Wade and Minister for Immigration and Multicultural Affairs - [2001] AATA 986

DECISION AND REASONS FOR DECISION [2001] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/456

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      Joanna Wade
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date4 December 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Raymond Chapman passes the "character test" under s 501(1) of the Migration Act 1958.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse Visa – sponsor – character test – past and present criminal conduct – where Visa Applicant convicted of various offences in England including possession with intent to supply an illicit drug – where sentence at the lower end of the spectrum imposed – mitigating circumstances in which offence committed – no subsequent pattern of similar type offences – no pattern of disregard for the law - character test passed
Exercise of discretion (in the alternative) – balancing of primary and other considerations – protection of the Australian community – seriousness and nature of the conduct – risk of recidivism – expectations of the Australian community – best interests of the children – genuineness of marital relationship - degree of hardship to Visa Applicant's spouse

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Chen and Minister for Immigration and Multicultural Affairs [2001] AATA 829
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Townsend and Minister for Immigration and Multicultural Affairs [2001] AATA 843

REASONS FOR DECISION

4 December 2001 R P Handley

This is an application by Joanna Wade ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 14 March 2001 to refuse the grant of a sub-class 309 (spouse) visa to the Applicant's spouse, Raymond Chapman ("the Visa Applicant").
At the hearing, the Applicant was represented by John Parnell, of Counsel, and the Respondent was represented by Leonard Leerdam, solicitor, of Sparke Helmore, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by the Visa Applicant by telephone and by the Applicant in person.

BACKGROUND

Mr Chapman was born in England on 1 March 1964 and is aged 37. He is a British citizen. Ms Wade was born in England on 4 May 1972 and is aged 29. She migrated to Australia with her parents when she was about 5 years old and is an Australian citizen. Mr Chapman has five children from two previous relationships. He has twin adopted daughters by his first wife, Tia Chapman, from whom he was divorced on 6 July 1989, Zowie and Lia, who were born on 12 December 1981, and one natural child, Marilyn, who was born on 14 October 1983. By his second partner, Tracey Roos, he has two daughters: Freyja who was born on 18 August 1992, and Elysia, who was born on 12 March 1994. Mr Chapman separated from Tracey Roos in 1994. Mr Chapman and Ms Wade met in late 1994 and commenced a de facto relationship in about March 1995. Ms Wade had travelled to England in 1994 to visit members of her family and to travel in Europe. They were married on 29 May 1999.
Mr Chapman has four convictions:

18 June 1986 – theft of a hub-cap from a vehicle – conditional discharge 12 months.
30 September 1986 – possession of a controlled drug (cannabis) – £75 fine.
15 December 1995 – possession of a controlled drug (cannabis) – no separate penalty.
15 December 1995 - Possession of a controlled drug with intent to supply – six months imprisonment. Mr Chapman was released from prison in March 1996 after serving three months of his sentence.

