Sapsford and Minister for Immigration and Multicultural and Indig Enous Affairs
[2003] AATA 1342
•24 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1342
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/737
GENERAL ADMINISTRATIVE DIVISION ) Re
Nicola Sapsford
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date24 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 in s 501(1) of the Migration Act 1958 to not refuse the grant of a visa should be exercised in the case of Nicholas William Birch.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse (provisional) visa and subclass 100 spouse (permanent) visa – refusal on character grounds – past and present criminal conduct and past and present general conduct – examination of the Visa Applicant’s criminal history – examination of the Visa Applicant’s immigration history – found that the Visa Applicant fails the character test - discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against any hardship to the Applicant – held the evidence of rehabilitation, low risk of recidivism and hardship to the Applicant and Visa Applicant outweigh the other considerations – decision of the Respondent set aside with a direction that the discretion not to refuse a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)(i)(ii)
Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
24 December 2003 Mr RP Handley, Deputy President Summary
1. Mr Nicholas William Birch, who is 35 and lives in England, applied for a subclass 309 spouse (provisional) visa and subclass 100 spouse (permanent) visa to reside in Australia with his fiance, the Applicant, Nicola Sapsford. Mr Birch has a criminal record in England involving convictions for 17 offences committed between 1984 and 1997 and, in Australia, of one conviction in 1994.
2. The Respondent states that Mr Birch did not declare his convictions when he entered Australia in 1993, 2000 and 2001; he remained in Australia unlawfully on two occasions after his visitor visa expired; he worked without permission and did not pay taxes; and he made false statements to the Department on three separate occasions. The Respondent therefore refused Mr Birch’s combined subclass 309/100 spouse visa application on the ground that he failed the character test. This is the decision to be reviewed by the Tribunal.
Background
3. The Applicant, Nicola Sapsford, was born in Enfield, England, on 3 November 1970 and is aged 33. She first entered Australia in October 1999. After several temporary visas, she was granted permanent residency on 31 October 2001 (T p45). Ms Sapsford is employed by Aussie Home Loans, Learning and Development Branch, as a learning and development consultant.
4. The Visa Applicant, Nicholas William Birch, was born in Wolverhampton, England, on 6 October 1968 and is aged 35. Between 1984 and 1997, Mr Birch was convicted of a number of criminal offences in England and Australia. These include offences relating to theft, burglary, assault, public disorder and reckless driving, for which he is recorded as receiving fines, community service, and in one instance, nine months imprisonment (T21). Details of the offences are as follows:
Date
Court Place & Type
Offence
Sentence
29 June 1984
Wolverhampton Juvenile
Criminal Damage
Burglary/Theft
Theft of cycle
Fined £10, comp £7
Fined £10, comp £1
Fined £2017 June 1985 Wolverhampton Juvenile Burglary/
Theft
Dwelling
ShopliftingCommunity service Order
70 hours16 September 1985
Wolverhampton Juvenile
Theft (Shoplifting)
4 chargesConditional discharge,
2 yrs23 June 1986
Stafford Magistrates
Theft (Shoplifting)
4 chargesCommunity Service Order
80 hours plus 100 hours consecutive £71.00 comp1 December 1986 Torbay Magistrates Theft (Shoplifting) 12 months probation £35 costs 17 March 1987 Stoke-on-Trent Magistrates Theft (Shoplifting) 28 days detention 21 June 1991
Birmingham Crown
Reckless Driving
Assault occasioning actual bodily harm
Driving a conveyance knowing it to be taken without authority
Imprisonment 9 months Disqualification from Driving 18 months
Imprisonment 3 mths concurrent
1 month concurrent11 May 1994 Cairns Magistrates Behave in Disorderly Manner $120 fine 27 June 1997 Wolverhampton Crown Affray Community Service Order
80 hours5. On 7 December 1993, Mr Birch entered Australia on a visitor visa valid for six months. He stated on his Incoming Passenger Card that he had no convictions. He did not leave Australia when this visa expired but remained in Australia unlawfully, working without permission, until he departed on 31 March 1996 (T p108). During his stay in Australia, he was convicted of the offence “behave in disorderly manner” and fined $120 (T p92) in Cairns Magistrates Court.
6. On 7 August 2000, Mr Birch returned to Australia on a visitor visa valid for three months. When completing the Incoming Passenger Card, Mr Birch stated that he had no criminal convictions. In November 2000, Mr Birch applied for a long stay visitor visa, which was granted for three months, but he again did not disclose his convictions.
