Ruiu and Minister for Immigration and Multicultural Affairs - [2000] AATA 167

DECISION AND REASONS FOR DECISION [2000] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/344

GENERAL ADMINISTRATIVE DIVISION )

Re Jean-Jacques Ruiu
Applicant

And Minister for Immigration and Multicultural Affairs
Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date3 March 2000
PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that for the purposes of the visa sought by the applicant, the discretion under s. 501 of the Migration Act 1958 be exercised in favour of the applicant.

........(Sgd. B.M. Forrest)...........
Deputy President
IMMIGRATION – Spouse visa application – whether applicant not of good character – past criminal conduct – applicant convicted of murder in France – whether discretion should be exercised – genuine marriage to Australian citizen – best interests of child – whether undue harm to Australian community – risk of recidivism – decision set aside.
Migration Act 1958 ss.499 and 501
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Luu and Minister for Immigration and Multicultural Affairs, unreported Tribunal decision No. 12,190
Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197
Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
Re Davis (1947) 75 CLR 409

REASONS FOR DECISION

3 March 2000 Deputy President B.M. Forrest

At the conclusion of the hearing I informed the parties of the decision I proposed to make. My decision and reasons for that decision are as follows.
The decision under review in these proceedings is that of a delegate of the respondent made under s. 501 of the Migration Act 1958 ("the Act"), on 15 February 1999 to refuse to grant the applicant, Jean-Jacques Ruiu, permanent residence status, specifically a sub-class 820 spouse visa. The decision which was communicated to the applicant in a letter dated 18 March 1999 was made on the ground the applicant was not of good character having regard to his criminal history.
Section 501 of the Act relevantly provided:
"501 (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a)subsection (2) applies to the person; or
…
(2) This subsection applies to a person if the Minister:
(a)having regard to:
(i)the person's past criminal conduct; or
(ii)…
is satisfied that the person is not of good character; or
…
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person."
The applicant is a French citizen. One of six children, he was born on 15 April 1957 in the Corsican port city of Ajaccio (the birth place of Napoleon Bonaparte) where he was educated. He left school at 18 years of age after studying a wine making course. He gained employment in a winery for a few months then, because of an economic downturn, temporary positions followed in wineries, as a painter, glazier and barman.
In September 1982 the applicant was arrested and held in custody as a suspect in the murder of Jean Richard Martini in Ajaccio on 11 September 1982. He initially confessed to the murder but later retracted the confession. He was released from custody in 1983 due to a lack of evidence. The applicant moved to Paris for a brief period before returning to Corcisa and his former employment as a glazier. Investigations continued into the murder, leading to the applicant being rearrested in 1986, charged and held in custody until convicted and sentenced in 1988 to 18 years imprisonment for the murder of Jean Richard Martini. An appeal against conviction was dismissed. The applicant was also ordered to pay compensation to the mother of the deceased amounting to 122,000 francs.
The extract of the Court of Appeal of Lyon proceedings revealed that the deceased, Jean Richard Martini, died from the effects of two bullet wounds to the head on 13 September 1982.
"Jean Richard MARTINI indicated that he would place a letter with a solicitor which indicated the name of his aggressors and the name of RUIU in case something should happen to him. On Saturday 11 September 1982 Jean Jacques RUIU went to the 'CHECCOS' bar. He then decided to go to the place of residence of Jean Richard MARTINI in order to meet him and to settle the matter of the 7.65 mm pistol. He first went to his own address in order to fetch his 22 Long Rifle revolver. Jean Jacques RUIU subsequently waited outside the dwelling of Jean Richard MARTINI for him to arrive.
Jean Richard MARTINI returned from the "REX" bar carrying a bag. Jean Jacques RUIU then demanded the return of his weapon. Jean Richard MARTINI is supposed to have made a rude gesture while bringing his hand to his middle. Believing that his opponent was going to draw a weapon, Jean Jacques RUIU fired twice at the head of Jean Richard MARTINI. Jean Jacques RUIU then returned to the "CHECCOS" bar where he told his comrades MURI-CASTOLA and COLOMBANI that he had just killed Jean Richard MARTINI."
The Court of Appeal of Lyon noted the applicant had two prior convictions for unlawful possession of a weapon. The applicant also has the following criminal convictions recorded in France:
(a)30 September 1987 – theft with violence on 25 April 1986 – 5 years imprisonment; and
(b)22 December 1989 – theft with violence and with accomplices on 24 April 1986 – 4 years imprisonment.

He served in total about 5 months imprisonment for these offences. The sentences for these offences were served concurrently with the 18 year sentence for murder.

