Seru and Minister for Immigration and Multicultural Affairs - [2000] AATA 1103

DECISION AND REASONS FOR DECISION [2000] AATA 1103

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/823

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GRACIE SERU
  Applicant
           And    MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Justice D F O'Connor, President

Date11 December 2000
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under s 501 of the Migration Act 1958 be exercised in favour of the applicant and that the visa not be refused.

..............................................
Justice O'Connor, President

ADMINISTRATIVE APPEALS TRIBUNAL       )
  )  No. V2000/823
GENERAL ADMINISTRATIVE DIVISION          )

Re:GRACIE SERU

Applicant

And:MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

Respondent

CORRIGENDUM [2000] AATA 1103

TRIBUNAL: Justice D F O'Connor, President

DATE: 15 December 2000

PLACE: Melbourne

Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the Reasons for Decision provided to the parties on 11 December 2000 in accordance with the following directions:

In paragraph twenty-nine of the Reasons for Decision, delete "New Zealand" and insert "Fiji" such that the completed sentence reads: "…and that his past offences in Fiji …".

In paragraph thirty-three of the Reasons for Decision, delete "New Zealand" and insert "Fiji" such that the completed sentence reads: "…which Mr Seru committed in Fiji are numerous …".

........................................................
PRESIDENT

IMMIGRATION & CITIZENSHIP-class uf sublcass 309 spouse (provisional) refused – class bc sublcass 100 spouse (migrant) visa refused – "substantial criminal record" grounds for failure of character test

Migration Act 1958 ss 501(6), 501(7)
Migration Regulations, Schedule 2, Clause 309.225

REASONS FOR DECISION

Justice D F O'Connor, President

This is an application by Gracie Seru to have reviewed a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister), made pursuant to s 501 of the Migration Act 1958 (the Act), to refuse her application for a visa for Inoke Seru on the basis of the failure to pass the Character Test, the particular ground being s 501(6)(a) of the Act, "substantial criminal conduct".
Background
Application
Mr Niall appeared for the Applicant and Mr Knowles for the Respondent.

Chronology of events

On 6 January 1998 Mr Seru was granted a visitor visa valid for one month after entry. He arrived in Australia on 11 January 1998. On 10 February 1998 Mr Seru made a successful application for an extension of his visitor's visa, allowing him to remain in Australia until 11 April 1998. On 29 March 1998 Mr Seru departed Australia, returning on 11 April 1998 on a visitor visa allowing him to remain in Australia for 3 months. During that time he met his wife Gracie and in August 1998 Mr Seru commenced living together in a de facto relationship with her. Thereafter he approached the Immigration Department and he was granted a Bridging Visa E on 22 December 1999. On 16 January 2000 Mr Seru married the applicant in Melbourne. On 17 January 2000 Mr Seru departed Australia with his wife and on 19 January lodged an application for a subclass 309/100 Spouse (Temporary) visa at the Australian High Commission in Suva, Fiji.

