Stafford and Minister for Immigration Multicultural and Indigenou S Affairs

[2003] AATA 1165

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1165

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2003/125

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILLIAM STAFFORD

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS 

Respondent

DECISION

Tribunal Deputy President Don Muller

Date19 November 2003

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the application made by Stuart Stafford for a Subclass (676) tourist visa should not be refused pursuant to subsection 501(1) of the Migration Act 1958.

(Sgnd) D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

Migration – refusal of tourist visa on the basis applicant not of good character- substantial criminal history in England – after 32 years seeking to visit father who is Australian citizen– whether discretion should be exercised to grant tourist visa

Migration Act 1958 ss. 501 (1), (6) (a) , (7)

REASONS FOR DECISION

Deputy President , Don Muller     

1.       Stuart Stafford, the visa Applicant, is 41 years of age, having been born in the United Kingdom on 19 February 1962.  He has not seen his father, William Stafford, the Applicant, since he was seven years old.  William Stafford, 69 years old, is an Australian citizen who has lived permanently in Australia since January 1970.  Stuart Stafford applied for a tourist visa, TR subclass 676, on 3 October 2002, for the purpose of travelling with his wife and son to Australia for about three weeks to re-unite with his father and to introduce his wife and son to him.

2. On 22 January 2003, Stuart Stafford’s application for a tourist visa was refused on the ground that he does not pass the character test, because he has a substantial criminal record, pursuant to the provisions of section 501 of the Migration Act 1958..  William Stafford seeks a review of that decision.

3.       At the hearing the Applicant, William Stafford, represented himself and Mr Steele, solicitor, represented the Respondent.

4.       The Tribunal heard oral evidence from Stuart Stafford and from William Stafford. In addition the following documents were before the Tribunal :

(a)The documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, exhibit 1;

(b)Affidavit of the Visa Applicant ,Stuart William Stafford, exhibit 2;

(c)Affidavit of Johan Duff (Stafford) , exhibit 3;

(d)Affidavit of Pamela Duff (Stafford), exhibit 4;

(e)Bundle of character references and other documents provided by the applicant , exhibit 5;

5.       The question for the Tribunal to determine is whether :

(a)Stuart Stafford passes the character test in section 501 (6) of the Act ; or

(b)If he does not pass the character test whether the discretion available in section 501 (1) of the Act should be exercised in order to grant the Visa Applicant a visa.

6.       The relevant legislation is as follows:

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).

(2)       The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

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.

Substantial criminal record

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

(a)       the person has been sentenced to death; or

(b)       the person has been sentenced to imprisonment for life; or

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

(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.”

7.       In deciding whether to exercise any discretion to grant a visa the Tribunal must take into account directions made by the Minister pursuant to section 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.

(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

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

(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

Subsection (1) does not limit subsection 496(1A).”

8.       The relevant directions made by the Minister is Direction 21 , “Visa refusal and cancellation under section 501 of the Migration Act 1958 “, the relevant sections 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:

(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.

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 that 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 hard ship 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;

….

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

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

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

…”

9.       William Stafford gave evidence to the Tribunal by way of written statement and oral evidence.  His evidence is not controversial and was not challenged.  The Tribunal accepts him as an honest and reliable witness and finds that:

(a)William Stafford was born in the United Kingdom on 24 January 1934.

(b)His father was killed in 1940 during service in World War II.

(c)His mother placed him and his sister into government care until he was 15 years old.

(d)In 1949 he re-united with his mother and sister and they migrated to Australia.

(e)Shortly after arrival in Australia he went to work in the Northern Territory.

(f)He then joined an Australian ship, which led back to England.

(g)He did two years National Service in the British Army from 1955 to 1957, serving in Cyprus, the Middle East and Suez.

(h)He married his first wife in 1957 and they had four children.

(i)Stuart Stafford was one of the four children and he was born on 19 February 1962.

(j)The Applicant and his first wife were divorced in 1967 and his first wife remained with the children in the home they shared with her parents.

