Crossan and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 328 (10 May 2002)

Last Updated: 10 May 2002

DECISION AND REASONS FOR DECISION [2002] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/246

GENERAL ADMINISTRATIVE DIVISION )

Re Karl Crossan

Applicant

And Minister for Immigration Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 10 May 2002

Place Sydney

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 Karl Crossan.

..............................................

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - deportation - visa application - subclass 801 and subclass 820 spouse visa - character test - discretion that the Tribunal may exercise if applicant does pass the character test - necessity of balancing the primary considerations of protection of the Australian community and the expectations of the Australian community against the best interests of a child and any other considerations - best interests of the child held to be the paramount consideration - discretion to be applied in favour of the applicant.

Migration Act 1958 ss 499, 499(1) (2), 500(6H), 501, 501G, 501(1)(6)(7)

Goldie and Minister for Immigration and Multicultural Affairs [2001] FCA 1318

Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87

Re Crossan and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 216

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

10 May 2002 R P Handley

1. This is an application by Karl Crossan ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 7 December 2001 but notified on 18 February 2002 to refuse the grant of a subclass 801 and a subclass 820 spouse visa to the Applicant on the ground that he does not pass the character test. At the hearing, the Applicant was represented by Michael Jones, Solicitor, and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Migration Act 1958 ("the G Documents") together with the documents tendered by the parties. Oral evidence was given for the Applicant by the Applicant, Joseph Middleton, Jill Burrett, Geraldine Woods, Tracey Mace and James Brownlee, and for the Respondent, by Shane Power, Bianca Power and Maureen Power.

BACKGROUND

2. Mr Crossan was born in County Derry in Northern Ireland on 25 November 1970 and is aged 31. He arrived in Australia on 14 June 1997 on a visitor visa, valid for a period of 3 months. On 11 September 1997, he lodged an application for a spouse visa to remain permanently in Australia. This application was based on his relationship with Shane Power of Marrickville, Sydney. Ms Power was born on 13 July 1953 and is aged 48. Mr Crossan and Ms Power were married in Ireland on 18 November 1996 and, on 2 October 1998, Ms Power bore a child by Mr Crossan, Padraig Power Crossan. Mr Crossan and Ms Power separated on 25 November 1999.

3. By letter dated 21 February 2000 from the Department of Immigration and Multicultural Affairs ("the Department"), Mr Crossan was notified of the Respondent's intention to refuse the grant of a visa under s 501(1) of the Migration Act 1958 ("the Act"), on the ground that he did not pass the character test set out in s 501(6) by reason of his having a "substantial criminal record". The police certificate from Belfast records Mr Crossan as having been convicted of possessing explosives with intent to endanger life on 8 December 1992 and of his having been sentenced to imprisonment for 10 years. Mr Crossan was released on parole on 25 February 1997, having served five years imprisonment since his arrest on 13 February 1992. On the Australian Incoming Passenger Card completed, dated and signed by Mr Crossan on 14 June 1997, he answered "No" to Question 14 "Have you any criminal conviction/s for which the sentence/s (whether served or not) totalled 12 months imprisonment or more?" On 18 May 2000, Mr Crossan was convicted at Newtown Local Court on three charges: "false representation resulting in police investigation" for which he was fined $500; "negligent driving" for which he was fined $200; and "not give particulars to owner of damaged property" for which he was fined $100.

4. On 27 October 2000, Mr Crossan met Tracey Mace. Ms Mace was born on 6 December 1960 and is aged 41. She was married in 1980 and divorced in 1995 and has three children by her former marriage, daughters aged 14 and 16 and a son, James Brownlee, who was born on 10 December 1983 and is aged 18. On 7 December 2000, Mr Crossan and Ms Mace commenced living in a de facto marital relationship at Ms Mace's house in the Blue Mountains.

5. After Mr Crossan and Ms Power separated, their son, Padraig, continued to live with Ms Power. During the latter part of 2000, their disagreement over Mr Crossan's access to Padraig became bitter and, in the early part of 2001, Mr Crossan instructed solicitors to seek access through the Family Court. In about April 2001, the Family Court made Contact Orders permitting Mr Crossan to have Padraig with him from 9:30am to 4:30pm on Sundays. Other Family Court proceedings between Mr Crossan and Ms Power are still ongoing.

