Coull and Minister for Immigration and Multicultural Affairs [1999] AATA 749 (8 October 1999)

Last Updated: 18 October 1999

DECISION AND REASONS FOR DECISION [1999] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoW1998/458

General DIVISION )

Re Sheila Coull

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Deputy President T.E Barnett OBE

Date 8 October 1999

Place Perth

Decision The decision under review is set aside and the following decision is substituted. The visa applicant, Andrew Weir Coull should not be refused a visa subclass 104 on the grounds that he is not of good character.

....(sgd) TE Barnett.....................................

Deputy President

CATCHWORDS

IMMIGRATION - Application for migration - Preferential Family Visa subclass 104 - Rejection pursuant to s501 Migration Act - not being of good character - history of past criminal conduct - issue of discretion to grant visa despite finding of not being of good character.

Adminstrative Appeals Tribunal Act 1975 - s.37

Migration Act 1958 - s.501

REASONS FOR DECISION

8 October 1999 Deputy President T.E Barnett OBE

1. The applicant seeks review of a decision of a delegate of the Minister at the Migration Branch in London dated 6 November 1998 which rejected the granting of a Preferential Family Visa subclass 104 to the applicant's son, Andrew Weir Coull. The visa was rejected pursuant to s501 of the Migration Act 1958 ('the Act") on the grounds that the Minister (or his delegate), having regard to Mr Coull's past criminal conduct, was not satisfied that Mr Coull was of good character.

2. The applicant was represented by Mr M Rothstein and the respondent by Mr R Vikneson. The following witnesses gave evidence at the hearing, either in person or by telephone:

Sheila Coull, Edward O'Farrell, Andrew Coull, Helen Bettles, Anne Martin, Gloria Pattison, Peter Cross, Lorna Cross, David Jarvis, Stephen Buckley, Colin Coull and George Coull. Their witness statements were handed in evidence as well as a bundle of letters from Mr Andrew Coull's former and prospective employers.

3. The material filed by the respondent pursuant to s.37 of the Administrative Appeals Act 1975 were also evidence.

4. Mr Andrew Coull ("Andrew"), the son of the applicant in these proceedings, was born on 3 November 1963 and is 36 years of age. Andrew is currently resident in the United Kingdom. The applicant has two other children - Colin Coull, aged 34 and Lorna Cross, aged 31; both are Australian citizens resident in Australia.

5. The applicant and her husband migrated to Australia from the U.K in 1992, following a holiday to Australia in 1990. They made this decision after considering that their children were now grown up and settled into their own lives. Two of the three children decided to join their parents in Australia and Colin Coull migrated in 1995 and Lorna Cross migrated with her husband in 1996.

6. Mr Andrew Coull's criminal record, which formed the basis for refusal of the visa on the grounds that he lacked 'good character' is as follows:

18 February 1981 Theft : Shop lifting x 2 counts Conditional discharge 12 months on each count

27 February 1984 Minor Road Traffic Offence Fine (5 pounds)

27 February 1984 Theft of vehicle/conveyance Fine (50 pounds) and driving disqualification

28 January 1986 Theft from vehicle Conditional discharge 2 years

28 January 1986 Theft from vehicle Conditional discharge 2 years

29 January 1987 Breach of conditional discharge 3 months concurrent wholly suspended. 2 years on each charge but consecutive to above

29 January 1987 Burglary and theft (dwelling) 9 months concurrent wholly suspended for 2 years

29 January 1987 Burglary and theft (dwelling) 9 months consecutive wholly suspended for 2 years

29 January 1987 Obtaining property by deception x 5 3 months concurrent wholly suspended for 2 years on each

29 January 1987 Handling 3 months wholly suspended for 2 years

1 August 1995 Handling stolen goods (receiving) Fine 75 pounds

6 June 1995 Handling stolen goods (receiving) Fine 75 pounds

2 January 1996 Taking motor vehicle without consent Caution

24 September 1997 Shoplifting Caution

7. The applicant gave evidence that her son commenced living away from home as a full time boarder at Spratton Hall in January 1973 aged 9 years. Andrew did well at school and sports, but had to return home at the end of 1974 following a down turn in the family's finances for approximately one semester. Upon his return to boarding school Andrew 's grades had fallen somewhat and he had to work hard in order to pass the Common Entrance Exam necessary to go onto Kimbolton Public School in September 1976. During his time at Kimbolton, Andrew joined the Duke of Edinburgh Awards and was granted the Bronze and Silver medals.

8. Sometime in 1978 the applicant and her husband, George Coull separated for a period of approximately 6 months. The separation affected the entire family and Andrew in particular. Andrew's began experiencing behavioural problems in the school environment and subsequently poor grades, necessitating the re-sitting of some of his exams. He left school in September 1980 to return home to attend a local College. This transition back home proved difficult as Andrew had lived away from home since the age of 9 and missed his friends. There was also the added tension of awaiting exam results which were due out in January 1981 which would show whether he would be accepted into Merchant Navy College.

