Vernon and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1747

Vernon and Minister for Immigration and Border Protection (Migration) [2017] AATA 1747 (12 October 2017)

Division:GENERAL DIVISION

File Number:           2016/4148

Re:Natasha Vernon [On behalf of Robert Vernon]

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:12 October 2017

Place:Adelaide

The decision under review is affirmed.

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

Senior Member Britten-Jones

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Application for review of decision to refuse to grant a Return (Residence) (Class BB) visa – refusal of visa on character grounds under section 501 – Consideration of principles under Ministerial Direction 65 - decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), s 501

CASES

Vernon and Minister for Immigration and Border Protection [2014] AATA 777

SECONDARY MATERIALS

Direction No. 65

REASONS FOR DECISION

Senior Member Britten-Jones

12 October 2017

BACKGROUND

1. Natasha Vernon, as the daughter of Robert Vernon, brings this application on her father’s behalf. The application is for a review of a decision to refuse to grant a Return (Residence) (Class BB) visa to Mr Vernon on the ground that he does not pass the character test within the meaning of s 501 of the Migration Act 1958 (Cth) (the Act).

2. Mr Vernon is a citizen of the United Kingdom, Canada and the United States of America.  He first arrived in Australia in 1957 at the age of five.  He completed his primary and secondary schooling in Australia, got married and had two children in 1975 and 1976.  He separated from his first wife in about 1977. 

3. He remarried and moved to Canada in 1986 when he was 35 years old.  His children stayed in Australia.  His daughter was then about eight or nine years old and his son was 10 years old.  He lived with his Canadian wife in Canada for about seven years.  In his first year in Canada his children visited him at Christmas.  He was unable to have children with his second wife so they adopted two children from Romania who are now 21 and 27 years old.

4. The second marriage did not last.  Mr Vernon moved across the border into the United States of America and his adopted children stayed with their mother.  He returned to Australia for brief periods on various visas in 1988, 1995 and 2000. 

5. Mr Vernon was granted a Return (Residence) (Class BB) visa on 23 November 2007 and arrived in Australia on 13 December 2007 and stayed until 19 March 2010 when he was extradited to the United States to face criminal charges.  Since then Mr Vernon has not been in Australia or seen his children or grandchildren.  He wants to return to Australia so he can be with his children and grandchildren in his retirement.

   CRIMINAL RECORD AND CONDUCT OF BAD CHARACTER

6. On Christmas Eve 2006 two persons who were hired by Mr Vernon fire bombed the Department of Motor Vehicles building in Buffalo, New York State, and a vehicle owned by an employee of that department.  The vehicle was situated out the front of the home of the department employee.  Damage of approximately $264,000 was caused to the building and the vehicle.  No one was injured in these incidents.  Mr Vernon had timed the attacks so that there was no-one in the building or in the vehicle. 

7. Mr Vernon gave his evidence by phone to the Tribunal.  He said that in 2006 he owned and operated two car dealerships in Buffalo, New York.  He was doing well but was continually harassed because he was a foreigner.  He said that when he instructed the attacks he was totally out of his mind and was extremely angry.  He agreed that it was dangerous and that there was the potential to harm people.  He said that he has never done anything like that either before or after. 

8. He was aware after the incident that the authorities were investigating the arson attack.  He had engaged lawyers to act for him but he was not charged with anything so he left the United States to go to Canada in about October 2007.  Two months later in December 2007 Mr Vernon came to Australia where he lived until the extradition on 19 March 2010. 

   Mr Vernon is imprisoned for serious charges in the United States

9. The charges against Mr Vernon included “maliciously attempting to damage and destroy by means of fire a building used in an activity affecting interstate or foreign commerce.”  Mr Vernon was put in a detention centre for 21 months before deciding to plead guilty on the basis that he would be allowed to return to Australia to continue his prison term.  He felt extremely aggrieved when he was later told that he would have to serve out his sentence in the United States.  He was sentenced to five years imprisonment with three years supervised release and was ordered to pay $264,417.91 in restitution.  In oral evidence Mr Vernon said that had he known that he was not able to serve his sentence in Australia then he would have “rolled the dice” by which he meant that he would have gone to court and pleaded to a lesser charge.  Nevertheless, he accepts that he was guilty.  He explained that he has been unable to make restitution in the amount ordered and has probably only paid back about $5,000 because he is on a government pension and has been unable to make any payments greater than that.

   Mr Vernon makes false statement to the Registrar in Canada

10. When Mr Vernon was released from prison he returned to Canada in about 2013 or 2014 and applied for a licence to recommence operations as a motor vehicle salesperson.  The application was refused on the basis that he knowingly made false statements to the Registrar of Motor Vehicles regarding significant details underlying his criminal conviction.  The version of events given in a letter from Mr Vernon to the Registrar dated 2 June 2014 was highly misleading because it lay blame on some “unknown hoodlums” who set the fire on their own in the hope that they could extort money from him. 