6. Despite submissions made by Mr Crossan's solicitor in response to the Department's letter of 21 February 2000, on 7 December 2001 a delegate of the Respondent decided to refuse the grant of a spouse visa to Mr Crossan. The consequence of this refusal was that his bridging visa, which had been issued on the lodging of his application for a spouse visa on 11 September 1997, was cancelled by the reason of the application of s 501F of the Act. As a result, Mr Crossan was detained and has been held in Villawood Immigration Detention Centre ("Villawood") since 18 February 2002. Thus, Mr Crossan has been unable to work. Initially, after lodging his spouse visa application, Mr Crossan worked as a bricklayer for Joseph Middleton. He was still in employment at the time of his detention. Mr Crossan has also not seen Padraig since 17 February 2002.

7. By letter dated 18 February 2002, Mr Crossan was formally notified of the decision to refuse him the grant of a spouse visa. On 19 February 2002, he lodged an application for a review of this decision by the Tribunal. On 11 March 2002, Mr Crossan's solicitor lodged an application for a Stay Order under s 41(2) of the Administrative Appeals Tribunal Act 1975 with the Tribunal. The Tribunal refused that application on 3 April 2002, after hearings on 19 and 22 March 2002: Re Crossan and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 216.

RELEVANT LAW AND POLICY

8. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides, relevantly, that a person does not pass the character test if

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

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

9. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of subclass 801 and 820 visas. Clause 801.224 and 820.224 require 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.

10. 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".

11. 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.

12. The Applicant accepts that he does not pass the character test by reason of his substantial criminal record involving a conviction for which he was sentenced to imprisonment for 10 years, although he was released on parole on 25 February 1997 having served five years. Since Mr Crossan does not pass the character test pursuant to the Act, the issue for the Tribunal to decide is whether to exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

13. Amendments to the Act introduced in 1998 prescribe limitations on an Applicant's rights of review by the Tribunal where the Applicant is on-shore, and impose limitations on evidence, which may be presented at the hearing. In particular, s 500(6H) provides:

The Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

14. The first day of the hearing in this matter took place on 22 April 2002. On that day, Ms Shane Power gave evidence and the hearing was afterwards adjourned until 2 May 2002. On 29 April 2002, Mr Crossan's solicitor filed and served a statement by Geraldine Woods and, on 30 April 2002, filed and served a statement by Yvonne Curtin. Pursuant to s 500(6H), the Tribunal agreed to a request that Ms Woods give evidence but refused to permit Ms Curtin to give evidence. The Tribunal had regard to the decision by Deputy President McMahon in Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87, where Deputy President McMahon stated that he was bound by the terms of subsection 500(6H), and to the decision of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318. In the latter case, the Court, at paragraph 26, acknowledged the disadvantage to an applicant for review by virtue of the fact that s 500(6H) is not counter-balanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The Court stated:

The purpose of sub ss(6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the Applicant for review, the Minister is better able to respond to that case.

15. In the present matter, the hearing was adjourned after the first day for a period of nine days before being resumed. In the Tribunal's opinion, given the nature of the evidence which was given by Ms Power on the first day of the hearing, it was not unreasonable for the Applicant to obtain further information in support of his case and, since the filing and service of Ms Woods' statement complied with the requirements of s 500(6H) with regard to the resumed hearing, it was open to the Tribunal to admit that statement and to hear and take account of Ms Woods' oral evidence. However, the Tribunal excluded Ms Curtin's evidence for non-compliance with s 500(6H).

EVIDENCE

16. Mr Crossan was born in County Derry in Northern Ireland where his parents, two brothers and three sisters still live. After leaving school, Mr Crossan had various jobs, in particular as a bricklayer, although at the time of his arrest he had been working as a window cleaner for a few weeks. Mr Crossan said he was a republican and supporter of Sinn Fein, a legitimate political party in Northern Ireland. Mr Crossan said he attended rallies, marches and Sinn Fein meetings but had no other political involvement. He had never been involved with the IRA. He said every young man growing up in Ireland has a romantic idea of "the cause" and everybody wants to play a part but does not always do anything about it. There is a long history of it. Mr Crossan said he was 21 years old at the time and naive. He now recognises the stupidity of what he did.

