Staffieri and Minister for Immigration and Citizenship

[2008] AATA 321

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 321

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2867

GENERAL ADMINISTRATIVE DIVISION		)
Re		Maura Staffieri

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date18 April 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review. The Tribunal decides in substitution that Mr McIntosh be granted a visa.

.......................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Visas – applicant’s husband denied visa on character grounds – applicant’s husband has substantial criminal record – whether discretion should be exercised – primary considerations satisfied – secondary considerations satisfied – applicant’s husband has demonstrated rehabilitation and good conduct over 10 years – decision set aside – decision in substitution that applicant’s husband be granted visa

Migration Act 1958 (Cth), ss 499(2A), 501

Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617

REASONS FOR DECISION

18 April 2007 Senior Member Bernard J McCabe         

1.      Ms Maura Staffieri, an Australian citizen, is married to William “Janardhan” McIntosh. Mr McIntosh is a New Zealand citizen. He was deported from Australian in 1986, but he subsequently returned and lived here illegally. He is now back in New Zealand but wants to be reunited with his wife, who lives in North Queensland. The Minister for Immigration and Citizenship has denied Mr McIntosh a visa. Ms Staffieri has asked the Tribunal to reconsider that decision.

2. The applicant accepts Mr McInotsh is unable to satisfy the character test referred to in s 501(1) of the Migration Act 1958 (“the Act”) because he has a “substantial criminal record” within the meaning of s 501(7). It follows the Minister has the discretion under s 501(1) to refuse to grant a visa. I must consider whether the discretion should be exercised against Mr McIntosh. That discretion must be exercised having regard to Ministerial Direction No 21.

3.      I am satisfied Mr McIntosh should be granted a visa. I explain my reasons below.

The background facts

4.      Mr McIntosh had a serious drug problem when he was a younger man. The drug problem apparently led to a string of criminal charges. In 1980, he was convicted of aggravated robbery, unlawful possession of a firearm, receiving stolen property, unlawfully taking a motor vehicle and four counts of assault in Auckland. He was sentenced to five years in prison. After his release from gaol, he travelled to Australia. He still had a drug problem at that point. In 1986, he was arrested in Cairns and charged with possessing a dangerous drug and offering to supply a dangerous drug. He was sentenced to a year in prison. He was deported from Australia at the conclusion of his sentence.

5.      Mr McIntosh gave evidence via videolink at the hearing and tendered a statement. He testified that his drug problem continued to dog him after he was deported to New Zealand in 1986. He said he wanted to make a fresh start in an effort to get clean. He decided to return to Australia. He knew he was not permitted to re-enter this country so he used his late brother’s passport. (Mr McIntosh’s brother had recently died as a result of a drug-overdose.) He did not stay in Australia for long as he became aware the Australian immigration authorities were looking for him shortly after he arrived. He left this country for New Zealand using an alias, but the plan to start a new life in Australia remained. In 1990, he stowed away on a ship and re-entered Australia illegally. He moved to north Queensland.

6.      Mr McIntosh says he lived in Australia more or less openly for the next few years, although he said he was always fearful his status would be discovered. He obtained a Medicare card in his own name. He also applied for Centrelink benefits. It appears he was eligible to receive the disability support pension because of his drug habit. No one questioned him about his immigration status.

7.      Mr McIntosh said he became fearful in the early 1990s that his drug habit would kill him. He began to wean himself off the various drugs he was abusing. He was assisted in this endeavour by the practice of yoga. He spent time in an ashram in 1997 studying yoga and meditation. He ultimately became a yoga teacher. In the meantime, he said he made significant progress in overcoming his substance abuse problem. There were some setbacks along the way; in 1997 and 1998, he was charged with possessing marijuana. He was convicted and fined a small amount on each occasion. Mr McIntosh says he was free of other drugs by that point.

8.      Ms Staffieri met Mr Mcintosh in early 1998. Ms Staffieri spoke about the blossoming of their relationship in her oral testimony. They spent long periods with each other before they decided to live together at Cape Tribulation in north Queensland. She said Mr McIntosh never hid his criminal past. Ms Staffieri said she made it clear to Mr McIntosh that he must stop using drugs – including marijuana – altogether if they were to remain a couple. He agreed, and they both said he has not consumed illegal drugs since that time.

9.      Ms Staffieri and Mr McIntosh purchased a property in Cape Tribulation from Mr McIntosh’s mother in 2001–2002. Mr McIntosh had been living on the property for some time and conducted an open house for visitors who wanted to practise yoga and meditate. Ms Staffieri, who is also a yoga teacher, helped Mr McIntosh to transform the informal open house arrangement into a business. The couple began running retreats. Visitors came to the property to practise yoga and meditate. They stayed in accommodation located on the property or at nearby accommodation houses. In time, the business began to prosper.

10.     Mr McIntosh did nothing to address his immigration status during this period. He said he remained concerned that his status would be discovered and that he would find himself separated from his home and wife in immigration detention. He also testified that he felt obliged to be honest with the authorities so he could take responsibility for his actions.