7. On 6 January 2001, Mr Birch met Ms Sapsford at the Coogee Bay Hotel in Sydney. He departed Australia on 5 February 2001 in order to travel to New Zealand returning to Australia on 12 February 2001, having been granted a further visitor visa valid for three months. When completing the Incoming Passenger Card, he did not disclose his convictions. When his visa expired, he failed to leave the country but remained in Australia illegally, working without permission.
8. On 15 February 2001, Mr Birch and Ms Sapsford met again in Sydney and in April 2001 they commenced living together. On 3 June 2002, Ms Sapsford flew to England to be with her terminally ill mother who passed away on 28 June 2002 (T p79). On 30 June 2002, Mr Birch returned to England where he has remained since (T p8). He is currently living in London and working as an electrician.
9. In October 2002, Ms Sapsford and Mr Birch became engaged. They plan to marry in October/November 2004.. On 17 October 2002, Mr Birch lodged an application for a subclass 309 spouse (provisional) visa and a subclass 100 spouse (permanent) visa at the Australian High Commission in London (T5). On 11 November 2002, a Senior Migration Officer at the High Commission wrote to Mr Birch advising him that she was considering refusing his application because of his past and present criminal record and past and present general conduct and inviting him to comment on her decision (T p116). Mr Birch’s then migration agent responded by letter of 5 December 2002 (T28 p118).
10. On 24 March 2003, having considered Mr Birch’s submissions, a delegate of the Respondent decided to refuse the grant of a visa to Mr Birch on the ground of his past and present criminal conduct and past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p7). On 7 May 2003, Ms Sapsford lodged an application for a review of the decision by the Tribunal.
11. At the hearing, Ms Sapsford was represented by Nicholas Poynder, of Counsel, and the Respondent was represented by Kiran Grewal, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the Applicant at the hearing. Ms Sapsford and Wayne Parry gave evidence in person and Mr Birch, Ian Grasier and Phil Convery gave evidence by conference telephone.
Relevant Law and Policy
12. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) The person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
15. The issue for the Tribunal to determine in this case is, therefore, whether Mr Birch is not of good character having regard to his past and present criminal conduct or his past and present general conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.
Evidence
16. Mr Birch provided a detailed statement dated 4 October 2003 (A2). He was born in Wolverhampton on 6 October 1968. In about 1970, his father was killed in a car accident and his mother remarried. Mr Birch and his sister were adopted by and took their stepfather’s surname. Mr Birch learned of his adoption when he was 13 or 14 and felt it explained his stepfather’s attitude towards him – dis-interest, pettiness, strictness and harsh punishments. There had never been any bond between them and Mr Birch only felt hate for his stepfather. Mr Birch started missing school and “hanging round with a bunch of lads”. Because he was never given any pocket money, he started stealing sweets and then shoplifting small items.
17. Mr Birch’s first conviction was on 29 June 1984:
when he and some friends spotted a bike in one of the classrooms, and we kicked the door to get in and took the bike. Someone must have called the police, as they turned up as I was riding the bike.
His second conviction a year later arose from he and some friends getting drunk at a friend’s house and one of them stealing a necklace from upstairs in the house:
I remember feeling very strange because I’d never been drunk before. Then somebody came downstairs with a necklace. I didn’t condone it but do remember not going upstairs.
Later, he had other convictions for shoplifting.
18. Mr Birch said he left school in May 1986: “I hated my school days and was glad to see the back of them”.. After leaving school, he had various factory jobs in each case being sacked after a few weeks for absenteeism. His relationship with his stepfather deteriorated further. His sister ran away from home and was working as a prostitute. Mr Birch was convicted of further shoplifting charges in June and December 1986 and March 1987.
19. At about this time, Mr Birch started to try and get a “decent job”. His application to join the Army was rejected because he had not “been free from trouble for 18 months”.. However, he started metalwork and electrical courses at Wolfram College of Further Education while “on the dole”. He had to give his mother half his dole money. The conviction in March 1997 was for stealing a clock in December 1996 “with the intention of selling it to have money to buy presents” for Christmas. Mr Birch served 28 days in a detention centre.
