Spratt and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 317

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/60

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LESLIE MICHAEL SPRATT

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date8 April 2005  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution decides that despite being satisfied that refusal to grant the Subclass 820/801 Spouse Visa to Leslie Michael Spratt is justified, the power to refuse to grant the Visa should not be exercised.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

MIGRATION – refusal of spouse visa – Applicant deemed to be not of good character – unlikely to be a threat to Australian community - significant compassionate circumstances – discretion exercised – power to refuse grant of visa should not be exercised – decision set aside

Migration Act 1958: s499, 501

REASONS FOR DECISION

Deputy President Don Muller        

1.      Leslie Michael Spratt is a British citizen who is married to Kerrie Ann Spratt, an Australian citizen.

2.      Leslie Spratt applied for a Spouse (Subclass 820/801) Visa to allow him to live with his wife in Australia.

3.      On 30 December 2004, a Delegate of the Minister for Immigration Multicultural and Indigenous Affairs made a decision to refuse Leslie Spratt’s application for a Spouse Visa on the ground that Leslie Spratt does not pass the character test, pursuant to the provisions of the Migration Act 1958.

4.      Leslie Spratt seeks a review of the decision to refuse his application for a Spouse Visa.

5.      Leslie Spratt was born in Camberwell, London on 9 April 1959.  Kerrie Spratt was born in Melbourne on 30 January 1962.  They met in London on 25 November 1999.  They have been living together as spouses since 13 January 2000.  They married at Noosa Heads, Queensland, on 16 March 2001.

6.      At the hearing Leslie Spratt was represented by Mr. Nevison of Counsel, instructed by Ferguson Cannon O’Connor Lawyers and the Respondent was represented by Mr. Lo, solicitor.

7.      The Tribunal received oral evidence from Leslie Spratt and Kerrie Spratt in person and from Joseph Friel and Ms. Bendall by telephone.  Joseph Friel is a solicitor who is based in Glasgow, Scotland.  Mr. Friel represented Leslie Spratt in a criminal trial in Glasgow in 1996.  Ms. Bendall is a psychologist who has interviewed Leslie Spratt and made an assessment of his character.

8.      Mr. Nevison tendered a book of documents which included the so-called G documents, statements from the above-mentioned witnesses and references relating to the character of Leslie Spratt.

9.      The material placed before the Tribunal reveals the following backgrounds in relation to Leslie and Kerrie Spratt.

Re:  Kerrie Spratt

·     She has suffered from depression for most of her adult life.

·     Her father died in December 1981 when she was 19 years of age.  His death had a very bad effect on her.

·     She first married on 6 February 1982.

·     Her first marriage was not harmonious.  She attempted to have treatment for depression.  Her husband and his mother were very unsympathetic and unsupportive.

·     In 1991 her older sister died at  age 41, from lymphoma.  She was badly affected by the death.  Again, her husband was unsympathetic.

·     Her first marriage ended in 1991.

·     In 1992 she began a relationship with a man she worked with.  She assisted him with the building of a home in a rural Australian town.  She married him in 1996.  The marriage did not go well.  He was very possessive and he often refused to allow her to go out with her friends.  Her depression returned.

·     In March 1999 she went to London for a six week holiday to visit a friend from her primary school days.  Upon her return to Australia she attempted a reconciliation with her husband but his attitude towards her had not improved.

·     In early November 1999 she returned to London to stay with her friend.  It was during this visit that she met Leslie Spratt.

Re:  Leslie Spratt

·     He had a relatively normal childhood.  He enjoyed school.  He played various sports for the school’s teams.  He went on school trips to Europe and to other parts of the United Kingdom.  He sat for his “O” levels and did reasonably well.

·     He has an older step brother and a younger brother.  He currently has almost no contact with them.

·     When he was 17 years of age he was involved in a collision between a motorcycle he was riding and a car.  He was seriously injured and hospitalised for many months.  He has no memory of the event – nor of the events of the three weeks following.

·     Following recovery from his injuries he believes that his personality changed.  He became involved in minor criminal incidents which he now describes as senseless offences.  The list is:

27.11.76:       Taking a motor vehicle without consent
  No insurance
  Minor road traffic offence
  Fined £21, 24 hours at an attendance centre

28.6.69:         Shoplifting
  Fined £75

5.1.81:           Assault occasioning actual bodily harm
  Criminal damage
  Fined £100 + £20 compensation

11.3.81:         Driving motor vehicle excess alcohol
  Driving while disqualified
  Taking a conveyance without authority
  Fined £250, disqualified from driving 3 years.