Legislation and Policy Provisions

Schedule 2 of the Migration Regulations provides the criteria for grant of a Subclass 309 Spouse (Provisional) visa. Clause 309.225 requires the applicant to satisfy the public interest criterion 4001, at the time the decision is made. Public interest criterion 4001 requires the Minister to decide that there is no evidence of anything that might justify refusal under s 501 of the Migration Act.
A non-citizen does not pass the Character Test if they have a substantial criminal record, s 501(6)(a). Section 501(7) of the Act defines substantial criminal record as follows:
For the purposes of the character test, a person has a "substantial criminal record" if:
(a) the person had been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
Applicants for migration are required to provide details of any convictions or crimes against their name including any convictions which are now removed from official records. Mr Seru indicated that he had been convicted of "assault and break and enter in Fiji in the 1980s. Served a total of 2 and a half years on 3 separate occasions".
On 19 January 2000 the Australian High Commission in Suva received a police clearance for Mr Seru which detailed five charges against him between 1978 and 1980. The Australian Federal Police indicated Mr Seru had not been charged with any offences during his time in Australia.
On 17 April 2000 Mr Seru was interviewed at the Australian High Commission in Suva. Interview notes made at the time appear in the T documents at page 106-112. According to the notes, Mr Seru said he had been charged with housebreaking and assault when he was in Fiji but did not know how many charges. He said he thought the last charge was in 1995 and that he had spent 2 and a half years in prison, being released in 1984.
The High Commission in Suva obtained a copy of Mr Seru's full police record. The record lists twenty two offences (T docs, pp 134-137). The offences include obstructing the free passage of the public way, drunk and disorderly, burglary and larceny, criminal trespass, damaging property, receiving stolen property, hawking without a permit, disorderly behaviour, common assault, assault occasioning actual bodily harm, failure to comply with the condition of hawkers permit and touting.
For the purposes of subs 501(7), a sentence of more than 12 months' imprisonment constitutes a "substantial criminal record" and a substantial criminal record in turn constitutes a failure of the character test. Mr Seru has been sentenced to a term of imprisonment 12 months or more on three occasions. The first was a period of 12 months for "Burglary and Larceny in Dwelling House" in 1980. The second was 15 months imprisonment in 1981 for House Breaking Entering and Larceny. The third occasion on which Mr Seru was sentenced to a term of imprisonment of 12 months or more was in relation to Burglary and Larceny in a Dwelling House in 1983, at which time he was sentenced to 18 months imprisonment.
However, where a visa applicant fails to pass the character test as in this case, there is a discretion not to refuse to grant a visa. This discretion is to be exercised taking into consideration the Minister's Direction No 17, "Visa refusal and cancellation under section 501". The Direction provides that, in making a decision whether to refuse or cancel a visa, there are three primary considerations:

the protection of the Australian community, and members of the community
the expectations of the Australian community; and
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.

Neither the Applicant nor the Respondent argued that Mr Seru did not have a substantial criminal record which would result in his failure of the character test, however, the Applicant's case was directed at the available discretion which both parties acknowledged is to be exercised, taking into consideration the Minister's Direction No 17.
Submissions of the Parties
The Applicant argues that Mr Seru's visa should not be refused on the basis of his past criminal record in Fiji. The central matters advanced in support of that contention are:
(a) the Australian community does not need protection from Mr Seru;

(b)the community would expect that an Australian family would not be separated by virtue of the past offending of Mr Seru and would regard the refusal as an excessive and overly burdensome consequence for Mrs Seru and her child;
(c)the best interests of this child of the marriage heavily favour the exercise of discretion in favour of the grant of visa together with the best interests of Mr Seru's other six children all of whom currently reside in Fiji; and
(d)the existence of a genuine marriage which would be tragically disrupted should the visa be refused.