20. On release from detention, Mr Birch was provided with a council flat where he lived for the next six years. He managed to resume his two courses at Wolfram College. However, four months later, he could no longer manage financially and got a job as an electrician’s labourer. Fortunately, his employer allowed him to continue part-time with his electrical course. He got on well in his job and with his fellow employees and this is where he met Ian Grasier who subsequently went to University and qualified as a physiotherapist. They became and remain close friends and Mr Grasier gave evidence for Mr Birch at the hearing.
21. Not long after beginning work as an electrician’s labourer, Mr Birch also applied to join the Fire Service with a view to a career in the Service. However, his application was rejected, again because of his criminal convictions.
22. In mid 1990, at the end of a drunken party with a group of friends, Mr Birch and a friend took a car in order to avoid a fight with a group of rival football supporters. Mr Birch drove through a red light and tried to avoid being caught by the police. In the course of doing so, when running from the scene, he hit a police officer. As a result of his convictions in relation to this incident, Mr Birch was sentenced to nine months imprisonment. He said prison taught him a lot and he “never wanted to be back there”. While there, however, he successfully completed a City and Guilds bricklaying course.
23. On release from prison, Mr Birch was able to return to his former employment as an electrician, and his girlfriend moved in to live with him in his flat. However, about 10 months later, Mr Birch was laid off when a recession struck the building trade. He then teamed up with another electrician who had also been laid off, obtaining work where they could, including nearly a year for a company called Stourbridge Electrical.
24. In the summer of 1993, Mr Birch’s relationship with his girlfriend ended and she moved out. Mr Birch decided to use his savings and visit Australia where some friends had moved. He obtained a three month visitor visa and, on 3 December 1993, flew to Sydney. On arrival, he made what he said was a grave error by not ticking the “Yes” box to the question about whether he had any criminal convictions: he was tired but excited and wanted to get through Customs with a minimum of fuss – “My judgement was totally clouded”.. His friend Wayne Parry (who gave evidence at the hearing) and another friend met Mr Birch at the airport and he went to stay with them. Mr Birch said he loved Australia and, when his visa expired, he put the thought of leaving “to the back of his mind” and did not even think of approaching the Department of Immigration for another visa.
25. In May 1994, Mr Birch travelled up the east coast to Cairns. One evening sitting outside a café with his girlfriend, a man he knew from the hostel where they were staying came over in a drunken state and sat on Mr Birch’s lap with the result that the plastic chair on which he was sitting collapsed and broke. Mr Birch’s acquaintance “made off leaving me to explain to the coffee shop owner about the chair”. Mr Birch offered his acquaintance’s details but the owner was not interested and police officers who were passing arrested him and charged him with behaving in a disorderly manner. He was convicted and fined $120.
26. In early 1995, back in Sydney, Mr Birch had used most of his savings so he got a job as an electrician. This job including his working for some months installing on-site lifts in an exhibition hall in Cairns. He returned to Sydney in March 1996 and booked a flight to London for 31 March 1996. Before departing, he went to inform the Department that he had overstayed his visa but was now leaving, and he was issued with a bridging visa.
27. On arriving back in England, he went to see family and friends in Wolverhampton for about 10 days and then travelled to London to live with the girlfriend whom he had met in Australia. He got a job as an electrician with Phil Convery (who gave evidence by telephone at the hearing) for whom he has now worked for some years. Then in early 1997, Mr Birch went to meet up with some old friends in Wolverhampton including Mr Grasier. They went to a club and got involved in an altercation with a bouncer as a result of which both Mr Birch and Mr Grasier claim to have been assaulted and physically thrown out of the club. The police, who were just then arriving, arrested Mr Birch, Mr Grasier and other members of the group who were subsequently charged with affray. Initially Mr Birch and Mr Grasier pleaded not guilty but, at the trial, they were advised by their barrister to plead guilty. They did so. Mr Birch was sentenced to 80 hours community service and Mr Grasier was bound over to keep the peace for a year.
28. Mr Birch was allowed to undertake his community service in London and chose to be involved in rehabilitating waste ground as a play area for children. He said he was proud of this work and returned to see it twice, on the second occasion when the park was opened.
29. After completing his community service, Mr Birch felt things “were going okay”: he was getting on well with his girlfriend, her parents treated him “almost like a son”, and he did some voluntary, unpaid electrical work for a charity “Bexley Mancap”, which was run by his girlfriend’s auntie. He said this work “gave me a sense of pride”.. Mr Birch assisted with fundraising, on one occasion, in September 1999, running in a marathon and raising £600 for the charity. Preparation for the marathon involved 12 weeks intensive training including running 18 or 19 miles twice a week.
