"Smith" and Minister for Immigration and Citizenship
[2007] AATA 1497
•2 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1497
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1416
GENERAL ADMINISTRATIVE DIVISION ) Re “MARY SMITH” Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr J. Block, Deputy President Date2 July 2007
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 Partner (Provisional) (Class UF) (Subclass 309) visa, under section 501(1) of the Migration Act 1958, should be exercised in favour of John Smith (the Visa Applicant).
..................[sgd]....................
Mr J. Block
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP - Refusal of visa on grounds of character – character test failed because of prison sentence – discretion under Part 2 of Direction 21 – recidivism and deterrence – decision set aside
Migration Act 1958; s. 501
Re Patel and Minister for Immigration and Multicultural Affairs [2002] AATA 78
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126
Re Bibashani and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1207
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
REASONS FOR DECISION
2 July 2007 MR J Block, Deputy President Part A: Background and Introduction
1. The objection decision under review is the decision by a delegate of the Respondent refusing an application for the grant of a Partner (Provisional) (Class UF) (Subclass 309) visa to John Smith ("the Visa Applicant"), who is the Applicant’s husband, on the grounds that he did not satisfy the character test set out in section 501 of the Migration Act 1958 ("the Act").
2. Mr N. Poynder of counsel instructed by Stirling Henry Migration Services represented the Respondent while Mr A. Cox of DLA Phillips Fox solicitors represented the Applicant.
3. At a directions hearing held prior to the commencement of the hearings, the Tribunal granted an order, pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, (the “AAT Act”), in accordance with which the hearings were to be held in private, and on the basis that (conditionally on this application being successful) the identities of the Applicant, the Visa Applicant and the three members of a family in Ireland who were the victims of sex offences committed by the Visa Applicant would be concealed. The application is in the result successful and that direction is thus fully operative; the names of the Applicant and the Visa Applicant are pseudonyms (Mary and John Smith); in respect of the three members of the family in Ireland to whom I have referred, I use the surname "Cave" and as first names and in order of age, Lorraine, Cora and Peter respectively, and which are not either as to surname or first names their real names. Insofar as material quoted in these reasons might disclose the identities of any of them (and including the Applicant and the Visa Applicant), I have amended the relevant reference, any such amendment being indicated by brackets around either an edited word or phrase or through the use of ellipses.
4. The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act together with exhibits as follows:
Exhibit A1 is a lengthy statement by the Applicant dated 23 February 2007.
Exhibit A2 is a handwritten statement by the Applicant made at the time of sentencing of the Visa Applicant.
Exhibit A3 is a lengthy statement by the Visa Applicant dated 8 March 2007.
Exhibit A4 is the pre-sentence report by the Probation Board for Northern Ireland dated 10 January 2001.
Exhibit A5 is a character reference dated 25 February 2007.
Exhibit A6 is a character reference dated 6 March 2007.
Exhibit A7 is a letter by the Northern Ireland Court service dated 26 March 2007.
Exhibit A8 consists of the sentencing remarks by the presiding judge (Lord Justice McCollum) when the Visa Applicant was sentenced on 12 January 2001.
Exhibit A9 is a character reference dated 20 December 2000.
Exhibit A10 is a character reference dated 28 December 2000.
Exhibit A11 is a character reference dated 21 December 2000.
Exhibit A12 is a character reference dated 21 December 20002.
Exhibit A13 is a report by Dr P. S. Curran, a consultant psychiatrist, prepared at the time of the conviction and sentence of the Visa Applicant.
Exhibit A14 is a fax by Stirling Henry Migration Services to Dr Curran dated 23 May 2007.
5. It may be noted that Exhibits A5 and A11 are character references from the same person and Exhibits A6 and A12 are also from the same person. Each person gave character references both for the purposes of this hearing and also the sentencing hearing.
Part B: the material before the Tribunal generally
6. As indicated by the Applicant in her Statement of Facts and Contentions there is little dispute of fact between the parties. The sentence imposed on the Visa Applicant ensures that he does not pass the character test and so that this matter falls to be decided in accordance with the discretion contained in part 2 of Direction No. 21.
7. The statements submitted on behalf of the Applicant and the Visa Applicant are lengthy and detailed (and commendably so) and so much so that Mr Poynder in broad terms, and with some minor exceptions, confined his examination-in-chief of each of them to the tender of those statements after they had been confirmed as true and correct. Cross-examination by Mr Cox was in neither case lengthy and so much so that the evidence of the Applicant and the Visa Applicant was completed on the first morning of the first hearing day. Each of the Applicant and the Visa Applicant was in my view a credible witness.
8. The Visa Applicant was charged with a number of counts of indecent assault against three members of the same family extending over a lengthy period of time. The first two pages of the presiding judge’s sentencing remarks (given on 12 January 2001) and contained in Exhibit A8, read as follows:
I have read all the various documents, the testimonials, the pre sentence report, the victim impact reports and the psychiatric report which has been furnished to me. I am not going to refer to their contents but I am taking them into account in deciding how to deal with this case.
Stand up, please, [John Smith]. You have pleaded guilty to a number of specimen counts of sexual abuse against three members of the same family which consisted of two sisters and a brother. I am not going to name the particular members of the family involved but I trust it will be appreciated that is not out of any disrespect of their position. In relation to the elder sister the charges span from 1975 – 1979, in respect of the younger 1975 - 1981, and there are offences against a younger brother which span the period between 1976 - 1981. All of the offences are charged as Indecent Assaults.
Because of an anomaly in the law prior to 1989 Indecent Assault against a female was punishable by a sentence of two years' imprisonment while such an assault against a male was punishable by ten years' imprisonment. I share the opinion of many others and of Parliament that two years was inadequate to cover the spectrum of offences which might be charged as Indecent Assault on a female but I must respect the fact that it was the maximum sentence at the time of the commission of these offences. Were I free to do so I would have passed a sentence in excess of two years in respect of each of the offences charged against the girls, but it would not be proper for me - although this is a case in which it is appropriate to pass consecutive terms of imprisonment - it would not be appropriate for me to use my power to do so as to the length of the total sentence which you have to serve in such a way as to bring about the effect that the maximum sentence possible in force at the time of the offence was being ignored by me or being exceeded considerably in the totality of the sentence.
I have looked at the various authorities on sentencing decisions made by other courts and I have come to the conclusion that it would not be appropriate to make the sentences in respect of each individual victim consecutive, but in my view it is proper in this case to impose consecutive sentences in respect of the different victims.
