Vining and Minister for Immigration and Multicultural Affairs
[2002] AATA 225
•12 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 225
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1086
GENERAL ADMINISTRATIVE DIVISION )
Re HELEN J VINING
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date12 March 2002
PlaceMelbourne
Decision The Tribunal sets aside the Minister's decision under review and in substitution therefor a decision that Mr Wells´ visa application be remitted to the Minister for reconsideration with a direction that the visa not be refused under s501 of the Migration Act 1958.
[Sgd S P Estcourt QC]
Deputy President
EDITED ORAL REASONS FOR DECISION
12 March 2002 Mr S P Estcourt QC., (Deputy President)
This is an application to review a decision of the Minister of 27 July 2002 refusing the issue of a migrant visa, subclass 100, otherwise known as a spouse visa, to Bruce Henry Wells, on the basis that he did not pass the character test under section 501(6)(c)(i) of the Migration Act 1958, having regard to his past and present criminal conduct, and deciding that the discretion to nonetheless grant the visa should not be exercised in the visa applicant's favour.
In reviewing this application I am bound to consider a past application of Ministerial Direction No. 17, which is now replaced by Ministerial Direction No. 21.
Under Direction 21 the primary considerations relevant to this case are the protection of the Australian community and members of the community and the expectations of the Australian community. In a case such as this involving consideration of criminal conduct, the factors relevant to the assessment of the level of risk to the Australian community, and its expectations that a person convicted of criminal offences will in appropriate cases be refused entry to Australia, involve a number of matters arising for judgment under the Direction.
They include firstly, the seriousness of the criminal conduct and its nature. Secondly, the risk that it will be repeated. Thirdly, general deterrence of others who might be prevented or discouraged from such conduct by refusal of the visa in this case. Fourthly, the fact that the Australian community expects non-citizens to obey the law, both here and elsewhere, and not to be rewarded for criminal conduct by the grant of a visa.
These primary considerations must be balanced, giving due weight to the importance placed by the government on them, but balanced nonetheless with a number of "other considerations", which in this case relevantly include firstly, genuine marriage to an Australian citizen; and secondly, evidence of rehabilitation or recent good conduct.
The review applicant, Ms Vining, married the visa applicant, Mr Wells, in the United States of America on 19 November 1991. Ms Vining was born in Carlton, Victoria on 26 June 1940 and is an Australian citizen. Mr Wells was born in Orange, New Jersey in the United States of America on 26 July 1950. Both had been previously married, in Ms Vining's case for 21 years.
Evidence of Mr Wells' criminal conduct is said to reside on Departmental file F2000/15887, Exhibit 1, that is the T documents at page 10. That file was not tendered in evidence on behalf of the Minister, but the decision record of 13 July 2001, which is also on page 10 of Exhibit 1, asserts by way of paraphrase as follows:
"These records show that Mr Wells was arrested in August 1992 and convicted in October 1993 of a felony, namely conspiracy to commit dangerous drugs, and received one year probation. In August 1994 Mr Wells was convicted of a felony, having been found guilty of intent to distribute drugs on school property. Mr Wells was given credit for 45 days imprisonment, and placed on five years probation, and fine $1175. In June 1995 he was arrested for criminal possession of a narcotic with intent to sell, and criminal use of drug paraphernalia. (emphasis added)
Were those truncated descriptions of criminal conduct the only evidence before me, the result in this case would not be difficult to imagine.
The more detailed evidence of the review applicant about these offences, at Exhibit 1, page 3, which except in one respect only, was confirmed by both the review applicant and the visa applicant in oral evidence, places a wholly different and less serious complexion on that conduct.