Mr Chapman has made two visits to Australia with the benefit of a visitor visa: from 11 March 1998 to 15 April 1998 and from 19 August 2000 to 8 September 2000. Mr Chapman's further application for a visitor visa to attend Ms Wade's sister's wedding in October 2001 was refused.
Ms Wade has worked in England since arriving there in 1994. Initially, she worked in the hospitality industry. From June 1996 to August 1999, she worked as a care worker for Ashley Homes. Since 15 September 1999, she has worked as a teaching aide at Orchid Hill College in Surrey. Mr Chapman worked as a commercial vehicle body-builder and repairer until January 2000 when he commenced work as a support worker for Ashley Homes. On 18 June 2001, he commenced employment as Deputy Home Manager with Care Solutions in Surrey.
On 25 January 2000, Mr Chapman lodged an application for the grant of a sub-class 309 (spouse) visa at the Australian High Commission in London. On 14 March 2001, a delegate of the Respondent notified Mr Chapman that he had decided to refuse the grant of a visa pursuant to s 501(6)(c)(i) because of Mr Chapman's "past and present criminal conduct". On 9 April 2001, Ms Wade lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW AND POLICY
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 that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 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.
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".
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.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Chapman is not of good character having regard to his past and present criminal conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
ORAL EVIDENCE
Joanna Wade (the applicant)
Ms Wade attested to the truth of her affidavit dated 17 August 2001 (A1). She said she is in Australia for her sister's wedding, which was last Saturday, and is staying with her family in the Hunter Valley. She is returning to England this coming Saturday. Her husband, Mr Chapman, would have travelled with her but was refused a visitor visa. Rather than stay at home, he has gone to Egypt for a two week holiday.
Ms Wade migrated to Australia with her parents at the age of about five. Although she is an Australian citizen, she has retained her British passport. She returned to England in 1994 to visit her grandfather and aunt and to see where she came from. As many Australians do, she also wished to spend time travelling. She originally intended to go for 12 months. She met Mr Chapman in late 1994, when she was living in South Kensington and working in a pub. He was then living separately in the house which he shared with his ex-partner, Tracey Roos. Ms Wade and Mr Chapman commenced living in a de facto relationship around March 1995.
At that time, Mr Chapman was working as a commercial vehicle body-builder. Ms Wade said she was aware that his wages were poor, but she was not aware that he was in financial difficulties. She was shocked when he was arrested in July 1995 and charged with supplying cannabis. She said this was completely out of character for him: he is a kind and gentle man whom she loves dearly. Mr Chapman told her afterwards that he had got himself into debt and had agreed to transport some cannabis from one place to another in consideration of a reduction in his debt.
Ms Wade said that even after she and Ms Chapman commenced living in a defacto relationship, they maintained separate finances, and still do. She was not therefore, aware of the extent of his financial problems. She was living cheaply at the time in order to save for further travelling and was not aware that Mr Chapman was under financial constraint. When she lived in South Kensington, she was living cheaply and they used to spend time together in Hyde Park.
Shortly before Mr Chapman was arrested in July 1995, Ms Wade had bought a return air ticket to visit Australia, in part so that she could look objectively at their relationship. Ms Wade said she travelled to Australia when Mr Chapman was imprisoned in December 1995 and returned after his release in March 1996. In June 1996, Ms Wade obtained employment as a care worker at Ashley Homes, a division of the Shaftsbury Housing Association. Mr Chapman visited her at her workplace, and it became immediately apparent to her that he has a real empathy for people with learning disabilities and a calming effect on them. He established a very good relationship with some of the inmates, which still continues, and subsequently obtained employment there in early 2000.
In February 1997, Ms Wade and Mr Chapman bought a flat, although the title to the property was registered in her name. The purchase price was £36,000 of which they paid a deposit of £2,000 from their joint savings with the balance being by way of a housing loan. Their flat is the bottom half of a converted house. Both the downstairs and upstairs flats are leasehold. After they had bought their flat, the freehold title for the whole property came up for sale and Mr Chapman bought this in his name at a cost of £1,000. The leaseholders of the upstairs flat therefore pay him rent.
Ms Wade said her husband maintains an investment plan for his two youngest children. This is an Individual Savings Account (an "ISA"), a tax free account which he established on the recommendation of a financial adviser. Ms Wade did not know how much money Mr Chapman puts into this account on a regular basis, but she said the balance in the account is sufficient to pay five or six years of child support payments in respect of the two children. Currently, Mr Chapman is paying a child support payment once a month to his former partner, Tracey Roos.
Ms Wade said she has not met her husband's two youngest children because their mother will not permit this. Her husband sees them once a month at a Child Access Centre for two or three hours. It is traumatic for both Mr Chapman and the children with whom Ms Roos has denied Mr Chapman both telephone and e-mail contact. Ms Wade thinks Ms Roos is using the children as a means of "getting back" at Mr Chapman.
Ms Wade suffers from three medical conditions: chronic idiopathic thrombace dapenia, a blood condition affecting her platelets that makes her susceptible to bruising; a dormant lupus condition which does not currently require treatment; and an undiagnosed condition which causes aches and pains in cold and damp weather. One of the difficulties with the blood condition is that Ms Wade is not always aware of whether she is well or not. She has also been told that it is highly unlikely that she will be able to have children. When she returned to Australia for about four months at about the time her husband was in prison, she found the aches and pains disappeared completely.
