Vos and Department of Immigration Multicultural and Indigenous Affairs

[2002] AATA 251

DECISION AND REASONS FOR DECISION [2002] AATA 251

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/148

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Michael Vos           
  Applicant
           And    Department of Immigration Multicultural and Indigenous Affairs          
  Respondent

DECISION

Tribunal       Mr R P Handley      

Date16 April 2002

PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under section 501(1) of the Migration Act 1958 should be exercised in the case of Michael Vos.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Visa application – subclass 856 Employer Nomination Scheme Visa – character test – applicant's failure to declare past criminal record in South Africa – necessity to balance the primary consideration of the protection of the Australian community against other considerations including compassionate and business grounds – discretion to be applied in favour of the applicant.
Migration Act 1958 ss 499, 499(1) (2) (2A), 501, 501(1), 501(6)(a), 501(7), 501(7)(c) 501G
Aksu v Minister for Immigration [2001] FCA 514
Leha and Minister for Immigration [2000] AATA 1054
Patel v Minister for Immigration [2002] AATA 78
Re Lachmaiya and Department of Immigration (1994) 19 AAR 148
Rokobatani v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Ruhl v Minister for Immigration (2001) 184 ALR 401
Weston v Public Trustee (1986) 4 NSWLR 407

REASONS FOR DECISION

16 April 2002           Mr R P Handley                  

1. This is an application by Michael Vos ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 23 January 2002 to refuse the grant of a subclass 856 (Employer Nomination Scheme) visa to the Applicant. At the hearing, the Applicant was represented by Nicholas Poynder, of Counsel, and the Respondent was represented by Elizabeth Warner, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 ("the G documents") together with the documents tendered by the parties. Oral evidence was given in person by the Applicant, Susan Johnston, Anna Johnston, Kris Johnston and Roger Woolcock.
   BACKGROUND

2. Michael Vos, the Applicant, was born in South Africa on 24 February 1953 and is aged 49.  Mr Vos was arrested in Johannesburg on 20 July 1974 and charged in respect of three incidents in which he was involved in robberies with a friend and other associates.  Mr Vos pleaded guilty to all charges and, on 22 January 1975 and 27 January 1975, was sentenced to a number of terms of imprisonment, the longest of which was five years, to be served concurrently.  Mr Vos was released on parole on 22 November 1997. 

3. After being released from prison, Mr Vos worked for a number of years as a chef and barman.  On 13 July 1979, he was convicted of discharging a firearm in a nature reserve and fined 40 rand.  Mr Vos states that he did not personally discharge a firearm, but was in the company of a friend who did, who was testing a military rifle which he had restored.  In 1980, Mr Vos became engaged to Linda and, in September 1980, commenced employment as a sales representative with Zep Manufacturing, selling bulk industrial cleaning chemicals.  Within two years, Mr Vos had been promoted to Sales Supervisor and continued to work for that company in senior managerial positions until 1992. 

4. On 16 April 1981, Mr Vos and Linda were married and subsequently had two children, Graeme, who was born on 13 September 1982 and is now aged 19, and Deane, who was born on 5 May 1986 and is aged 16.  In 1991, Mr Vos set up a company to clean baking equipment.  He also continued to work for Zep Manufacturing until June 1992 when his new business began expanding rapidly.  Mr Vos took in a business partner in December 1994 to inject necessary capital to enable the company to grow. However, by mid 1996, Mr Vos became concerned about public safety in South Africa and, in January 1997, asked a friend in the South African Police Force, Inspector Potgieter, to check whether his criminal record had been expunged.  The friend told him that there was no record of Mr Vos' criminal conduct on the police database.  Having been informed of this, Mr Vos contacted a number of potential employers in New Zealand, including the New Zealand office of Mackies Pty Ltd ("Mackies"). 