Their evidence was not challenged on the hearing of this application, and accordingly I find firstly, the offence committed in 1992 involved the discovery of a quantity of cocaine in a motor vehicle being used by the visa applicant. He did not have cocaine physically on his person, nor heroin, or any other drug. He was fined $50 and sentenced to 12 months probation. Secondly, the offence committed in 1993 involved the discovery in a vehicle registered to the visa applicant, and occupied by him and another person, of a small quantity of cocaine. Again the visa applicant did not have cocaine or any other drug physically on his person. He was convicted and sentenced to serve a residential rehabilitation program of about 12 months, and was given five years probation and fined $1500.
The only reference to school property which I can see in the evidence is the unchallenged statement of the review applicant that the 1992 offence was on school property, but at 2 am in the morning. (That is Exhibit 1, at page 3).
The third arrest set out in the decision record is now acknowledged on behalf of the Minister to have not resulted in any charges being pressed.
Notwithstanding these findings, the offences are such as to cause the visa applicant to fail the character test. However, the question remains whether the discretion, under s501 of the Act, to grant the visa anyway should be exercised in favour of Mr Wells.
I also find on the unchallenged evidence of the visa applicant that he had already ceased his occasional use of cocaine before he commenced the rehabilitation program, which he successfully completed, and that he is now completely reformed.
I am bolstered in that finding by the fact that the review applicant was not challenged when she gave oral evidence as to part of the written material she adopted as her evidence, namely, a letter to the Tribunal dated 10 November 2001, in which she said:
"I would once again make the statement that I have not suspected, known, or seen Bruce use any illegal drugs since my return to the United States in April 1995. (emphasis added)
That statement was supported by the unchallenged oral evidence of Edward Norman Vining, Mrs Vining's former husband; and Lady Soma Pandji, inasmuch as they stated that contact with Mr Wells revealed no signs of drug usage, and in fact I say parenthetically, only moderate use of alcohol.
Mr Vining, Lady Pandji, a Ms Alexandra Suzanne Jackson, and a Ms Marla Dallal, also gave unchallenged evidence of the visa applicant's recent good character, and the genuineness of the marriage between the visa applicant and the review applicant.
The only other evidence to which I refer are the glowing attestations of the visa applicant's hard work, energy, and reformed character contained in the letters of his employer of fours years, Computer Pack, dated 11 November 1999, and 9 November 2000. They are Exhibit 1, at page 152 and 161.
The Ministerial Direction makes it clear that offences involving illicit drugs of dependency or addiction are of particular concern to the government and the Australian community. However, in this case I am left in a position where, as to the primary considerations, firstly, though serious, the offences were clearly not considered to warrant imprisonment. Secondly, no evidence suggests that the quantities of cocaine were other than consistent with personal use. Thirdly, the evidence of the visa applicant's successful rehabilitation is strong and thus, the prospects of re-offending are correspondingly small. Fourthly, the aspect of general deterrence does not assume anything other than its usual inherent importance in this case.
Whilst visa refusal may be appropriate in some cases simply because the nature of the offences are such that the Australian community would expect that a person would not be granted a visa, in my judgment the particular circumstances of this case would not offend such expectations.
Finally, the relevant "other considerations", namely, a genuine marriage and rehabilitation and recent good conduct, also militate in this case in the visa applicant's favour.
I observe that the review applicant stated in her oral evidence that if a visa wasn't granted she would return to Australia, leaving the visa applicant. I do not accept, from all I have heard in evidence of the relationship between the visa applicant and the review applicant, that that was a considered statement, or if it was, that it reflected a lack of genuineness in the relationship as opposed to an outcry of frustration.
It follows from all that I have said that I hold that the Tribunal's residual discretion under s501 should be exercised in the visa applicant's favour.
The decision of this Tribunal is therefore that the Minister's decision under review be set aside, and that in its place there be a decision that Mr Wells' visa application be sent back to the Minister to be reconsidered with a direction that the visa not be refused to him under s501 of the Act.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 12 March 2002
Date of Decision 12 March 2002
Counsel for the Applicant Applicant appeared on own behalf.
Counsel for the Respondent Mr T Fell
Solicitor for the Respondent Australian Government Solicitor
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