There is no doubt, and I will not dwell on this, that you used your position and your welcome into the home of this family in order to gratify your sexual impulses and that obviously makes the offences more serious than they might otherwise be. On the other hand, and in your favour, it must be said that you fully acknowledged the hurt and harm caused by you and you have made every effort to apologise to all the members of the family. I am not going to recite details of the offences nor lecture you on morals or proper behaviour. In my view the papers show that you are already conscious of the wrong which you did and how serious that was and how damaging it has been to the lives of your victims.
9. The judge’s sentencing remarks were given in the context of the Pre-sentence report (Exhibit A4) and which is set out in full as follows:
DEFENDANT IN HIS LIFE SETTING
[John Smith] is a fifty-four year old man who from the age of thirteen years until July 2000 was a member of the Christian Brothers Order. Towards the end of 1999, he applied to leave the order having met an Australian lady with whom he wished to marry. During the period when this application was being processed these offences were disclosed by the victims. [Mr. Smith] confided in his fiancée who after much thought decided to proceed with the relationship. They were married in June 2000 in Australia and returned to Ireland. Following a short period with his mother in Dublin, the couple took private rented accommodation … I am advised that the location is a quiet rural community in which they have settled well. The location was chosen for its proximity to [the prison] which the couple believe is the probable outcome of today’s proceedings.
[Mrs. Mary Smith] is around forty years old. She presents as an intelligent and responsible individual who is a qualified teacher. She has applied for work in the [local] area. Mr. Smith has been unemployed since leaving Christian Brothers. He received a discharge settlement of £34,000 upon which they are living at present. He is not in receipt of any benefits at present. As a ‘Brother’, [Mr. Smith’s] salary was paid to the Order and he received a stipend to meet his basic needs.
[John Smith] was born and raised in the North side of Dublin, the eldest of three sons. His father died in 1982 and his mother is now 82 years old and suffers from Alzheimer’s Disease and Angina. His brothers live in reasonable proximity to their mother and offer support. [Mr. Smith] has been clearly concerned about his mother’s condition and has visited on a regular basis. She is not aware of these charges and he is very anxious about the impact if she does find out.
Childhood he describes as happy with caring parents and summer months spent in the countryside with extended family. He attended a Christian Brother’s School and when he was thirteen, the school was visited by a Vocation’s Officer and [Mr. Smith] and a friend decided to join the Brotherhood. This as the Court may know is a ‘teaching order’.
He states that his parents were neutral on the decision and allowed him to make his own choice. At the age of thirteen he boarded at the Brothers Junior ‘seminary’ not far from his home. His parents were allowed monthly visits and he spent most of the summer at home. The following two years were enjoyable with academic opportunities as was as music and games.
At fifteen [Mr. Smith] moved to his ‘noviciate’ year. This was a strict year with no access to the outside world, not even newspapers. [Mr. Smith] describes an unusual culture of silence and self-denial. His ‘novice-master’ apparently recommended flagellation as part of their spiritual development but it was not compulsory.
It was during this year [Mr. Smith] took a vow of celibacy. He describes being told about male physical development but nothing about female development or sexual education per se. As such he had only a limited knowledge of what he had foresworn. The degree to which this environment had an adverse effect upon [Mr Smith] is difficult to assess. A retrospective view would suggest a potential connection with later distorted sexual conduct.
Over the following years he completed his training and completed his ‘Leaving Certificate’. He was sent to university and taught for one year in Dublin before being sent to Belfast where he lived at a Brother’s residence … and completed his Teacher Training … in 1969/70 aged twenty-four.
[Mr. Smith] was a teacher of Mathematics, but also taught English, Irish and Music. As a brother he was moved to various postings in Belfast and occasional training courses in various parts of Ireland. In 1973 he was sent to teach at [a] Secondary School and lived in a Brother’s residence in a semi-detached house in the … community. It was whilst living here that his offending commenced.
In spite of various breaks [Mr. Smith] returned to … Belfast for much of his teaching career. After [the secondary school at which he was teaching] was closed in 1988 he participated in the establishment of [a College] … and from 1998 until he stopped teaching he was involved in creating a project … for ‘poor-attenders’.
He met his wife in 1998 at a conference in Dublin on such issues as she did similar work in Australia.
SEXUAL HISTORY
[John Smith] states that around the age of five or six years he was himself indecently assaulted by a teenage boy in a field near his home. He states that it was a ‘one-off’ incident, which he did not report and does not believe that it had any lasting impart upon him or bearing on his subsequent behaviour.
Having entered a religious order at a very early age, he had little opportunity to explore his sexuality or develop relationship. His sexual education as an adolescent was virtually non-existent and he had taken a vow of celibacy before being fully cognisant of what he had foresworn.
He describes a very sexually repressive environment where noviciates were discouraged from talking about girls. Masturbation was practiced furtively and later confessed. He states that there were no incidents of homosexual practices that he was aware of.
[Mr. Smith] denies any sexual misconduct prior to the commission of these offences. He reports that his fantasies tended to be more focused on what it would be like to raise a family than specific sexual activity, prior to engaging in these assaults.
OFFENDER AND CURRENT OFFENCE
[John Smith] appears on a charge of indecently assaulting three children from a family who lived hear his residence ... The charges are specimen charges and reflect that [Mr. Smith] had access to these children over a very extended period of time.
The female victims, initially around 10/11 years old, were groomed into abusive sexual relationships within which they were encouraged to believe that they were the ‘girlfriend’ of ‘Brother [John]’. Indeed both these situations pertained long after the victims had reached the age of consent.
The family would also appear to have been vulnerable in the sense that the father is described in victim statements as being regularly absent through alcohol. The mother also subsequently experienced mental illness and the youngest children were taken into care. It was this which would appear to have ended [Mr. Smith’s] access to the male victim, then aged 13 years.
I am advised that during questioning by police, [Mr. Smith] denied committing any offences. During interview with myself he accepted full responsibility for his behaviour and described the victim’s statements as entirely accurate.
If and when challenged over statements which I viewed as minimising, rationalising or distorted he immediately accepted that contention. For example, the use of the word ‘relationship’ to describe contact with these children.
[Mr. Smith] also accepted that he had progressively groomed these children into sexual roles and that he had disguised his real intent by couching his interest as friendship and providing music and maths instructions. He acknowledges that he maintained contact with the family after the abuse stopped in part to reduce the possibility of disclosure.
These children provided an opportunity for sexual gratification in a context which allowed [Mr. Smith] to remain within the Christian Brothers. The dichotomy between his religious vows and the harm which he was inflicting upon the children was a schism he bridged through the deceit of everyone but himself.