Protection of the Australian community
Seriousness and nature of the conduct

Mr Seru was in the past convicted of larceny, burglary and assault [p136-137 T docs].
The offences committed by Mr Seru were undoubtedly serious and would be considered so in Australia but a substantial amount of time has elapsed since the most recent offence, in fact the last property offence committed by Mr Seru was in 1984. He gave evidence by telephone from Fiji at the hearing (which was not challenged by the Respondent) that he has drastically altered his lifestyle in the last seven years and has given up abuse of alcohol on which he blames most of his criminal behaviour. As stated previously, he has been in Australia on a number of occasions since 1990 and, while he admits that he has during that time breeched his visa conditions, in particular by working, he has not engaged in any criminal activity of the kind mentioned in his criminal record in Fiji.
Recidivism – Is the Australian Community at Risk?
The Policy document states that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. It will be relevant to this assessment whether a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation; and a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed. It is also relevant to consider the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
In my view there is little risk of recidivism in relation to Mr Seru. He has explained it as a product of his youth and I accept this explanation and, as stated before, he has committed no crime of this type while in Australia. In particular, I am satisfied that Mrs Seru had had a beneficial influence on his behaviour
I accept therefore the Applicant's submission that the prospect of Mr Seru undertaking further unlawful activity is almost negligible and note that the delegate concedes that it is unlikely that Mr Seru "would commit further violent crime".
Deterrence
The Applicant submitted in relation to this issue that, seen in context, the offences for which he was convicted were committed when Mr Seru was relatively young and on his evidence were committed at a time when he was having a difficult period in his life. In the Australian context the offences are all summary offences. The Applicant argued they do not indicate a predisposition to offending or a callous disregard or contempt for the law and do not compel a conclusion of moral shortcoming on the part of Mr Seru.
In relation to deterrence generally the Applicant submitted that there is little basis for concluding that general deterrence (as opposed to specific deterrence) is a matter that should weigh heavily against Mr Seru. There was no organised breach of the law. His conduct in Australia, by working illegally, was opportunistic and Mr Seru admitted his conduct to Department officials. It was submitted that any benefit that may be achieved through general deterrence, which is speculative, must be weighed against other factors including the rights of the child, the interests of Australian citizens who will be so adversely affected. In that context deterrence is not a significant factor.
The Applicant argued that there is minimal risk of re-offending and no need for direct protection by excluding Mr Seru. Any indirect protection though deterrence would be minimal or speculative. The protection of the Australian community does not justify refusal.
Expectations of the Australian Community
The Applicant submitted that the Australian community would consider seriously the fact that Mr Seru has a past criminal record in Fiji and also the circumstances of his overstaying and working in Australia. However, it was submitted that the community would also expect that, in ordinary circumstances, an Australian family should not be separated by the refusal of a visa and that the interests of the child and of the Australian spouse and her family should be given great weight. It is only where that outcome is compelled that the Australian community would regard it as either necessary or desirable to separate a family and a child from their father. The interests of the community are affected by the absence of the need for protection. Therefore, argued the Applicant, the competing interests of the Australian community are balanced and ultimately do not weigh in favour of refusing the visa.
Best Interests of the Child or Children
In this case the evidence is that there are eight children, all under the age of 18 years, to be considered. Seven of these children must be given primary consideration, the other child's welfare should also, as a matter of discretion, be taken into account. The seven children are all children of Mr Seru, only one, Inoke, is the child of his present wife, Gracie Seru. The other six children are presently in Fiji. Three under the care and control of Mr Seru's former wife and three under his care and control. The baby, Inoke, is presently with his Australian mother living on a property with her parents and the eighth child, her niece, Emily.
If this application is granted Mr Seru would leave Fiji and return to live with Mrs Gracie Seru and the infant child. The circumstances of the children living with Mr Seru's former wife would not change, however, the three children currently living with Mr Seru in Fiji would be required to live with Mr Seru's sister. She gave evidence by telephone in the hearing expressing her willingness to care for these children. She is an employed librarian in Fiji and has previously cared for these children. She said she supported the application because she was confident that Mr Seru would not lose contact with these children. He had always in the past remained in close contact with them, even when his relationship with his first wife had broken down. She and Mr Seru's eldest daughter (aged 17) both confirmed that when Mr Seru had been in Australia and working he had sent regular amounts of money and clothes and gifts for their support. He then gave evidence that if he came to Australia he would continue to do so. At present Mr Seru is supporting himself and the three children with money sent by Mrs Seru from Australia because he is presently unable to get employment in Fiji.
In general terms, every one of the children's best interest will be served if each child remains with its parents. In this case, however, it is not possible for this parent to live with all of the children for whom he is responsible. The baby, Inoke, is an Australian citizen and the evidence of Dr Simsion, a psychiatrist, was that it would be in Inoke's best interests if his father joined the child's mother as a family. The evidence of the Fijian witnesses, including Mr Seru's eldest daughter, supported this view because they were of the view that their father could better provide for them if he were in Australia and working. They would be able to visit him in Australia they said and he would be able to maintain frequent contact with them from Australia. There was no evidence that this separation from these children would have a bad effect on them. In relation to the children in Fiji who are currently with their mother, Mr Seru is already separated from them as they live on the other side of the island. The evidence is that he sees them twice a month, and he gave evidence that he would continue to contact them from Australia and provide for them.
Mr Seru has good relations with all of his children and I am satisfied that he will continue to act in their best interests. I have also taken into account that if this application was refused and Mrs Seru was forced to take herself and the baby to Fiji in order to live with her husband in a family situation that the baby would become exposed in Fiji to an inferior health support system and inferior education system. Nor would the current financial support being provided by Mrs Seru continue.
I have also taken into account the additional factor that if Mrs Seru left Australia she would not be able to continue the care and support of her niece Emily who, because of family circumstances, is a child considered at risk who is presently being cared for by Mrs Seru's mother but with her substantial assistance. Dr Simsion was of the opinion that this outcome would be acutely stressful to Mrs Seru and her prognosis was a possibility of a consequent nervous breakdown.
Other Considerations
There are a number of other matters which, in the Government's view, are appropriate to be taken into account when considering the issue of visa refusal or cancellation. However, the Policy Statement says that they should be given less individual weight than that given to the primary consideration.
The Extent of Disruption to the Non-Citizen's Family, Business and Other Ties to the Australian Community
Mr Seru has a wife and dependent child in Australia and a number of other relatives. The evidence of Mrs Seru, in particular, was that his separation from her has created a major disruption in their family. This conclusion was supported by the evidence of Dr Simsion. I have concluded that the marriage between Mr and Mrs Seru is a genuine one. Although Mrs Seru knew Mr Seru's background, including his previous criminal convictions and his legal status at the time of his marriage, I accept that she has taken steps to regularise his status since she became aware of it, and that his past offences in New Zealand she considers to be of little immediate concern.
Mr Seru made a commitment to his family in evidence before me and this was not challenged by the Respondent.
Degree of Hardship to Others
Evidence was give that both Mrs Seru and the new baby would suffer a high degree of hardship if the visa application were refused. In relation to Inoke, the baby, that matter has been addressed under the primary considerations. In contrast the hardship to Mr Seru's other six children is, in my view, unlikely to be immediately if he is granted the visa because as stated previously three of his children are in the care of their mother who is currently resident in a different part of Fiji to Mr Seru. The three children living with Mr Seru will, if he is allowed to enter Australia, be placed under the care of their aunt who has cared for them previously and gave evidence she was willing to do so again. Mr Seru's eldest daughter gave evidence of her satisfaction at this arrangement.
This case involves a difficult balancing exercise in respect to the children for which Mr Seru is responsible. On balance, however, I consider that the hardship suffered by Mrs Seru and the baby, should the visa be refused, greatly outweighs the likely effect on the other children.
The Nature and Seriousness of the Offences

