Thi and Minister for Immigration and Multicultural Affairs - [2000] AATA 277

DECISION AND REASONS FOR DECISION [2000] AATA 277

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/436

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LIEN THI
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date11 April 2000
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant.
  (Sgd)         DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – visa – sub-class 676 – tourist (short stay) visa – refusal – discretion – risk of recidivism.
Migration Act 1958 s 501

REASONS FOR DECISION

11 April 2000 Deputy President DP Breen, Presidential Member

This was an application seeking review of a decision by a Chief Migration Officer on 4 April 1999 to refuse Mr Van Hoa Vo a Sub-class 676 – Tourist (Short Stay) Visa. Mr Vo's mother, Mrs Lien Thi, who is an Australian citizen, made the application.
This matter was heard before me on 3 April 2000 in Brisbane. The applicant was represented by Ms M McDonald of the South Brisbane Immigration and Community Legal Service. The respondent Minister was represented by Mr D Kirchhubel of the Australian Government Solicitor's Office.
Telephone evidence was given by the visa applicant from Germany. Mrs Thi and another of her sons, Mr Quang Van Vo, gave evidence in person. Mrs Thi and the visa applicant were both aided by Mr Tony Tri, a Vietnamese interpreter.
The evidence which was presented at the hearing is summarised below.
The visa applicant was born in Vietnam in 1962. At the age of 19 he left Vietnam in a small boat in order to escape compulsory military service. He was picked up by a German ship, the Cap Anammr. After a year's stay in a refugee camp in the Philippines he was accepted as a refugee by Germany in 1983.
The applicant obtained a job in 1984 in the textile industry and was working until late 1992. In 1994 he was convicted of driving dangerously, driving whilst under the influence and leaving the scene of an accident. He received three month's imprisonment and a two year suspended sentence with a loss of his licence for nine months. Later that year he was convicted of possessing drugs, namely Hashish, and received a sentence of 20 month's imprisonment.
The applicant has served these sentences and has had no further convictions or trouble with the Police. Further, he has been granted permanent residency and full citizenship rights in Germany, except for the right to vote or be elected to civil office. He has also been granted a business licence by the German Government and runs a successful Chinese restaurant. He is able to support himself financially if he visits Australia. It was the visa applicant's evidence that he no longer uses drugs and that if the German Police even suspected that he did, he would not have been granted a business licence.
The purpose behind the visa applicant's intended visit was to attend his brother's wedding. That wedding was held in January 1999 before a final determination on the visa was made. However, the visa applicant still wishes to visit Australia, as he has not seen his family since he left Vietnam 19 years ago. The visa applicant has no desire to relocate permanently to Australia as he has strongly established business ties in Germany and while he speaks German, he does not speak English.
The applicant to these proceedings, Mrs Thi, gave evidence that she has not seen her son, the visa applicant, since 1981. She moved to Australia in 1991 as all her other children resided in Australia and she had no-one to care for her in Vietnam. Mrs Thi suffers from hypertension and cataracts. She is also still undergoing surgery on her back for shrapnel injuries sustained during the Vietnam war. She does not speak any language other than Vietnamese and cannot travel alone. These circumstances would make it very difficult for her to travel to Germany to see her son.
Finally, Mr Quang Van Vo gave evidence relating to his willingness to support the visa applicant financially while he visits Australia. He also has not seen the visa applicant since 1981 and although they keep in contact by phone once a month, he would like very much to see him again. Mr Vo gave evidence that he would not be able to travel to Germany due to his business obligations here in Australia.
The visa was refused on the basis of Section 501 of the Migration Act 1958. Section 501 is in the following terms:
"(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.
….
(6)       For the purpose 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)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; 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)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)        engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Other wise, the person passes the character test.
(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.
….."
The conviction of 20 months for possession of drugs means that Mr Van Hoa Vo does have a substantial criminal record and so fails the character test. Therefore, the Tribunal must consider whether to exercise the discretion in favour of the visa applicant, notwithstanding that he fails the character test. Ministerial Direction No. 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of this discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and the best interests of any children involved. The latter consideration does not apply in this case.
Considering, firstly, the protection of the Australian community, the crime the visa applicant was convicted of is a serious crime, being drug-related. However, it is at the lower end of such crimes considering the drug involved. It has been five years since this conviction and the visa applicant has been drug-free during this time. This is a fact attested to by the granting of a business licence by the German authorities. They take the granting of such licences very seriously and applications will be refused if there is any evidence of ongoing criminal activity. As such, the risk of recidivism can be assessed as sufficiently low to ensure the protection of the Australian community.
The expectations of the Australian community are that a person will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa. This crime does not come within the class defined as abhorrent and the risk of recidivism, as stated above, is acceptably low. Therefore, the expectations of the Australian community do not preclude the granting of this visa.
There are a number of secondary considerations which must also be taken into account, although one, on its own, cannot outweigh a primary consideration. The pertinent secondary considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)family composition of the non-citizen's family, both in Australia and overseas;
(d)evidence of rehabilitation and recent good conduct;
(e)whether the application is for a temporary visa or a permanent visa; and
(f)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.

As stated in evidence, the visa applicant has not seen his family for 19 years. He has the financial means and the opportunity to travel to Australia. His mother cannot travel on her own and other family members have business commitments which preclude their travel. It is really quite ludicrous for the respondent to suggest that a viable alternative for the visa applicant to visit his entire family here in Australia is for all of them to go for a holiday to Germany. The visa applicant has no family in Germany; they all reside in Australia. The visa sought is a temporary one and the visa applicant has no desire to reside long-term in Australia. Apart from the two instances in 1994, he has no criminal convictions and has become a positive and productive member of German society. The applicant to these proceedings is aged, in ill-health and quite unable to travel on her own to visit her son. This is a significant compassionate ground for granting the visa.
The primary and secondary considerations are both balanced in the visa applicant's favour. For these reasons, the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member.
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  3.4.00
Date of Decision  11.4.00
Counsel for the Applicant
Solicitor for the Applicant         Ms M McDonald, South Brisbane Immigration and Community Legal Service

Counsel for the Respondent
Solicitor for the Respondent Mr D Kirchhubel, Australian Government Solicitor's Office