5. A few days after contacting Mackies' New Zealand office, Mr Vos received a fax from Roger Woolcock, the Chief Executive Officer of Mackies in Australia enquiring whether Mr Vos would consider working in Australia.  Mackies is a leading Australian manufacturer of commercial and industrial bakeware, which had, for sometime, been seeking a Production Manager for its Coating Department.  Mr Vos then entered into correspondence with Mr Woolcock as a result of which Mr Vos applied for and was granted a subclass 676 tourist visa to visit Australia.  He entered Australia on 5 April 1997 on a subclass 676 visa and returned to South Africa on 12 April 1997.  As a result of the visit, Mackies sponsored Mr Vos' return to Australia on a subclass 457 business (long stay) visa. This was granted and Mr Vos re-entered Australia on 15 November 1997, remaining here until 13 February 1998, when he returned to South Africa having resigned over a "severe upheaval" in Mackies.  Mr Vos then applied for a subclass 456 business (short stay) visa in order to visit another company in Brisbane to discuss employment prospects.  The visa was granted and Mr Vos entered Australia for a third time on 14 April 1998 departing for South Africa on 20 April 1998.  When making each of these three visa applications, Mr Vos did not declare his criminal convictions, believing on the basis on the advice from his friend, that they had been expunged from his record. 

6. In March 1999, Mr Vos was approached by Mackies and asked whether he would consider returning to Australia.  Mr Vos again requested his friend in the South African Police Force, Inspector Potgieter, to check the police database to see whether this showed any criminal record against his name.  Inspector Potgieter advised Mr Vos that he could find no record for him.  Mr Vos therefore continued to believe that his criminal record had been expunged.  He accepted a position with Mackies and, on 12 June 1999, entered Australia for a fourth time, travelling on the subclass 456 business (short stay) visa granted to him in April 1998.  About three days before leaving South Africa, Mr Vos obtained a copy of a clearance certificate which he had applied for from the South African Police which disclosed all of his previous convictions. 

7. The day after arriving in Australia on this fourth occasion, Mr Vos applied for a subclass 457 business (long stay) visa on which he did not disclose his criminal convictions.  On 9 September 1999, this visa was granted.  Then, on 16 February 2001, Mr Vos lodged an application for a subclass 856 (Employer Nomination Scheme) visa in order to fill a nominated position as Manager, Coating Department, with Mackies.  In answer to Question 65 on the visa application form, Mr Vos made a full disclosure of his criminal convictions and attached a statutory declaration dated 16 February 2001 explaining why he had not previously disclosed his criminal convictions.

8. Mr Vos was divorced from his former wife, Linda Vos, on 19 May 1999, shortly before he came to Australia on the fourth occasion.  Ms Vos and their two children, Graeme and Deane, continue to live with Ms Vos in Capetown.  In July 2000, he met Susan Johnston through some friends when visiting Canberra.  Over the next few months their relationship developed to the point of becoming serious by about January 2001.  They were engaged in April 2001.  Ms Johnston had been separated from her ex-husband since 1995.  Ms Johnston lives in Canberra with her two children, Anna who is aged 20 and Kris who is aged 19.  Ms Johnston was formally divorced from her husband in October 2001. 

9. On 23 January 2002, a delegate of the Respondent refused Mr Vos' application for a subclass 856 visa on the ground that he does not pass the character test by reason of his having a substantial criminal record, pursuant to s 501(6)(a) of the Migration Act 1958. The delegate also refused to exercise the Minister's discretion to grant a visa under s 501(1) of the Act. On 4 February 2002, Mr Vos lodged an application for a review of this decision by the Tribunal.
   RELEVANT LAW AND POLICY

10. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides, relevantly, that a person does not pass the character test if

    (a)       the person has a substantial criminal record as defined by subsection (7);…

Section 501(7) provides that a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

1. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 856 visa.  Clause 856.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

   either

   (a)the applicant satisfied the Minister that the applicant passes the character test; or

   (d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

2. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

3. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act.  The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

4. The Applicant accepts that he does not pass the character test by reason of his substantial criminal record involving a number of convictions for which he was sentenced to imprisonment for more than 12 months in January 1975. Since Mr Vos is not of good character for the purpose of the Act, the issue for the Tribunal to decide is whether to exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