Ms Wade said she misses Australia and her family in Australia. She feels the need for the support of her family when she gets sick and would like to live near her sister, when her sister has children, which is likely to be relatively soon. Ms Wade said her family in Australia, though small, is a close one. She is not close to her family members in England. Ms Wade and Mr Chapman first discussed the possibility for their moving to Australia about four years ago.
Raymond Chapman (the Visa Applicant)
Mr Chapman attested to the truth of his affidavit dated 17 August 2001 (A2). He was speaking from Egypt where he was on holiday at the suggestion of Ms Wade, having been denied a visitor visa to come to Australia. He said that throughout his twenties, he regularly smoked cannabis with his friends. When his relationship with Tracey Roos began to deteriorate, he felt under emotional pressure and began to make heavier use of both alcohol and cannabis. As a result, he foolishly allowed himself to get into debt to his cannabis supplier and when the supplier suggested he transport some cannabis from one place to another in consideration of a £50 reduction in his debt, he agreed. Mr Chapman said he very much regrets having done so but, at the time, he was emotionally fraught and in financial difficulty. He said information he gave to the police in a statement dated 16 October 1995 (A2, Annexure) about his financial situation was correct. This statement recorded that he was earning £650 net per month from which he paid £400 mortgage and insurance, £55 "poll" tax per month, £12 per week for gas and electricity, £59.50 per month in respect of a civil legal aid contribution, and £10 per week for travel expenses. Mr Chapman tried to earn some additional cash by repairing small dents in the bodywork of cars and by assisting a friend with the teaching of Tai Chi. However, the additional cash earned was small and there was very little money left from his monthly wages to live on and support his children. Ms Roos was receiving rent from another property that she owned which was used to help pay the mortgage. She was not working at the time.
Mr Chapman said he was arrested when transporting the cannabis on that first occasion. He was asked whether he co-operated with the police officers who arrested him. He could not recall exactly what he said to the officers, but said what they recorded in their statements would have been correct. Mr Chapman confirmed that when at the police station, he did not inform the police of the name of the person who had supplied him with the drugs for fear of repercussions. He said, at the time of his arrest, he considered cannabis a soft drug and a lesser drug than, for example, cocaine. As a result of his experiences, he now believes that cannabis can be just as dangerous and just as damaging. He considers all drugs to be deeply dangerous.
Mr Chapman said he was released from prison in March 1996, having served three months of his six months sentence. He was fortunate that his previous employer permitted him to resume his job. That employer was then taken over by a larger company with the result that over the next six to eight months his wages increased quite considerably to between £800 and £900 per month.
Mr Chapman said Ms Roos won a legal action against him with respect to the house which they owned. Although the mortgage remains in his name, she took over making the payments. Currrently, he makes child support payments of £77 per month in respect of his two younger daughters. About five years ago, he set up a savings plan with the assistance of a financial adviser whose name he obtained from a local newspaper. This savings plan started off as a Personal Investment Policy (a "PEP") but when the Government changed the taxation rules with regard to PEPS, this was changed to an ISA. There is now approximately £5,000 in the accounts which, if he is permitted to migrate to Australia, he will top up with additional funds from the sale of the house. Thus, Mr Chapman's further liability for child support payments can be satisfied from this savings plan.
Mr Chapman said he sees his two youngest daughters for two or three hours once a month. He tried to extend this and establish e-mail contact with them, but their mother has refused. Her attitude towards him is acrimonious and he has not told her of his plan to migrate to Australia because of his concern that she might deny him access. Mr Chapman said, generally, he gets on well with his daughters, but they find it confusing because they have not yet met Ms Wade, nor have they been permitted to visit his house. If Mr Chapman migrated to Australia, he hopes he would be able to maintain contact with them by letter. He would also try and establish e-mail access and see them when he visits England. He said, to some extent, it might be easier to explain to his daughters that they can not visit his home and meet Ms Wade by reason of their being in Australia. The Wills he and Ms Wade have made, under which his daughters are beneficiaries with his other three children, have not been changed.
Mr Chapman said he now feels fully rehabilitated from the offences for which he was imprisoned. He has worked hard to distance himself from his old life, and he no longer associates with people from his past. Through counselling, he has learned a lot more about himself. With the help of Ms Wade, he has also overcome his dyslexic tendencies. He is now able to read substantial books, for example, JRR Tolkein's Lord of the Rings. As a result, he has gained in confidence and his spelling and writing have also improved greatly. This has been very helpful to him for the report writing which is part of his new job. Mr Chapman said it is conceivable that his dyslexia may have had some effect on his earlier behaviour.
Mr Chapman believes he has now found his true vocation. He has finally found a job which makes sense to him, where he fits in and feels comfortable and enjoys going to work. He is now working for Care Solutions as the Deputy Home Manager of a residential care home near where he and Ms Wade live. As a part of his work, he is required to administer medication to inmates and supervises other staff doing this. To be permitted to administer medication, initially he had had to do this under the supervision of senior staff to ensure that he was doing it properly. Over the course of the past year, he has undertaken a number of courses related to his work: for example, first aid, patient handling, hygiene, role familiarisation (a three day course) and a follow-up course (two days) on challenging behaviour, and on epilepsy. Mr Chapman said if he is permitted to migrate to Australia, he would like to continuing working in the same field. When he was last in Australia on a visitor visa in 2000, he made some enquiries about this kind of work and he has also made other inquiries by e-mail. He is fairly confident that he will be able to find an appropriate position.