[Mr. Smith] is acutely aware of the fact that he has also betrayed the Order and Community of which he was a member for forty years.
[Mr. Smith] has now progressed to a consensual adult relationship and has left the Brotherhood. This move was planned prior to the disclosure of his offending. His partner although hurt by events has decided to stay with [Mr. Smith].
The degree to which he may continue to present a risk to children is difficult to accurately access [sic] at this stage. His actions were pre-meditated, selfish, planned and sustained over a significant period. To his credit he now acknowledges his complete responsibility for these events and the harm that they have caused to his victims.
The level of insight and contrition he displays pre-sentence is rare and offers some hope of a successful diversion from future offending through a structured programme of work. The support of an intelligent and responsible partner may assist in this process.
PREVIOUS OFFENDING
[Mr. Smith] has no previous convictions.
CONCLUSION
[John Smith] appears for a catalogue of serious sexual assaults upon three children from a vulnerable family. His control of this situation was so successful that he was able to sustain this abuse over a significant period of time. It is clear from the victim statements that their exploitation has left an emotional and psychological legacy.
[Mr. Smith] accepts that he is entirely to blame for these events and expresses appropriate concern for the victims. He has also displayed an openness and desire to learn how his sexual fantasy and behaviour evolved in this abusive manner. Both of these factors give some level of encouragement that he can be helped to reduce the risk he presents to children.
The Court will view these offences as serious and meriting a period of imprisonment. It is my assessment that such a sentence should be combined with a programme of work which will address the entirety of [Mr. Smith’s] sexual history and abusive behaviour. Such a programme will be designed to reinforce [Mr. Smith’s] internal inhibitions about conducting himself in such a manner and provide a range of external monitoring procedures, thereby reduce the risk of further offending.
This work could be undertaken through a custody probation order with an additional requirement of attending a sex offender programme.
…[the] Clinical Psychologist, who runs a Sex Offender Programme … has agreed to undertake this element on behalf of PBNI should [Mr. Smith] continue to live in [that community] beyond his release. Mrs. Smith will be supported through the ‘partners’ element of this programme immediately.
Should the couple move to Northern Ireland then our own programme will be used. [Mr. Smith] has indicated a desire to participate in such a programme and willingness to comply.
The wording of this additional requirement is:
“He shall attend in accordance with instructions given by the Probation Officer at the Integrated Supervision Unit … for a period of 30 days and while there, comply with instructions given by or under the authority of the person in charge”.
…
10. The report of Dr P Curran, Exhibit A13, is included in part and confined to its summary contained at pages 20, 21 and 22 reading as follows:
Summary:
Your client was 13 years of age when he entered the "religious life", a system of development that, in my view, distorted, mis-shaped, disallowed and even thwarted ordinary emotional, social and sexual growth during his adolescence. He came to the North as a young male teacher with no experience of or relationships with females. I don't believe he has, like many paedophiliacs, abused many children. I think he was lonely, sexually inexperienced, somewhat socially inept and he found himself by his late 20s living in Belfast. And yet, he had, like all of us, sexual drives, wants and needs. Restrained by a set of religious values and mores that forbade penetrative sex (however illogical they may appear) he nonetheless encouraged, developed, allowed and groomed initially [Lorraine] and later [Cora Cave] to satisfy his sexual needs and to exploit their innocence. As [Lorraine] grew in age and then, for whatever psychological reason or need or however driven spiritually, becoming a nun, he switched his controlling and perverse influence towards the increasingly attractive [Cora]. It seems to me a testimony to the power of his control and even the powerlessness of [Lorraine] that she, as a nun, allegedly had other dealings with him, in her adult life. It seems to me that just as [Lorraine] sought either psychological retreat or spiritual redemption from him by entering the nunnery, then possibly [Cora] tried to emancipate from him, becoming engaged to another man. Whilst not altogether knowing the circumstances of the break-up of [Cora's] relationship with her young man, I wouldn't be surprised if [Smith's] powerful control over her and her continuing powerlessness contributed to the break-up of [Cora's] engagement. In more recent years their relationship came to nought as [Cora] in her 20s tried to break free of his feelings for her and her feelings for him and whilst he struggled, however weakly, with whatever spiritual and psychological doubts he had about himself. The three of them kept their individual silences, each trapped in an unsaid conspiracy of silence, guilt, personal sense of responsibility and even (God forbid) with trace elements of affection. I think it likely that this whole history might never have emerged were it not for his core problem - his need for expression of sexuality and his need to be freed from the shackles of his so-called vocation and "religious life". [Lorraine] and [Cora] had at last broken free, free of his powerful influence over them and they might have continued for the rest of their lives in their individual and mutual conspiracy of silence were it not for the fact that this man, 30 or 40 years too late, had still not defined himself to himself and for himself. He met another woman - at least a woman not a child; fell in love with her and began to acknowledge the reality that he was not and should never have been a Christian Brother. And, he acknowledged that. He sought freedom from the Order. He negotiated his independence and emancipation from the Order and the rules of that Order (which of course he had broken in any event). He allowed himself to fall in love with and be loved by [Mary] who sounds a remarkably tolerant and forgiving person. He found freedom and I would strongly suspect that when [Lorraine] and [Cora] discovered that he was free, whereas each of them was still trapped in a cul-de-sac in life, then the allegations were made and all that has flowed from it since January 2000.
Your client intends to plead guilty; expects a term of imprisonment and probably deserves a term of imprisonment for the vile, exploitive, indecent sexual behaviour he perpetrated for his own needs on these children and for all of those years. And he feels he needs to make reparation.
I don't believe he is typical paedophiliac with eclectic or wide-ranging tastes and needs. I think he is a damaged personality, damaged by the system in which he was spiritually and academically educated from far too young an age. He reserved his "paedophilia" to young children within one particular family and to exploit his own sexual needs and since he was too frightened (by the constraints of his own education and culture) to engage in adult to adult sexual relationship with someone of his own age. Then, over the years of sexual abuse he exercised power and control over these girls and indeed over their feelings for him to the point where they ended up more damaged than him. I believe in his own sexually inept and "perverse" way he believed he loved them and he deluded himself into believing that they loved him. It was not until both young girls grew up belatedly (if with the inevitability of time) that they came to the point where they put a stop, as best they could, to his continuing controlling power over them.