30. Two months after the marathon, Mr Birch and his girlfriend split up although they remained friends. Mr Birch went to live with a friend. In July 2000, he decided to travel to Australia again to see his friends, and arrived on 7 August 2000. Knowing he had ticked “No” to the question asking about criminal convictions on the Incoming Passenger Card on entering Australia in December 1993, he did the same.
31. Mr Birch had booked a return flight to England in November 2000 but decided to extend his stay. He therefore went to the Department’s office at the Rocks to apply for an extension to his three month visitor visa and, in doing so, again ticked a box on the application form saying he had no convictions. On 6 January 2001, he first met Ms Sapsford when out with a friend at the Coogee Bay Hotel. On 5 February 2001, shortly before the expiry of his visa, Mr Birch went to New Zealand for a week, returning to Sydney a week later having been issued with another three months visitor visa. On arrival in Sydney, when completing the Incoming Passenger Card, he again ticked the “No” box to the question asking about convictions.
32. Mr Birch and Ms Sapsford met again on 15 February 2001 and they started seeing each other on a regular basis. In April 2001, they moved into a rented unit together. Mr Birch said he was in love, and “just buried my head in the sand” with regard to the expiry of his visa. He and Ms Sapsford had no secrets from one another and he told her early in the relationship about his convictions. By August 2001, Mr Birch’s savings were almost exhausted. He began getting a few days casual work on building sites and later a few days casual electrical work to keep him going.
33. On 28 May 2002, Ms Sapsford received a telephone call to say that her mother had been diagnosed with lung cancer. A few days later, Ms Sapsford flew to London to be with her mother who subsequently died on 28 June 2002. Mr Birch stayed on in Sydney to make arrangements in relation to their rented unit and then flew to London on 30 June 2002. At Sydney Airport passport control, he informed the officer that he had overstayed his visa and, at the officer’s request dialled a phone number to speak to the Department. However, there was no reply and the officer waived him through. Mr Birch arrived in London on 1 July 2002 and went to stay with Ms Sapsford and her father, staying for a few weeks after her mother’s funeral. After a couple of weeks, Mr Birch contacted his former employer in London, Phil Convery, who re-employed Mr Birch from the following Monday and for whom he continues to work. In late August 2002, Mr Birch and Ms Sapsford started discussing their plans for the future and decided they both wanted to be together in Australia. They worked on Mr Birch’s migration application and lodged this on 17 October 2002 at Australia House in London. In early October 2002, they flew to Prague for a weekend where Mr Birch proposed to Ms Sapsford and she accepted. On 6 November 2002, Ms Sapsford departed for Sydney.
34. Mr Birch continued working in London, staying on with Ms Sapsford’s father until he sold his house. Mr Birch said he felt very lonely even though he and Ms Sapsford spoke on the phone twice a day and exchanged text messages and emails. He heard nothing from Australia House. At Christmas 2002, he met Ms Sapsford in Thailand for an 11 day holiday and they met up again in Bali in late March 2003, shortly after Ms Sapsford heard that Ms Birch’s visa application had been refused on character grounds. Then in June 2003, Ms Sapsford flew to England for a holiday with Mr Birch, and they have recently spent 10 days together in Thailand.
35. Mr Birch said he has seen his family in Wolverhampton twice since returning to England in July 2002 and only has limited contact with them. He and Ms Sapsford hope to marry in Sydney in October/November 2004. He felt he belonged in Australia. He has no where in England to call home. He left Wolverhampton in 1993. Going back is not an option. Mr Birch has an offer of employment with the electrical contractor in Sydney for whom he worked previously. Mr Birch and Ms Sapsford plan to buy their own house and start a family. Mr Birch said he has “made some very silly and bad decisions through my life”. He blames nobody but himself, despite his unhappy upbringing. He learned things the hard way. Ms Sapsford is hard-working and ambitious and they “are very strong together”.
36. Mr Birch was asked about whether he had paid tax in Australia. He said that he had paid tax during both periods when he worked in Australia and it was only in April 2003 that he first found out that he owed money to the Australian Taxation Office (ATO). Apparently, the ATO correspondence had been sent to an old address. The ATO sent him an assessment and he has now paid the amount owing.