The applicant served 10 years of the sentence before being released in December 1996 for good behaviour.
In 1993, the applicant registered with a pen friend organisation to improve his English. Rita Leonardi, an Australian citizen living in Melbourne, was a member of the overseas pen friend club from which the applicant obtained her name and address. Rita had a number of pen friends, both male and female, in various parts of the world with whom she corresponded regularly and some of whom she had met. The applicant began corresponding with Rita and they became regular correspondents. The applicant did not disclose that he was in prison. He wrote to her in February 1997 telling of his intention to visit Australia. On 26 February 1997 he was granted a visitor visa in Paris valid for 12 months for multiple travel for entry of 3 months.
In May 1997 he arrived in Australia. Rita met him on arrival and invited him to stay with her family. During the visit he disclosed his prison background to Rita who in turn told her family. Rita was shocked by the news but decided to give him a chance. The friendship developed. He returned to Corsica in June to finalise his affairs with the intention of returning to Australia. He returned to Australia on 10 August 1997. The applicant and Rita decided to marry and on 25 October 1997 were married in a Church ceremony with her family and friends present.
On 6 November 1997 the applicant applied for permanent residence on spouse grounds. About this time he was granted a bridging visa with permission to work.
The Minister for Immigration and Multicultural Affairs, Mr Ruddock issued a General Direction – Visa Refusal s. 501 – No. 5 ("the Direction") under s. 499 of the Act with effect from 25 November 1997 (T6) for the guidance of decision makers in considering the application of s. 501. This Direction (since superseded) applied as at 15 February 1999 when the decision under review was made and for the purpose of these proceedings is taken into account.
Prior to the issue of the Direction, Migration Series Instructions No. 164 ("MSI") issued on 22 April 1997 provided guidelines for the use of departmental officers in making a determination under s. 501. The MSI did not have legislative force. They do, however, reflect ministerial policy and unless there is good reason not to do so, the Tribunal will ordinarily apply that policy (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). In the present case, no cogent reasons have been advanced as to why the Tribunal should not apply the guidelines:
"9.6       Past criminal conduct: sub-paragraph 501(2)(a)(i)
9.6.1     In deciding the question of character in relation to past criminal conduct, the onus of proof is on the Minister to show whether, at the time the application is being considered, the person is not of good character.
...
9.6.1.4   A finding that a person is not of good character may be justified, in the absence of any mitigating factors, if the person:
·   has at any time been convicted of a crime and sentenced to death, or to imprisonment for life or to a period of not less than 1 year;"
In the event of an adverse finding as to character, paragraph 9.9 of the MSI contains guidelines for the exercise of the discretion:
"9.9       Exercising the discretion to refuse/not refuse the grant after a negative character finding
...
9.9.2    In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:
·   the circumstances of the person at the time of the application.
These include but are not limited to:
-genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
-the best interests of any child associated with the visa applicant/s;
-the strength of family, social, business and other ties to the Australian community;
-periods of previous lawful residence;
-the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
-family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see section 8).
·   whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
·   whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.
9.9.3Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa."
The applicant's criminal record is understandably one of concern to the Australian community because of the very nature and seriousness of the offending. The circumstances of wilfully taking another person's life was a brutally violent act; the kind of behaviour from which the community is entitled to protection. The level of violence demonstrated provides sufficient evidence that the applicant does not satisfy the good character requirement under s. 501.
The applicant maintained he was innocent of the murder and wrongly convicted. This assertion can be disposed of shortly. It is a well settled principle that the Tribunal cannot impugn the fact of conviction of an offence. See Luu and Minister for Immigration and Multicultural Affairs, unreported Tribunal decision No. 12,190 and on appeal Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213. More recently this principle was affirmed by a Full Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197.
The applicant's criminal record viewed in isolation, would I think lead to the conclusion that the community is reasonably entitled to expect that permanent residence be refused. However in determining whether the community requires protection from the applicant, it is also necessary to consider the likelihood of his offending being repeated.
In this regard it is apparent that the applicant's attitude to his murder conviction complicates the vexed question of assessing the risk of recidivism. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to determine whether in the particular circumstances the applicant is an unacceptable risk: per Brennan J., Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98.
In the uncertain task of trying to predict future behaviour genuine remorse, as well as being a mitigating factor in sentencing, is usually regarded as one of the factors pointing towards reformation. Mr Ian Joblin, an experienced psychologist, who interviewed the applicant on 1 July 1999 for assessment addressed this question in his report dated 2 July 1999:
"Basically, as indicated, the issue in this case is the matter of prediction. This is a factor that is extremely vexed and because it is vexed, it is a matter that cannot be defined. There are, however, certain indicators that must be addressed to enable one to get as close as possible from a mental health perspective. Significantly those factors include environmental factors. That is, whether or not the environment factors that the offender experienced at the time of the offences still remain. Obviously in this case those factors have changed dramatically. Further indicators include relationships and in this case this man is now in a marital relationship and has a child on the way. Another indicator is the development of a conscience and Mr Ruiu is able to indicate a conscience about his history, about the waste of his time in jail and in particular about his family. In my opinion the development of a conscience is extremely important in terms of prediction. Conscienceless behaviour is psychopathic behaviour and this man is not a psychopathic individual as he is able to demonstrate conscience development. Other factors that may be indicators include alcohol or drug use and in this case neither is an issue.