It was not until far too late in his life that he picked up the courage to begin to gingerly take steps to leave the religious order, acknowledge his own sexual immaturity and to come to terms with the reality that his unmet sexual need can only be met by falling in love with an adult female.
By the most curious and, in this circumstance, well-deserved paradox, it was only when he became honest with himself, left the Order, met and married an adult female, that that then prompted others to remind him of his own dishonesty for all of the earlier years. I would strongly suspect that it is no mere coincidence that [Lorraine] and [Cora] eventually made their allegations when learning that he had fallen in love with somebody else.
It is probably of little consolation to the court, if it was advised, that there is little prospect of this man abusing other young females in the future given his new circumstances. It will be consolation for the court to be advised that he acknowledges his guilt, that he expects and believes he deserves a term of imprisonment and that he expects he will not be popular in any penal institution given his crime and his personal circumstances. The only consolation that he has, and he is very very fortunate to have it, is the love and the loyalty of his new-found wife who now finds herself having to live for the next few years in comparative poverty, knowing few if any people in Ireland, living in rented accommodation … so as to be available to display her constancy to him as he faces a prison sentence.
Part C: The evidence of the Applicant
11. As indicated previously in these reasons the Applicant's statements are so detailed that it was possible for Mr Poynder to confine his examination in chief, in large part, to the tender of her statements; clauses 15 to 32 of Exhibit A1 read as follows:
Marriage to [John]
15. In December 1999, [John] came out to Australia again, and during this visit, formally asked my dad for my hand in marriage. Mum and Dad were over the moon! We saw in the new Millennium together at a party at my Aunt and Uncle's, overlooking the Harbour. I flew back with [John], as my holidays were a few weeks longer than his. We were impatient for his dispensation to be granted, so that we could plan our wedding!
16. A few days after I returned to Australia, everything was turned upside down, when [John] was told of the allegations against him. At the same time, my dad's health was deteriorating rapidly. He was so keen to see us married, but wanted us to do things the right way, and wait for [John’s] dispensation. This had now been held up, due to the allegations. In April, 2000 [John] came out to tell me about what he had done in the past, and the trouble he was now in. I was shocked when he first told me. I could hardly believe what I was hearing. He thought I would not want anything to do with him after this. Although devastated, I knew that I still loved [John], and wanted to support him. Days later, my dad's health deteriorated badly, and on 28 April 2000, he was admitted to hospital for the final time. Dad died on 1 May 2000. My mum, my two sisters and their husbands, and [John] and I were all with Dad when he died. [John] was a great support to my family and me over the next days. There was so much to cope with. It was such a difficult time for us all, and most especially my mum.
17. Mum felt that we might postpone our plans to marry, given that Dad had just died. She said to us that we weren't to delay our plans to marry, and that as soon as we were able we should, and it had given Dad great joy to know that we were to marry. [John] and I talked about this, and we decided to push for his dispensation to come through. We also started to meet with our priest to plan for our wedding, which was set for 17 June 2000. [John’s] dispensation was granted in early June, and his Province Leader asked him to return to Ireland to sign for it. We were married on 17 June 2000, and despite all that had happened in the previous few months, it was a wonderful day. I expected to feel terribly sad because Dad wasn't there, and although I was sad, I really felt his presence and his joy at seeing us married at last. Family and friends also commented on the joy in the day.
18. [John] and I enjoyed a wonderful honeymoon; a week spent touring the South Coast of NSW. Then [John] returned to Ireland to meet with his solicitor, and in early July 2000, came back to Australia, and we prepared for our move to Ireland, on 5 September 2000.
Return to Ireland and [John’s] imprisonment
19. Initially, we stayed with [John’s] mum in Dublin, but were keen to get ourselves settled into our own home. We spent ten days … looking at job opportunities and housing options. At the same time, [John] was facing into [sic] his court appearance, and his solicitor prepared us for the almost certainty that [John] would receive a custodial sentence. Knowing this, we revised our plans about where we wanted to live, as I was adamant that I wanted to be near [John] once he was jailed. With just two prisons in Northern Ireland, his solicitor told us that he expected that the majority of [John’s] sentence would be served in the minimum security prison …. So we decided to explore nearby … as a possible place to settle. House prices and rents were very reasonable, and there were plenty of job opportunities for me … just across the border. We found a lovely house to rent in a small estate … just ten minutes from [the prison], and moved in on Monday, 30 October 2000. At the same time, [John’s] court case was approaching, although no date had yet been set. Despite this enormous black cloud over our life, we did enjoy setting up our first home together, and fully appreciated living in such a beautiful locality, with magnificent walks right on our doorstep.
20. In early December 2000, [John] was in court, pleaded guilty, and was remanded on continuing bail for sentencing on 12 January 2001. His solicitor had prepared us for the likelihood that [John] might be remanded in custody, so we were delighted to know that we would have Christmas together, and even more so, as [John’s] mum had been recently diagnosed with mild to moderate Alzheimer's, and it meant we could all spend Christmas together.
21. [John] was sentenced on 12 January, 2001. Both his brothers and I were in court that day. It was a horrible experience. [John] was taken to [prison] for the initial part of his sentence. l was able to visit [John] the next day, and then I went down to Dublin for a few days to be with his mum, who was terribly distraught. I returned to our home. Neighbours and friends were very good to me, and helped to make a difficult time more bearable.
22. After six days, [John] was transferred to [another prison], and I was able to visit every week for three hours. This was the highlight of my week! We also talked on the phone twice a day, and wrote to each other regularly.
23. At this time, I started applying for jobs, and obtained a position with the [a] Down Syndrome Trust … Mum came to visit in March/April 2001, which was fabulous. In May 2001, [John] was moved to the Open Prison, and was soon able to leave the prison for a whole day once a fortnight. The first of these just about coincided with our First Wedding Anniversary! In July 2001, [John] received one week parole, and from August 2001, he was able to come home from Saturday until Tuesday every fortnight. At Christmas, he received ten days home leave, and then on 11 January 2002 he was released from prison. A joyous day!
…
24. It was so wonderful to have [John] home permanently And [sic] we settled quickly into a very happy domestic ‘routine’.
25. During 2002 we decided to approach our landlord to see if we could purchase the house we were living in. Interest rates are so low in Ireland, that our mortgage repayments would be less than the rent we were paying. House prices are also rising … so it seemed a good investment to purchase the house. We were thrilled when our landlord eventually agreed to sell to us.