10.6.85:         taking a conveyance without authority
  2 counts of driving while disqualified
  2 counts of no insurance
  Failing to surrender to bail
  Fined £400, community service

·     Notwithstanding his instability between 1976 and 1985 he was able to obtain gainful employment.  He initially worked as a trainee civil engineer for London Transport.  He gained his qualifications in 1982 and left London Transport.

·     He and his brother went into partnership with his father who was a builder.  By 1983 they had built the business to the point where they had their own office, a property, ten vans and employed approximately 60 workers, including secretaries, office manger, delivery drivers and tradespeople.

·     On 18 June 1988, he married his first wife, Mavis McCann, who was from Scotland.  He had first met her in 1982.  There are no children of that relationship.

·     In 1994 both of his parents died within six months of each other.

·     The building company, then run by him and his younger brother, obtained contracts to do work in Scotland.  He was familiar with Scotland, having visited his wife’s relatives there on numerous occasions.

·     He and his wife decided to re-locate to Scotland and to that end purchased a house on Loch Lomond and rented their London flat.

·     He and his wife lived in Scotland for about 12 months and then returned to London to live.  They purchased a house in London.

·     He was regularly travelling from London to Scotland to fulfil his building obligations there.  Sometimes he drove his van when he was transporting materials and tools to and from the building sites.

·     On one occasion his wife’s nephew, who was from Glasgow, asked him to take some of his personal belongings to Glasgow.  He agreed.  On arrival in Glasgow he went to his wife’s nephew’s home but no one was there.  He then went to the nephew’s step-father’s flat to leave the bags there.  He walked into a police surveillance operation which was targeting the step-father’s home.

·     The nephew’s bags contained a quantity of amphetamines.

·     On 18 October 1995 he was charged with a number of drug related offences.

·     He maintains that he has never used drugs, never sold drugs and did not know that there were any drugs in the nephew’s bags.  However, he did concede to the authorities that he thought his wife’s nephew was a bit “dodgy” and he should have made enquiries about what was in the bags before he agreed to take them.

·     On 8 March 1996, he was convicted by a panel of 15 jurors on a majority vote of 8 to 7, of the offence of “Being involved in the supply of controlled drugs”.

·     He was sentenced to six years imprisonment with effect from 19 October 1995.  He did building work in Glasgow prison for 12 months. He was then re-located to a low security prison in Kent for 12 months.  Then 12 months in a prison which allowed him to go outside to work in the community.  He was free after three years.

·     When he returned to his community he found his relationship with his wife was failing.  They separated approximately 12 months after his release.

·     However, he was able to return to the building industry.  He has since done work for British Airways, work in Post Offices and work at Buckingham Palace.

·     He met his present wife, Kerrie, in November 1999.

·     He divorced his first wife on 16 January 2001.

10.     The Scottish court authorities advised the solicitors for Leslie Spratt that the transcripts of the court proceedings in 1996, including the judge’s sentencing remarks, have been lost.

11.     Mr. Friel, a member of the Law Society of Scotland, gave evidence that he has specialised in criminal law for 25 years, and that he had the conduct of Leslie Spratt’s defence in 1996.  Mr. Friel made the following points:

·He has had no contact with Leslie Spratt since the trial in Glasgow in 1996.  He was contacted by Mr. Spratt’s Brisbane lawyers and has only dealt with them in relation to this matter.

·Leslie Spratt maintained his innocence at all times.

·Mr. Friel instructed a Barrister to appear on Mr. Spratt’s behalf.

·Mr. Friel employed private investigators over a period of 10 weeks to check Mr. Spratt’s version of events.  They found no evidence in Mr. Spratt’s home in Kent of any amphetamine manufacture, residues or traces; no evidence of any amphetamine traces in his van;  no evidence of any unexplained wealth.  They also visited Mr. Spratt’s relatives in England and found no evidence of amphetamines.

·Mr. Spratt pleaded not guilty and gave evidence in his defence at his trial.

·Mr. Spratt’s wife’s nephew and the nephew’s step-father were called to give evidence at the trial but refused to say anything, on the ground they might incriminate themselves.

·The jury specifically found that Mr. Spratt was not involved in dealing in drugs, nor involved in the commercial supply of drugs.