With regard to Ms Wade's medical condition, Mr Chapman has noted she seems to suffer more in cold and damp weather, which is common during the winter months in England. On his two visits to Australia with her, he noticed that her joints seemed to be better because of the warmer climate. Generally, Ms Wade finds her condition more manageable when she is closer to her family and has their support. Her condition is quite difficult to live with on a day-to-day basis. If his application for a visa is refused, Mr Chapman thinks Ms Wade will probably stay with him in England and that this will not break up their marriage. Her not being happy with that outcome is something they may have to face when a decision is made.
Mr Chapman said he deeply regrets his action in supplying cannabis and realises how foolish he was. He has spent the last six years trying to make up for his misconduct and rebuild his self-confidence. He hopes his conduct in recent years go some way towards changing views of his previous behaviour.
SUBMISSIONS
the applicant
Mr Parnell, for the Applicant, said Mr Chapman's current contact arrangements for his two youngest daughters, who are aged 7 and 9, are most unsatisfactory, but unfortunately, are not likely to improve in the immediate future. Mr Chapman's contact with his ex de facto partner, Ms Roos, continues to be acrimonious. Mr Chapman has given careful consideration to his situation if he is allowed to migrate to Australia. In some respects, the best interests of his children may be just as well served by an almost complete break. Mr Chapman is currently paying £77 per month in child maintenance and has established a trust fund for their support, the balance of which is £5,000. He is genuine about his intention to maintain and replenish this fund to ensure his on-going financial support for his children. Mr Parnell submitted that this is not a case where the interests of children are paramount. He referred the Tribunal to the decision in Chen and Minister for Immigration and Multicultural Affairs [2001] AATA 829, where the Visa Applicant also had minimal contact with his daughter who lived in China. The interests of the child, which in that case remained a "matter of conjecture", were not paramount.
Mr Parnelll noted that Ms Wade is an Australian citizen and entitled to live in Australia. There is no dispute that her marital relationship with Mr Chapman is genuine. Ms Wade and Mr Chapman discussed the possibility of their moving to Australia several years ago in the early stages of their living together and Ms Wade is now keen to make that move. The medical conditions from which Ms Wade suffers are not life-threatening, but cause her discomfort and affect her daily living. Her condition is adversely affected by the climate in England and improves when she is in Australia. Mr Parnell submitted that Mr Chapman should be permitted to accompany his wife on her return to live in Australia.
Mr Parnell noted the offence of possession of cannabis with intent to supply, for which Mr Chapman was sentenced to six months imprisonment by Croydon Crown Court on 15 December 1995, was punishable by a sentence of up to 14 years. It was likely, therefore, that the Court regarded Mr Chapman's offence as being at the "bottom end of the scale". Mr Chapman's previous convictions nine years earlier in 1986 may have had an effect on the sentence, but these offences were very minor. Mr Chapman was under considerable financial pressure at the time of the offence, even though this pressure arose in part from his unlawful use of cannabis. Mr Parnell noted Mr Chapman's candour in giving evidence about his use of cannabis. He also noted the police statements as to Mr Chapman's nervousness at the time of his arrest, which corroborate that was his first offence of this, more serious, kind. Mr Parnell referred the Tribunal to the Pre-Sentence Report on Mr Chapman by a probation officer on 13 December 1995 (A2, Annexure). The report indicates some sympathy for Mr Chapman and the tenor of the report suggests that the probation officer considered there to be a chance of a non-custodial sentence. The report also indicates the officer considered it likely that Mr Chapman would reform.
Mr Parnell contended that despite Mr Chapman's acknowledging his smoking cannabis with his associates, there was no pattern of offences. There is clear evidence of Mr Chapman's contrition and of his rehabilitation since the time of the offence. His views on drugs have clearly changed and, based on all the evidence, the risk of recidivism is absolutely minimal. Mr Parnell submitted that deterrence was not a significant matter in this case and referred the Tribunal to the decision in Townsend and Minister for Immigration and Multicultural Affairs [2001] AATA 843.
Mr Parnell submitted that a consideration of the expectations of the Australian community must take into account the character of the person and that person's circumstances. He contended that Mr Chapman has redeemed his good character since his conviction on 15 December 1995. Mr Parnell referred the Tribunal to the report on Mr Chapman by a drug counsellor of Community Drug Help Line dated 21 May 2001 (A2, Annexure), which concluded that:
given the changes that Mr Chapman has made in his life that [sic] he does not have a substance misuse problem either physically or psychologically. He appears to be a reasonable and thoughtful man, who I think will do well in his chosen career.