26. We still have our domestic routine …. I continue to work full-time as an Outreach/Development Officer at [the] Down Syndrome Trust …, working with teenagers and young adults who have Down Syndrome. [John] also comes into [town] two days each week. One morning per week he works as a volunteer at an abandoned dogs home in [town], and he also does all our weekly shopping in [town]. [John] does most of the house-work and he also cooks delicious evening meals. The week-ends are free to do all the things we enjoy together, like going for a drive, going for scenic walks, visiting friends, working in the garden, etc. Once a month, we go down to Dublin and spend the weekend with [John’s] mum. We also enjoy the theatre, reading, music, history, and going to the cinema. I enjoy keeping an eye on the finances, and [John] enjoys shopping for the weekly groceries, and is great at finding bargains and keeping to a budget.
27. We both enjoy travel, and are always on the look-out for cheap flights and deals which we save for. We have enjoyed a number of trips away together in Ireland and further abroad, including special trips for each of our wedding anniversaries.
Return to Australia
28. And now our thoughts have turned to our dream to return to Australia to live. We have now been away from Australia for over six and a half years and, although I have been able to visit each year and we are all in regular phone contact, it is getting harder to live so far away from my family. We would dearly love to be living out there.
29. My grandmother is now 90 years old and is becoming more frail, slowing-up, and last year had surgery for her sight, which thankfully went well, but had a risk of leaving her blind. I miss her terribly and would so love to be spending time with her. On each visit, I can see her aging more and more. I am extremely close to my grandmother - during the 80's and early 90's I accompanied her on a number of trips, both in Australia and overseas. She loved going on tours, but didn't like to share a room with someone she didn't know, so used to take me along! Needless to say, they were a very special time for us, and something we both look back on with great memories. Whenever we're speaking on the phone with my grandmother, she always asks , "Any word yet on whether [John] can come out ?" She is so keen to see him again, and so keen to spend time with us, but for health reasons, can't take the long trip to Ireland. She is also fully aware of [John’s] offences. Each time I'm leaving Australia, as you can imagine it is a very emotional time saying goodbye at the Airport, and my grandmother is always thinking (as I am too) will this be the last time she sees me?
30. My mum had a fall last year, and broke her hand quite badly, and I found it very difficult being so far away, and not able to help her. Always at the back of my mind is the thought that my mum has survived two bouts of cancer, and what would I do if it were to strike again. My five nieces and nephews are growing up fast, and I miss being a part of their lives. I've enjoyed living in Ireland, but I am an Australian, and I earnestly desire to live once again in my own country. In 2005 we received the very sad news from an Australian friend that she had terminal cancer. I wasn't able to see her before she died. Speaking on the phone was no substitute, especially as she had cancer of the throat and was not able to speak in her last few weeks. It is things like that, that really bring home to me how far away I feel from my family and my friends.
31. We have a house in [Sydney], and so would have a home on our return. As a teacher, with a broad range of experiences, I don't anticipate any difficulty in finding employment. I would hopefully have a job lined up before we returned, but if that were not possible, then I could rely on casual teaching until I found a permanent position. I have a lot of contacts in Australia in teaching and related professions, and I know that they would also be looking out for me, as soon as I give them the word. [John] is now receiving his Teachers Superannuation, and this is payable in Australia.
32. Our plans for the future are simple ones. To spend time with family and friends is paramount. My family are all very close, and regularly get together to celebrate birthdays, Christmas and Easter. I really miss being a part of these celebrations. We left Australia four months after my dad died, and I haven't been with my family for Christmas since his last Christmas with us, in 1999. We would so love to be able to move to Australia to live, and to make Australia our home.
12. There is no dispute as to the fact that the marriage is genuine. There is equally no dispute as to the fact that the Applicant married the Visa Applicant at a time when she knew of the offences in respect of which the Visa Applicant was convicted and sentenced and at point in time prior to his conviction and sentence.
13. The Applicant and the Visa Applicant live in a house in Ireland owned by them jointly and where the necessary funds were contributed by them jointly. The Applicant is engaged in the care of children with Down syndrome. Although her position is funded and so that is not guaranteed, there can be no doubt that the demand for persons such as herself is such that her services will always be needed and in all probability, anywhere in the world.
14. The Applicant is part of a close-knit family. She wishes to return to Australia to be with them and her desire is understandable in the context of the health of her mother and grandmother. The Visa Applicant is now retired.
15. As I have indicated the Applicant's evidence can and should be accepted.
Part D: the evidence of the Visa Applicant
16. In respect of the Visa Applicant (who gave evidence by telephone link to Ireland) I include (for the reasons set out previously) clauses 2 to 27 of Exhibit A3 as follows:
2. I was born and brought up in Dublin, where my father was in charge of the men’s tailoring department in [a] Department Store, one of the biggest department stores in Dublin. My father passed away in 1986. My mother is now almost 89 years old and she suffers from moderate Alzheimer’s Disease. She lives on her own in Dublin and relies on Home Help services who provide for her needs three times per day.
3. I am the eldest of three brothers. …
4. From about 1950 to 1958 I did my primary schooling … in Dublin, then I commenced my secondary schooling … also in Dublin.
5. When I was thirteen years old a friend and I decided to join the Christian Brothers as postulants. This was after only one year secondary school. We lived in the Juniorate run by the Christian Brothers … in Dublin for two years, after which I moved to the Christian Brothers Novitiate …, closer to the City. I was there for one year, then I undertook a second year Novitiate at … near Dublin. In 1963-1964 I undertook my Leaving Certificate ….
6. In September 1964 I returned to Dublin and entered the Christian Brothers Training College … I was among a group of three who were chosen to study at university, and that year I enrolled in a Bachelor of Arts … I was directed by my superiors to take a year off to teach in 1966, and in 1968 I graduated, majoring in Maths, English and Latin.
7. In 1969 when I was 23 years old I moved to Belfast to undertake a Diploma of Education …
8. From 1969 until 1971 I worked in my first job as a teacher … [in] Belfast. Then from 1971 to 1973 I was seconded by my superiors at the Christian Brothers to work as a tutor … where I had undertaken my Diploma of Education.
9. It is impossible to talk about this period without reference to “The Troubles”; that is, the violence which broke out in Northern Ireland in the late 1960s between Irish republicans and loyalists who favoured British rule over Northern Ireland, and continued until the late 1990s. During the early 1970s (especially 1971-1973) Northern Ireland was engulfed In [sic] the most bloody period of the Troubles. Sectarian killings and bombings occurred on almost a daily basis. Normal life simply ceased. It was a particularly dangerous period for young people to be on the streets. Many were involved in extremely dangerous riots, particularly in the Iong Summer holidays. To relieve the pressure and anxiety for parents, the Brothers organised summer camps far away from the troubled streets of West Belfast, and I was co-ordinator of the camps in the Summer of 1973. In all, about 200 boys were given positive and safe outlets, away from the dangers of the violence they would almost certainly have otherwise been sucked into.