(k)Over the following two years he had contact with his former wife and children.  His former wife had re-married but their relationship was cordial.

(l)In 1969 he married for the second time and subsequently his second marriage produced two more children, a son and a daughter.

(m)In January 1970 he and his second family migrated to Australia.  His son and daughter of this marriage still live in Brisbane.

(n)After he had been in Australia a relatively short time, he lost contact with his family in England.  He wrote several times but received no answers.  He felt that his attempts at contact could be disruptive.

(o)He divorced for the second time in the late 1970s and then took up with a third partner.

(p)He and his third partner have lived together since the late 1970s.  They married in 1997.

(q)He lives in a small coastal village north of Brisbane.  He does local carpentry work.

(r)He received a letter from his son Stuart, dated 24 July 2002.  He felt “overwhelmed” when he received the letter.

(s)Since then he has had numerous telephone calls, exchanges of letters and photographs, from Stuart, his sisters and even from his first wife.

(t)He is keen to see his son – but has some feelings of trepidation about meeting after such a long time.  He would like his son to meet his wife and introduce him to his half brother and sister.

10.     Stuart Stafford gave evidence by telephone.  His evidence is not controversial and the Tribunal accepts the following facts:

(a)He is 41 years of age, having been born on 19 February 1962.

(b)He wishes to holiday in Australia with his wife and son, for about three weeks, to see his father and to introduce his father to his wife and son.

(c)He has been in a permanent relationship with his wife for 21 years.  His wife had three children when they met.   He has been a father to them.  They have a son between them. Two of the four children still live at home.

(d)He accepts the official record of his criminal history which began in 1974 when he was 12 years of age and continues until 1997, when he was 35.  The history is:

“28/05/74     WANDSWORTH JUV

1       Burglary and Theft – Non-dwelling     Care Order

Theft Act 1968 s.9(1)(b)        

09/07/74       WANDSWORTH JUV

1       Burglary and Theft – Dwelling           Fine 1.00
         Theft Act 1968 s.9(1)(b)  Supervision Order 2 yrs

2       Burglary and Theft – Dwelling           Supervision Order 2 yrs
         Theft Act 1968 s.9(1)(b)  Fine 1.00

20/08/74       WANDSWORTH JUV

1       Burglary and Theft – Non-Dwelling    Attendance Centre     12 hrs
         Theft Act 1968 s 9(1)(b)  

2       Theft  Attendance Centre     12 hrs
         Theft Act 1968 s 1                 

3       Criminal Damage  Attendance Centre     12 hrs
         Criminal Damage Act 1971 s.1(1)

04/02/75       WANDSWORTH JUV

1       Taking Conveyance without authority           Care Order
         Theft Act 1968 s.12(1)

02/06/78       WANDSWORTH JUV

1       Burglary and Theft – Non-Dwelling    Detention Centre       3 mths
         Theft Act 1968 s.9(1)(b)

2       Burglary and Theft – Non-Dwelling    Detention Centre       3 mths
         Theft Act 1968 s.9(1)(b)  

3       Burglary and Theft – Non-Dwelling    Detention Centre       3 mths
         Theft Act 1968 s.9(1)(b)

26/10/78       WANDSWORTH JUV

1       Taking Conveyance Without Authority          Fine 25.00
         Theft Act 1968 s.12(1)

2       No Insurance  Conditional Discharge 12 mths
         Road Traffic Act 1972 s.143              Driving Licence Endorsed

01/10/81       SOUTH WESTERN MAGISTRATES

1       Theft  Community Service Order 60 hrs
         Theft Act 1968 s.1

2       Theft  Community Service Order 60 hrs

Theft Act 1968 s.1

29/06/82         MARYLEBONE MAGISTRATES

1         Burglary W/I to Steal – Non-Dwelling Imprisonment 3 mths wholly
  Theft Act 1968 s.9(1)(a)  Suspended 018 mths

2         Burglary and Theft – Non-Dwelling    Imprisonment  3mths
  Theft Act 1968 s.9(1)(b)  Consecutive Wholly
  Suspended 018 mths