·The Court took the view that Mr. Spratt should have asked what was in the bags – he should have been more suspicious.

·Mr. Spratt was not known to the police at the time of the delivery of the bags to his wife’s nephew’s step-father, but the step-father was known to them.

·The legal climate in Scotland in 1996 was such that if Mr. Spratt had been convicted of offences relating to dealing in drugs or commercial profit from drugs, he would have expected to be sentenced to 10 to 15 years in prison.

Leslie Spratt and Kerrie Spratt

12.     The affidavits of Leslie Spratt and Kerrie Spratt, plus other documents placed before the Tribunal indicate the following:

·Leslie Spratt and Kerrie Spratt, quite independently of each other, were not dealing well with the vicissitudes of life before they met each other.  They gave evidence that during the Christmas period of 1999, in London, Kerrie Spratt overdosed on her medication and was hospitalised.  Leslie Spratt apparently nursed her through a difficult period.

·They confessed to each other their history of short-comings.  Leslie Spratt told Kerrie Spratt that he had been to gaol.  She told him that their relationship would be over if he ever got into trouble with the law again.

·They made plans to live together in London.  They rented a flat and began living together on and from 13 January 2000.   They have apparently experienced marital bliss and harmony for the first time in their lives.  They are adamant that they support each other and that they are good for each other.

·They began a building business in which Leslie Spratt did the physical work and the employing of tradespeople and Kerrie Spratt did the secretarial/bookkeeping side of the business.  The business went very well.

·In April 2000 they decided to visit Australia together.  Kerrie Spratt’s mother was ill in hospital.  Her brother’s child was to be christened.  She had unfinished financial business to tidy up with her husband in Australia.

·They entered Australia on 28 April 2000.  Leslie Spratt filled in his incoming passenger card.  He declared that he had criminal convictions.  He was not stopped nor questioned by immigration officials on his arrival at Melbourne airport.  One of his affidavits has a statement to the effect that he did not declare his criminal convictions on his first visit to Australia.  However, the card shows that he did in fact declare that he had criminal convictions.

·They visited relatives and had a brief holiday on the Gold Coast.  They left Australia on 12 May 2000 and returned to London.  During their stay in Australia, Kerry Spratt started to wean herself off anti-depressant drugs.

·On their return to London Kerrie Spratt enrolled in a secretarial course, for which she paid £3,000, to improve her skills to make her more effective in the building business.

·In December 2000, Leslie and Kerrie Spratt purchased a home in London for £235,000.  They paid a deposit of £30,000 and borrowed the balance.

·For Christmas 2000, they went on a holiday to the Canary Islands.

·In February 2001, they decided to get married.  It was Kerrie’s wish to have the wedding ceremony in Australia.  She chose the Noosa area as the place in which she wanted to have the wedding.

·Kerrie Spratt organised the whole of the wedding details from London.  She arranged to pay for her brother and his family to fly from Melbourne to Noosa.  She also arranged for her mother and her mother’s partner to fly from Melbourne to Noosa.  The wedding date was set for mid-March 2001.

·Leslie and Kerrie Spratt flew from England to Australia, arriving in Melbourne on 10 March 2001.  The incoming passenger card for this flight has apparently been misplaced.  It is not in the G documents.  According to Leslie Spratt’s affidavit he thinks he put a cross in the “No” box in response to the question “Do you have any criminal convictions?”.  However, his affidavit also says that he ticked the “No” box on his first entry into Australia, whereas the document itself shows that he ticked the “Yes” box.

·A few days after the Spratts arrived in Melbourne the family group flew to Noosa.  Leslie and Kerrie Spratt were married on 16 March 2001.

·Leslie and Kerrie Spratt returned from Australia to London on 25 March 2001.

·In June 2001, the Spratts paid for Kerrie’s brother and his family to travel to London for a holiday, during which time the families also travelled to Europe.

·The Spratts again spent Christmas 2001 in the Canary Islands.

·In January 2002 the Spratts organised Kerrie’s 40^th birthday party to be held in Melbourne.  They arrived in Australia on 27 January 2002 and left Australia on 9 February 2002.  On this occasion Leslie Spratt ticked the “No” box in answer to the question as to whether he had criminal convictions.

·Upon returning to London the Spratts continued to build their business which was doing well.

·During 2002, the Spratts had two holidays in the Canary Islands.  One in March and one in December.