10. On one occasion I came upon a number of IRA members stashing weapons in the boiler room In [sic] [a] school. I asked them, with some trepidation, to remove them Immediately [sic], as a school was no place to have an arms dump.
11. On another occasion I was asked by the school principal to accompany him to the school premises as a suspicious vehicle with three men was seen entering the grounds. When we arrived on the scene, they were in the process of setting up a mortar to fire at the army as they passed on patrol. We were relieved when they quickly dismantled it and drove off when they saw us approaching.
12. During my period as Co-ordinator [of an education program] (see below), I pleaded the case of one of our students, through an intermediary with the IRA, to allow him to continue his education. He had been placed under curfew by the IRA, who had threatened to kneecap him if he broke the curfew. They acceded to the request and the curfew was lifted for the duration of school hours, provided he was brought to and from the school by me. He turned out to be a good student.
Circumstances of my criminal offences
13. In September 1973 I commenced work as a teacher at [a] Secondary School in Belfast. It was during this period that I committed my criminal offences.
14. At the time I was living in a community house owned by the Christian Brothers in a small housing estate in … Belfast. The Brothers had also purchased a house opposite the main community house and I had a bedroom there where I slept.
15. I came to know the [Cave] family, who lived in the same estate not far from where I was living. Initially I knew [Lorraine Cave] through casual contact on the estate, and I later met her family. At this time [Lorraine] would have been about twelve or thirteen years of age. She had a sister, [Cora], who was one or two years younger, and a brother, [Peter], who was one or two years younger again.
16. In about 1973-1974 I developed an unlawful sexual relationship with [Lorraine Cave]. It started out as friendship but soon I crossed the line of propriety and we engaged in inappropriate touching. This lasted until about 1978, although from September 1975 until August 1976 I was back in the Republic of Ireland to undertake a diploma in residence … near Dublin. The relationship ended when [Lorraine] joined a convent (although to my lasting shame we also had a brief sexual encounter after she had become a nun).
17. In about 1978 I also developed a similar unlawful sexual relationship with [Lorraine’s] sister [Cora], who was by then about fifteen or sixteen years old. Once again we engaged in inappropriate sexual touching (I never had sexual intercourse with either [Lorraine] or [Cora]). This relationship continued on into [Cora]’s adulthood (the age of consent in Northern Ireland is seventeen years). By about 1983-1984 I really thought that I was in love with [Cora] and that we might get married. We would go out just like any other couple; we even went on holidays together. However by about 1988 any possibility of a romantic relationship had petered out and we were more like companions. In fact it was only when I met [Mary] in 1998 that I finally experienced real feelings of love and commitment and I was able to break free of what had become a mutually destructive relationship with [Cora].
18. Looking back on it now I can see clearly the vile, exploitative nature of my behaviour towards these children. When it all started I was in my mid to late twenties and they were only in their teens. I was lonely and utterly inexperienced in sexual matters (I had never had any contact with females at that stage) but I had sexual desires and I took advantage of my position to satisfy those desires. In my warped frame of mind I allowed myself to turn a blind eye to the harm that I was doing to these children. I fully deserved the punishment that I received.
19. When I was charged for my sexual misconduct against [Lorraine] and [Cora] I was also charged with sexual offences against their brother [Peter]. I was surprised at this because I had thought that any physical contact that I had with [Peter] was of a non-sexual nature - more like “tickling”. However my legal counsel advised me that this still amounted to sexual contact and advised me to plead guilty to these charges, and I accept that this was the case.
The period from 1983 to 1998
20. After completing my diploma …in August 1976 I had returned to Belfast and taught at [a] Secondary School until 1983.
21. In September 1983 I was seconded by the Bishops Conference to return to Dublin and live … [and] to write textbooks in Religious Education for use in secondary schools.
22. In September 1985 I returned to Belfast and took up my previous teaching position at [the] Secondary School, where I stayed until August 1987.
23. In September 1987 I returned to teach at [the former secondary school]. However in September 1988 [the school] amalgamated with two other secondary schools to form a new body … with a student population of almost 1,000 pupils. …. In the new school I worked closely with the first Principal … in setting up the school. After [the first Principal] left I also worked closely with the new Principal…
24. During this period I became very involved in staff development. I always had a great interest in teaching methods, and I ended up helping groups of teachers develop new ways of teaching. In this role I also worked closely with … the Head of Pastoral Care; firstly in the Junior School and later in the Senior School.
25. It was through this that I also became involved in [an educational program for marginalised youth]. [It] was in a very deprived area, and a lot of the young people were involved in violence - primarily against the authorities such as the police and the army. There were a lot of kids dropping out of the school system and the Christian Brothers wanted to address this. In 1998 they asked me if I would be willing to assist in setting up a new way of assisting such kids; to give them something positive and get them “back on track”. From my years of involvement with these kids I had some ideas on this, and I readily agreed.
26. One of the brothers on our leadership team suggested the idea to me. One of our grammar schools had moved out premises in a neutral area very close to the city centre, and we decided to use the premises to set up our programme. Our idea was firstly to approach Catholic schools to see if they had students who were dropping out and not attending school, and eventually we hoped to extend the programme to all schools. I came up with the [name] … to reflect that this was not to be narrow academic learning but a different style of learning suited to these children.
27. We started out … with myself in charge as Coordinator, and two other Christian Brothers. Initially we had about four students, but I networked with Educational Welfare Officers employed by the Belfast Education and Library Board and they also put me in contact with other suitable candidates. We were offered so many needy kids that before long we had a waiting list and had to interview students to properly assess their needs. We were subsequently joined by two nuns, a lay teacher, and later some volunteer teachers from elsewhere in the Catholic system. At most we had about ten students, to keep the programme manageable.
17. Although the cross-examination of the Visa Applicant was lengthier than was the case with the Applicant, it did not reveal much that was not contained in the documents before the Tribunal.
18. When the Visa Applicant was 13 years old, he was recruited into the religious life leading, within a comparatively short space of time thereafter, to his taking first preliminary vows and thereafter final vows. While a member of his order he obtained a degree in English, Latin and Mathematics and thereafter a teaching qualification.
