Whitelock and Minister for Immigration and Multicultural and Indi Genous Affairs

[2004] AATA 216

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 216

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1099

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ELIZABETH WHITELOCK

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date2 March  2004

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 favour of Andrew Whitelock.

[Sgd]    Mr J Block
  Deputy President

CATCHWORDS

IMMIGRATION - Visa Application - Tourist Visa - Character Test - Primary Considerations - Manner in which Direction 21 should be interpreted - Discretion to be applied in favour of the Applicant.

Migration Act 1958; s501 (1); s234)

Direction No 21

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

REASONS FOR DECISION

2 March 2004 Mr J Block, Deputy President       

PART A – INTRODUCTION AND GENERAL

1.      The decision under review is the refusal of an application made on 10 January 2003 by Andrew Whitelock (“the Visa Applicant”) for a tourist (subclass 676) visa; the Applicant, who is the Visa Applicant’s oldest sister, sponsored that application.  The Applicant and the Visa Applicant are two of three siblings; the Applicant is the eldest; Alison Whitelock (“Alison”) is the next in age and the Visa Applicant is the youngest.

2. The Applicant was self-represented while Mr G J Peek of the Australian Government Solicitors’ office represented the Respondent. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows: -

Exhibit A1 is a statement by the Applicant dated 2 February 2004;

Exhibit A2 is a statement (undated) by Alison;

Exhibit A3 is a statement by James & Gwyneth McCormick dated 16 January 2004;

Exhibit A4 is a statement by Barry Burns dated 10 February 2004;

Exhibit A5 is a letter by the Australian High Commission addressed to the Visa Applicant dated 12 March 2001, and which is notated to the effect that the Visa Applicant’s debt to the Commonwealth of Australia (“the Commonwealth”) has been paid in full;

Exhibit A6 is an email message of recommendation by Fiona McCormick dated 10 February 2004;

Exhibit A7 is a letter by Somerville & Co dated 9 December 2003 relating to a claim for Workers’ Compensation by the Visa Applicant.

3.        The Respondent’s Statement of Facts and Contentions dated 11 February 2004 is particularly helpful in this case because it contains under the heading “Facts” an admirable summary of the facts which the Respondent considers relevant.  I include in these reasons clauses 1 to12 inclusive under the heading “Facts” and clauses 13 to 17 inclusive under the heading “Contentions”, as follows:-

“FACTS

1. The Visa Applicant, Andrew Whitelock, a British national, was granted a student visa (subclass 560) on 4 June 1996 (page 24). This was subject to conditions as set out in Schedule 8 to the Migration Regulations 1994 which included Items:

8202 (must be enrolled in a registered course and either attend 80% of the course or make satisfactory academic progress).

8105 "Must not work more than 20 hours a week when course is in session" and 

8501 "Must maintain adequate arrangements for health insurance while in Australia".

The Visa Applicant arrived in Australia on 10 June 1996 (page 61). On 1 July 1997 the Visa Applicant's student visa was extended in Australia until 16 August 1999 (page 23).

2.        On 6 July 1998, the Visa Applicant surrendered to migration compliance officers and requested to be removed from Australia (page 21). At an interview on 6 July 1998, he advised he had:

breached the conditions of his visa (page 13)

a "court case on Wednesday, 8.7.98. Accused of assault. Downing Centre Local court" (page 13) been working at Eric's removals "on and off for two years" (page 14)

been receiving workers' compensation payments of $200 per week for the past 3 months (page 15).

3. On 6 July 1998 the Visa Applicant's student visa was cancelled under paragraph 116(1)(b) of the Migration Act 1958 (“the Act”) on the basis he had admitted that he had not been attending college since July 1997. No reason was given for the non-attendance. (pages 27-29). He was taken into immigration detention (pages 35-36; 39-51; 53-58), and removed from Australia on 8 July 1998 (pages 52). The Applicant incurred a debt to the Commonwealth in the amount of $1,465 (pages 66-73). This was partially discharged on 7 January 2003 (page 82) and fully discharged on 18 March 2003. (pages 84-85)

4.        As a result of his removal from Australia at this time, the visa applicant did not face the pending assault charges (pages 37-38; 59-60; 62-63). It would appear that the charge/s did not proceed to hearing in his absence (page 96)

5.        The Visa Applicant subsequently applied for a tourist (long stay)(subclass 686) visa which was refused on 12 July 2002 (page 92)

6.        On 10 January 2003 the Visa Applicant applied for a tourist (subclass 676) visa. (pages 79-81). The Visa Applicant answered “No” to the question:

“19. Have you...ever:

been convicted of a crime or offence in any country (including any conviction which is now removed from official records”,

and “Yes” to the question:

Have you...ever:

been removed or deported from any country (including Australia) and gave the following details:

“My deportation was voluntary owing to back injury received whilst working. All my funds were used up. My only option was consult immigration who destroyed visa and removed me” (page 81)

7.        The Visa Applicant was requested to obtain UK and Australian police clearance certificates (pages 88-91). A Scottish police certificate dated 15 April 2003 subsequently disclosed that the visa applicant had in fact been convicted of “Breach of the peace” on 17 May 1985 and offence under the Misuse of Drugs Act 1971 on 8 August 1991 (pages 93-95). The certificates were submitted with a letter from the visa applicant which provides his description and explanation of the offences, as well as two “testimonials” (pages 97-100).

9.        Notice of Intention to refuse the visa was issued by the Respondent on 3 June 2003, requesting any response be received by 23 July 2003. (pages 101-103). A reply, enclosing further documents, was received on 10 June 2003. (pages 104-112).