Ms Sapsford’s Evidence
37. Ms Sapsford provided a detailed statement dated 3 October 2003 (A8). She worked for Barclays Bank for two years and for Mortgage Express for nine and a half years before coming to Australia. After travelling in Australia, Ms Sapsford obtained temporary employment through an agency with Aussie Home Loans. She then obtained a one year temporary sponsorship with them to work as a senior assessor in their Lending Department, and Aussie Home Loans subsequently sponsored her for permanent residency, which was approved on 30 October 2001. In about September 2001, Ms Sapsford moved to Aussie Home Loans’ Learning and Development Department where she is now employed as a consultant.
38. With her statement dated 3 October 2003 (A8), Ms Sapsford provided copies of her 2002 and 2003 Performance Reviews with Aussie Home Loans which rate her performance highly. She also provided three letters in support of her continuing employment including from the Managing Director, John Symonds, and the Executive Director, Lynda Harris, both dated 17 April 2003.
39. Ms Sapsford said because she spent five months back in the UK around the time of her mother’s death, she will not become eligible to apply for Australian citizenship until March 2004 but she intends to apply then. Ms Sapsford said she was aware that Mr Birch would have difficulty obtaining a visa for re-entry to Australia after he returned to England in July 2002. Mr Birch told her of his background and immigration status in Australia early in their relationship. Although Ms Sapsford was aware that Mr Birch’s visa would expire and that he would become “illegal” after a while, she ignored this, as she wanted them to be together.
40. Ms Sapsford said she and Mr Birch are very much in love and find it unbearable being apart. They have met up four times since Ms Sapsford has been back in Australia: in Thailand at Christmas 2002, in Bali at Easter 2003, in the UK in June 2003 and they have just spent another 10 days together in Thailand. This has been expensive. They also speak twice a day on the phone and send, on average, 350 text messages each month.
41. Ms Sapsford said she considers Australia her home. She has worked hard to establish herself here. It would be difficult to re-establish herself in the UK and she does not want to do this. Her father has now sold the family home and has moved elsewhere with another woman in his life. Ms Sapsford is not close to her sister. Mr Birch is unhappy in the UK and they are both passionate about Australia and want to build their future here and have a family together.
Character Evidence
42. Mr Birch’s two Wolverhampton friends, Ian Grasier, now a self-employed physiotherapist in Sheffield, and Wayne Parry, who has a carpet and vinyl laying business in Sydney, gave evidence in support of Mr Birch. They both grew up in Wolverhampton, then a poor socio-economic area with high unemployment and considered “rough”. There were a lot of broken families and kids commonly got into trouble with the law: often involving shoplifting offences and minor gang-related offences connected with supporting soccer teams.
43. Mr Parry, who has known Mr Birch since the age of four or five, said that as kids they lived for the day. He was aware of Mr Birch’s difficult family background especially his poor relationship with his stepfather, although Mr Birch hid a lot of it. After he was released from prison in early 1992, he was changed and wanted to get away from the life he had led in Wolverhampton. This is what Mr Parry did when he came to Australia in 1992. Mr Birch stayed with Mr Parry in Sydney for most of his visit during 1994/1995 and Mr Parry is aware that he overstayed. They have remained in touch and Mr Birch is godparent to Mr Parry’s two and a half year old daughter.
44. Mr Grasier first met Mr Birch in 1987 when they both worked for the same electrical contractor. They worked together for a few years and have remained close friends since. Mr Grasier was in court to support Mr Birch when he received his prison sentence in June 1991 and, like Mr Birch, he was charged with and convicted of “affray” arising out of the night club incident in 1997 when they were both assaulted by door staff. Mr Grasier also helped Mr Birch prepare for the marathon in September 1998 and said he was impressed by Mr Birch’s participation.
45. Mr Grasier also left Wolverhampton in 1993, at much the same time as Mr Birch, to study for a Bachelor of Science (Hons) in Physiotherapy at the University of Sheffield. After he met up with Mr Birch again after Mr Birch’s first trip to Australia, Mr Birch was more mature and much happier. Mr Grasier travelled to Australia on his honeymoon in early 2002 and visited Mr Birch who seemed happy and settled with Ms Sapsford. Mr Grasier is, however, aware of Mr Birch’s problems with the Department.