·In January 2003, the Spratts travelled to Australia.  Kerrie wanted to be in Australia to see her family and also to see her niece attend her first day at school.  They arrived in Australia on 26 January 2003 and left Australia six days later on 1 February 2003.  On that occasion Leslie Spratt put a cross alongside the “No’” box in answer to the question about criminal convictions.

·After leaving Australia on 1 February 2003, the Spratts returned to England via the Maldives and Dubai.

·Upon returning to England Kerrie Spratt began to feel homesick for Australia and her family in Australia.  She did not feel happy about living in England.  She began to experience feelings of paranoia.  She became frightened of living in London.  Leslie Spratt installed burglar alarms and security locks on their home but their home was nevertheless broken into on a few occasions.

·They had built up a good business.  They had a home they were proud of.  However, Kerrie was not handling her feelings of insecurity at all well.

·In mid-2003 they decided to resettle in Australia.

·They put their house on the market.  They shipped their furniture to Melbourne on 4 and 5 September 2003.  They sent their two dogs to Melbourne (to quarantine for four weeks).  Their house sold quickly for £376,000 (settlement on 9 September 2003).

·Leslie Spratt applied for an extension on his tourist visa by Internet.  He was granted a three month extension.

·The Spratts arrived in Melbourne on 11 September 2003.  Leslie Spratt put a cross alongside the “No” box in answer to the question about criminal convictions.

·Shortly after arriving in Melbourne, the Spratts travelled to Noosa with the idea that they might buy a property in that area.  Upon arriving at Noosa, they inspected various properties and eventually purchased a house at Tewantin for $415,000.  They then returned to Melbourne.

·Upon their return to Melbourne they lived in a unit near Kerrie Spratt’s mother.  They bought a car and a utility.

·They had the utility transported to Brisbane by truck.  They left Melbourne by car, with their two dogs, on 25 October 2003, arriving at their new home in Tewantin on 27 October 2003.

·The Spratt’s furniture arrived in Australia from London on 27 November 2003.  They have subsequently completely refurbished their house.

·They bought a boat just before Christmas 2003.  They paid the airfares for Kerrie’s brother and his family to join them at Tewantin for Christmas 2003.

·The Spratt’s travelled to New Zealand in early March 2004.  When they returned from New Zealand to Australia on 7 March 2004, Leslie Spratt again put a cross alongside the “No” box in answer to the question about criminal convictions.

·They no longer have any ties in England.

·They have made many friends in the Tewantin area.  The references supplied by a large number of people in the area indicate that the Spratts are well regarded.

·The Spratts would like to start up a building business in the area where they have bought their house.

·Prior to their marriage they were naively unaware of the technicalities involved in the procedure in which a foreign spouse is permitted to live in Australia with their Australian spouse.

13.     Evidence was given to the Tribunal by psychologist, Cecilia Ann Bendall, who interviewed Leslie Spratt for the purpose of assessing his personality and assessing the likelihood of his being a danger to the Australian public.  Her summary was as follows (unchanged by cross examination):

“It is considered that the likelihood of Les committing any offences similar to those that he perpetrated in his late teens and mid twenties is highly unlikely.  In relation to the offence for which he was found guilty in 1996, Les provides a plausible explanation for what transpired, and is categorical in his denial of ever having used, handled, or dealt in or with, illegal substances.

Les classifies himself as a worker and, from his history, has been successful in creating his own business on two occasions during his life.  He advises that he is desirous of, and has the qualifications to continue his trade as a builder in Australia.

Les stated that he does not smoke cigarettes, has never taken non-prescribed drugs, and is only a social drinker, normally averaging no more than two glasses of wine or beer on any one occasion.

He described his health as good, and his interests as being:  cooking, reading, fishing and swimming.

He has formed strong bonds with Kerrie’s family and the couple has developed a number of friendships since coming to the Sunshine Coast.

He impresses as a responsible gentleman highly committed to his wife and marriage.  He has a high work ethic and, in the references supplied, has been given positions of responsibility and trust and never violated same.

He advised that despite the distress of the current visa situation, he is the happiest he has ever been in his life.  He stated:  ‘I have Kerrie.  If we have to leave Australia Kerrie will come with me, but I am concerned that if she is forced to leave Australia and her family that it will have a deleterious impact on her mental health status….. I am distressed that what I have done in the past may rob Kerrie and I of the opportunity to live in Australia.”