10. On 17 June 2003, a delegate of the Respondent decided to refuse the visa on the basis the Visa Applicant did not meet the character test in subparagraph 501(6)(c)(ii) of the Act. In arriving at this conclusion, the delegate noted in relation to the Visa Applicant’s prior convictions “I am inclined to agree with the Applicant’s assessment of his record in that the offences were disposed of in a manner that suggests they were not serious offences. I am also mindful of the fact that the convictions are each over ten years old and have not been repeated”, but went on to find they were “compounded by his very recent offending in regard to the Migration Act 1958, and his previous breaches of immigration law whilst in Australia as the holder of a subclass 560 visa between June 1996 and July 1998”. (page 118). The delegate regarded the Visa Applicant as having provided further misleading information in the explanations he had submitted as to why the convictions were not declared in the application, finding his previous breaches of immigration law “exhibit on ongoing disregard” for Australia’s immigration laws’ (page 119). While noting the Visa Applicant’s family ties in Australia the delegate did not regard these as outweighing the relevant primary considerations, and decided to exercise the discretion to refuse the visa. (pages 121-122)

11.      The Review Applicant sought review of the delegate’s decision by this Tribunal, pursuant to an extension of time to do so, on 24 July 2003.(pages 1-5).

12.      The Review Applicant has referred the Respondent to a website which indicates the Visa Applicant’s prior convictions would have been regarded as being “spent” as at the time the tourist visa application was made. No further evidence has been received, however, as to any factors which may go to the discretionary aspect of the power to refuse a visa on character grounds.”

“CONTENTIONS

Character Test: Subparagraph 501(6)(c)(ii) of the Act:

13. The Tribunal should not be satisfied that the Visa Applicant passes the character test. [sub-section 501(1) of the Act]

14.      The Tribunal should find that the Visa Applicant’s “past and present general conduct”, at least since seeking an extension of his student visa in July 1997, comprises “contempt” for Australia’s immigration laws, comprising all, or some, of the following conduct:

(a)       Seeking and obtaining an extension of his student visa in July 1997 in order to remain in Australia, but with no genuine intention to abide by its conditions.

(b)       Apparent breach of all conditions imposed on his student visa, by failing to attend the course for which the extended visa was granted since July 1997, working more than twenty hours a week and failing to maintain adequate health insurance.

(c)       Becoming involved in an incident in Australia serious enough to warrant the commencement of assault charges and avoiding facing those charges by seeking removal from Australia.

(d)       Failing to disclose his previous convictions in his tourist visa (and possibly earlier) applications and providing misleading information in response to the notice of intention to cancel his visa.

15. As the result of this conduct, the Applicant may have committed offences under section 234 of the Act which carries penalties of up to 10 years more imprisonment, and under section 235 of the Act in relation to working in Australia carrying a $10000 fine.

16. Direction 21, issued by the Respondent under section 499 of the Act, (“The Direction”) addresses the character test in relation to sub-paragraph 501(6)(c)(ii) at paragraph 1.9.

Paragraph 1.9 relevantly provides that decision-makers should consider 

“(a)      whether the non-citizen has been involved in activities indicating contempt, or disregard for the law…This could include, but need not be limited to:

involvement in…breaches of immigration law.

(b)       whether the non-citizen has, in connection with any application
          or the grant of a visa…provided a bogus document or made a                 
          false or misleading statement.”

17.      In determining whether the Applicant passes the character test, the Tribunal is required, by the Direction, to have regard to both good and bad conduct, including evidence of rehabilitation and recent good conduct. It provides “…where the decision-maker is not fully persuaded that a non-citizen has reformed, the discretion to refuse…a visa is enlivened, and evidence of good acts and recent good conduct becomes relevant to the exercise of the discretion.” (paragraph 1.11).”

4.      The Applicant did not file a Statement of Facts and Contentions.  I consider that T-30 (Tp104-Tp107 inclusive) which is a letter by the Visa Applicant dated 10 June 2003 might be treated as serving a similar purpose; T-30 reads as follows:-

“10 June 2003

Flat 21

Glassford Tower

Motherwell

Scotland

ML1 2AU

Dear Maria Green,

Thank you for your letter dated 3 June 2003, I am pleased to have the opportunity to explain the issues you raised in your letter, now that I am fully aware of the logistics of your requirements, and also, now that you have explained to me how I have not yet met all of the necessary criteria, I hope that the following information clears up any uncertainty relating to these issues, or, my application for a Temporary Visa to visit Australia and see my family again.  If I haven’t provided you with enough information in this letter, I urge you to inform me and I will respond immediately.

With regards to the first point raised in your letter;

The response to Q19 on my visa application – I answered NO –

This was, purely because, at the time when I was asked this on the form, to my knowledge I did not believe that I had committed any offence and this is the only reason that I didn’t think to mention these issues right away.  I only requested the copy of my police record after I had sent the application to you, before this, I had also spoken to one of your officers regarding the application process and had told them that I had no police record?  At your request, on your receipt of my application, I obtained a copy of both my U.K, and Australian, police records.

As I expected from both, there was nothing on the Australian one and it was only on receipt of the U.K record that I became aware that these two issues were listed.  The two issues you mentioned in your letter to me.  Along with my record, I received a leaflet explaining such things as, how long an offences stay on people’s files etc, things I have never really been aware of at all.

I apologise profusely for my ignorance and, hope that, when I explain the circumstances surrounding these past events to you, you will be able to understand why I didn’t immediately think of these and let you know.  I would also very much appreciate if you would acknowledge that these events occurred a very long time ago and have never been repeated.  In Scotland, they aren’t, at present, and never have been, disruptive to my life or my reputation.  The latter of these incidents happened nearly twelve years ago and I have never, since, been accused of, or charged with any offence.  I am a law-abiding citizen and have, since 1991, visited Australia, from 92-93, and returned to the U.K without breaking any visa obligations, or committing or being involved with any criminal activity.