Mr Parnell referred the Tribunal to other documents in the T documents which he said indicate Mr Chapman has undergone a complete rehabilitation. This is supported by testimonials for Mr Chapman, by references from his former employers, and by the evidence of Ms Wade and Mr Chapman. Mr Parnell submitted that Mr Chapman is of good character and does pass the "character test". However, if the Tribunal finds otherwise, then the discretion in s 501(1) should be exercised in his favour on the basis of the evidence identified above.
the respondent
Mr Leerdam, for the Respondent, said that reference to Part 1 of Direction No. 21 requires close examination of any evidence of rehabilitation when considering whether or not a person is of good character. The Respondent contends that an examination of the circumstances indicates that Mr Chapman is not of good character. In particular, Mr Leerdam noted the long period during which Mr Chapman used drugs, the fact that Mr Chapman provided no real assistance to the police on his arrest or to the investigating officers in relation to identifying the principal supplier of the drugs, and that this was a "supply offence" which was motivated by financial gain in the addressing of his financial circumstances at that time.
With regard to the exercise of the discretion under s 501(1) and the guidance to be derived from Part 2 of Direction No. 21, Mr Leerdam said the question of rehabilitation is also relevant to a consideration of whether there is a possibility of recidivism. He contended that where money has been a motivator, there is always some risk of recidivism. The risk of a person re-offending is a significant factor in terms of the protection of the Australian community. Mr Leerdam said that deterrence is also especially important in a situation where the commission of a crime was motivated by financial gain. The Australian community would expect the visa refusal would be affirmed in this case, because of the expectation that persons who have been found guilty of the supply of illicit drugs should not become members of the Australian community.
With regard to the best interests of Mr Chapman's children, Mr Leerdam contended that there can be no argument that Mr Chapman's presence in England is beneficial to his children, notwithstanding the difficulties arising from his relationship with Ms Roos. Clearly, any contact between Mr Chapman and his children would be more limited if he were residing in Australia.
Mr Leerdam noted that Ms Wade and Mr Chapman have lived in England most of the time since the start of their relationship. Whilst the Respondent accepts that she has family in Australia and would like to be close to them, the inconvenience of having to visit Australia from time to time does not outweigh the primary considerations in this case.
APPLICATION OF THE LAW AND FINDINGS