46. Phil Convery, Mr Birch’s employer between 1996 and 1999 and since Mr Birch returned to England in July 2002, said he is aware of Mr Birch’s convictions and has never had any problems with him. Mr Birch is trustworthy, calm, very reliable, a good time keeper, and always prepared to do overtime if it is needed. When Mr Convery and his wife go on holiday for a couple of weeks, Mr Birch looks after the shop for them. They have met Ms Sapsford and were present at their engagement party.
47. The Applicant also provided written character references for Mr Birch from Ms Sapsford’s aunt, from an elderly lady whom he helped in London after she was mugged, from his former girlfriend’s parents, and from two friends of Ms Sapsford’s in Sydney.
Consideration of the Law and Findings
48. Mr Birch does not dispute the convictions listed in the Table set out in paragraph 4 above. The first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Birch passes the “character test” having regard to his past and present criminal and general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the Applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an Applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
49. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Birch does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
50. Paragraph 1.8 of Part 1 of Direction No 21 states in relation to s 506(6)(c)(i), the person’s past and present criminal conduct:
1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen’s record since the offence/s were committed, including:
· any evidence of recidivism or continuing association with criminals;
· a pattern of similar offences; and/or
· pattern of continued or blatant disregard/contempt for the law; and
(d)any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.
51. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9 (a), 1.9 (b) and 1.9 (c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9 (a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9) (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9 (c)).
52. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
53. Before making a decision on whether Mr Birch passes the character test, it is appropriate that the Tribunal set out its findings of fact. The Tribunal finds that Mr Birch committed a series of minor criminal offences, all theft related, between the age of 15 and 18. He grew up in a “rough” area of Wolverhampton where it was not uncommon for teenage boys to get into this sort of trouble with the law. Mr Birch had an unhappy home life largely because of a stepfather who took no interest in him and whom Mr Birch came to hate because of his strictness and physical heavy-handedness. Mr Birch’s account of these years is corroborated by the evidence of his friends Mr Parry and Mr Grasier who were bought up in the same area.
54. Mr Birch’s most serious conviction was in 1991 when he was sentenced to nine months imprisonment as a result of taking a car and assaulting a police officer following a drunken stag party. Mr Birch’s evidence is that prison taught him a lesson and the evidence of his friends is that he was changed after this experience. He was able to resume his previous employment as an electrician on his release from prison, and it was about 18 months later that he made his first visit to Australia.
55. Since 1991, Mr Birch has had two convictions. On 11 May 1994, he was convicted of “Behave in a Disorderly Manner” in the Cairns Magistrates Court and fined $120. This resulted from an argument about who should pay for a broken chair. Mr Birch should probably have adopted a more conciliatory tone in which case he might have avoided the charge and conviction. Nevertheless, the Tribunal is satisfied that this was a minor offence.
56. The most recent conviction is that of “Affray” on 27 June 1994. Mr Birch’s evidence, which is corroborated by that of Mr Grasier who was with Mr Birch at the time and was also charged and convicted of the same offence, is that he was the victim of circumstances and was himself assaulted in a brawl with bouncers at a Wolverhampton nightclub. Initially, Mr Birch and Mr Grasier pleaded not guilty but, shortly before the trial was about to commence, changed their plea to guilty on the advice of their barrister because of the likelihood of their evidence being contested. The fact that Mr Birch was sentenced to 80 hours community service and Mr Grasier was bound over for 12 months is an indication that the court did not regard this offence as at the serious end of the spectrum of misconduct.
57. Aside from Mr Birch’s criminal record, he does not dispute the following immigration misconduct:
·that on three occasions – on 7 December 1993, 7 August 2000, and 5 February 2001 – he failed to declare his convictions when completing an Incoming Passenger Card on arrival in Australia, and on one occasion he failed to declare his convictions when applying for an extension of his visitor visa in November 2001;
·that on two occasions – in June 1994 and May 2001 – Mr Birch remained in Australia after the expiry of his visa and worked without consent: on the first occasion for a period of about 14 months; on the second occasion for a period of 13½ months.
58. With regard to the Respondent’s allegation that Mr Birch failed to pay a debt in respect of tax owed to the ATO, the Tribunal accepts Mr Birch’s evidence that this was due to his not receiving the relevant tax notices which were sent to a former address, and that this debt has now been paid in full. It is clear that Mr Birch did pay tax on his income during both periods when he worked without permission in Australia.