First of all, in reference to-

17/05/85 Breach of the Peace

Sentence deferred to 15/11/85 then absolute discharge

As far as I can recall, this happened when I was with a group of male friends, at that time, we were on our way to a party on foot.  One of the boys who had joined us decided to shout at a passing police car.  The boy, who shouted at them, ran away, leaving us with the irate policemen.  The policemen took us to the police station and charged all of us and all of us were charged in the same way.

Secondly, in reference to-

08/08/91 Misuse of Drugs

Fined – Thirty Pounds

This had happened when I was waiting in a friend’s house with three other friends in his living room.  We were waiting for him while he got washed and dressed.  The door went and there were policemen at the door.  They told us that they were D.S. Agents and they had been told that there were class a drugs in this persons house.  This is why they were there.  They took each of us into his kitchen and spoke to us individually.  They also searched the premises and found a smoking pipe, a small piece of cannabis, and a few cannabis joints.  None of these things were on anyone’s person and it wasn’t my house.  Everyone was charged in the same way with the same offence and was fined 30 pounds too.  I was charged with the pipe, which wasn’t mine or in my possession, and the others were charged with the other things found in the house.

Needless to say, I don’t, and haven’t associated with any of the people that were involved in these events since these things happened.  I wasn’t directly responsible for either of these events.  Neither of them mirrors my morality or my way of life at all.  Both were very unfortunate circumstances to be in and I was the wrong person in the wrong place at the wrong time on both occasions.

I would very much like to explain, in some detail, my personal circumstances in the lead up to my assisted departure from Australia in 1998-

I entered Australia for the second time, after being granted a student visa so that I could attend a course at Bridge Business College in Advanced Computer Skills.  I paid my fees for the first and second years in full and attended fully for the first year, 96-97 (I have enclosed documentation for this-proof of payment, attendance etc).  During this time, I was also working part time as a sales assistant in a shoe retailer’s.  I moved from working here, to working for a removal firm.

I suffered a back injury whilst working here; during a heavy lift I injured my spine and as a result, suffered a great deal of pain.  This greatly interfered with my ability to attend Bridge Business School.

The series of events following my accident meant that I was unable to work, and, as I had used all of my savings to pay for my course fees, I was eligible for workers compensation for 3 months.  After this I was unable to work and sustain any kind of financial stability, as a result I was forced to leave my accommodation and sleep in refuges and eventually on the street.  I was depending on charities such as St Vincent de Paul and The Salvation Army for clothing, food and shelter when available.

This, along with a lot of pain due to poor sleeping conditions, was too hard to bear.  I held a valid Medicare card for the previous year but I couldn’t afford to renew it from 97/98 and I couldn’t continue without medical assistance when I needed it the most.  I approached The British Consulate for help or advice and they could offer me nothing.

As they couldn’t offer me anything, I was in no position to offer anything to the Australian Community, and I didn’t want to become any sort of further drain on your country’s resources when I had seen many of your own citizens in need in the places I had stayed.

I walked into the Immigration Department at The Rocks, Sydney.  I told the person at the desk that I needed assistance in being removed from Australia for, among other reasons, medical attention.

They got an officer, who interviewed me and we discussed how I could be removed from the country.  After a lengthy discussion, the only reason we could find that would instigate my departure was the fact that my poor attendance at Bridge Business School, as a result of my earlier spine injury, indicated that I had breached visa conditions.  Although this was harmful to my visa commitments and my reputation, it seemed like a very worthwhile sacrifice in order to be assisted in departure.  The officer stated that this was the only thing that would merit the destruction of my visa and could give him the capability to put me in breach of my visa conditions and destroy my visa.

As this was processed, I co-operated fully and was well behaved whilst being detained and locked up in unfamiliar and daunting surroundings until a flight was available and I could return home.

When I returned home, I quickly made contact with the Australian High Commission regarding the repayment of the amount I owed for my detainment and departure expenses.  This has been paid in full too.  I was issued with a ban from Australia as a result of this; this has elapsed some time ago.

My current circumstances are that I recently was successful in completing a national certificate in Higher Level, Contemporary Music (I have included a copy of my certificate for your interest) and since this, I have been utilising the skills I gained by being actively involved in the music industry in Glasgow.  I have also used a lot of the skills I was lucky enough to gain when studying in Sydney.  This evolved into me using advanced music software and recording equipment, along with playing 3 instruments and being a vocalist.

I have adapted and learned to live with the results of my accident, which has prevented me from pursuing the physical labour that I have done all my life.  Not being a natural academic this has been a difficult, but very successful, process of rehabilitation for me.

My living circumstances are that I have lived in Motherwell for two years now.  I have obligations to my music associates and I own a vehicle, which is used for transportation of equipment and musicians.  I am settled here and am steadily buildng a career and a stable happy life here in Scotland.

However, my closest family is on the other side of the word to me.

I have two sisters, Alison, who is an Australian citizen since 1999 and is married and living in Sydney.  My oldest sister, Elizabeth became a permanent resident in 1995 and a citizen in 1997.  I haven’t seen them for 5 years now.

Elizabeth got married in October 1999 and she and her husband have a baby daughter, Alexandra, who was born in April 2002.  Since she was born, my mother has been fortunate enough to visit and meet the latest addition to our small family but this brings the sad realisation that I haven’t yet met my niece, and that our family hasn’t been together for many years now.  At this stage it is not their intention to travel internationally with a baby and they requested that I be allowed to return to Australia to visit my newest relative and be reunited with my sisters and brothers-in-law.