17. On the day of his arrest, Mr Crossan received a telephone call asking him to do a particular job. Mr Crossan said he did not know who the person asking him was, although he knew it was someone from a republican group. He suspected it might be something to do with the IRA. He was asked to drive a car which was not his, following a car in front and with a car behind. It was only the car he was driving which was stopped. He had not done any jobs before that day although, he acknowledged, he may have bragged to Ms Bianca Power about having done so. He denied that he ever told Ms Shane Power that he was in the engineering section of the IRA.

18. Mr Crossan said he was not aware that there were explosives in the boot of the car he was driving before he was stopped and arrested. He only learned of the explosives afterwards. Mr Crossan acknowledged that he may have romanticised what happened in order to impress Ms Shane Power and Ms Bianca Power. He said that a letter dated 21 August 1994 written by him to "Shaky" (R5) was written at the request of Ms Shane Power who asked him to impress Shaky with his account of what happened. Mr Crossan took this to mean that he should embellish his account of the occasion. Ms Shane Power also asked Mr Crossan to write a profile of himself for a magazine as propaganda in support of other republican prisoners, and suggested to him that he should "buff it up a bit". Mr Crossan said he discussed this request with fellow republican prisoners and also showed his account to the prison authorities by whom it would, in any event, have been censored. Mr Crossan said that when discussing events with Ms Bianca Power and Ms Shane Power, he would sometimes give them the answers which he thought they wanted to hear.

19. Mr Crossan said he was arrested at 11:30am on 13 February 1992. When the car was stopped, the boot was opened and the explosives were found. Although Mr Crossan was not aware of the presence of the explosives, the fact of them being in the boot of the car which he was driving, gave him little alternative and he was given an ultimatum: face a 20 year prison term if you plead guilty, or 10 years if you plead not guilty. He chose the latter. He said he was duly sentenced to 10 years imprisonment and imprisoned in Long Kesh Prison where he was segregated with other republicans and treated as a political prisoner in accordance with the established protocols in Northern Ireland.

20. Ms Shane Power had travelled widely in the 1970s and 1980s. She had a wide ranging interest in politics, especially, in the early 1990s, in Irish politics. She was in a group of people, mainly members of Amnesty International, who worked to support prisoners in Northern Ireland. Her family originated from Ireland and she was interested in the situation there from a human rights point of view. She undertook Gaelic lessons and adopted the name Siobhan de Power, which she also used in the Australian/Irish community in Sydney. She became involved in a group called Australian Aid for Ireland and later established an Australian branch of the Irish prisoners support group, "Saorise", stating that she had been asked by Saorise in Ireland to establish a branch in Australia. Saorise is apparently connected with the Sinn Fein organisation. Ms Woods gave evidence that she later checked in person with the Sinn Fein office in Belfast who denied that Ms Power was authorised to set up such a branch in Australia.

21. In 1993, Ms Power said she sent approximately 100 Christmas cards to prisoners in Northern Ireland. Mr Crossan replied to her card and so began their correspondence. That correspondence developed into what Ms Power acknowledged was a romantic relationship and, in about August 1994, Ms Power went to Ireland and visited Mr Crossan in Long Kesh Prison. She also visited Mr Crossan in prison in 1995 and in March 1996. Then, in about October 1996, Ms Power met up with Mr Crossan again and, while he was on periodical release, they married in Northern Ireland on 18 November 1996. Mr Crossan said in giving evidence, that on reflection, he was young and naive at the time, he was starry eyed about this sophisticated, attractive, older woman whom he said lured him with a romantic vision of life with her in Australia.