3         Burglary and Theft – Non-Dwelling    Imprisonment 3mths
  Theft Act 1968 s.9(1)(b)  Consecutive wholly
  Suspended 018 mths

4         Burglary and Theft – Non-Dwelling    Imprisonment 3 mths
  Theft Act 1968 s.9(1)(b)  Consecutive, Wholly
  Suspended 018 mths

03/03/83         CROYDON CROWN

1         Taking Conveyance Without Authority          Imprisonment 6mths
  Theft Act 1968 s.12(1)

2         No Insurance  Fine 20.00
  Road Traffic Act 1972 s.143              Disqualification from
  Driving 12 mths and licence
  Endorsed

3         No Driving Licence  Fine 20.00
  Road Traffic Act 1972 s.84(1)           Disqualification from
  Driving 12 mths and licence
  Endorsed concurrent

16/12/83         SOUTH WESTERN MAGISTRATES

1         Going equipped for theft  Imprisonment 1 mth
  Theft Act 1968 s.25

2         Burglary and Theft – Non-Dwelling    Imprisonment 4 mths
  Theft Act 1968 s.9(1)(b)

3         Burglary and Theft – Non-Dwelling    Imprisonment 4 mths
  Theft Act 1968 s.9(1)(b)  Consecutive

17/02/84         CROYDON CROWN

1         Driving Whilst Disqualified                 Imprisonment 21 days
  Road Traffic Act 1972 s.99(b)           Disqualification from
  Driving 12 mths and Licence
  Endorsed

06/09/84         SOUTH WESTERN MAGISTRATES

1         Going Equipped for Burglary             Imprisonment  3 mths
  Theft Act 1968 s.25

2         Taking Conveyance Without Authority          Imprisonment  3mths
  Theft Act 1968 s.12(1)  Concurrent

3         Theft  Imprisonment  3 mths
  Theft Act 1968 s.1  Concurrent

4         Theft  Imprisonment  3 mths
  Theft Act 1968 s.1  Concurrent

06/10/86         SOUTH WESTERN MAGISTRATES

1         Theft From Vehicle  Fine 50.00
  Theft Act 1968 s.1

16/10/86         SOUTH WESTERN MAGISTRATES

1         Theft From Vehicle  Fine 50.00
  Theft Act 1968 s.1

2         Theft From Vehicle  Fine 50.00
  Theft Act 1968 s.1

16/04/87         KINGSTON-UPON-THAMES CROWN

1         Theft From Vehicle                Community Service    Order 160 hrs
  Theft Act 1968 s.1     

2         Theft From Vehicle                Community Service    Order 160 hrs
  Theft Act 1968 s.1                 Concurrent Costs 100.00

3         Taking Conveyance Without Authority          Community Service Order
  Theft Act 1968 s.12(1)           160 hrs Concurrent
  Driving Licence Endorsed

4         Burglary and Theft – Non-Dwelling               Community Service Order
  Theft Act 1968 s.9(1)(b)        160 hrs Concurrent
  Forfeiture/Confiscation

5         No Insurance  Community Service Order 160 hrs
  Road Traffic Act 1972 s.143   Concurrent  Driving Licence Endorsed

6         Failing to Surrender to Bail     No Order Made
  Bail Act 1976 s.6

01/03/88         WIMBELDON MAGISTRATES

1         Theft From Vehicle                Imprisonment 3 mths Wholly
  Theft Act 1968 s.1                 Suspended 012 mths Costs 10.00