EVIDENCE

1. Mr Vos left school in 1971 at the age of 18 and had several short term jobs before joining the South African Police Force in February 1973.  He quickly became disillusioned with how the police force was run, especially with the treatment of black people which he described as "sub-human at best", and with police corruption.  However, despite this, Mr Vos followed the common practice of other officers in syphoning petrol from vehicles in the police compound and, on one occasion, was caught.  At an internal departmental hearing, he was fined 10 rand and discharged.  Not long after this, at 7:30 p.m on Sunday 10 February 1974, Mr Vos, while riding his motorcycle, accidentally hit a pedestrian crossing the road.  In April 1974, he was charged with culpable homicide in respect of this accident and was arrested and kept in the police lock-up over the weekend.  This was, in fact, a mistake, and on the following Monday Mr Vos was released and the charge was withdrawn.  However, Mr Vos felt shame and embarrassment about being locked up in the presence of his former colleagues including those working on the same shift on which he had worked.  Also, while in the lock-up, Mr Vos met Walter Fivas with whom he subsequently became friends. A few days after Mr Vos' release, Mr Fivas came to visit Mr Vos at his house and talked him into participating in three robberies in which Mr Vos played a subsidiary role.  Mr Vos was later arrested on 20 July 1974 and gave a full confession to the police. 

2. Mr Vos explained his involvement in these criminal acts by reference to the erosion of his moral principles while in the South African Police Force, coupled with his feelings of shame and resentment as a result of having spent a weekend in the police lock-up guarded by his former colleagues.  His resentment was heightened when he lost his job as a result of the arrest and weekend detention.  Mr Vos said he was vulnerable to his friend's suggestion that he be involved in the robberies.  Mr Vos said his physical contribution to the actual incidents was not that great but he accepts responsibility for his involvement in those criminal acts.  Since that time, he has completely remade himself and is a totally different person. 

3. While in prison, on the advice of a psychologist, Mr Vos made use of his time and trained as a cook.  When he was released on parole on 22 November 1997, this enabled him to find work as a trainee chef.  Over the next three years, Mr Vos had various jobs in the hospitality industry during the course of which he met Linda, who subsequently became his wife on 16 April 1981.  On her advice, he decided not to inform prospective employers of his criminal record, as he had done in the past, and sought to secure employment outside the hotel trade.  In September 1980, he secured employment with Zep Manufacturing, which sold bulk industrial cleaning chemicals, for which he worked until June 1992.  He was first engaged as a sales representative and was quickly promoted to Sales Supervisor. 

4. During 1991, at the suggestion of a customer, Mr Vos set up a business to clean bakery equipment.  He did this with the knowledge of Zep Manufacturing for which he continued to work while the business was established and began to grow.  He ceased working for Zep Manufacturing in June 1992. While his business continued to grow, it was under-capitalised and, in November 1994, he concluded that he needed a capital injection to enable the business to expand.  Mr Vos therefore took in a business partner who injected much needed capital, which in turn provided the stimulus for growth.  The business experimented with various coatings for bakery pans and trays, but found that a silicon rubber coating was preferred in the South African market.  This became the mainstay of their business. 

5. With deteriorating public safety in 1996 in South Africa, Mr Vos began considering the possibility of emigrating, possibly to New Zealand.  In January 1997, he asked a friend, Inspector Potgieter of the South African Police Force, to check the police database to see whether his criminal record had been expunged, as there had been talk of doing this for all criminal records older than 15 years.  Inspector Potgieter made the check and advised Mr Vos that he could not find any record of criminal convictions under his name.  Inspector Potgieter confirmed this in a statutory declaration made on 26 February 2001 (G p32).  Believing his criminal record to have been expunged, Mr Vos then made enquiries about the possibility of migrating to New Zealand and, in doing so, contacted several potential employers there.  One of these employers was the New Zealand office of Mackies, and it was as a result of that contact that Roger Wilcock sent him a fax asking whether Mr Vos would consider working in Australia. 