As I settle here, I become increasingly aware of the negative impact of my unfortunate accident and assisted departure from Australia.  I hope that I will be fortunate enough to be given an opportunity to turn this around.

I hope that this letter hasn’t been too long-winded and that it has helped shed some light on the circumstances surrounding the issues raised in your letter and that it provides you with an explanation of the compelling circumstances of why I have applied for a temporary visa.

I would like to thank you for this opportunity to expand on my application and I recognise and appreciate the thorough and meticulous correspondence from you, throughout my application.

Thank you for the time you have spent on my case as I am very aware of the reasons behind this process and realise how this is necessary for you to maintain peace and stability in Australia and minimise any negative impact that non-citizens could inflict on the Australian Community.

I look forward to your decision and response

Respectfully Yours

Mr Andrew Whitelock.”

5.      Alison was not required for cross-examination; her statement, exhibit A2, reads as follows:-

“Unit 19

549 Darling Street

Rozelle

NSW 2039

To whom it may concern

Andrew Whitelock

Andrew is my younger brother.  In 1997 Andrew had the opportunity to spend some time in Australia and unfortunately, he messed things up and ended up being “deported”..  During that period of his life, Andrew was in a lot of psychological pain, he behaved badly and got in with the wrong crowd and the rest is history. 

When Andrew left Sydney and arrived back in Scotland, he had several sessions with a counsellor who assisted Andrew in coming to a new awareness about life.  He’s never felt better and he talks as someone with wisdom and clarity – for us his family, this is one of the most exciting and encouraging things to ever happen.  Andrew went from being a dissatisfied and angry young man to a kind, gentle and open human being

I haven’t seen Andrew since 1997, except for a brief visit I made to Scotland last year. I spent a few days with Andrew and I can’t tell you how fantastic it was to see him after 6 years.  The most remarkable thing was that he had changed so much.  Gone was the carefree young guy that we knew back then and here before me was the new responsible Andrew that I hadn’t met before.  He has matured beyond all recognition and I was so proud of him.  For the first time in his life he is now the proud owner of a little car and has his own apartment.  Many cups of tea and conversations together over the course of the few days that I saw him in Scotland have convinced me that he is completely happy and contented with where his life has lead him.  The last few years have seen Andrew develop his amazing musical skills – he’s a talented songwriter, singer and instrumentalist and after his family and partner, his music is the most important thing in his life.

Having found music in his life, it opened up Andrew’s heart and in walked Fiona.  They’ve been together now for 4 years and I think Andrew’s new found maturity coupled with the love of this good woman, has assisted in stabilising Andrew and bringing about his maturity.

Almost 2 years ago my sister gave birth to the first baby in our family.  You can imagine the excitement!  All of us goo-gooing and ga-gaaing.  There’s nothing quite like seeing your sibling’s child.  This little thing is a part of all of us and it brings a new dimension in to your life.  I’m sure I don’t need to tell you this stuff – you probably have children or nieces and nephews of your own.  There are times when I look at the little one and I forget everything else.  Nothing else seems important, only this bundle of joy in front of you.  And then of course, the day comes when she says your name, puts her little hands around your neck to hug you and you feel like the luckiest person alive. 

Andrew’s missing all of this you see.  He hears us talk about it, but words can never ever ever ever convey what the addition of a little one brings to your life.  Andrew wants to feel it too and sure he knows he screwed up before and promises never to do it again.  All Andrew wants right now is to continue making music in Scotland with his musicians and to have the opportunity to come and cuddle (and be cuddled by our little Alexandra).  We’ve got her practicing his name – she’s nearly got it now – she’s much better at names when she has a real face to put them to. 

We all agree that Andrew messed up last time he was here, but we can’t express to you how badly we want him to visit us and get to meet our little one for the first time.  He’ll only come for a couple of weeks and while he’s here, we will do whatever necessary to make sure that he stays safely and well behaved and leaves on his due date.

Please let him come.  We’ll be indebted to you forever. 

Yours truly,

Alison Whitelock.”

6.      Oral evidence was given by each of the Visa Applicant and the Applicant and in the case of the Visa Applicant by telephone link to Scotland.  I do not intend to deal with the evidence of the Applicant (whose character is not in issue) in any detail or at any length; however her statement exhibit A1 is included as follows:-

“1 Sunnyside Street

Gladesville

NSW 2111

Monday 2 February 2004

To Whom It May Concern

In follow up to my letter dated 7 July 2003 and my meeting with your representative Greg Peek on 4 November 2003.

I wish to reiterate on behalf of my family our desire to see Andrew return to Australia to visit his only niece and his sisters.

I have no wish to rehash old ground however; my brother is a reformed character with ambitions and desires that do not include living in Australia.  His wish is to visit his family and experience them in person rather than via telephone calls, emails and letters.

We, Andrew included, acknowledge that his exit from the country could have been handled very differently.  Why he chose the path he did is beyond my understanding.  I wish I had had an inkling of his thoughts in order to prevent it.  But what is done, is done.  And now he faces the consequences of wishing to be fiercely independent.

In addition, the completion of forms for Visas was badly handled.  In his defence, under Scottish law, when a conviction is spent, the incident typically does not appear on record.  It would seem the wording of the question in the visa application form does not misconstrue its intention.  Therefore, Andrew should have answered in the affirmative to convictions.  He was shocked to find the police record referring to his fine and humbly regrets the mistake and the implications.

All in all, Andrew is not a ‘bad boy’.  He’s had his moments of carelessness and lack of contemplation.  But his heart is big and he is well intentioned.

His family –his 2 sisters – live on the other side of the world.  This is not his choice – he wants to be where his passion lies – in the music industry in Scotland/UK.  But like most family members he would like the freedom to visit the rest of the family, wherever they may be, when he has the time and the money to do so.