11.     The moment of truth came in February 2006. Mr McIntosh wanted to return to New Zealand to see his mother, who was seriously ill. He knew he would have to disclose his immigration status to the authorities at the airport. Ms Staffieri said she and her husband had discussed the risks associating with that course, but they decided it was the right thing to do in the circumstances. Mr McIntosh had earlier obtained a New Zealand passport using his mother’s address in Auckland as his home address. I was not provided with any evidence suggesting he had committed an offence in doing so. As a New Zealand citizen, he was presumably entitled to apply for a New Zealand passport. He booked a return flight from Cairns to New Zealand. He was stopped by immigration authorities when he presented himself at the airport. He immediately told the officers of his immigration status. Mr McIntosh was allowed to board the flight, but he was told he would not be able to return to Australia without a valid visa.

12.     Mr McIntosh has not been allowed to return to Australia. Ms Staffieri testified she has struggled to run the business in Cape Tribulation in his absence. At the time of the hearing, she said the business had been suspended. She said they had investigated the possibility of her moving to New Zealand and starting a similar business there. She said she did not think it would be successful. Mr McIntosh was teaching yoga and doing maintenance work, but he was finding it hard to make ends meet. Ms Staffieri said she and her husband wanted to have a baby but could not afford to do so if they lived in New Zealand. She also said it would be difficult to sell the property in Cape Tribulation.

13.     The Tribunal heard evidence from Dr Fraser, a psychiatrist in New Zealand. I was impressed by his testimony. I am satisfied he had carefully reviewed all of the information that had been provided to him. He also interviewed Mr McIntosh. His evidence was offered in a measured and obviously objective fashion. Dr Fraser concluded Mr McIntosh was a changed man. Although he had narcissistic tendencies, Mr McIntosh had developed empathy and had learned to think through the consequences of his actions and consider how they affected other people. Dr Fraser said the absence of empathy lay at the heart of Mr McIntosh’s earlier misbehaviour; the development of empathy ensured he would not return to that pattern of behaviour. While Dr Fraser said Mr McIntosh’s narcissistic traits meant he tended to put his own judgement above that of other people (and perhaps above the law), he concluded in his report of 1 November 2007 that “future offending is of very low probability.”

14.     Mr McIntosh had also become an active member of the local community. The s 37 documents refer to his work as a volunteer counsellor. The file includes an impressive number of references from local people who know Mr McIntosh. The references speak glowingly of his character and his contributions to the community. I note these individuals gave references with knowledge of the applicant’s criminal history. Some of the witnesses recalled Mr McIntosh’s early days in the community when he was still abusing drugs. They speak of his reform and transformation. Some of the references also speak of the contribution of the business run by the applicant and her husband to other local businesses.

15.     A number of character witnesses gave evidence at the hearing. Apart from Ms Staffieri, Mr McIntosh and Dr Fraser, I heard from a friend, Mr Simpfendofer. Mr Simpfendofer was an impressive witness who spoke of Mr McIntosh in glowing terms. He is an experienced businessman who was required to make judgements about the character of people he dealt with and employed on a regular basis. His wife, Ms Di Pietrantonio, is the applicant’s best friend. Ms Di Pietrantonio also gave evidence about Ms McIntosh’s excellent character.

16.     A number of other witnesses who provided written references also gave oral testimony. They all spoke of Mr McIntosh’s excellent character and contributions to the community. The most striking of these witnesses was Mr Brendecke. Mr Brendecke is the recently retired chairman of the Bailey’s Creek Community League, a community organisation in the Cape Tribulation area. He currently drives a school bus and has a long history of military service where he said he became a good judge of character. I noted at the hearing that Mr Brendecke did not present as “a bleeding heart”; as an immigrant who came to Australia to make a better life, he said he generally took a dim view of “undesirable elements” coming to this country. He was aware of Mr McIntosh’s criminal history and said he did not blame the immigration authorities for their attitude. But he said he had come to know Mr McIntosh over many years and grew to respect him. He said Mr McIntosh should be allowed to stay in Australia because he was genuinely reformed. Mr Brendecke said Mr McIntosh was a worthwhile member of the community who had made up for earlier mistakes. Mr Brendecke urged me to put aside the history and allow Mr McIntosh another chance.

Exercising the discretion

17. Ministerial Direction No 21 (“the Direction”) provides guidance to decision-makers who are considering whether to refuse a visa under s 501. The Tribunal is required to comply with the Direction: s 499(2A).

18. It is accepted that Mr McIntosh does not satisfy the character test because of his criminal record. The discretion to refuse a visa in s 501 is therefore enlivened. Part 2 of the Direction says I must have regard to a number of primary considerations when making my decision. One of those considerations is “The best interests of a child”. As there are no children involved, I will not discuss this consideration. The Direction says it is permissible to have regard to other matters known as “secondary considerations”, but the Direction points out (at [2.17]) that each of these considerations would be given less weight than a primary consideration. I will deal with the primary considerations first.