9. It was in December 1980 that Andrew committed his first offence (shoplifting). The applicant stated that she believed that this behaviour was attributable to the pressure Andrew was under. Andrew was accepted into Merchant Navy College, which was a residential college, in January 1981. The applicant felt that Andrew had fallen " into the wrong crowd" when he entered the college as he began associating with people the family had no acquaintance with or liking for. She also stated that his behaviour around this time had altered markedly with Andrew presenting as non-communicative, moody and suffering from low self-esteem. Andrew remained at the college until July 1984.

10. There were two further offences whilst Andrew was at the Naval College relating to traffic offences and theft of a motor vehicle in early 1984 for which he received a fine and was disqualified from driving. Andrew gave evidence that this incident occurred when his normal mode of transport (a motor cycle which was a gift from his parents) was off the road for repairs.

11. After leaving the Naval College in July 1984, Andrew continued associating with people that his parents disapproved of. His non-communicative moodiness worsened when he was unable to secure appropriate employment. The applicant gave evidence that she and her husband were not prepared to keep handing out money to Andrew and were generally unhappy with his choice of companionship. This lead to a number of arguments in the household and after one such argument, Andrew moved out of home in January 1985. Andrew took up residence in a flat with other occupants who were unknown to his parents. Although the applicant maintained contact with her son, Andrew discouraged visits to the flat.

12. In February 1985, Andrew, then aged 25 years, secured employment as a test engineer with a firm by the name of Navstar in Daventry. He moved into his own accommodation in the area and was allocated a flat through the State Authority 3 months later. The applicant gave evidence that Andrew appeared to be getting his life into order, even though he was still associating with friends of dubious character.

13. In December 1985, Andrew was charged with two counts of theft from a motor vehicle for which he received a two-year conditional discharge in January 1986. These offences involved the theft of a petrol cap and the syphoning off of petrol from a motor vehicle

14. On 1 May 1986, Andrew had a near fatal motor cycle accident, which left him with a paralysed right arm. Following six weeks of hospitalisation, Andrew was discharged home to the care of his parents. Due to his disability, he lost his employment with Navstar. The applicant described Andrew as being "devastated" by this turn of events.

15. Shortly after the accident in July 1986 Andrew was visiting some of his friends when, whilst in their company, he was involved in a burglary, theft and fraud. The fraud involved the unauthorised use of a stolen credit card to purchase of a number of goods. The group was caught and subsequently in January 1987 Andrew was charged with 2 counts of burglary and theft, 6 counts of fraud and with breach of his conditional discharge. Some members of the group received prison sentences for their part in these offences, but Andrew was fortunate in receiving, prison sentences totalling 2 years, wholly suspended.

16. It was around this time that relations with his family began to slowly improve. The applicant and her husband had moved into a new home and there was regular contact with Andrew, with improved communication. By maintaining his old work contacts at Navstar and visiting regularly, Andrew managed to demonstrate to his supervisors that he was able to adapt by using his left arm and perform in his former role satisfactorily. One of the supervisors made the decision that Andrew could return to his old job some 6 months or so after he initially left. Andrew went on to become a senior technician and remained with the firm until June 1991 when the firm was taken over by an American company and he was made redundant. Andrew remained unemployed for approximately 5 months and then managed to obtain work as a Service Engineer with a firm by the name of Churchills for a four month period (until April 1992)

17. In 1992, the applicant and her husband migrated to Australia. There was evidence given by a number of witnesses that their move had a negative impact upon Andrew. He found that he could no longer just drop in to see his parents as he had in the past and felt quite isolated. This isolation was compounded by sporadic unemployment and the break up of a six-year relationship.

18. Andrew commenced short-term employment in May 1992 until October 1992 with a firm by the name of Marconi Avionics as a test technician. After this employment ceased, Andrew commenced a long period of unemployment, which lasted until January 1995. In 1995, Andrew's brother, Colin Coull, left South Africa where he was engaged in employment and immigrated to Australia to join his parents. During 1995, Andrew managed to secure 2 months of employment with Holden as a machine operator (January 1995 - March 1995). Andrew has been unemployed since that time and is currently in receipt of a disability pension (approximately 300 pounds per month).

19. In June and August 1995, Andrew was charged with 2 separate counts of handling stolen goods for which he received fines on both occasions. Andrew bought an old computer and later, some tools from an acquaintance known to be of dubious character for a very low purchase price. Andrew stated in evidence that he had no excuse for this behaviour and felt that he had merely acted out of stupidity.