20/01/89         SOUTH WESTERN MAGISTRATES

1         Theft  Fine 75.00
  Theft Act 1968 s.1                 

04/05/90         KINGSTON-UPON-THAMES CROWN

1         Handling  Imprisonment 6 mths Wholly
  Theft Act 1968 s.22               Suspended 002 yrs Fine 200.00

20/01/95         GUILDFORD CROWN

1         Attempt/Burglary W/I to Steal    Imprisonment 6 mths
  Non-Dwelling
  Theft Act 1968 s.9(1)(a)

2         Going Equipped for Burglary  Imprisonment  6 mths
  Theft Act 1968 s.25               Concurrent

20/01/95         GUILDFORD CROWN

1         Dangerous Driving                 Imprisonment  3mths
  Road Traffic Act 1988 s.2      Concurrent to other offence
  On same day

02/07/96         SOUTH WESTERN MAGISTRATES

1         Handling  Imprisonment 6 mths Wholly
  Theft Act 1968 s.22               Suspended 2 yrs
  Compensation 250.00
  Costs 50.00

14/04/97         KINGSTON-UPON-THAMES CROWN

1         Handling Stolen Goods (Receiving)   Imprisonment 15 mths
  Theft Act 1968 s.22(1)”

(e)For his last offence he was sentenced to 15 months imprisonment.  He served half the period, 7½ months and then was released.  On this occasion he began to feel great pain.  He missed his family, he had wasted his life and he vowed to change.

(f)He has separated from his previous associates; started a very successful building business;  bought a home with his wife;  made new friends;  taken up the sport of scuba diving.

(g)Since 1998 he has travelled overseas from England on numerous occasions.  On some of those occasions it was necessary for him to obtain tourist visas, which he had no trouble obtaining.  He has had tourist visas for USA, Egypt, Cyprus and some North African countries.  The countries he has visited are:

(i)1998/99 to Spain;

(ii)2000 to Germany;

(iii)2000 to Hawaii to scuba dive;

(iv)2001 to Egypt to scuba dive in the Red Sea;

(v)2001 to Cyprus to scuba dive;

(vi)2001 to France;

(vii)He is currently booked to travel to North Africa in 2004.

(h)He was very disappointed when his tourist visa was refused.  It had taken him a long time to trace his father.  He said that it would be “amazing to finally meet him after 32 years”.  He is also keen for his son to meet his grandfather.

11. There is no doubt that Stuart Stafford has a substantial criminal history and does not pass the character test within the meaning of those terms in s.501 of the Act.

12.     The matter for determination by the Tribunal is whether, despite being satisfied that refusal to grant the visa is justified, the Tribunal should use its discretion to not exercise the power to refuse to grant the visa.

13.     There are obviously significant compassionate grounds for granting a visa to allow a son and his family to meet with a father from whom he has been separated for 32 years.  Apart from the compassionate grounds there are also the following significant factors:

(a)The visa sought by Stuart Stafford is for a short holiday.

(b)Stuart Stafford has his home, business and the rest of his family in England.  He is not likely to overstay his visa.

(c)He seems to have rehabilitated himself.  He has steered clear of trouble for the last six years.

(d)He has travelled widely to other countries in recent years, with no apparent problems.

14.     The Tribunal notes that although Stuart Stafford’s criminal history is extensive and covers a significant number of years, he has no convictions for violence, nor for drug related offences. He was more of a serial social pest than a dangerous criminal.  His last period in prison seems to have pulled him up with a jolt.

15.     The Tribunal has come to the conclusion that it is unlikely that Stuart Stafford poses any threat to the Australian community and it is unlikely that he will re-offend during a short holiday in Australia.

16.     Despite being satisfied that refusal to grant the tourist visa is justified, the Tribunal uses its discretion to not exercise the power to refuse to grant the visa.

17.     The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the application made by Stuart Stafford for a Subclass (676) tourist visa should not be refused pursuant to subsection 501(1) of the Act.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.

Signed:          .......................................................................................
            C. O’Donovan, Associate

Date/s of Hearing   19 September 2003
Date of Decision   19 November 2003
Applicant   Mr. Stafford, himself
Solicitor for the Respondent      Blake Dawson Waldron