59. In the Tribunal’s view, the seriousness of Mr Birch’s immigration misconduct, seen against the background of his criminal record, is sufficient to warrant a decision that he fails the character test by reason of his past and present general conduct, pursuant to s 501(6)(c)(ii) of the Act.
60. Having decided that Mr Birch does not pass the character test by reason of his past and present general conduct, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Birch. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
61. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
62. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include in subparagraph (c), serious crimes against the Act. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
63. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that Mr Birch committed a number of offences in the period 1984 to 1997. The Tribunal has set out its findings in relation to those offences above. In the Tribunal’s view, none of the offences should be considered in the “very serious” category. Mr Birch has also committed offences against the Act by failing, on four occasions, to reveal his convictions in connection with the issue of a visa. He also, on two occasions, remained in Australia after the expiry of his visa and worked without permission. The Tribunal regards such immigration misconduct as very serious.
64. The Tribunal considers that the risk of Mr Birch reoffending or repeating such misconduct is low. It is now more than six years since his last conviction and 12 years since his only serious offence in 1991. Given the consequences suffered by Mr Birch as a result of his criminal record, it is unlikely that he will reoffend. Moreover, the Applicant has provided significant evidence of Mr Birch’s rehabilitation – in terms of good conduct, charitable work and supportive character references. The Tribunal finds that Mr Birch is a mature man who has expressed regret at his former misconduct. The Tribunal also considers that the risk of his committing further immigration misconduct is low given the hardship he has suffered as a consequence.
65. With regard to deterrence, while the refusal of a visa, particularly in relation to immigration misconduct, may have the effect of deterring others who may be contemplating similar misconduct, this is not in itself a conclusive factor.
66. The second primary consideration is the expectations of the Australian community. As paragraph 2.12 of Direction No 21 states, the Australian community expects non-citizens to obey Australian laws while in Australia and where offences have been committed, it may be appropriate to refuse a person’s application for a visa. However, as the Tribunal recognised in Re Leha and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 1054, there is a “general expectation in the community that the Act would be administered fairly and humanely”. In the Tribunal’s view, the Australian community would take a compassionate view of Mr Birch’s situation in the light of evidence of his rehabilitation and support within the Australian community, and Ms Sapsford’s situation as a permanent resident whose continuing employment is strongly supported by her employer.
67. The third primary consideration, the Best Interests of the Child, is not relevant to this matter.
68. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary or permanent visa.
69. The Tribunal has no doubt of Mr Birch’s and Ms Sapsford’s love and commitment to one another and their desire to be married as soon as possible and settle in Australia. However, Ms Sapsford was aware of Mr Birch’s background and immigration status from early in their relationship. Both Mr Birch’s and Ms Sapsford’s families are in England. Ms Sapsford is close to her father although his situation has changed since the death of her mother in June 2002 and his establishing a new relationship with another woman. Ms Sapsford states she is not close to her sister. Mr Birch is not close to his family although maintains contact with his mother. The Tribunal accepts that he has tried to distance himself from his unhappy upbringing and background in Wolverhampton. He has established good contacts in Australia and has an offer of employment.
70. The Tribunal has already referred to evidence of Mr Birch’s rehabilitation and good conduct, described above and not disputed. The Tribunal finds that the separation of Mr Birch and Ms Sapsford is causing both of them significant hardship. Moreover, if Mr Birch is denied a visa, Ms Sapsford will have to leave the life she has established for herself in Australia in which her significant contribution as an employee of Aussie Home Loans is not in dispute. While, undoubtedly, Ms Sapsford would be able to obtain employment in England should she have to return there, understandably she does not wish to do so. The Tribunal notes that if Mr Birch is granted a visa this will initially be a temporary visa for a period of 30 months from the date of application. Consideration of permanent visa application will not occur until at least two years have passed since the initial application.
71. Weighing up the primary and other considerations, the Tribunal considers that because the risk of Mr Birch repeating any misconduct is low, because the Australian community would take a compassionate view of Mr Birch’s situation and because the other considerations favour the grant of a visa, the discretion in s 501(1) of the Act to not refuse the grant of a visa to Mr Birch should be exercised.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 11 December 2003
Date of Decision 24 December 2003
Representative for the Applicant Mr N Poynder, Counsel
Representative for the Respondent Ms K Grewal, Solicitor
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