19. There is very little evidence before the Tribunal as to what occurred in relation to Peter Cave; the Applicant described the conduct in question as "tickling" although that "tickling" took place under Peter's clothing.
20. The Applicant's relationship with the two girls was, as he admitted, much more readily categorised as sexual although it never progressed to the stage of intercourse. There was a period of time during which he was engaged in conduct of this nature with both girls as his affections were transferred from Lorraine (the older sister) to Cora (the younger sister). Lorraine herself joined a convent and there was some sexual contact between them at a point in time thereafter. So far as the Visa Applicant is aware Lorraine is still a nun. Cora became a nurse and subsequently entered a relationship with a merchant seaman although that relationship did not result in a marriage between them.
Part D: The evidence of Dr Curran
21. It was not originally intended that Dr Curran would in fact give evidence. It was noted during the first two hearing days that although Dr. Curran’s report is lengthy and detailed, he had seen the Visa Applicant on one occasion only and moreover that it contained little as regards Peter. The Tribunal considered that his evidence or failing evidence by him, evidence by another psychologist, would be desirable. It was not possible to obtain such evidence on either of the first two hearing days; evidence by Dr Curran was obtained by telephone link in a hearing commencing at 4 p.m. on the third hearing day and being 22 June 2007.
22. Dr. Curran was a consultant psychiatrist in the National Health Service in Ireland for about 30 years. Some 6 or 7 years ago he resigned from the Service in consequence of his work in and involvement as a member of the Mental Health Commission, the Sentence Review Commission and the Life Sentence Review Commission. (The last of these three tribunals deals with political prisoners sentenced in consequence of their actions during the troubled times in Ireland in order to assess the extent to which they could be granted early release).
23. Dr. Curran also assists and advises victims of violence in respect of their claims for compensation under the relevant legislative scheme in Ireland. In this capacity he has consulted with and advised both Cora and Peter. He said that Lorraine, who is a nun, has elected not to pursue her claim under the relevant scheme.
24. Upon receipt of Exhibit A14 Dr, Curran consulted (and very recently) with each of the Applicant and the Visa Applicant separately and in particular as to the five dot points which appear in the middle of the second page of Exhibit A14 and reading as follows:
Of particular interest to Deputy President Block is whether or not [Mr. Smith] is likely to re-offend if he is granted a visa to Australia. Also of interest are the following matters:
1. Do you have any comment on whether it was sufficient for you to see [Mr. Smith]
once prior to preparing the report?
2. If are able to see [Mr. Smith] again, would you be able to discuss with him and
make any comment on the charges in relation to the boy, [Peter Cave]? This could not be pursued by you in 2000 due to time constraints — see p. 2, paragraph 4 of the report.
3. [Mr. Smith] has given evidence to the Tribunal 'that at some stage during the period that he was abusing the children he underwent a church confession at which he admitted what he was doing and was told to cease such activity’. Do you have any comment on this?
4. Do you have any comment on the possible suggestion in the final paragraph of p 22 of the report that [Mr. Smith's] non re-offending may be contingent on the survival of his relationship with [Mrs. Smith]?
5. Several times in your report you used the term "paedophiliac” in reference to [Mr. Smith] — see, for example, pp 8 (fifth paragraph), 9 (first and fifth paragraphs), 20 (third paragraph) and 21 (third paragraph). Are you able to comment on your use of that term?
25. Dr. Curran said that he would stake his professional reputation on the fact that recidivism in respect of the Visa Applicant “was as close to zero as is possible”.
26. He made it clear that he prepared the report which is Exhibit A13 after spending several hours with the Visa Applicant. He said that in it he described the development of an immature personality and how the Visa Applicant came to be so.
27. Dr. Curran said that when recently interviewing the Applicant and the Visa Applicant (and he interviewed the Applicant first) he found no inconsistencies in their statements to him. He described the Applicant as a “noble lady” and said that he was most impressed by her as a wife and as an individual.
28. In respect of Peter Cave, Dr Curran was convinced that there was no contact between him and the Visa Applicant which involved genital contact. On the contrary it involved tickling under the arms the chin and on his stomach. He pointed out that the presiding judge found that in relation to Peter the conduct of the Visa Applicant was far less serious.
29. Dr. Curran noted that he wrote his report 6 months after the marriage between the Applicant and the Visa Applicant and that they have now been “idyllically” married for some 7 years.
30. Dr. Curran’s evidence was quite lengthy but I do not think I need to deal with it in great detail. He was firmly of the view that the Visa Applicant was introduced into the religious life at an age which was much too young and that he was in consequence deprived of an opportunity (to develop normally) of the kind which young men usually have. He was convinced that the Visa Applicant thereafter matured and developed at a time which is much later than normal, that his marriage to the Applicant is an unqualified success, and that the possibility of recidivism is minimal (or to use his words “close to zero”).
31. He was referred in cross-examination to the fact that in his report he used the word “paedophiliac”. He said that he used that term as descriptive of the Visa Applicant’s behaviour and not as a label in respect of the Visa Applicant. He noted also that the Visa Applicant’s behaviour towards the Cave children was not incestuous and was not compulsive in that he did not offend with others. He believed that the Visa Applicant pleaded guilty to all charges on advice from his barrister and to prevent further harm to the children by them having to give evidence in a hearing. He noted also that the facts as regards Peter were not canvassed. Dr. Curran considered that the Visa Applicant does not have homosexual tendencies. If the term “paedophiliac” relates to a person whose sexual orientation is confined to children of either sex then quite plainly the Visa Applicant is not a paedophiliac.
32. Further in cross-examination Mr. Cox asked Dr. Curran what his opinion as to risk would be if the marriage ended. Dr. Curran replied that the marriage is so good that it could not end otherwise than by death of one of the spouses and that the Visa Applicant being 20 years older than the Applicant is far more likely than not to predecease the Applicant. In the unlikely event that the reverse occurred the risk might be marginally higher (and he said that he could not assess it) but maintained his view that the risk would nevertheless be very low. In this one area only the evidence of Dr Curran is in my view open to some mild criticism; his evidence was that the Visa Applicant has matured and developed to the point where he now has a successful and fulfilling adult relationship and such that the risk of recidivism was “close to zero”. In the unlikely event of the Visa Applicant surviving the Applicant it is hard to follow why the risk or lack of it would in any way alter. Dr Curran did say though that even then the risk would be very low.
33. Cross-examined as to the fact that the Visa Applicant’s criminal activities continued even after he had confessed Dr. Curran referred to the sacrosanct nature of what is said in confession; the fact that the conduct in question continued after confession did not cause him to alter his views in any way.
