought if anything this would be in our favour.
My desire to return to live in Australia
28. I am very close to my family in Australia, in particular with my Mum, Dad and Grandmother. Over the last ten years whilst living in the U.K. I have kept in regular weekly contact with my family. I have also been going back to Australia on a holiday to visit my family yearly, and when possible more often, as it is very hard being separated from them.
29. My Mum is disabled with polio and it breaks my heart to know that, due to the distance between us, I am not able to do the things I did for her when I lived in Australia. My Mum needs my support and help for many things, which she is unable to do for herself. On top of my Mum's disability, she has also been through some difficult times health wise. Unfortunately in 1988/1989 she suffered from an embolism, which is like a heart attack. There have been two other instances since I have been living in the U.K. when her doctor, Dr Turnbull, has sent her to hospital. Her doctor has said if she gets any further pains in her chest at all, she has to see him straight away as she is a "heart attack risk" patient. This is brought on by stress, as well, as other things. I feel extremely guilty about this, as I do not think this would have happened if I had been there for her. I do not want to cause her "episodes of anxiety and mild depression which are in part related to the stress of separation from her daughter". These are the words of Dr Turnbull, which he used in his statement on 18 January 2003 in support of our initial application. Dr Turnbull has strongly supported our application to return to Australia to be with Mum.
30. Due to the pressure that Mum has been putting on her wrists and arms in order to push her wheelchair or to use her crutches, she had to have an operation in August 2003 on both her wrist and shoulder. She has also had another operation after that, which resulted in another two weeks in hospital, being finally discharged on 12 September 2003. Obviously I would have liked to have been there to support her over this period. Due to the weakness in Mum's hands, although she has had the operation, she has now needed to buy an electric wheelchair. If she had carried on the way she had been, another operation would have been inevitable. I would like to be there for her as soon as possible to do many of the things she is finding harder and harder to do herself as time goes on.
31. I am desperate to go back to live in Australia, to be closer to my Mum, as I am sure with time going on her condition will only worsen, especially if I am not there with her. I do not want to put her under any more stress in any way.
32. It also hurts me very much to see my Grandmother’s health becoming worse as time goes on. My Gran and myself have a very close relationship and we have a special bond between us. My Grandmother is registered blind and is finding many things harder and harder to do for herself. My Gran only has 3% left of her vision in one eye. Some years ago, she had an operation to remove her stomach due to cancer and she has since struggled to cope with every day life. She is only mobile with the use of a wheelchair. Up until August 2003 she was living with her second daughter, Bernadette Checketts, who has now moved out of the area to be with her new husband to be. Due to this, my Gran has moved into her own house and is now completely on her own. My hope was that if our application was successful she would be able to live with us so that myself and Doug could support her on a daily basis. At the moment the only support she receives is from my parents, but this is obviously minimal as my Father works full-time and my Mother has her own difficulties as outlined above.
33. Since my Gran has moved into her own place, I have been speaking with her on a very regular basis on the telephone and through audio tapes. It breaks my heart to hear how she is struggling to cope with every day life. My Gran is unable to do every day things, like preparing meals, and even opening tins, due to her arthritis. There are many normal every day things we all take for granted which she is unable to do herself. For many months now, my Gran has been housebound. When I visited my Gran in the past, I have taken her out in the wheelchair as much as I can, to relieve the monotony of days she has at home alone. When I am not there, there is no-one to take her out. If my Mum was in a position to do this, she would love to, but as she is in a wheelchair herself, she can not push my Gran in a wheelchair if they were to go out together. It really upsets me to think of the months passing by, when I so much want to be there for her and make her remaining time left as happy as possible.