22. Mr Crossan said that when he was released on 25 February 1997, it was at Ms Power's suggestion that they travelled to Australia because she had had two miscarriages and wanted to return home. Ms Power made the arrangements and bought the air tickets. Mr Crossan had never left Ireland before and had little idea of the formalities of international travel. While he obtained an Irish passport, Ms Power did virtually everything else. She sought legal advice in Australia, and it was on the basis of this advice that Mr Crossan and Ms Power first travelled to New Zealand from where she had been advised it was easier to obtain a visa to enter Australia. Mr Crossan acknowledged that he ticked "No" to the question on the Incoming Passenger Card, which asked whether he had a criminal record or criminal convictions. He said he did this on Ms Power's advice knowing that she had sought legal advice in relation to the matter. Ms Power's evidence was that considerable thought had been given to how Mr Crossan should answer that particular question on the Incoming Passenger Card. She said it was Mr Crossan's decision to tick "No" in answer to that question, on the advice of the immigration solicitor.

23. Mr Crossan and Ms Power arrived in Australia on 14 June 1997. Mr Crossan was welcomed into Ms Power's family although Ms Maureen Power said, in evidence, that she had been very upset at her daughter's decision to marry Mr Crossan. Nevertheless, she decided that her daughter's decision had to be accepted and her family therefore welcomed Mr Crossan into their home.

24. Initially, Mr Crossan and Ms Power lived with Ms Power's parents in their home at Marrickville. At that time, Ms Bianca Power was also living there and she therefore saw Mr Crossan on a regular basis and they would discuss areas of common interest such as her work in the New South Wales Police. On 11 September 1997, Mr Crossan applied for a spouse visa on the basis of his relationship with Ms Shane Power. Mr Crossan subsequently provided a statutory declaration dated 31 May 1998 in which he detailed his convictions in Northern Ireland. Included in this statutory declaration were details of his employment history. He noted that he was granted permission to work in Australia in November 1997, and a letter from Joseph Middleton dated 16 April 1998 (G6) states that Mr Crossan had worked for his company, J M Builders Pty Ltd, since December 1997 as a bricklayer.

25. Both Mr Crossan and Ms Power acknowledged that their relationship was at first a happy one. After living with Ms Power's parents in Marrickville for some months, both were looking forward to living separately and Ms Power purchased a house at Roselands. They were both thrilled when Ms Power became pregnant in early 1998. It was only after their son, Padraig, was born on 2 October 1998, that Mr Crossan's and Ms Power's relationship began to deteriorate. Mr Crossan claimed that Ms Power became obsessive in her care for Padraig and began to withdraw from him, and she, in turn, claimed that he failed to provide her with the support which she desperately needed, particularly during the early period when she was breastfeeding Padraig and he was suffering from reflux. She claimed that Mr Crossan began to come home late from work, often after having had drinks with his friends at the pub. Mr Crossan stated that he occasionally had a drink with his employer or work mates. He claimed that, by her attitude, Ms Power largely excluded him from caring for Padraig, and that when he came home from work he was often left to cook dinner for both of them because she was too tired. He started spending an hour or two at the pub more often to avoid going home and being involved in conflict with Ms Power. She appears to have fallen back on her family, in particular her mother, Ms Maureen Power, and her daughter, Ms Bianca Power, for additional support.

26. Over the ensuing period, Mr Crossan and Ms Power's relationship gradually deteriorated and, on 25 November 1999, Mr Crossan moved out of the house at Roselands after a row the previous evening as a result of Mr Crossan arriving home late and Ms Power claiming that he was drunk. Ms Power called her daughter, Ms Bianca Power, to come to the house and she intervened and persuaded Mr Crossan to leave the next day. Ms Bianca Power said she believed Mr Crossan was intoxicated, although he denied this.

27. After Mr Crossan moved out of the Roselands house, he obtained rented accommodation. However, he stated that he continued paying the bills for the Roselands house and Ms Power continued drawing on their joint account into which his wages were paid. Because Ms Power was not working at that time, he found he was unable to afford the additional costs of maintaining a separate household and, in February 2000, by agreement with Ms Power, he moved back into the house at Roselands although he and Ms Power had separate bedrooms.

28. On 12 April 2000, Mr Crossan was involved in a motor vehicle accident when on the way home from work. Earlier, he had phoned Ms Power to say that he was meeting with Mr Middleton to discuss some work related business before he came home. Ms Power said Padraig was sick and he should come home as quickly as possible. Mr Crossan said he collected his car and was driving through Sydenham when he took his eyes "momentarily off the road" in order to fix his car seat. The next thing he remembers is his car hitting the back of a parked truck and his banging his head. He walked away from the car without reporting the accident and phoned Ms Power telling her that his car had been stolen. He did this because he was in shock, was worried about Padraig, and could not face telling Ms Power what had happened. She said that she was unable to come and collect him because Padraig had just gone to sleep, and he should therefore find his own way home.