Primary consideration: protection of the australian community

19.     There is no question that Mr McIntosh’s criminal record in New Zealand is serious. It includes drug offences and crimes involving violence. The applicant was sentenced to a substantial term of imprisonment. There is also a reference in the file to charges in New Zealand in connection with the use of Mr McIntosh’s improper use of his late brother’s passport. Mr McIntosh also has convictions in Australia for possessing and selling drugs. The first two offences resulted in a prison sentence, which suggests they were serious matters, although the Court appears to have regarded the two more recent offences as of lesser significance if the fines imposed are a guide. Taken together, these matters all count against Mr McIntosh being allowed to return to Australia, although I note the most recent conviction was nearly 10 years ago.

20.     Mr Eteuati, for the respondent, also referred to Mr McIntosh’s “migration conduct”. It is certainly appropriate to have regard to crimes against the migration laws, which include (in Mr McIntosh’s case) entering Australia unlawfully on a false passport and evading border controls. Those are serious matters: see ReZhang and Minister for Immigration and Citizenship [2007] AATA 1617 at [30]. It is less clear whether remaining in Australia unlawfully is, of itself, something that ought to be considered under this heading of the Direction. I note the Direction refers to “offences”. It was not submitted that remaining in Australia without a visa was an offence. There is no evidence that the applicant made false statements or engaged in other unlawful conduct to avoid detection. I doubt whether Mr McIntosh’s failure to turn himself in should be taken into consideration at this point, although – for the purposes of this exercise – I am prepared to assume it counts against him.

21.     While the applicant’s criminal record (including his migration offences and migration conduct) count against him, I am satisfied there is little likelihood the conduct may be repeated. I refer in particular to the evidence of Dr Fraser, although I am also particularly impressed by the evidence of Mr Simpfendofer who said he was prepared to stake his reputation on Mr McIntosh’s rehabilitation. This factor does not count against Mr McIntosh.

22.     I am also satisfied there is little deterrent value in exercising the discretion against Mr McIntosh. I note the respondent’s statement of reasons also places little weight on this consideration.

Primary consideration: expectations of the australian community

23.     The Australian community expects non-citizens to obey Australian laws – including its immigration laws. Community members would be concerned if immigration authorities failed to exercise real caution before admitting a person with a serious criminal history. As Mr Brendecke observed, a person who did not know Mr McIntosh and who only read the details of his history in the newspapers might be surprised at a decision to allow him to come to Australia.

24.     How does one assess the expectations of the Australian community? That community is comprised of a wide range of people, and a range of attitudes towards immigrants will be apparent. I think one must assess the expectations of the community by having regard to the opinions of a reasonable independent person who is acquainted with all of the facts. It follows that opinions of close friends and relatives must be treated with caution.

25.     The task of divining the views of a hypothetical reasonable independent person has been made much easier in this case by the large number of positive character references provided by members of the community. These people know Mr McIntosh and are aware of his history. Most of them are uncompromised by a close or familial relationship to the applicant or Mr McIntosh. Their views were best summed up by the evidence of Mr Brendecke, to whom I have already referred. He said Mr McIntosh had reformed and should be given another chance because he was now an exemplary member of the community.

26.     In all the circumstances, I think the Australian community would expect Mr McIntosh should be allowed to return to Australia notwithstanding the relatively serious nature of his past conduct. I think this consideration counts heavily in Mr McIntosh’s favour.

Secondary considerations

27.     The business conducted by the applicant and Mr McIntosh is being severely disrupted by his forced absence from Australia. His marriage is also seriously disrupted, and he is unable to continue making the positive contribution to his local community that he had been making. Mr Eteuati pointed out the applicant was aware of Mr McIntosh’s status as an illegal immigrant when they were married. He pointed out the Direction says (at [2.17(b)]) that knowledge diminishes the weight attached to a compassionate claim by the applicant. I note there was also some evidence from local business people in Cape Tribulation that closure of the applicant’s business would create hardship in a community with few economic opportunities.

28.     Mrs Staffieri said it will be difficult for her to move to New Zealand. She has elderly parents who are unable to travel; living in New Zealand could make it difficult for her to remain in close contact; and they would be unable to see her husband again.

29.     The other secondary consideration of particular relevance is the evidence of Mr McIntosh’s rehabilitation and good conduct over the last decade. That evidence weighs in his favour.

30.     There are no international treaty obligations that are relevant. I do not think the fact the application relates to a permanent visa counts against the applicant or Mr McIntosh.

Conclusion

31. I am satisfied a weighing of the primary considerations suggests the discretion in s 501 of the Act should be exercised in Mr McIntosh’s favour. The secondary considerations reinforce that conclusion. The decision under review should be set aside. Mr McIntosh should be granted a visa that will allow him to return to Australia and live with his wife.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.  

Signed: .................................[Sgd]....................................................
  Michael Buckingham, Associate

Dates of Hearing  3 – 4 March 2008
Date of Decision  18 April 2008
Counsel for the Applicant         Mr L Boccabella   
Solicitors for the Respondent    Clayton Utz Soliticitors