The offences which Mr Seru committed in New Zealand are numerous and on their face serious. However, they occurred a substantial time ago. Mr Seru has, apart from his visa offences, not committed any crime while in Australia and it appears that since commencing the relationship that Mrs Seru has been at pains to regularise his status.
I accept that Mr and Mrs Seru enjoy a genuine marriage and have a shared commitment to spending the future together. I also accept that Mrs Seru is a person of high moral character with a well established life in Australia and she has initiated action to regularise Mr Seru's status in Australia. After the relationship began a migration agent was engaged promptly and the advice given was acted upon, including Mr Seru voluntarily leaving Australia.
The maintenance arrangements for Mr Seru's children of his previous marriage have been properly organised and I accept that Mr Seru has no on-going relationship with his former wife other than the mutual interest they have in their children.
Other International Obligations
There are no other international obligations owed to Mr Seru which need to be taken into account in this application.
Conclusion
This application has raised a number of competing issues in considering the operation of s 501 of the Act. Mr Seru has engaged in the past in substantial criminal conduct and prima facie would be regarded as a person of bad character, however, the discretion which is available to me to allow entry in spite of this character is effected by the fact that Mr Seru has a genuine marriage to an Australian citizen and a dependent Australian child.
Several important factors exist which make it a case of hardship to require Mrs Seru and the baby to reside in Fiji. It would not, in my view, be in the baby's interest for this to occur, nor would it be in the interest of Mrs Seru or her niece, Emily, who at present is partially dependent on her for support.
I therefore set aside the decision under review and in substitution therefor determine that the discretion under s 501 of the Act be exercised in favour of the Applicant and that the visa not be refused.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Justice D F O'Connor, President.
Signed:         .....................................................................................
  Associate
Date of Hearing  21 November 2000
Date of Decision  11 December 2000
Counsel for the Applicant        Mr R Niall
Solicitor for the Applicant         Baker & Armstrong
Counsel for the Respondent    Mr R Knowles
Solicitor for the Respondent    Department of Immigration & Multicultural Affairs