If you grant Andrew a visitor’s visa, my husband and I agree to support him financially if required and to ensure he departs the country on the allotted date.

I do not believe Andrew will repeat this mistake as it has cost him dearly – not financially but in a sense of freedom, a tarring of his name, in time wasted and distance from people he loves.  I will guarantee he does not break his visa conditions.  My reputation is at stake if he does.

Yours sincerely

Elizabeth Whitelock.”

PART B – THE EVIDENCE OF THE APPLICANT

7.      The Applicant originally read law for two years (1980-1982) at the University of Aberdeen.  She did not complete her law degree but sat (successfully) for the civil service examinations in the United Kingdom.  She passed into the Metropolitan Police in London where she worked for three years and during which period she was trained as an analyst programmer.

8.      In January 1989 the Applicant went to work for Ingres.  One year later, at the end of 1989, she agreed to be seconded by Ingres to its Melbourne office.  In 1991 and after two years in Melbourne she transferred on secondment and on promotion to Ingres’ office in Sydney.  She met her husband in 1996 and married him in 1999.  Her daughter Alexandra was born in April 2002.  The Applicant is now a full time sales and marketing Director of Alpha Blox; she lives in Sydney and is an Australian citizen.

9.      It was with the Applicant’s encouragement that the Visa Applicant enrolled in an advanced computer course at Bridge Business College (“Bridge”) in 1996.  The Visa Applicant has always had a musical bent.  The Applicant considered that there was little money to be made from a career in music in marked contrast to the opportunities available in the world of computers and information technology (“IT”).  The Visa Applicant completed his computer course in July 1997 and then re-enrolled in a different course at Bridge for two years as from July 1997.

10.     The Visa Applicant lived in various places in Sydney.   He became involved in a relationship with Ashley who had a serious drug problem.  The Applicant helped the Visa Applicant retrieve some of his belongings when he parted from Ashley.  She also helped him with loans of money as and when he needed financial assistance.  She saw him while he was in Sydney and until he was (voluntarily) deported in July 1998 at intervals of approximately one week.  Since his return to Scotland there has been regular email communication between them.  Moreover the Applicant and her husband travelled in Scotland with the Visa Applicant when they visited that country in November 2001.

11.     The Applicant is quite plainly a well-educated and accomplished woman.  Her evidence was altogether acceptable.  She readily accepted that she could not contend that if the decision were to be affirmed, the hardship to her and Alison would be substantial (and she used the words ”not a big hardship” in this context).  She was concerned that her brother, the Visa Applicant, did not at the time of his voluntary deportation seek further help from her.  The family is small and close knit; it consists of the three children and their mother who lives in Scotland.  Their father and mother were divorced in 2001 (after approximately 40 years of marriage) and their father does not play much of an ongoing role in their lives.

12.     At the outset of the hearing, the possibility of a financial guarantee by the Applicant in support of her brother, the Visa Applicant was raised.  The Applicant said without hesitation that a guarantee (and an amount of between ten thousand dollars and fifteen thousand dollars was mentioned) was achievable and, so far as she is concerned, acceptable.

13.     Alison (the sister of the Applicant and the Visa Applicant) whose statement is exhibit A2 is also married and settled in Sydney and an Australian citizen.

14.     The Applicant was in summary a most impressive witness whose continuing support of the Visa Applicant is commendable.  I have not dealt in these reasons with those parts of her evidence which consisted of what the Visa Applicant had told her and which were thus of a hearsay nature.  For example, she said that the Visa Applicant had told her that he did not assault Ashley but rather that Ashley had assaulted him.

PART C – THE VISA APPLICANT

15.     The Visa Applicant was born in Scotland in November 1966.  He was educated at Culver Street Primary School and Blantyre High School in Scotland; he left high school in 1982 with “O” grades in mathematics and metalwork.

For the next ten years, the Visa Applicant worked  (not with any great enthusiasm) as a salesman and driver for the retail and wholesale shops (selling fruit/vegetables and groceries) owned and conducted by his parents.  He had always been interested in music and wanted to be a musician.  During this period, he was twice convicted of minor offences.  In May 1985 he was convicted of a breach of the peace and where sentence was deferred until 15 November 1985 and then discharged absolutely; in August 1991 he was convicted of a breach of s5 (2) of the Misuse on Drugs Act 1971 and fined thirty pounds.  In respect of both of those offences, the Visa Applicant put it on the basis that he had been at the wrong place and at the wrong time.  He described the circumstances in a letter dated 28 May 2003 addressed to Mr Hammond; the first paragraph of that letter (which appears at Tp97) reads as follows: -

“I have sent yourselves both police reports from the UK and Australia.  My breach of the peace in ‘85 happened when a bunch of friends, going to a party, one of them yelled at a passing police car, of course the guy who yelled ran away and the rest of us were lifted and charged with breach of the peace.  My misuse of drugs act charge in ‘91 took place in a friend’s house, whilst waiting on my friend getting washed and dressed, I sat with three other friends in his living room there was a chap at the door, the drug squad acting on a tip of that there was class A drugs in his house, we were interigated (sic) individually in the kitchen.  They found 2? Smoken joints pipe used for smoking cannabis, and a small piece of cannabis.  I was charged with the pipe which did not belong to me and was not on my possession.  Each person in the house was charged.”

I do not think that I need dwell on these two offences in Scotland (referred to in these reasons henceforth as “the Scottish convictions”).  They occurred many years ago and were plainly regarded by the Scottish courts as being of a trivial nature.

16.     In 1992 the Visa Applicant came to Australia on a working visa and which allowed him to work for any one employer for a period not exceeding three months and overall for not more than 20 hours per week.