34. I did NOT at any time tell Ms Garrett (Australia House, London) that if the visa was refused I would stay in the U.K. with Doug. As I mentioned above, over the last ten years many things have changed, particularly in relation to the health of my Mum and my Gran. This has made me re-think my future. As much as I detest making a decision between my partner Doug Ferrie in the U.K. and my family in Australia, I can see my family's needs (health wise) is more demanding. I can no longer only visit my family for two or three weeks a year as I have previously been doing. This is not a sufficient length of time for me to spend with my family once a year. I had contemplated, if Doug's visa was refused, the possibility of spending six months of the year in Australia with my family and six months of the year with Doug and his son Steve. After giving this a lot of thought, I do not think this is fair and it is unsettling on Doug and Steve. I also do not think it would help my family in the end to support them for six months and to then take this away from them for the second part of the year. I also feel this will be very unsettling for myself and something that could not be kept up long-term. This is why I feel the only other option is to be there for my family and to maybe move back to Australia, as distressing as this would be for me.”
13. The Applicant is a young lady of good character who is brought up by caring parents. She has one brother. Her father (who has for many years been engaged in the insurance business) was seconded to Australia in 1986. When she wished to travel in the United Kingdom and Europe for a period, her father, who had been friendly with the Visa Applicant in the United Kingdom when they were employed in the same company, selected him as suitable to furnish a base. Although there is a considerable difference in age, a close relationship developed and the Visa Applicant and the Applicant have lived together for the past ten years. They are at present engaged in their own securities training business, having recently sold a health and nutrition business as a going concern, and which was developed by them.
14. The Applicant’s devotion to the Visa Applicant cannot be doubted and in fact the strength of their relationship is not an issue.
15. The Applicant was asked what she would do if this case went against her. The decision is a difficult one. Her grandmother, Mrs Jones is 75, blind and in need of care. Her mother is confined to a wheel chair; an operation to correct leg stiffness following polio in 1953 was unsuccessful. Her father has a full time job and finds it difficult to undertake all of the household tasks in addition. Her brother has a job which requires him to travel to the eastern states from Western Australia for about ten days each month. The Applicant does not wish to leave the Visa Applicant to whom she is devoted; at the same time she feels committed to assisting with the care of her mother and grandmother. Her sentiments do her credit.
16. I should note that the cross-examination of the Visa Applicant was perfunctory. That this is so does not in anyway reflect on Mr Grimm. There is not much which can be done when the witness is demonstrably honest.
PART C – THE EVIDENCE OF PHILIP WAITS, THE APPLICANT’S FATHER
17. As I have noted, Mr Waits, who lives in Perth, was transferred to Australia in 1986. (I do not think it necessary to quote from his reference letters because of T55 and T133).
18. Mr Waits worked with the Visa Applicant in the United Kingdom and knew him and trusted him as a close family friend. The relationship was such that when the Applicant wished to travel (at a time when she was in her late teens) the Visa Applicant was the person chosen by him to furnish a base. He was chosen because Mr and Mrs Waits had absolute faith in him. This is so notwithstanding the manslaughter conviction of which they were fully aware.
19. Although the age difference between the Visa Applicant and the Applicant is such that Mr and Mrs Waits were at first somewhat shocked by the developing relationship and the dates of birth for the Visa Applicant and Applicant (on 1955 and 1974 respectively). They came to realise that the Applicant was seeking a relationship with someone similar to her own parents.
20. Mr Waits spoke of his mother-in-law’s blindness and her need of care, and his wife’s incapacity. She cannot travel otherwise than in first class, because economy class seats are not adequate. She’s ill frequently and has undergone four procedures in this year alone. She and also his mother-in-law are deeply committed to the Applicant who reciprocates their devotion.
PART D – THE EVIDENCE OF THE VISA APPLICANT
21. It is of course the Visa Applicant whose character is in issue. In respect of his evidence in chief, Mr Poynder asked him to attest the truth of his statement, Exhibit A4 and sat down. Exhibit A4 deserves repetition in full in these reasons as follows:
“STATEMENT OF DOUGLAS ANDREW FERRIE
Personal background
1. My name is Douglas Andrew Ferrie. I was born on 27 February 1955 in Morpeth, in the county of Northumberland, United Kingdom. I lived with my family nearby in Blyth, Northumberland until I was nine years old and then we moved to Lincoln for my father to start his career as a Prison Officer at Lincoln Prison in 1965. My mother also began part time work, which later led to full time, as a P.A. to the Branch Manager at the Royal Insurance Company in Lincoln. My brother was born in 1959 and we had a very stable and normal family up-bringing. My parents were always very caring and loving and my childhood was happy.