14.     Kerrie Spratt gave evidence that if her husband is not permitted to remain in Australia, she would return with him to England.  However, she believes that such a move would have an extremely deleterious effect on her mental health.  She also said that she wished to live in Australia because of her mother’s terminal illness and to be near her family.

15.     In his application for the Spouse Visa, made on 11 May 2004, Leslie Spratt declared he had criminal convictions and attached a print out of his record.

16.     A check of the incoming passenger movements and cards by the Respondent showed that Leslie Spratt had entered Australia on the six occasions mentioned above, namely 28 April 2000, 10 March 2001, 27 January 2002, 26 January 2003, 11 September 2003 and 7 March 2004.  The incoming passenger cards show that he declared that he had criminal convictions on the first occasion he entered Australia, 28 April 2000.  The incoming passenger card for the second visit 10 March 2001, has apparently been misplaced.  The other four incoming passenger cards show that Leslie Spratt placed a tick or a cross in the “No” box in relation to the question about criminal convictions.

17.     Leslie Spratt conceded during the course of his evidence to the Tribunal that on the occasions when he marked the “No” box in relation to the question about criminal convictions he did so conscious of the fact that he was doing the wrong thing.  He said that he “agonised” about the matter each time he did it.  He said that he was torn between wanting to do the right thing and the expectation that he might be held up at the airport and thus cause distress to his wife.

18.     The relevant provisions of the Act are:

“501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate- natural justice applies

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:Character test is defined by subsection (6).

Character test

(6)For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7));  or

(b)….;  or

(c)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;  or

(d)       ….

Otherwise, the person passes the character test

(7)For the purposes of the character test, a person has a substantial criminal record if:

(a)…

(b)…

(c)the person has been sentenced to a term of imprisonment of 12 months or more;”

19.     There is no doubt that Leslie Spratt has been sentenced to a term of imprisonment of 12 months or more.  He therefore is deemed to have a “substantial criminal record” and does not pass the “character test” within the meaning of those terms in the Act.

20.     The Tribunal nevertheless has the discretion within s.501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.

21.     In deciding whether to exercise any discretion available to it, the Tribunal is bound to take into account directions made by the Minister pursuant to s.499 of the Act:

“499  Minister may give directions

(1)the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)the performance of those functions;  or

(b)the exercise of those powers

(2A)A person or body must comply with a direction under subsection (1).”

22.     The relevant direction made by the Minister in this matter is Direction 21, “Visa refusal and cancellation under section 501 of the Migration Act 1958”, (the Direction).  The relevant sections of the direction are as follows:

“PART 2 – EXERCISING THE DISCRETION

2.1  If a non-citizen does not pass the Character Test, decision makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

…

PRIMARY CONSIDERATIONS

2.3  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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

OTHER CONSIDERATIONS

2.17  When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant.  It is the Government’s view that where relevant, it is appropriate that 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 may include:

(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

….

(b)genuine marriage to or defacto or interdependent relationship with, an Australian citizen…

(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d)family composition of the non-citizen’s family, both in Australia and overseas;

….

(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter)

(h)any evidence or rehabilitation and any recent good conduct;

(i)whether the application is for a temporary visa or permanent;

(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances;”

23.     There are three areas of concern relating to Leslie Spratt’s past conduct

·     The nine year period between the age of 17 and 26 when he was involved in five incidents which resulted in convictions in the Greenwich Magistrates Court;

·     The 1996 conviction in the Supreme Court of Scotland.

·     The failure to reveal his criminal convictions on the incoming passenger cards on at least four occasions.

24.     Leslie Spratt gave evidence in person at the Tribunal hearing.  He was a most impressive witness. He was well dressed.  He was articulate.  He appeared to be intelligent.  His appearance gave me no reason to doubt that his building business in England was as prosperous as he said it was.  He seemed to me to be very genuine in his love and affection for his wife Kerrie.

25.     Kerrie Spratt also gave evidence in person.  She was also impressive.  I accept that she is a very nervous person who has come to rely heavily on her husband Leslie.  I accept that she is badly affected by her mother’s illness.  I also accept that she has no ties in England and that she wants to be with her family in Australia.

26.     In relation to the matters dealt with in the Greenwich Magistrates Court, I do not regard them as trivial.  I take a dim view of people who take other people’s property without consent.  However, they happened over twenty years ago and they may have been the result of a traumatic concussion syndrome (as suggested) or simply youthful irresponsibility.  At any event, Mr. Spratt has not been in that type of trouble since 1985.