Basically, as indicated, the closest one can get to prediction is outlined above. I will not, however, in any case indicate a definitive prognosis for Mr Ruiu or any other offender appearing before courts or the Parole Board. The powers of prediction allowed by forensic mental health are not sufficiently strong for such a definitive statement to be made and it is inappropriate to indicate that because of his history he will or will not reoffend. It is somewhat unfortunate that in many cases there is no hesitation in making these statements when factors as outlined above would place doubt on such statements.
As indicated, basically this man has stabilised. He seems to have settled into Australia. He is enthusiastic in his relationship and does not evidence other psychological problems. He wishes to become a useful and contributing member of the community and from a psychological perspective there is no encumbrance to that."
In his oral evidence Mr Joblin reiterated the difficulty of trying to assess issues such as remorse when faced with a denial of guilt. If denial persists despite evidence of commission of the offence and a conviction, it may well mean there are anxiety and protective mechanisms operating. Mr Joblin added however that the positive evidence of employment and acceptance of the role of parenthood "…would increase my consideration of optimism and certainly enhance that comment in the report relating to the environmental factors" (Tr. 20 January 2000).
Despite his denial of committing the murder the applicant in evidence did not exhibit any trace of bitterness or resentment concerning the conviction and the lengthy incarceration, instead he gave the impression of a person who accepted his sentence and was determined to put his past behind him and to make a fresh start.
There was a body of evidence that the applicant spent his prison term usefully studying and working. There were no behavioural problems. For 4 years prior to release he worked as a computer data operator in Arles prison. He was released in 1996 after serving 10 of his 18 years sentence.
It is possible for a person to retrieve his or her character. In this regard it is appropriate that the applicant's behaviour since the relevant events constituting the adverse character finding be considered and an assessment made of the weight to be given to his subsequent behaviour. In Re Davis (1947) 75 CLR 409 at 416 Latham CJ., observed:
"A man may be guilty of grave wrongdoing and may subsequently become a man of good character."
The evidence of the applicant's behaviour since 1997 in Australia is cause for some optimism. There was evidence from Rita, her family and friends which displayed a facet of the applicant's character indicative of reform. The genuineness of the marriage was not in issue. Rita describes the applicant as a loving husband and father, concerned and considerate for her welfare and that of their son Jean-Luc who was born on 16 August 1999. The applicant gets along well with Rita's mother Anna Leonardi and her brother Lou Leonardi who live nearby. Anna said he was considerate and kind. Lou stated that he was loyal to his family. Extended family members and friends have accepted the applicant into their midst.
The applicant has been in regular employment in Australia since being granted permission to work. Currently, he is employed on a permanent full time basis by a glazing firm installing shower screens. The evidence of the firm's manager, Ms Judith Alcorn, was a glowing testimony, describing the applicant as a valued employee, punctual, hard working, honest and skilled.
The strength of family ties between Rita and, in particular her mother was readily apparent. Rita's parents migrated to Australia in the late 1950s. Her father spent his working life at General Motors Holden Fishermans Bend plant. He died suddenly in 1994. Her mother Anna worked in a textile factory for 16 years prior to her retirement. Family ties are close. Since her father's death in 1994, Rita has been a source of emotional strength to her mother. Rita is an Australian citizen. She was born here on 18 March 1960 and lived at home until she was married. Rita has been in her present employment for 18 years with a finance company where she is a senior collection officer. Her ties and that of her family are to Australia. The refusal of a visa would cause great distress to Rita who would face a terrible dilemma of separation from either husband or family.
Then of course there are the interests of Jean-Luc whose welfare is best served by having his parents or at least his mother free of the emotional turmoil of separation from family in Australia in the event a visa was refused to her husband and she left Australia with him.
The applicant appears to have settled well into the Australian community in a relatively short time. He has adopted a positive parenting role and is gainfully employed. I think he represents an acceptable risk to the community despite the seriousness of his past behaviour. Considering that the applicant maintains close ties with his family and friends in Corsica, and that it has only been a relatively short while since he lived there, his relocation to France would not be particularly difficult for him. However, given that the best interests of the child are that his parents remain in Australia together and the other relevant factors considered, in my opinion the discretion ought be exercised in favour of the granting of a visa.

For completeness I should mention that there was no evidence of any immigration malpractice by the applicant, such as would give credence to Mr Ambikapathy's submission that if the applicant's criminal record had been known to immigration authorities in Paris, a visa would not have been granted at least without further inquiry. This was an exercise in speculation without any evidence in support, contrary to the applicant's evidence and that of his passenger entry card.
The decision under review is set aside and the matter is remitted to the respondent with a direction that, while the applicant is a person not of good character, the general discretion under s. 501 of the Act should be exercised in his favour so that his character should not prohibit him from obtaining a spouse visa.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 and 21 January 2000
Date of Decision  3 March 2000
Counsel for the Applicant        Mr R. Niall
Solicitor for the Applicant         Law Partners
For the Respondent                 Mr J. Ambikapathy, departmental advocate