20. In January 1996, Andrew was charged with the unauthorised use of a motor vehicle. The circumstances were that he was repairing his friend, David Jarvis's car. Mr Jarvis's father stated that he had seen his son's car parked at a local rugby oval and that the car must have been stolen. Mr Jarvis gave evidence that he went to Andrew's house and upon finding the car missing, rang the police and reported it stolen. The police picked up Andrew an hour later. When the police asked if Andrew had his consent to use the car, Mr Jarvis replied 'No', but indicated that he did not wish to prosecute Andrew. Andrew stated that he had tried to contact Mr Jarvis about using the vehicle, as his own vehicle was broken down that day, but was unable to contact him. As a result, Andrew received a caution.

21. In March 1996 Andrew visited Australia for a 2-month period in order to attend his brother's wedding. Andrew resided with his parents throughout this period. His family described him as being more positive and happy in his attitude whilst in Australia. He also experienced some health benefits of reduced pain in his right arm due to the warm weather. It was during this time that Andrew discovered that, as one of the last remaining family members to immigrate to Australia, he could make an application to immigrate and join the rest of his family and planned to do so once he returned home to the U.K

22. In October 1996, Andrew's sister, Lorna Cross immigrated to Australia with her husband. This left Andrew as the last remaining member of his immediate family in the United Kingdom. Andrew gave evidence that, although he has kept in regular contact with extended family and friends in the U.K, which has provided some degree of support and companionship, he has felt very isolated since the departure of his parents and siblings.

23. In March 1997, Andrew lodged an application for a Preferential Family visa (subclass 104) for migration to Australia. He made no mention of his early criminal record in the application form as he assumed that his previous convictions were 'spent' due to the lapse of 10 years from his last offence (1987) to the present time. However, he did make disclosure of the offences which he thought were not spent (that is, the 1995 offences and the 1996 offence).

24. In September 1997, Andrew was charged with shoplifting two cans of beer from a local supermarket. He gave evidence that he was under a great deal of stress and anxiety at the time wishing to join his family in Australia and had consumed alcohol after attending a party. As the Manager of the store knew Andrew, official charges were not pressed against him. However, as the police attended, Andrew received a caution for shoplifting.

25. Throughout this period of unemployment, Andrew has kept himself occupied by assisting his friends, Melanie and Stephen Buckley with providing childcare services without charge. This would normally consist of collecting the children, aged 9 and 7, after school and either taking them to after school activities or minding them in their homes and supervising their homework until the Buckley's arrive home at or around 6.30pm. The Buckley's provided a witness statement indicating that they had complete trust in Andrew in both the care of their children and in having the general run of their home.

26. Ms Gloria Pattison, an aunt by marriage, stated in her evidence that Andrew stayed with her and her family for a few weeks over the Christmas/New Year season (1998/1999). During that time, Andrew had complete run of their home and made himself useful undertaking interior decorating for his aunt and uncle during his stay. Ms Pattison indicated that she had complete confidence and trust in her nephew during his stay with her family during this period.

27. Ms Anne Martin, another aunt by marriage, similarly gave evidence that Andrew has stayed in her family home for extended periods and provided companionship for her mentally handicapped daughter. She expressed the view that she trusted Andrew implicitly.

28. Andrew's application for Preferential Family Visa subclass 104 was refused on 6 November 1998, as he was found not to satisfy the character requirements of s.501 of the Migration Act 1958. It is this decision that the applicant wishes reviewed by this Tribunal.

29. In December 1998, Andrew's parents asked a relative to purchase an air ticket for Andrew so that he could join them for the Christmas/New Year holidays. Anne Martin purchased this ticket on her credit card and a visitor's visa was obtained electronically. Whilst on the plane, Andrew completed a passenger arrival card. Andrew ticked "no" to every question on the card and as such, failed to mention his criminal convictions. Andrew gave evidence that this was not deliberate, but rather due to a lapse of concentration. When Andrew arrived at Perth airport, Immigration officials advised him that he should never have been granted a visa in the first place, given the prior rejection on the grounds of bad character. As such, he was put back on the next available flight to the U.K.

30. Under s.501(2) the Minister is entitled to take account of criminal conduct, including convictions and past general conduct. Andrew's life since he first left home has included periods of irresponsible conduct involving petty offences and small scale dishonest in company with lawless young men with whom he used to associate. He did nothing, which resulted in a prison sentence, but his behaviour showed little respect for the law. It maybe, as he now believes, that he was working out his resentment against his parents for having sent him away to boarding school at 9 years, and having 'broken up' for a period - but this is no excuse for the conduct.

31. Even after he obtained a good job as an engineer with Navstar at the age of 25, Andrew continued to mix with bad associates and continued to get into trouble outside of working hours. At work, however, it seems he was showing skill and responsibility and was promoted into a supervisory position.