As stated above, the first issue for the Tribunal to determine is whether pursuant to sub-sections 501(1) and 501(6)(c)(i), Mr Chapman does not pass the "character test" by virtue of his past and present criminal conduct.
The application of the "character test" in s 501(6) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at 324, the Full Federal Court said:
The concept of "good character" in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. Of relevance in the present case is paragraph 1.8 of Direction No. 21. This states:
In considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen's record since the offence/s were committed including:

any evidence of recidivism or continuing association with criminals;
a pattern of similar offence/s and/or;
a pattern of continued or blatant disregard/contempt for the law; and
(d) any mitigating circumstances such as may be evident from the judge's comments, parole reports and similar documents.

The Tribunal notes that the first two offences committed by Mr Chapman in 1986 were of a relatively minor nature involving the theft of a hub-cap and the possession of a small amount of cannabis. The penalties imposed were, respectively, a twelve month conditional discharge and a fine of £75. Although Mr Chapman has acknowledged that he continued to smoke cannabis, he has no further convictions until those of 15 December 1995 when he was convicted of possession of cannabis and possession with intent to supply, for which he was sentenced to six months imprisonment. Given that the maximum penalty for the latter offence in a Crown Court was fourteen years, the Tribunal accepts that the sentence imposed was at the lower end of the spectrum. The Pre-Sentence Report prepared by a probation officer on 13 December 1995 (A2, Annexure), includes a proposal for a non-custodial sentence and is generally sympathetic in tenor. The Tribunal also notes Mr Chapman's evidence as to the circumstances in which he committed this offence. His relationship with Ms Roos had broken down and he had recently moved out of the house, which they had shared on a "separated basis", after he and Ms Wade formed a relationship and started living together. Mr Chapman was under financial pressure at that time as a result of the separation from his wife and the need to contribute financially to that household and to the support of his children. Clearly, his financial burden was exacerbated by his running up a debt of £200 to the supplier from whom he obtained cannabis.
In the Tribunal's view, there is no pattern of similar offences, nor of continued or blatant disregard/contempt for the law. Mr Chapman has committed no further offences in the six years since December 1995. Indeed, the Tribunal finds that he has undergone a complete rehabilitation and that the risk of recidivism is infinitesimal. The Tribunal bases this finding on the evidence of Mr Chapman and Ms Wade, on the Report by the drug counsellor for Community Drug Help Line, dated 21 May 2001 (A2, Annexure), and on a number of statutory declarations in the T documents attesting to Mr Chapman's rehabilitation and to his good character. The Tribunal notes, in particular, the references from Mr Chapman's former employer RVK Truck Engineering Ltd (T4, p90), who continued to support Mr Chapman following his conviction and afterwards, and ultimately promoted him to workshop foreman. Mr Chapman also has excellent references from Ashley Homes, by whom he was employed as a support worker for approximately one year, and from Care Solutions, where he has been employed as Deputy Home Manager since 18 June 2001 (A2, Annexures). The Tribunal was also impressed by Mr Chapman's oral evidence as to his rehabilitation and his dedication to a new career path in which he states he has found his vocation.
The Tribunal notes Mr Leerdam's submission that where financial gain is a motivator, there is always some risk of recidivism. However, in the Tribunal's view the evidence of Mr Chapman's rehabilitation is so strong, that such a risk need not be contemplated. Indeed, the evidence suggests that Mr Chapman's moral qualities have undergone significant development in the years since his conviction such that there is a likelihood of his making a genuine contribution to the quality of care in the community. In the Tribunal's view, Mr Chapman meets the standard of "good character" in the terms explained by the Full Federal Court in Goldie (supra). The Tribunal is not satisfied that Mr Chapman does not pass the character test by virtue of his past and present criminal conduct and, therefore, pursuant to s 501(6), he passes the "character test".
In the alternative, were Mr Chapman not to pass the "character test" the Tribunal would have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion in s 501(1). 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