34. Dr. Curran’s evidence was articulate and impressive (and his qualifications cannot be doubted). His evidence must be accepted.
Part E. Analysis
35. It is necessary to commence with the basic proposition that the Visa Applicant's offences were reprehensible in the extreme. Not only did a person who was considerably older than any of his victims commit them but also in addition they were committed at a time when he occupied a position of trust in relation to them; moreover they endured over a considerable period of time.
36. It is relevant to note that the Cave daughters made the complaints only after it had become known that the Visa Applicant and the Applicant had become involved with each other, and thus some considerable time after the offences in question had ceased. The Visa Applicant was reluctant to accede to a suggestion that there was a "woman scorned" aspect in relation to their complaints but such a possibility cannot be discounted. (Dr. Curran referred to this possibility in his report Exhibit A13).
37. When confronted with the complaints the Visa Applicant cooperated with the authorities and admitted his guilt. The sentence imposed was such that with a good conduct remission the Visa Applicant served one year only and he was a model prisoner while incarcerated. Since his release he has been engaged, in general terms, in work, which can be categorised in broad terms as charitable.
38. The Visa Applicant’s evidence indicated that he has been remorseful throughout. It indicated also that he is a cultured, intelligent and articulate man.
Part F: Direction - Visa Refusal and Cancellation under s.501 - No 21 ("Direction 21")
39. In this part F, numbered clauses should be construed as references to numbered clauses in Direction 21.
40. Clause 2.3 of Direction 21 provides:
2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
41. In this case, clause 2.3(c) is not relevant.
42. Clause 2.3 must be considered in conjunction with clause 2.5, which reads as follows:
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non‑citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
43. In relation to the question of recidivism, the Respondent originally assessed the risk as minimal; his opposition to this application would appear to indicate that he altered his views thereafter. In my view and on the evidence before me his first view was correct. The risk of recidivism is, having regard to the evidence of Dr. Curran, in all probability minimal or even non-existent. It is my view that the Visa Applicant would not present any threat to the Australian community.
44. In relation to the question of the deterrence, the Applicant referred to the decision in Re Patel and Minister for Immigration and Multicultural Affairs [2002] AATA 78 where Gray J. said:
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.
45. The Applicant contends that deterrence is in this case not a relevant consideration; I refer in particular in this context to clause 13 of the Applicant’s Statement of Facts and Contentions which reads as follows:
13. In much the same way, the notion that a young Christian Brother in Ireland might be deterred from criminal conduct by the prospect that he might one day be refused a visa to Australia is also way too remote, as appears to have been recognised by the delegate in this case. The element of general deterrence will therefore have no direct relevance to the present case.
46. My own view is that if deterrence is of very limited relevance in this matter.
47. Clause 2.12 of Direction 21 (which relates to the expectations of the Australian community) reads in part as follows: “Visa refusal… 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…”
47. The Applicant dealt with this aspect in her Statement of Facts and Contentions in clause 16 in the following terms:
16. In the present case this is probably the major factor against the visa applicant. At first glance, one might consider that the Australian community would expect that any person who has committed sexual offences against children should never be allowed to settle in Australia.
48. Mr. Cox contended that there are some offences (and the offences in question in this matter fall within this category), which are so heinous that the Australian community would expect that persons committing them be refused entry to Australia. I do not accept that this contention can or should be accepted; the correct view was that recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 as follows:
Community expectation will of course mean different things to different people. I think the phrase "community expectation" is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question; do you think non-citizens who commit serious crimes of violence should be deported? But instead requires a dispassionate response when all of the relevant facts and circumstances have been examined..
49. The view expressed in Afoa was cited in Re Cockrell and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 90 ALD 126 at [56] and Re Bibashani and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1207 at [57]. Moreover Deputy President McMahon noted in Re Leha v Minister for Immigration and Multicultural Affairs [2000] AATA 1054 that “there would be a general expectation in the community that the Act would be administered fairly and humanely”. While it is possible that there would be sections of the Australian community who would consider that refusal is appropriate in these circumstances this would not in my opinion be the view of reasonable persons aware of all of the facts.
50. This Tribunal is often furnished with evidence as to the fact that a person who has committed serious offences has reformed. Evidence of this nature should in my view be treated with reserve especially when given by the offender himself. That said this is a case where the evidence is such that the Tribunal can accept that there is virtually no risk of the Visa Applicant re-offending.
51. Mr. Cox in his closing submissions noted that the Visa Applicant was, when convicted, placed on an offenders register and subjected by the country in which he was convicted to certain reporting obligations which endure for a period of 10 years.
52. As I understood the position, the Visa Applicant is obliged whenever he moves from one place of residence to another to advise the authorities; however his obligation to report does not in any way prevent him from moving residence; moreover the period in question does not have long to run. I do not consider that this is a material or even a particularly relevant consideration. Equally irrelevant is the contention that the Applicant and the Visa Applicant are doing well and are well settled in Ireland. This is undoubtedly so but there are cogent reasons why they desire to move to Australia.
53. In respect of clause 2.17 of Direction 21 there would undoubtedly be hardship to members of the Applicant’s family, (and in particular her mother and grandmother), if the visa were refused, but this factor is of limited importance. The Applicant has lived away from them for a number of years, and visits are eminently feasible.
54. This appears to me to be a case where the Visa Applicant committed offences at a time, which are explicable at least to some extent in the context of his early upbringing and training. Although the offences in question were unquestionably very serious within clause 2.6 of Direction 21, the evidence before me indicates that in relation to the primary considerations he presents no threat whatever to the Australian community, more particularly having regard to the fact that the risk of recidivism is either minimal or non-existent. I should note in this context that the character witnesses (in some cases persons in responsible positions) were not required for cross-examination and so that their statements can be accepted; they all speak warmly and favourably of the Visa Applicant; it is relevant also that they do so notwithstanding their awareness of the criminal offences in question. This too is a factor which should not be ignored.
55. In all the circumstances, this is a case in which the discretion in favour of the Visa Applicant should be exercised. 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 Partner (Provisional) (Class UF) (Subclass 309) visa, under section 501(1) of the Act, should be exercised in favour of the Visa Applicant.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of MR J Block, Deputy President
Signed: ...........[Emily Gadsby]...........................
AssociateDate/s of Hearing 7 and 8 May and 22 June 2007
Date of Decision 2 July 2007
Counsel for the Applicant Mr N Poynder
Solicitor for the Respondent Mr A Cox of DLA Phillips Fox
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