17.     On his return to Scotland the Visa Applicant worked for Mobac Site Services driving trucks and putting potable accommodation on building sites.  That job lasted for about three years.  A certificate by Mobac Site Services at Tp99 sets out that the Visa Applicant was diligent and trustworthy.

18.     The Visa Applicant then came back to Australia in June 1996 on a student visa and in order to take a course in advanced computer technology at Bridge.  That visa was granted subject to certain conditions which are set out in clause 1 of the Respondent’s Statement of Facts and Contentions quoted earlier in these reasons.  The course lasted for one year; the Visa Applicant passed it having achieved a good attendance record (93.8%) and while working as a salesman at a shoe shop in Sydney.

19.     While working at the shoe shop, the Visa Applicant met and became involved with Ashley.  (Ashley was described by the Applicant as singularly beautiful.)

20.     The Visa Applicant after passing the computer course enrolled in a two years business studies course at the same college.  His student visa was, on the strength of that re-enrolment, renewed and on the same terms and conditions as to health insurance, work conditions and college attendance.

21.     At the time when he enrolled in the business studies course, the Visa Applicant was still working for the shoe shop.  However he then obtained different employment with Eric Removals in Neutral Bay.  This had the effect, so he said, that he was receiving more money for fewer hours of work.  However on 8 April 1998 and in North Sydney he suffered a severe injury to his back.  He said that he was working with a person who was inexperienced and incompetent.  That injury had severe consequences for him, in particular because he had not, in breach of his renewed visa conditions, renewed his private health cover.  The cost of treatment was in excess of workers’ compensation payments received by him and his savings were being eroded.

22.     The Visa Applicant’s evidence was that Ashley with whom he was living with in North Sydney from 1997 had become very difficult indeed.  He had met her (as I have said) at the shoe shop and they had moved together to a house in North Sydney.  He discovered that she was a substantial drug user and was injecting amphetamines, speed, cocaine and codeine.  (He said that he had not been aware of this previously).  When “high” which occurred frequently, Ashley would become uncontrollable.  She attacked him by stabbing him and punching him.  He sought help from various agencies and organisations and found it necessary to call the police in Mosman on a number of occasions.  The police came on those occasions when called and very soon after being called.  On one night during that period, the police took Ashley to Royal North Shore Hospital for a psychiatric assessment.  The police took the Visa Applicant to the same hospital but in a separate and following car.

23.     The Visa Applicant’s evidence was that it is very likely that proceedings were brought against him by the police on the strength of what Ashley told them and having regard to the fact that he is much taller and bigger than Ashley.  He is about 6’2” while she only about 5’..  The Visa Applicant said that the police requiring his attendance at court put a letter under his door.  He duly attended at court; without being asked to plead to any charge, the matter was remanded.  The Visa Applicant said that he was never arrested or formally charged; in particular he was not advised of his rights.  The Visa Applicant does not remember the content of the letter (which may perhaps have been a summons); it may be noted that Tp37 contains file notes; the fourth paragraph of Tp37 reads as follows: -

“Denise rang back – Constable McGuire informed Denise that hearing on 08-07-1998 is for mentioning only.  Outcome will depend on what Mr Whitelock pleads, i.e. guilty or not guilty.  06-07-1998 rang @ 1328 hours.”

24.     The Visa Applicant’s relationship with Ashley was so tense that he had great difficulty in obtaining his belongings from the house in which they lived.  The Applicant helped him remove some but by no means all of them.

25.     By July 1998 the Visa Applicant’s position had become desperate.  He had run out of money and his back injury was causing him great pain.  He did not wish to apply to either of his sisters for help; he had borrowed money from the Applicant and had received help of a different nature from Alison.  He called on the British Consulate; they furnished him with temporary accommodation and vouchers to obtain meals.  Shortly thereafter he made contact with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) in the Rocks and in consequence of that voluntary approach his student visa was cancelled, having regard in particular to non‑attendance of the business studies course, and he was at his own request deported back to the United Kingdom. He was anxious in particular to get back to Scotland and where medical treatment for his back would be free of cost.

26.     Since his return to the United Kingdom, the Visa Applicant has obtained a qualification in contemporary music and is a partner in a recording and rehearsals studio; he is, in addition, a performing musician.  None of these activities is profitable and he lives on unemployment benefits provided by the United Kingdom government.

27.     Some six months after his return to the United Kingdom, the Visa Applicant made contact with the Australian High Commission as to the debt owing by him to the Commonwealth, and arising from his voluntary deportation.  He arranged to pay that debt at the rate of 50 pounds per month.  It would seem that payments were irregular but, according to the Visa Applicant, he did, whenever he was unable to make a scheduled payment write to the Australian High Commission to apologise.  Mr Peek accepted that the last sentence of clause 3 of the Respondent’s Statement of Facts and Contentions is incorrect.  Tp82 is a bank statement and not in any way referable to a payment on account of the debt.  The Visa Applicant’s evidence was that his mother assisted him in relation to payments; on occasions she made the payments and he refunded the amount disbursed by her thereafter.

28.     Since returning to the United Kingdom the Visa Applicant has applied (unsuccessfully) for tourist visas to Australia on a number of occasions; two applications were made in the ordinary way and two were made electronically.  (The Respondent’s Statement of Facts and Contentions refers to one of them; see clause 5).

29.     In the application, which resulted in this review, the Visa Applicant answered two questions in a manner, which so the Respondent contends, was not truthful.  See clause 6 of the Respondent’s Statement of Facts and Contentions quoted earlier in these reasons.