6. Following correspondence with Mr Wilcock, in April 1997 Mr Vos applied for a subclass 676 tourist visa to enable him to visit Australia and have discussions with Mackies.  Mr Vos said the application for the visa was a simple one page form which looked as if it had been set up on a word processing program.  Mr Vos could not recall the nature of the questions asked of him by the form, but said he did not disclose his criminal convictions because he believed they had been expunged.  After the visa was granted, Mr Vos entered Australia on 5 April 1997, met with Mackies, and then returned to South Africa on 12 April 1997.  Mackies subsequently sponsored Mr Vos to return to Australia on a subclass 457 (long stay) visa.  Once again, in completing the visa application, Mr Vos did not disclose his criminal convictions, believing that his record had been expunged.  Mr Vos could not recall the exact character of the application form but said he would have completed this about September 1997.  The visa was granted and Mr Vos entered Australia on 15 November 1997 and took up the position with Mackies in Sydney.  However, during the following three months there was a severe upheaval in the company and, in February 1998, Mr Vos decided to resign and, on 13 February 1998, he returned to South Africa. 

7. Nevertheless, Mr Vos was still attracted to living in Australia and entered into correspondence with a company in Brisbane who were proposing to go into competition with Mackies in Queensland.  Because his previous visa was no longer valid following the termination of his employment with Mackies, Mr Vos applied for a subclass 456 business (short stay) visa.  Once again, in completing the visa application form Mr Vos did not disclose his criminal convictions believing that his record had been expunged.  Mr Vos had no clear recollection of the form but said he could not remember there being a "credit card section" of the form because he would have used this, whereas he remembers paying in cash.  The visa was granted and Mr Vos entered Australia for a third time on 14 April 1998 and had discussions with the company in Brisbane.  Because he was not keen on the way in which the company was run, he refused an offer to buy into the company and returned to South Africa on 20 April 1998.  He then obtained employment with a company called Specialty Seafood, managing their nightshift production, where he worked until April 1999. 

8. Meanwhile, Mr Vos' marriage "which had been on shaky ground for quite a long time, began to deteriorate even more".  In November 1998, he and his wife Linda decided to divorce and the necessary divorce papers were lodged. 

9. In March 1999, Mr  Wilcock contacted Mr Vos asking whether he would consider returning to Mackies.  Mr Vos once again asked his friend Inspector Potgieter to check to see whether the police database showed him as having a criminal record and was assured by Inspector Potgieter that it did not.  Mr Vos then applied for a Police Clearance Certificate in case Mackies should decide to employ him on a permanent basis.  Mackies had been unable to fill the position with a suitably experienced person in the 16 months since Mr Vos had left in February 1998.  

10. On 19 May 1999, Mr Vos' divorce was finalised and he made plans to leave for Australia.  He booked a flight leaving South Africa on 12 June 1999.  About three days before he was due to leave, the Police Clearance Certificate arrived and Mr Vos was shocked to find that his full criminal record was reflected on it.  By that time, he had resigned from his job in South Africa, he had just been through what he described as a "messy divorce" in which most of his property passed to his ex-wife in the property settlement.  Mr Vos said he arrived in Australia with two suitcases, a job and an obligation to continue supporting his wife and paying Child Support for his two children.  He said he was under a great deal of pressure and was not thinking very clearly at the time.  Mr Vos travelled to Australia on the subclass 456 visa previously granted to him.  The day after he arrived, he applied for a subclass 457 business (long stay) visa and, fearing the possible denial of a visa, did not disclose his criminal convictions on the application form.  Mr Vos said he was aware that he should have so but, because of his uncertain situation, the pressure he felt under, and the his failure to think clearly, he did not make the disclosure.  Mr Vos was granted a subclass 457 visa on 9 September 1999.

1. In early 2000, Mackies applied for Mr Vos to remain in Australia under the Employer Nomination Scheme in the position of Manager, Coating Department.  This application was approved on 22 August 2000.  Not knowing what to do, Mr Vos sought legal advice and was advised to lodge with his application for a subclass 856 visa, a statutory declaration explaining why he had not mentioned in his criminal record in his previous visa applications.  Mr Vos followed this advice and lodged a statutory declaration with his visa application on 16 February 2001.

2. Meanwhile, in July 2000, Mr Vos met Susan Johnston while visiting friends in Canberra.  Their relationship developed, and by mid-January 2001, Mr Vos said they had fallen in love.  Both Mr Vos and Ms Johnston set out in their statements (A9 and A1 respectively) the closeness of their relationship and their wish to get married.  The statements of Anna and Kris Johnston (A2 and A3 respectively) also attest to the strong relationship which they have developed with Mr Vos.  Neither Anna or Kris has a strong relationship with their natural father who has been missing from their lives for some years.  After Ms Johnston's divorce became final in October 2001, she suggested that she and Mr Vos should get married but Mr Vos said they should postpone this in case his visa was refused and he had to return to South Africa.  He stated that he "did not want to inflict the conditions in that country on a woman that I love so much". 