    Mr Vernon makes false statements to this Tribunal

11. Mr Vernon explained in his oral evidence to the Tribunal that he lied to the Registrar of Motor Vehicles in Canada so as to obtain employment.  Whilst accepting that his conduct was misleading, he said that “I didn’t give them all the details” and that he succeeded on the initial review of the Registrar’s decision and only lost the subsequent appeal on a technicality.  These statements to the Tribunal were themselves not accurate and indicated that Mr Vernon is still today prepared to make false statements in an attempt to down play the seriousness of his conduct.  In fact, Mr Vernon did not just mislead the Registrar by merely omitting details of his offence but he knowingly fabricated a version of events which did not happen.  Further, the appeal was not lost on a technicality but rather because of a finding that his letter to the Registrar dated 2 June 2014 was knowingly false.

    Earlier example of false statements to the AAT

12. There is an earlier example of Mr Vernon giving false evidence to the Administrative Appeals Tribunal.  Mr Vernon had applied for Australian Citizenship by conferral on 14 December 2009.  He was approved for citizenship on 9 February 2010 but that approval was cancelled on 16 August 2013.  In his application for a review of that decision he gave evidence before the Tribunal that he denied every aspect of the charge and that he did not commit any crime although he had pleaded guilty saying that he was a victim of the American plea bargaining system.  In the reasons for decision in Vernon and Minister for Immigration and Border Protection [2014] AATA 777 the Senior Member concluded:

    … He shows attitudes inconsistent with enduring moral qualities of responsibility, respect and obedience to the law, concern for the rights of others and recognition of his own faults.  I believe his sworn evidence to the Tribunal concerning the offence was false and deliberately so because he thought it would assist his case.  The applicant is not of good character within the meaning of the Act …

13. At the hearing before this Tribunal Mr Vernon admitted that he had lied once again in an attempt to get what he wanted. 

    LEGISLATIVE FRAMEWORK

14. The grant of visas to entitle non-citizens to enter and remain in Australia is governed by the Migration Act 1958 (Cth) (the Act). In s 4 the stated object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”

15. Section 501 of the Act provides, in part:

    (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 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

    …

    (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 remain in Australia, there is a risk that the person would:

    (i)   engage in criminal conduct in Australia;

    ….

    Substantial criminal record

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

    …

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

    DIRECTION NO. 65

16. In an exercise of the power given by s 499 of the Act, the Minister issued Direction No. 65 on 22 December 2014 (the Direction).  The Direction comprises:

    … the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to ... refuse a non-citizen’s visa under section 501 ....

17. Paragraph 6.1 provides:

    Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

    (4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

18. Paragraph 6.2 provides general guidance in exercising the discretion to refuse the grant of a visa:

    6.2 General Guidance

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

19. The Principles are set out in Paragraph 6.3:

    6.3 Principles

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

20. The manner in which the discretion is to be exercised is set out in Paragraph 7.  Informed by the principles in Paragraph 6.3, the decision-maker must take into account the considerations set out in Part B of the Direction. These considerations for a visa applicant include “Primary” considerations at paragraph 11 and “Other” considerations at paragraph 12.  I will refer to these considerations in detail later in these reasons.

21. Paragraph 8(1) provides that a visa applicant “… should have no expectation that a visa application will be approved.”  The paragraph at 8(4) further provides that “primary considerations should generally be given greater weight than the other considerations” and that at 8(5) “one or more primary considerations may outweigh other primary considerations”.

22. Paragraph 11(1) provides that in deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

23. The Direction then elaborates with respect to the protection of the Australian community and provides at paragraph 11.1(1) as follows:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.  Decision-makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date;

    and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

24. The Direction further elaborates with respect to the nature and seriousness of the conduct at paragraph 11.1.1 and with respect to the risk to the Australian community at paragraph 11.1.2. 

    The protection of the Australian community – a primary consideration

25. The criminal conduct engaged in by Mr Vernon was very serious.  It involved the destruction of Government property and was directed at Government officials to no doubt intimidate them or to exact revenge on them.  Having regard to the principles in paragraph 11.1.1(1)(a) and (b) I conclude that the criminal conduct of Mr Vernon was most serious. 

26. The sentence of five years imprisonment is also an indication of the most serious nature of this crime. 

27. In the applicant’s favour I take into account that he is not a repeat offender.  However, I also have regard to the deliberately false testimony that he gave to the Tribunal at the previous hearing regarding the cancellation of his approval for citizenship.  It is also of concern that Mr Vernon made statements before this Tribunal in a continued attempt to downplay the seriousness of his criminal conduct in the United States.