30.     The Visa Applicant in his evidence (and in written correspondence prior to the hearing) said that he did not reflect the two Scottish convictions, which occurred so long ago because they were spent, and spent in such manner that he was absolved from being obliged to reflect them in any application.  The manner in which the relevant question is framed makes it clear that an applicant is obliged to reflect convictions even if spent; (the wording used is different but equivalent in its reference to “removed from official records” ).  The Visa Applicant has referred to a website which contains UK legislation (the Rehabilitation of Offenders Act 1974) as to when offences are spent in this fashion.

Of course in this instance, the application for a visa would be governed by Australian law and not UK law and so that his reference to UK law was irrelevant.  Australia does have legislation of similar import but that is not the point.  The question in its terms calls for information as to convictions whether or not spent.  The crisp question is of course as to whether the answer was deliberately misleading or whether it arose from honest error.  This in turn leads to a question of whether the excuse was not framed after the event and in other words after the answer had been given.  It seems that it is at least to some extent suggestive of the view of a “barracks room” or “sea” lawyer.  It is possible that the Visa Applicant hoped that two old and trivial Scottish convictions would not be discovered.  On balance and after considering the evidence as a whole, I have come to the conclusion that I can accept that the Visa Applicant, a layman, made an error, in that he did not read the question with sufficient care and that he did not intend to deceive the authorities.  I should say that I have come to this conclusion with some hesitation, because there were other incorrect statements by the Visa Applicant.

31.     Having re-enrolled at Bridge in July 1997 and having paid the (not insubstantial) enrolment fee of some thousands of dollars, the Visa Applicant attended the college on “a couple of occasions” and no more.  Tp75 is the first page of a letter by the Visa Applicant dated 25 September 2002 reading as follows: -

“I have been refused visa 48R and ETA.

I have a poor history of immigration as I breached my study visa.

I did not attend my college course due to a spinal injury received while working part-time.  Subsequently I was removed from Australia and had three and a half years ban imposed, this took place four years ago.

I have proof of attendance for my first year of college.  I enrolled in another course and was granted another two years student visa.  Because of my injury, I was unable to work and used up all my savings on rent and medication.  I was made homeless with no more savings.  The only way back to the UK was to voluntary place myself in the hands of Australia Immigration.  They destroyed my visa and was put into Villawood Detention Centre among asylum seekers till a flight became available. 

I returned to Scotland.”

The Visa Applicant said in categoric terms that he did not attend college because of his spinal injury.  That statement (and it was made more than once) was untrue.  He re-enrolled in July 1997 and the injury occurred in April 1998.  When this point was put to the Visa Applicant, he sought to explain it on the basis that he was preoccupied with the Ashley affair and his difficulties with her.  It is possible that after all of this time events have tendered to run together in his memory and so that he was, once again, in fact not seeking to deceive the Respondent.

The Respondent contends that he re-enrolled at the college in order to stay in Australia and that he did not have any serious intentions of attending the business studies course.  His failure to attend was not his only breach of the visa conditions; he also failed to renew his health cover.  Mr Peek suggested that even if he thereafter worked no more than 20 hours per week (and there was no evidence before me which would indicate that he worked more) he was in breach of his visa conditions from July 1997 and was thus not entitled to work at all.  I do not agree; the visa was voidable for breach but not void. Until it was voided for breach he was in my view entitled to work for no more than the permitted 20 hours per week.

Why then did he not attend his course?   The Applicant could advance no rational explanation.  It is only on reflection after the case that I think that there is a (possible) explanation.  (I hasten to say that it did not emanate from the Visa Applicant himself).  The Visa Applicant is not a man of business.  He took a computer course and did not use it.  Since his return to Scotland he has reverted to his first and only real love, which is music.  He has so far been, at least in commercial terms, quite remarkably unsuccessful.  He apparently performs music, which is decidedly not in the main stream.  “Gigs“ in bars and public houses are performed without fee.  He does not perform at weddings and similar occasions when payment might be expected.  Put in other words, he is not commercial and did not in all probability like the business studies course.  (I again emphasise that he did not say so).  Why then did he re‑enrol?  His love for Ashley was possibly the or a reason.  In his evidence he was remarkably protective of her even after the harm she has allegedly caused him.  And it must be remembered to his credit that he paid the whole Bridge fee (not a small amount) on re-enrolment.  The fact remains that there were statement of fact to the effect that he did not attend at Bridge because of his injury and where the injury occurred in fact nearly a year thereafter and where the Visa Applicant attended the business studies course on a “couple of occasions” only.  In this instance I would incline to the view that on the balance of probabilities he knew that those statements were untrue.

32.     This leads me to the assault charge.  Mr Peek suggested that he sought voluntary deportation in order to avoid facing it.  The Visa Applicant said that he was never arrested and never charged and never (again reminiscent of a “barracks” or “sea lawyer”) read his rights.  I think that it is likely that someone either in the police or at the court told the Visa Applicant at least that his presence at court related to an assault charge.  But it does not follow that he left Australia to escape what was, according to his evidence, a charge based on a spurious allegation by Ashley and where he had never assaulted her but rather she had assaulted him.  His evidence as a whole and in particular his protective attitude towards her leads me to think that an assault by him on her was unlikely.  On balance then I find that he knew that it was a charge of assault but not one that he needed to take seriously.  Clearly the fact that he might have to face to it if he returns to Australia does not figure in his calculations.

33.     The impressive nature of the Applicant’s evidence should not be allowed to colour one’s impressions of the Visa Applicant; it is his and not her character, which is in issue.  And some at least of his evidence was unimpressive or at all events vague.  But the impression created by him overall was not unfavourable.  He is articulate (and I refer here to the quoted communications by him set out previously in these reasons) and I think, basically decent.  It must be remembered that he has made payment of his debt to the Commonwealth and to do so has used his welfare payments.  To pay one’s debts is not something which should perhaps redound to one’s credit but it is doubtful whether this is common practice by deportees.  And the Australian High Commission would have been reluctant to pursue him through the courts since the legal costs would have been out of proportion to the amount involved and especially where the debtor’s only means were the moneys paid to him by the welfare authorities in the United Kingdom.