2. I qualified to attend Lincoln Grammar School in 1966 and completed my secondary education there. My brother followed me to the same school in 1970. I left Grammar School with six 'O' level qualifications and continued my studies part-time at Lincoln Technical College whilst working full time at a poultry factory for job experience. This lasted two years until I achieved a further two 'O' levels, one 'A' level, and a National Certificate in Business Studies. I then started full time work as a Trainee Accountant with General Accident Insurance Company (later to become CGNU) in 1974 at their Lincoln office. It was here that I first met, and worked under the guidance of, Philip Waits who became a close friend and with whom to this day I have remained in contact.
3. After basic training at General Accident, Lincoln I was then sent to work in various General Accident offices throughout the UK as part of a small mobile support team. This continued until 1978 when I successfully applied for promotion to a permanent position at their Southend, Essex branch as Assistant Accountant. It was here that I later met my future wife, Linda, in 1979 when she came to work for General Accident. I had purchased my first property in Southend in 1978 and Linda moved in with me soon after we met in July 1979.
4. In 1980 I was promoted to Branch Accountant in Banbury, Oxfordshire, and Linda and I moved house there in March 1980. Later that year, our first daughter, Sarah was born. Our second daughter, Melanie, followed in February 1982. In 1984 I was again promoted, this time to a larger branch in Carlisle. We again moved house and the following year our son, Steven, was born in December 1985.
5. During this time, I had been studying by correspondence course since 1983 to obtain an Accountancy qualification. I finally achieved this in 1986 and became a MAAT (Member of the Association of Accounting Technicians). Using this new qualification, I decided to leave General Accident in 1986 and seek a more senior Accountant position in the corporate arena. I began working for a company called Sphere Drake Insurance PLC as a Financial Accountant, responsible for preparing all their annual accounts. This position was originally located in Croydon, London, which meant another house move. Later their head office was relocated to Brighton, Sussex in 1988 and we then undertook another house move to Westham, near Eastbourne, Sussex in 1989 to be close to this new office. I continued to work for Sphere Drake in Brighton up to June 1991 and had established myself as part of the senior management team.
The circumstances of my criminal conviction
6. On 30 June 1991, I was responsible for the death of my wife. Obviously, this was a serious offence, which I do not wish to minimize. But in mitigation there were exceptional circumstances, which were reflected in the length of sentence passed. Much of the information relating to this offence is contained in the documents already provided to the Tribunal. However I will try to summarise the circumstances here.
7. In 1991 I lived near Eastbourne with my wife, Linda, and our three young children, Sarah aged eleven, Melanie aged nine, and Steven aged six. We had purchased a brand new house at the end of 1989 in a small residential development of about fifteen houses and it was very easy to get to know all our new neighbours because we all moved in around the same time. One of these neighbours was Mr Martin Yorkshire who was single and a self-employed double glazing salesman/fitter. Mr Yorkshire got to know my wife and before long he was employing her as his housekeeper and house cleaner.
8. Around mid-May 1991, I learned that my wife was having an affair with Mr Yorkshire but that this was no ordinary relationship. Over the next six weeks, my wife told me various details about the affair which indicated that Mr Yorkshire was 'using and abusing' her at his convenience. My wife became increasingly suicidal in her fragile state of mind as she saw herself as a 'worthless' person.
9. It is with this background that I wrote my fourteen page statement on 4 September 1991 for submission to the Court. In this are all the relevant details, which attempt to describe what went on in this six week period. Most of the detail was also contained in a much longer statement to the Police immediately after I was arrested and is also borne out by numerous witness statements the Police took from our friends, neighbours and family.