32. After the accident, which paralysed his right arm, he had one further and more serious brush with the law which again arose from him being in the company of a group of people who were committing burglaries and he then 'went along' with using the stolen credit card. These activities took him over the threshold into the more serious crime bracket and he was lucky that his two-year prison sentence was suspended and he served no time in prison.

33. After that, Andrew seemed to settle down and to made an attempt to overcome the disability of his paralysed right arm. He returned to his former place of employment and practiced doing electrical maintenance and repair work with one arm until he demonstrated that he could do it and was re-employed. He continued in this employment for 4 ½ further years and became a role model for younger employees such as Mr O'Farrell, who gave evidence how he had been trained and helped by Andrew. When he was retrenched by the sale of the company, he obtained further work in a very difficult employment market.

34. When Andrew was later obliged to go onto a pension, he continued to keep himself employed by helping his friends by looking after their children on a regular scheduled basis and by fixing their electrical appliances. He seems also to have managed to supplement his pension by repairing and selling used computers and other appliances. This endeavour led him into further trouble with the police in 1995 when he purchased a broken computer and some precision tools, which had in fact been stolen. He admitted to the Tribunal that he knew the vendor had a criminal past and that the tools were selling suspiciously cheaply so he should have realised there was a strong possibility they were stolen but chose to ask no questions. For this he was convicted for handling stolen goods

35. The Tribunal accepts Andrew's explanations as to how he used his friend, Mr Jarvis's motor vehicle without authority. Having heard Mr Jarvis speak on Andrew's behalf, the Tribunal is satisfied there was no criminal intent in this particular matter.

36. The recent conviction for shoplifting two cans of beer while under the influence of alcohol is unfortunately one further irresponsible act of unlawful, silly behaviour which has characterised periods of Andrew's life.

37. That having been said, there are also many things that show good character and give cause for hoping that in the right circumstances Andrew can become a responsible law abiding citizen as he further matures.

38. His family relationships have improved greatly. Those relatives who know him best, and who previously had stood back because of his irresponsible, dishonest behaviour have all been impressed by his changed and more responsible behaviour and now strongly support him. His friends have described his kindly gentle and caring nature and expressed gratitude for the help he has freely given them. He obviously has a loving, responsible way with young children and its playing an important supportive role in helping young parents attend their workplace, secure in the knowledge that Andrew is, responsibly, in sole charge of their house, possessions and children.

39. There is little evidence to suggest that Andrew is likely to be a hopeless recidivist if he comes to Australia. There are on the contrary, signs that he has matured into a more responsible person than he was in his younger days, despite the stupid incident with the beer cans. Andrew has no drug or alcohol problem and his offences have never involved drugs or violence. The Tribunal is satisfied that he does not pose an unacceptable risk to the Australian community.

HARDSHIP

40. Andrew would not suffer intense hardship if a visa were refused. He is not separated, for instance, from a wife or child. He is, however, separated from all his family of origin as the last member left in the U.K. Although he has more distant relatives and some good friends in the U.K, it is obviously a serious loss to be separated from immediate family.

41. The Tribunal is also satisfied that refusal of the visa will create substantial emotional loss and hardship for his family in Australia who are now citizens, particular to the mother (the applicant).

42. If it had not been for the recent offences of handling stolen goods and shoplifting the two beer cans, the Tribunal would have felt satisfied Andrew, was now of good character because of the steady progress he has been making in his life in recent years. Those two incidents following upon the previous series of offences have shown that this tendency towards irresponsible minor lawlessness continues to undermine Andrew's good qualities. The Tribunal is therefore satisfied that Andrew is still not of good character. When reaching this decision, the Tribunal has taken fully into account, the Migration Regulations on Preferential Family Visas subclass 104 and the Migration Series Instructions164 in respect to the character requirement.

43. There is nevertheless a discretion to issue the visa despite that finding. In this case the Tribunal finds that it is appropriate to exercise that discretion in Andrew's favour. There is significant evidence that Andrew's good qualities like reliability in carrying out specific responsibilities such as house minding and childcare, his gentleness and perseverance in overcoming his disability are increasingly becoming more dominant in his character. I do not see him as a serious threat to the Australian Community. On balance it is appropriate to lean in favour of removing the emotional gap in the Coull family that is being caused by refusing Andrew's visa.

DECISION

41. The decision under review is set aside and the following decision is substituted. The visa applicant, Andrew Weir Coull should not be refused a visa subclass 104 on the grounds that he is not of good character.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President T.E Barnett OBE

Signed: .............(sgd) C O'Hara.................................

Associate

Date/s of Hearing 18 & 19 August 1999

Date of Decision 8 October 1999

Counsel for the Applicant Mr M Rothstein

Solicitor for Applicant M Rothstein & Co

Counsel for the Respondent Mr R Vikneson

Solicitor for the Respondent Legal Branch, Dept of Immigration and Multicultural Affairs