27.     The conviction in the Glasgow Supreme Court in 1996 was for an offence involving the possession of amphetamines in 1995.  It was regarded as a serious matter in the Scottish court system and it would also be so regarded in Australia.  I informed the parties during the Tribunal hearing that I did not intend to attempt to go behind the conviction.  I accept the evidence of Mr. Friel that Mr. Spratt was convicted of possession of amphetamines on the ground that under the circumstances he should have taken more care before agreeing to carry a bag for someone else.  I also accept the evidence of Mr. Friel that the court found that Mr. Spratt was not guilty of dealing in drugs, or in the commercial supply of drugs.

28.     The effects of the Scottish law and indeed the equivalent law in Australia, in relation to being in possession of drugs may seem at first sight to be draconian, but they are meant to be.  People should not carry a package, bag or suitcase for anyone else without knowing what is inside it, because to do so is to run the risk of aiding in the distribution of illicit substances.  The severity of the consequences is designed to deter people from acting naively or negligently in agreeing to carry items for someone else.

29.     There is no doubt that the bare fact of Leslie Spratt’s conviction and sentence of imprisonment for a drug related matter looks bad for him.  However, the Tribunal has had the advantage of hearing evidence from Mr. Friel and from Leslie Spratt about the circumstances surrounding the offence.  I have come to the conclusion that Leslie Spratt is a person who has not deliberately and certainly not for commercial gain, been involved in the distribution of illegal drugs.  He experienced the full force of the deterrent aspect of the law relating to carrying goods for anyone else without making proper enquiries about the contents.

30.     I agree with the assessment of the psychologist, Ms. Bendall.  The fact that in the 20 years since 1985 Leslie Spratt has been able to build up very successful businesses, indicates that he has a high work ethic and is basically a responsible stable person.  As far as it is possible to predict future behaviour, it appears that Leslie Spratt would be unlikely to again commit any of the offences for which he was convicted prior to 1985, nor the drug related matter committed in 1995.  He is not the callow youth he once was.  He has become a successful businessman.  He has found marital happiness.

31.     On the material placed before the Tribunal, Leslie Spratt is not a danger to the Australian community, nor to any members of the Australian community.

32.     I believe that the expectations of the Australian community would be that he should be left in peace to get on with his life.

33.     There remains the matter of the filling in of the incoming passenger cards.  It was submitted by Mr. Lo for the Respondent that a failure to fill in the incoming passenger cards accurately is a serious matter.  Mr. Lo submitted that Leslie Spratt’s application for Spouse Visa should be rejected on this ground alone as an example to others who might be tempted not to follow the rules relating to immigration matters.

34.     I agree with Mr. Lo’s submission that a failure to accurately reveal details required on the incoming passenger cards is a serious matter.  The details provided are often the only means by which immigration officials can know the character of the person who is attempting to enter Australia.

35.     However, the case of Leslie Spratt is not entirely clear cut.  He did reveal he had criminal convictions, on his incoming passenger card, on his first visit to Australia.  He may also have done so on his second visit to Australia, but nobody knows.  At any event, he was not stopped from entering Australia on the first occasion, nor was he asked to give further details.  He simply passed through the gate.

36.     I note further that Leslie Spratt gave full details of his criminal record when he applied for the Spouse Visa.

37.     I note also that Leslie Spratt has been in detention in relation to this matter since late January 2005.  I understand that being in detention carries with it a significant financial detriment.

38.     Leslie Spratt is not a person who totally failed to reveal his criminal record.  I believe that it would not be appropriate to further punish him by forcing him and his wife to return to England, on the basis of the notion that the refusal of the Spouse Visa to him would act as a deterrent to others who might be tempted to fail to reveal they have criminal convictions.

39.     I have come to the conclusion that Leslie Spratt does not represent a risk to the Australian community;  that it would not be appropriate to use him as an example, or for deterrent effect in relation to incoming passenger cards;  and that there are very significant compassionate grounds for granting him a Spouse Visa.

40.     The Tribunal sets aside the decision under review and decides that the power to refuse to grant the Spouse Visa should not be exercised.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
B. Hitchcock, Personal Asst

Date/s of Hearing  23 March 2005
Date of Decision  8 April 2005
Counsel for the Applicant         Mr. Nevison
Solicitor for the Applicant          Ferguson Cannon Lawyers
Solicitor for the Respondent     Clayton Utz