Our current situation and future plans
49. I have lived in Gloucester now, with Nina and my son Steven, for over nine years. My relationship with Nina has continued to be loving and caring to this date and I consider we have been in a de facto marriage since our engagement on 14 February 1994, although we did live together prior to this date. Nina has been extremely supportive of me in helping to raise my three children and I have always supported her whenever she feels the need to visit her family in Australia. Nina is an extremely loving and caring person and her 'sunny' personality and thoughtful nature strike everyone she meets. She constantly thinks of other people's feelings, is always prepared to help people in any way she can and is probably the least selfish person I have ever known..
50. We pool any financial resources and jointly decide how and when to spend money after typical monthly costs are accounted for. We have enjoyed several family holidays together, including a three week holiday to Orlando, USA on 11 July 1993, a further two week holiday to Orlando, USA on 9 July 1999, and a two week holiday to Seychelles on 23 December 1999 to cover the new Millennium period. There have also been several holidays to Tenerife and Fuerteventura in the Canary Isles but these are never stamped in a UK passport.
51. Nina and I have discussed marriage plans on numerous occasions over the years but the major obstacle is deciding the location for this. Naturally, Nina's extensive family would wish to see us married in Australia and all of my family would choose to see us married in the UK. Either location would mean a great deal of travel and arranging for the other family. Another factor is that Nina and I both hope to settle in Australia one day so we feel it would be more appropriate to wait until such a time that we are settled before making marriage plans. The fact that we are not married has not been a handicap and we still consider ourselves married in all but name. We have an exclusive relationship and it may well be that we choose not to follow the traditional route of having a marriage ceremony. We feel we can decide this in the future if we consider it appropriate.
52. From May 1996 Nina and I were self-employed working together at home under our partnership name of Healthcare International. Together we built a network of over 500 people, both in the UK and in Australia, and we were responsible for distributing various health and nutritional products direct to customers through this network. We took the decision to sell this business as a going concern in October 2002 as we wished to concentrate on our activities in Financial Trading.
53. In January 2001 Nina and I began working together in the area of Financial Trading. This involves the buying and selling of various Futures and Options contracts on international markets, using our own capital. This type of trading can be conducted anywhere in the world with the assistance of a PC and the Internet so we would intend to continue this activity if we should be fortunate enough to live in Australia. We have been very successful in this business, and our combined income in each of the past two financial years has been in excess of £40,000.
54. Nina and I are also very worried about the health of Nina’s mother and grandmother. After my visa was refused in December 2002 Nina decided to travel on her own, and she visited Perth for three weeks beginning 3 January 2003. From that visit, she quickly realised that circumstances with her family have changed since her last visit as now both her mother and grandmother's health are deteriorating. This obviously makes it more relevant for her to be with her family as much as possible and as soon as possible, and this is the main reason why we brought forward our application to live in Australia to now.
55. I am also applying to have my son, Steven, join us in Australia as my dependant. Steven lives with me in the UK and he is seventeen years of age. He is has recently completed his studies of Law at a local college and has not yet decided on his career path. He is hoping to attend university in the near future but, until we know if we are allowed to live in Australia, definite plans will not be made. We hope that he will have further opportunities to explore his options in Australia if we are allowed. Steven himself would much prefer to live in Australia at this stage in his life and it would not be possible or practical for him to be separated from me to live in the UK. Although my two daughters are now independent and living with their respective partners in the UK, Steven is not at that stage and is still part of the family unit.