This is a convenient point at which to note that the exhibits and T-documents include statements , which speak in favourable terms of the Visa Applicant.  None of them speak as to the conduct, which gave rise to this hearing.  Some are by persons close to him; Fiona McCormick is or was his girlfriend and her statement and that of her parents can thus be discounted.  But on balance they do to some marginal extent assist his case.

34.     The Visa Applicant does not have the means to come to Australia and could do so only if his sisters bear the costs.  He seeks merely to ensure that in case of crisis or emergency he will be able to come to Australia.  I think that he is genuinely devoted to his sisters and genuinely wishes to visit his niece (whom he has never seen) but these are not considerations of great import.  He said that his career and future prospects lie in Scotland and he has no ambition or desire to come to Australia permanently and so that there is no danger of his overstaying a tourist visa.  It must however be remembered that his musical career has hardly prospered.  I note previously that the Applicant is prepared to furnish a guarantee of performance and would thus recommend (to the limited extent that it is relevant or proper for me to do so) that such an offer, if a visa is granted, be followed up and perhaps accepted.

PART D – THE CHARACTER TEST

35. I do not regard the Scottish convictions in any serious light. There were undoubtedly breaches of his renewed tourist visa and there were statements, which were untrue, and thus in breach of s234 of the Migration Act 1958 (“the Act”).  I refer here to the statements as to his failure to attend the business studies course because of his back injury.  I think that they can be regarded as falling at the low end of the scale in matters of this nature.  I doubt whether the statement as to the Scottish convictions was intended to deceive and I do not think that he fears the assault charge (if it is still alive) or left Australia to avoid it.  I accept of course that he sought deportation voluntarily and that that action is capable of being interpreted both for and against him; however I think that he did so in order to achieve free medical care and not to avoid the assault charge.  Moreover and this should be regarded, in my view, as recent good conduct, he has quite recently paid off his debt to the Commonwealth.

All in all I have come to the conclusion that he does not fail the character test.  Some of his conduct was reprehensible but not seriously so.  I am mindful in this regard of the test laid down by the full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277; clause 6 of the judgment of the Court in that case reads as follows: -

“The Court concluded by saying that it considered the parliamentary intention of s501 (2)(a) to be “simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories”, viz, the person’s past criminal conduct and all his other conduct.  The Court said that the expression “good character” in the subsection was correctly explicated by what Lee J had to say in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2; 139 ALR 84 at 94-5:

… the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …

…

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

…

In the 1989 regulations the connection between the requirement that a person be of good character and the protection of the interests of the public was clearly expressed.  In the 1993 regulations such a connection is implied."

The Respondent as set out in his Statement of Facts and Contentions took a different view, based on all of the evidence then available, as to the Visa Applicant’s character and I do not think that that assessment was unreasonable in the circumstances, although as will have been noted I have, having heard the oral evidence to which I have referred come to a different conclusion. In case I am wrong in my assessment of the Visa Applicant in relation to the character test it is desirable for me to consider the discretion set out in Direction 21.

PART E – DIRECTION No 21 DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 –  No 21  (DIRECTION 21)

36.     In this part E references to numbered clauses refer to numbered clauses in Direction 21.

37.     Clause 2.3 provides that the primary considerations are:-

“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.”

38.     Clause 2.3 must be read with clause 2.5 which provides:-

“The factors relevant to an assessment of the level of risk to the community of the 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); and

(c)       whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”

39.     There are no interests of any child which need be considered.  The Visa Applicant has never met Alexandra.

40.     I do not think that the Visa Applicant presents any danger to the Australian community or that recidivism is likely.  The Visa Applicant got into difficulties because in my view he is not a decisive person and is perhaps indeed something of a drifter.  He is perhaps a musician and nothing else.  For ten years he worked in his parents business (and he described that period as being “forever”) in a job which he clearly hated.  He has not displayed the determination demonstrated by his sisters but this may be because he had not found an occupation suitable for him.  Jobs undertaken have been menial or largely unskilled and he has not taken any advantage of his computer qualifications (which may be somewhat rusty now).  He stayed with Ashley when a more decisive person might have abandoned her.  But he comes of a quite obviously good family.  His reluctance as to seeking further help from his sisters when he was in deep trouble, and because they had helped him previously, does him credit.  And he paid his debt to the Commonwealth when, at least in practical terms, he probably could not have been forced to do so.

41.     The expectations of the Australian public might be divided.  But on balance the informed view would in my view be that a person such as the Visa Applicant should not forever be debarred from at least visiting his sisters, and he seeks a tourist visa only.

43.     Deterrence is a factor but in my view not a serious one in this case.  The circumstances are unusual and this is not a case where a strong message can or needs to be sent.

44.     It must also be said that hardship is not a strong factor.  There is some hardship to the Applicant and Alison but not in any way serious hardship.  Both sisters have travelled to the United Kingdom and are likely to do so again.  But they are three of the four remaining members of a small family and there is some slight degree of hardship.

45. This is a case where I consider that the discretion could and should be exercised in favour of the Visa Applicant. Accordingly the decision under review is set aside and remitted 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 favour of Andrew Whitelock.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed:         Neil Glaser    
  Associate

Dates of Hearing  19 and 20 February 2004
Date of Decision  2 March 2004      
Solicitor for the Applicant          Applicant self-represented

Solicitor for the Respondent     Mr G J Peek