Paragraph 2.5 states:
The factors relevant to an assessment of the level of risk to the community of entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism);
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a), persons who embark upon drug-related crime for financial gain.

The Tribunal has already considered the offences committed by Mr Chapman in relation to the application of the "character test", including mitigating factors, and the risk of recidivism. In the Tribunal's view, the protection of the Australian community would not be a relevant concern if Mr Chapman were to be granted a visa. Similar considerations apply in respect of the second primary consideration, the expectations of the Australian community.
The third primary consideration is the best interests of the child or children of the visa applicant. Mr Chapman has two daughters by his second relationship who are aged 7 and 9 years. Regrettably, his relationship with their mother, Ms Roos, is an acrimonious one and Mr Chapman has very limited contact with his daughters of only two to three hours a month at a Child Access Centre. Ms Roos has not permitted their daughters to visit Mr Chapman's home, nor to meet Ms Wade, and does not allow contact by telephone or e-mail. Clearly, it would be difficult for children of their ages to understand such limitations. While Mr Chapman's daughters maintaining contact with their father is an important matter, in the Tribunal's view, in the particular circumstances of this case, it is a factor which must be weighed with other considerations.
Paragraph 2.17 of the Direction notes that the decision-maker may need to take into account other considerations. These may include genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established, and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship, family composition, and the degree of hardship which would be caused to immediate family members. There is no dispute that the marriage relationship between Mr Chapman and Ms Wade is a genuine caring one. The events which led to Mr Chapman's convictions on 15 December 1995 took place after Ms Wade had commenced a de facto relationship with him.
Ms Wade's immediate family is in Australia and she told the Tribunal that she is not close to either her grandfather or aunt who live in England. Ms Wade suffers from a number of medical conditions and the Tribunal finds that her family in Australia are likely to be supportive of her in managing those conditions. Moreover, the climate in Australia is likely to be beneficial in terms of the aches and pains which she suffers in her hands. On the other hand, it is clear that Ms Wade has managed to live in England without major difficulty over the past few years, with periodic visits to and by her family. Overall, a weighing of the primary and other considerations suggests to the Tribunal that of particular significance in this matter is Ms Wade's desire to return home to Australia with her husband with the consequent benefits for her. The protection of the Australian community is not a matter of concern in this case and the interests of Mr Chapman's children, while affected by his migration to Australia, are unlikely to suffer any significantly greater adverse effects, given the already difficult situation described above. In conclusion, even if Mr Chapman were not to pass the character test, a balancing of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should be exercised in Mr Chapman's favour.
The decision under review should be set aside and the matter remitted to the Respondent for reconsideration with the direction that Mr Chapman passes the "character test" under s 501(1) of the Act.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   23 October 2001
Date of Decision   4 December 2001
Counsel for the Applicant         Mr J Parnell
Solicitor for the Applicant          Ms M Smith, Immicare
Solicitor for the Respondent    Mr L Leerdam, Sparke Helmore Solicitors