56. At present our future is very much undecided. We have hopes and plans if I get a visa to go to Australia, but have no concrete plans if the visa is refused. We very much hope to be allowed a visa to live in Australia and our lives would be so much easier if Nina could spend more time with her family there to make up for the years she has been away. We have a generous amount of personal savings and we would look to purchase a family home close to Nina's family in Perth and contribute to the local community. We also anticipate that Nina's Grandmother will be able to live with us in our new home so we can make her as comfortable as possible in her remaining years. Nina, Steven and myself all enjoy outdoor activities and we would certainly make the most of the warm climate in Perth. We would also carry on our financial trading activities as we are presently doing.
57. It is very difficult to say what we would both do if I am refused a visa. I know the situation we are presently in would be extremely difficult for Nina to continue with. Nina has talked about the possibility of her moving back to Australia to be with her family, and to help them, if the visa was refused. After being with Nina for ten years it is very hard to think of the possibility of life without her for long periods. I also know that my son Steven would be tremendously saddened if this were to happen as he is very close to her. Of course he would be disappointed if we were not allowed to live together in Australia as he is at such an important crossroads in his life and he is hoping that it would be the beginning of an exciting and different way of life.
Concluding comments
58. I have provided numerous statements with my application by members of Nina's family and other close family friends who live in Australia. I trust their testimony will dispel any concern that the Australian community at large would have worries about me not abiding by their traditions and laws. I consider that I have provided sufficient evidence that I do not pose any kind of threat to any community now or in the future.
59. None of my three children have ever held any recriminations against me and they have never shown any bad feeling toward me. We have remained a very close family and to this day I have received their love, caring and support which has been reciprocated in every way. The children have now grown up and are all very well adjusted and honest people. My two daughters are married, one with two children of her own, and my son is continuing his education at college, prior to his aim of going to university. Their individual statements previously supplied confirm all the above.
60. I hope that anyone reading my statements will appreciate that my criminal offence was very much a 'one-off' situation and was not typical in any way of my character or previous behaviour. I have never had any dealings with the Police prior to this incident, nor have I had since. Although the past will always be with me, I hope I have now paid my debt to society. I am positive that the chances of me ever re-offending, in any shape or form, are nil.
61. As for my failure to declare my conviction when applying for ETA visas, I can only submit this was not intentional on my part. I genuinely believed that the new ETA system would be able to cross-check my previous record of visas granted and proceed to issue the correct visa. Having been granted three 'paper' visas already, there was no reason for me to suppose that I would have any problem obtaining further Visitor Visas. In all my dealings direct with Australia House, London there has been no occasion when I have not declared my conviction fully to them when required to do so.
62. The only times that I have not been totally forthcoming about my conviction to the Australian authorities has been in relation to the 'Incoming Passenger Card' to officials at Perth airport. As this question was presumably asked as a double check to see if the correct visa has been applied for, I was under the definite impression that I had indeed followed the required procedure in obtaining the correct visa. I now appreciate that this 'self-check' exacerbated the system check, which would have highlighted the ETA requirements but this was never my intention. I submit that the number of different times I have fully declared my conviction to Australia House over the last twelve years shows that my aim has never been to mislead the Australian authorities as a whole.
63. I offer my sincere apologies for any non-disclosure and hope that these will be viewed sympathetically. I accept that my failure to declare my conviction on the Incoming Passenger Card was wrong and can only submit that the relevant Australian authorities in London were at least fully aware of my criminal conviction before allowing me to travel. I would hate to give the impression that I am untrustworthy and I trust that the Tribunal will appreciate that the very opposite is true from the various references I have already supplied.
64. I appreciate the time the Tribunal has taken to consider my above statement and hope it can be seen that it is made with sincerity. The decision the Tribunal reaches will not only affect myself, but it will also have far reaching consequences for my partner, Nina, her grandmother and her parents, particularly her mother. I sincerely hope that I will be allowed to live peacefully in Australia with Nina and my son, enjoy the rest of our lives, give our time to others less fortunate and make a worthwhile contribution to the country. “
22. The manslaughter conviction occurred in 1991. It was of its very nature very much of a “one-off” type. I accept that there is no possibility of repetition. When asked by Mr Grimm how he could be so sure that this was so the Visa Applicant noted that the circumstances were entirely different. Apart from any other considerations, he no longer has two young daughters who are at risk of sexual molestation by Yorkshire who was his wife’s lover.