28. I conclude that the factors relevant to the nature and seriousness of Mr Vernon’s conduct weigh heavily against his current application.

29. If Mr Vernon were to engage in similar conduct in Australia then he would be committing a very serious offence involving the destruction of Government property and intimidation of Government officials.  I have regard to the principle that Australia has a low tolerance of such criminal conduct by a visa applicant and that there should be no expectation that Mr Vernon should be allowed to come to Australia.

30. In Mr Vernon’s favour I have regard to the fact that there is no pattern of criminal behaviour and his offence was a once off incident arising from the particular circumstances that he found himself in at the time. 

31. Mr Vernon accepted that “it was plain stupidity” to engage in the conduct that he did in the United States.  He expressed his remorse and said that he was sorry.  He said that he has never offended elsewhere or at any other time.  He said that he ran a good business in the city of Buffalo but that he was being harassed as a foreigner.  He concedes that his conduct was deliberate and premeditated and that he has not got an excuse for it.  He considers that he is not a danger to the Australian community and that he has paid for his conduct by serving his term of imprisonment.  He noted that he was released early from prison and allowed to go to Canada.

1. On the other hand, it does not reflect well on Mr Vernon that he came to Australia before the investigation into the fire-bombing was complete and that it was necessary for the United States authorities to extradite him from Australia.

2. Having heard Mr Vernon’s evidence and taking into account the once off nature of the criminal conduct, I consider that there is not a high likelihood of Mr Vernon engaging further in criminal or other serious conduct if he returns to Australia.  However, the offending conduct involving destruction of Government property, potential harm to individuals and the intimidation of Government officials is of such a serious nature that, having considered all the factors relevant to the risk to the Australian community set out in paragraph 11.1.2 of the Direction, I consider that the cumulative effect of those factors weigh slightly against Mr Vernon.  The seriousness of the potential harm if Mr Vernon’s conduct was repeated is very significant and in those circumstances I note the principle that the Australian community’s tolerance for any risk of future harm is low. 

   The best interests of minor children in Australia – a primary consideration

3. It is accepted by the respondent, and I so find, that it would be in the interests of Mr Vernon’s five grandchildren for him to be granted a visa so that he could spend more time with them.  However, I have regard to the fact that his relationship with the children is non-parental and that there have been long periods of absence and limited meaningful contact with them.  Whilst this factor weighs in favour of Mr Vernon I give it limited weight.

   Expectations of the Australian community – a primary consideration

4. This is a case where the seriousness of the offending and the unacceptable risk that it may be repeated means that it is appropriate to refuse the visa application.  The seriousness of the criminal conduct and the subsequent false statements made repeatedly to the US authorities and the Tribunal are such that the Australian community would expect that Mr Vernon should not be granted a visa.  I take this into account in concluding that the expectations of the Australian community weigh heavily against Mr Vernon.

   Other considerations

5. The relevant factor to be considered under paragraph 12 of the Direction is the impact on family members and in particular his daughter, Natasha Vernon.  Ms Vernon gave evidence that her father lived with her for about six months in Darwin when her children were five and seven years old.  He helped to look after the children when she was working full-time.  She also said that he got out into the community and when to church.  She wants him to return to Australia so that he can help her with her children who are now 14 and 17 years old.  She will no doubt be very disappointed if his application fails.  I note, however, that Mr Vernon has not been in Australia for the majority of his children’s lives.  He moved to Canada in 1986 when Ms Vernon was nine years old and her brother was ten years old.  There were short visits to Australia in 1995 and in 2000.  The most significant period of time in Australia was from December 2007 until 19 March 2010 when he was extradited back to the United States. 

6. The impact of a visa refusal on family members will be negative but I give this factor limited weight, albeit in favour of Mr Vernon.

   CONCLUSION

7. I have weighed up the factors for and against refusing the visa and I am not satisfied that the decision to refuse to grant the visa should be set aside.  I find that the decision of the delegate of the Minister should be affirmed.  I note that the primary factors, when considered together, weigh against Mr Vernon.  Whilst this is a sad outcome for Mr Vernon and his family members in Australia, it has to be said that he has only brought this upon himself.  His conduct does not live up to the expectations of the Australian community.  He committed very serious offences in the United States and his subsequent conduct is evidence of his poor character.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

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

Administrative Assistant

Dated: 12 October 2017

Date(s) of hearing:	28 June 2017
Applicant:	In person
Advocate for the Respondent:	Ms C Stokes
Solicitors for the Respondent:	Australian Government Solicitor