3. Following notification that his visa application had been refused, Mr Vos was asked to attend the departmental offices at Parramatta for a meeting.  He was informed that his subclass 457 visa had been cancelled and that he would be detained in Villawood Detention Centre awaiting the outcome of an appeal to the Tribunal or deportation.  Since his detention, Mr Wilcock has been very supportive in trying to retain his services for Mackies and help Mr Vos remain in Australia.  Ms Johnston has also been very supportive and speaks to him on the phone at least once a day and drives up from Canberra each weekend to visit him. 

4. Mr Wilcock gave evidence that Mackies' Melbourne plant has had to be closed for the time being because of the lack of managerial expertise in the company since Mr Vos' detention.  They have been advertising again to try and fill the Melbourne position but as yet unsuccessfully.  Mr Wilcock said that it is very difficult to find a person with appropriate experience such as that which Mr Vos has.  Mackies have been trying to find the right person since 1994 when they first approached Mr Vos.  Mr Wilcock said the Coating Department, which Mr Vos manages, is responsible for coating both new bakeware and reconditioned containers, and comprises an important part of Mackies' business.  In his statement dated 21 March 2002 (A4), Mr Wilcock described the loss of production and the increase in operating costs which have occurred since Mr Vos' detention, as well as problems in quality and complaints from customers which have resulted in nearly $40,000 worth of recoating being necessary.  Mr Vos' absence has also greatly affected employee morale in the business and Mackies' employees have signed a petition in support of Mr Vos.  Mr Wilcock concluded that the loss of Mr Vos' expertise and experience "would be a loss for the  growth and development of the Australian bakeware industry". 
   SUBMISSIONS
   Applicant

5. Mr Poynder, for the Applicant, noted that the Respondent accepts that there is no likelihood of Mr Vos committing again offences of the same nature as those that he committed in his youth.  The Respondent also accepts that Mr Vos thought that his criminal record had been expunged at the time that he completed the first three of his visa applications.  Mr Poynder submitted that there is no evidence as to the specific questions asked in the application forms that Mr Vos completed in respect of these first three visas.  With regard to Mr Vos' fourth visa application in June 1999, Mr Vos' evidence is that he only found out that his criminal record had not been expunged a few days before his departing for Australia in early June 1999.  At that time, his personal and professional life was in turmoil, and he was under significant pressure and not thinking clearly.  He acknowledges that he failed to disclose his previous criminal convictions in completing the visa application form, knowing, at that time, that his criminal record had not been expunged.  Mr Poynder referred the Tribunal of the Report of Dr Sid Williams, Consultant Psychiatrist, dated 24 February 2002 (A5) in which Dr Williams states that, at this time, Mr Vos "showed poor judgment, exercised at a time of considerable pressure, rather than being a carefully thought out act in a criminal sense".  Thereafter, having reflected on what he had done and taken legal advice, Mr Vos disclosed the true situation in the statutory declaration attached to his visa application lodged on 16 February 2001.

6. Mr Poynder acknowledged that the offences committed by Mr Vos in 1974 were very serious offences, but noted that nearly 28 years have passed since the offences were committed and that there is very strong evidence of Mr Vos' rehabilitation which should be taken into account as a countervailing consideration.  Mr Poynder submitted that there is only evidence of one occasion on which Mr Vos failed to disclose his criminal convictions, in June 1999.  The Tribunal should take into account the mitigating circumstances surrounding this occasion and, in particular, the state of anxiety which Mr Vos was in at the time over his future.  Mr Poynder submitted that excepting this one incident, all the other evidence points to Mr Vos being a person of honesty and integrity.  He has now been forthright in disclosing his criminal record and there is little likelihood that he would deliberately and dishonestly mislead government officials should he become a permanent resident of Australia. 

7. With regard to deterrence, Mr Poynder referred the Tribunal to the Federal Court decision in Patel v Minister for Immigration [2002] AATA 78 at paragraph 47. where Gray J stated:

   The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote.