23. The only other aspect which is in any way relevant is the fact that on six occasions the Visa Applicant visited Australia and on each occasion ticked the “No” box as to convictions, in the relevant landing card.
24. In respect of the first three visits the Visa Applicant said that he applied for a visa at Australia House and disclosed the manslaughter conviction. The form called for brief details which were furnished and so that the manslaughter conviction and sentence were known, according to his evidence, to the Respondent.
25. In respect of other visits ETA visas were obtained. The Visa Applicant was informed by his travel agent that visas could be obtained electronically. The Applicant furnished the necessary information and the visas were granted. Subsequently the Visa Applicant while searching the web, ascertained that ETA visas should not be applied for by persons with criminal convictions and he did not do so again.
26. In 1994 a spouse visa application in which disclosure of the manslaughter conviction was made, was refused. It was made on the advice of a solicitor in the United Kingdom who recommended an application on the basis that it could be made to test the Respondent’s reaction. When that application was refused, the solicitor indicated that he thought the application was too early and in other words premature. In that latter advice at least the solicitor’s advice appears to have been correct.
27. The Visa Applicant said in relation to the landing card omissions that he did not, until the refusal of the second spouse visa application, realise how important they were. He thought of them as similar to those used in the USA and thus akin to a tracking device to ensure that tourists came and went out of the country. He emphasised that in each case he had disclosed the manslaughter conviction in his application for a visa and thought that that was sufficient; disclosure was also made in the 1994 spouse visa application. He did not at any time receive a pamphlet or circular which (so I was told) occasionally accompanies ETA visas.
28. The Visa Applicant also said that he thought that ETA visas might have been granted speedily because some five years had elapsed since the manslaughter conviction. He spoke of with inconsistency on the part of the authorities. Tourist visas of different kinds and for different periods and with differing conditions were granted to him during the relevant years, but in one case (in December 2002) a tourist visa application was refused notwithstanding that previous tourist visa applications had been granted, and notwithstanding that he did not breach any of the conditions attaching to any of them.
29. There was another and perhaps even more significant reason why he completed the landing cards in the manner indicated. Had he ticked the “yes” box he would (so he anticipated) have been asked questions by a strange customs official who knew nothing of the background and quite possibly in public, and in the presence of others, and causing severe embarrassment and also of course delay. To a man who had been obliged to disclose the manslaughter conviction repeatedly to authorities of every kind in the United Kingdom, that was a very real consideration.
30. The Visa Applicant is a man of considerable achievement. Having left school with three “O levels” and a number of “A levels”, he elected, instead of going to university to work and to attend technical college on a part time basis. In 1974 he obtained a qualification at the technical college, while working for a poultry business. He then obtained a position with a large insurance company (and where Mr Waits was employed). Some years later he embarked on further study which resulted in his gaining accountancy qualifications. In 1986 he took up a position in London with Sphere Drake Insurance PLC as a financial accountant. After he and the Applicant became engaged they (in 1996) set up and ran two businesses. A business marketing health and nutrition products was sold as a going concern and the securities trading business is still being run by them; (it could be run for Australia since it requires, as I understood it, only adequate computer access).
31. In his cross-examination of the Visa Applicant, Mr Grimm asked him to hypothesise that the Tribunal disbelieved him as regards the disclosure of the manslaughter conviction in his visa applications. I should note that I do not disbelieve the Visa Applicant and indeed there was no evidence whatever before me which would suggest that he did not make the necessary disclosures in his various visa applications. The cross-examination of the Visa Applicant was , no doubt for reasons similar to those in respect of the Applicant, short and perfunctory.
32. I could reasonably sum up the Visa Applicant’s evidence by saying that I regard it as altogether credible. It was moreover quite remarkably fluent and articulate. The Visa Applicant struck me as an honest and decent man. After he came out of prison he stayed at home for a period with his three young children in order to re-establish their relationship.