Mr Poynder submitted that Mr Vos' prior criminal conduct in South Africa in the 1970s was too remote with respect to any deterrent effect on others who might be potential visa applicants for Australia.  Nevertheless, Mr Poynder recognised that there is an element of general deterrence in refusing visas to applicants who have not been truthful in migration applications.  In Mr Vos' case, there are factors which mitigate against the seriousness of his failure to disclose his criminal record in his June 1999 application and, it should be recalled, Mr Vos made a voluntary disclosure of his convictions in relation to the present application. 

1. With respect to the Expectations of the Australian Community, Mr Poynder referred the Tribunal to the statement by Deputy President McMahon in Leha and Minister for Immigration [2000] AATA 1054] at paragraph 2.12, that there is "a general expectation in the community that the Act should be administered fairly and humanely". The punitive aspects of the s 501 power should, therefore, be weighed up against other relevant circumstances in this case.

2. With regard to the Other Considerations referred to in paragraph 2.17 of Direction No 21, Mr Poynder submitted that the Tribunal should have particular regard to the hardship caused to Ms Johnston and Mr Vos if Ms Vos has to leave the country, and the Tribunal should also take into account the significant compassionate circumstances of this case in accordance with paragraph 2.17(j).  Furthermore, the Tribunal should have regard to the effect of a refusal of the grant of a visa to Mr Vos on his employer, Mackies.  Paragraph 2.17(a) includes a consideration of the non-citizen's business ties to the Australian Community.  Mr Poynder submitted that the Tribunal should give significant weight to the current and future disruption to Mackies' business as a result of the refusal of the grant of a visa to Mr Vos. 
   Respondent

3. Ms Warner, for the Respondent, submitted that the offences committed by Mr Vos, while many years ago, were, nevertheless serious.  Mr Vos has also acknowledged that he made a false and misleading statement when completing his visa application in June 1999 in that he did not disclose his criminal record. 

4. Ms Warner submitted that Dr Williams' Report dated 24 February 2002 (A5) should be given little weight because it is more in the form of a statement of opinion as to Mr Vos' character rather than expert evidence.  Ms Warner said the Tribunal should form its own view on the basis of all the evidence before it.  She submitted that the evidence indicates a tendency by Mr Vos to seek to justify himself.   His explanation that he may not have read the declarations on the visa application forms properly before signing the forms, is somewhat implausible given the care that he took to assure himself that this criminal record had been expunged through enquiries made by Inspector Potgieter. 

5. Ms Warner said the Respondent contends that the seriousness of the Applicant's prior criminal conduct and of his having made a false and misleading statement in June 1999 outweigh the considerations of hardship to his current employer and personal hardship to Ms Johnston and her adult children.  While the Respondent accepts that the risk of Mr Vos repeating the offences is "close to nil", the denial of a visa where a person has failed to disclose criminal convictions will have a deterrent effect on future acts of non-disclosure.  The Australian community would expect that in such a case the visa would be refused. 
   APPLICATION OF THE LAW AND FINDINGS

6. As stated above, there is no dispute that Mr Vos does not pass the character test as a result of his substantial criminal record. Thus, the issue for the Tribunal to decide is whether to exercise the discretion in s 501(1) of the Act not to refuse the grant of a visa notwithstanding that Mr Vos does not pass the character test. In so doing, the Tribunal must have regard to Direction No. 21 as a guide to the exercise of its discretion.

7. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

   Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

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.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

1. Examples of what the Government views as serious offences are set out in paragraph 2.6.  These include, in subparagraph (c), serious crimes under the Migration Act which, in turn, include providing false or misleading statements or presenting false or forged documents. The Tribunal recognises the importance of observing the truth when dealing with officials in migration matters.  For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:

   The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.

1. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

2. With regard to the first of the Primary Considerations, the Protection of the Australian Community, the Tribunal notes that the offences committed by Mr Vos in 1974 and for which he received concurrent terms of imprisonment of 5 years, were very serious.  However, 28 years have now passed since these events and the Tribunal finds that there is no likelihood that the conduct will be repeated.  The Tribunal accepts Mr Vos' evidence that he "remade" himself and underwent a full rehabilitation.  He did, however, make a false and misleading statement in his visa application lodged in June 1999 which he fully acknowledges.  The Tribunal accepts his evidence that, at this time, he was under significant pressure following the finalisation of his divorce, his resignation from his job in South Africa and his move to a new job in Australia.  Mr Vos said he was not "thinking clearly". 

3. After Mr Vos had sought legal advice in relation to his application for the subclass 856 visa, he made a statutory declaration setting out the full circumstances (G p31).  Having read the relevant documentation and heard Mr Vos' evidence, the Tribunal's view is that he made a foolish mistake which is not representative either of his general conduct or of his character.  All the other evidence, including that of Ms Johnston and her children and the character references provided by the Applicant, point to Mr Vos being a person of honesty and integrity.  In the Tribunal's view, there is minimal likelihood of repetition of this misconduct and, whilst refusing a person a visa where a false or misleading statement has been made clearly has a deterrent effect, nevertheless, there are other considerations which must be weighed in the balance.  In particular, with regard to the Expectations of the Australian community, the Tribunal's view is that the community would take a humane view of Mr Vos' situation and the circumstances in which the misconduct occurred.

4. The parties have not raised the Best Interests of the Child as a relevant primary consideration in this matter, given that Ms Johnston's children are adult and no reference has been made to Mr Vos' children in South Africa who are aged 16 and 19.   Paragraph 2.17 of Direction No. 21 refers decision-makers to Other Considerations.   Where relevant, these Other Considerations may include: the extent of disruption to the non-citizen's family, business and other ties to the Australian community, genuine marriage to an Australian citizen or de facto or interdependent relationship with an Australian citizen, the degree of hardship which will be caused to immediate family members lawfully resident in Australia, and the family composition of the non-citizen's family both in Australia and overseas, and the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.

5. Mr Wilcock gave evidence before the Tribunal as to the important role played by Mr Vos as Manager of the Coating Department of Mackies, and how Mackies have suffered production and financial set backs with respect to that part of their business since Mr Vos' detention.  Mr Wilcock also gave evidence as to the difficulty of recruiting a suitably experienced person to fulfil the role of Manager of the Coating Department and of the long and otherwise unsuccessful search that Mackies have conducted for such a person over a number of years.  He also gave evidence of Mackies' plan to expand their production and sales in years to come which, at least for the present, are at risk as a result of Mr Vos not being able to fulfil that role. 

6. Mr Vos' first marriage ended in divorce, finalised in May 1999.  His ex-wife, Linda Vos, has provided a statement (G p76) stating that her ex-husband is a "good man" and would, in her opinion be a loyal citizen of Australia and is a person to be depended on.  She said her ex-husband still supports her and their two children "paying the bond on our house and most of our bills".  The Tribunal also notes the deep and loving relationship between Ms Johnston and Mr Vos and the strong relationship which he has developed with her two children.  The Tribunal accepts that they would have married had it not been for the uncertainty over Mr Vos' visa and his not wishing to commit Ms Johnston to a marriage where there existed a risk that he might not be permitted to remain in Australia and would therefore have to return to South Africa.  In the Tribunal's view, there are strong compassionate considerations which should be taken into account arising from their relationship.  If Mr Vos were to be denied a visa, significant hardship would be caused to Ms Johnston and her family as well as to Mr Vos.

7. Weighing up the Primary and Other Considerations, in the Tribunal's view Mr Vos is not a person from whom the Australian Community need be protected.  Indeed, the evidence of his employer, which the Tribunal notes has been backed by significant support during these proceedings, is that Mr Vos can make a significant contribution to Australian business. The Tribunal considers that the Australian community would take a humane view of Mr Vos' situation, would be tolerant of his recent immigration misconduct and, having regard to Mr Vos' family situation in Australia, would take the view that this is not an appropriate case in which a visa should be refused. 

8. The Tribunal therefore concludes that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in the case of Mr Vos, and, therefore, sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of 

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4 April 2002  
Date of Decision  16 April 2002
Representative for the Applicant              Mr N Poynder, Barrister
Representative for the Respondent        Ms E Warner, Solicitor