33. Because the parties referred both to the decision which gave rise to this objection decision and also the 1994 application as a spouse visa application, I have in the interest of consistency, used the same terminology in these reasons. In fact the application which gave rise to this objection decision is not strictly speaking a spouse visa and it is likely that the same applies to the 1994 application.
PART E – OTHER EVIDENCE
34. Some witnesses on behalf of the Applicant were not required for cross‑examination and I can therefore accept their evidence which was in favour of the Visa Applicant. This applies to Mr and Mrs Jones (Tp128), Ms Bernadette Chekets (Tp120 and Tp121) and Mrs Waits, the Applicant’s mother (Tp144). The T‑ documents contain in addition a large quantity of character evidence in favour of the Visa Applicant; (see generally Tp120 to Tp159).
PART F – THE CHARACTER TEST
35. The provisions of section 501 (7) (c) of the Migration Act 1958 have the effect that the Visa Applicant does not pass the character test.
PART G – DIRECTION 21 DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No 21 (“THE DIRECTION”)
36. In this part G reference to numbered clauses should be construed as references to numbered clauses in the Direction.
37. Clause 2.3 provides that the primary considerations are:
“2.3In 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 a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
38. Clause 2.3 should be read in conjunction with clause 2.5 which provides:
“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).”
39. The Visa Applicant’s son Steven is currently 17 but will be 18 very soon and will indeed be 18 by the time this decision is issued.
40. Were it not for the mandatory effect of section 501 (7)(c) of the Act, I would find that the Visa Applicant passes the character test. The manslaughter conviction is a thing of the past. I accept his explanation in relation to the landing card omissions and in particular the fact that he genuinely and honestly believed that visas had been obtained after disclosure had been made, and that in fact the Respondent knew of the conviction in any event through the first spouse visa application. I accept in other words that there was no intent to deceive the Respondent.
41. I would assess the risk of recidivism as nil. I do not consider that Australia needs protection against the Visa Applicant. Deterrence in an unusual case such as this is not relevant. I would anticipate that the Australian community would expect that in a case such as this (and assuming knowledge of the facts, circumstances and background) a visa should be granted.
42. It follows then that the relevant primary considerations are not in my view in any way against the Visa Applicant and so that in strict terms it may not be necessary for me to consider clauses 2.6 and 2.17. I do so in the interest of completeness.
43. Having accepted the Visa Applicant’s explanation in respect of the landing cards, I doubt whether a court would convict the Visa Applicant of a breach of section 234 of the Act. I note in this context that section 234 (1) (b) provides that an offence is committed where statement is made which is, to the knowledge of the person making it, “false or misleading in a material particular”.. The wording contained in clause 2.6 of the Direction is admittedly different but the words of the statute should, in case of any difference, take precedence. I doubt whether it can be said that the landing cards were, having regard to all of the circumstances, false or misleading in a material particular. If I am incorrect in this context, I would incline to the view that a court would not treat the matter as being in any way serious, and in other words would regard it as being at the very lowest end of the scale.
44. Were a visa to be refused and depending on what decision was made by the Applicant, the hardship considerations in this case (clause 2.17) would be serious for one or more or all of the Applicant and her mother and grandmother.
45. This is in my view, a case in which the discretion should be exercised in favour of the Visa Applicant.
46. Accordingly 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 spouse visa under section 501 (1) of the Migration Act 1958 should be exercised in favour of Douglas Andrew Ferrie.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: Neil Glaser
AssociateDate/s of Hearing 17 December 2003
Date of Decision 23 December 2003
Counsel for the Applicant Mr Nicholas Poynder
Solicitor for the Applicant Anne O'Donoghue & Associates
Counsel for the Respondent Mr Andrew Grimm
Solicitor for the Respondent Blake Dawson Waldron Lawyers
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