29. Mr Crossan said he went home by train and, when he got home, phoned the police to report the car stolen. They came round shortly afterwards and took a statement from him. Ms Power was present while this happened and Mr Crossan did not want to change the story he had told her about his car being stolen. However, he later admitted to Ms Power that he had crashed the car. He also discovered that Padraig had not in fact been sick. Mr Crossan did not sleep well and next morning went to the police station to explain what had happened. The investigating officer who had taken the statement was not present and, having explained the circumstances, Mr Crossan was advised to go in on the following Monday to see the officer. This he did. Mr Crossan admitted that he acted stupidly but said that he had paid for his stupidity by pleading guilty and being convicted of all three offences.

30. Mr Crossan denied that he has an alcohol problem, although he acknowledged that during this period he was drinking more heavily because of the situation at home. At Ms Power's request, he attended Alcoholics Anonymous for a period of 10 weeks in order to "keep the peace" and try and save his marriage. However, it became apparent to him during this course that he was not in fact an alcoholic. Since Mr Crossan has been living with Ms Mace, he has cut back significantly on his drinking, and Ms Mace's evidence is that he now generally only has a few drinks about once a week or if they go out for a barbecue. Ms Mace said that when she first met Mr Crossan, she did see him "tipsy" on a few occasions but never "fall down drunk".

31. On 31 May 2000, Ms Power states that Mr Crossan came home drunk, picked up Padraig and dropped him on the floor. She ran over and picked Padraig up realising "the situation was no longer one where I can guarantee Padraig was safe in the house". She therefore grabbed a few basic things and got in her car with Padraig and drove to her parents' house. She remained living with her parents while Mr Crossan stayed on in the house at Roselands. Mr Crossan took in a lodger and Ms Power said that, in August 2000, "the house had gone to complete rack and ruin". It was then decided that she would sell the house which was in her name.

32. In this period, Mr Crossan was seeing Padraig irregularly in Ms Power's presence. He stated that she was very unreasonable in allowing him contact with Padraig and did not always honour the arrangements that they had made, either leaving her parents' house before he had arrived or by saying that Padraig was sick. Ms Power stated that Mr Crossan often did not turn up and only saw Padraig on about six or seven occasions between May and September 2000.

33. On 27 October 2000, Mr Crossan met Ms Mace at an Irish pub in the City. Mr Crossan said that in the period immediately before this, he had been at his lowest ebb, and this was when he wrote a letter to Ms Power's family on 1 September 1994 (R4) saying that he had failed as a husband and father and that his only option was to return to Ireland. Nevertheless, Mr Crossan said he loved Padraig with all his heart and that he wanted nothing more than to be with him. After meeting Ms Mace, "he picked himself up" and his "life took a complete spin for the better". He said he fell in love with Ms Mace in an ordinary situation and believes that his intentions towards her are quite different from those which he had towards Ms Power. He and Ms Mace both gave evidence that they want to marry and spend the rest of their lives together.

34. Ms Mace said that she and Mr Crossan "just clicked" and got on really well together in what developed into a special relationship. Her marriage had ended in the early 1990s and this was only the second time in which she had entered into a marital type relationship. With the experience of her divorce, this is not something she would do lightly. When Mr Crossan had to move out of the Roselands house in early December 2000, Ms Mace invited him to live with her. She said he told her about his convictions and his immigration problems within the first few weeks of their meeting. She did not recall him talking about the republican movement in Northern Ireland except very briefly. She knows very little about the situation in Northern Ireland and is a Presbyterian. Ms Mace has worked in the retail industry in the past and is currently studying for a Diploma in Remedial Massage at Nature Care College. She has about eight months to go in order to finish the course, although she has currently postponed this because of the stress and anxiety and time involved in visiting Mr Crossan in Villawood. Ms Mace said Mr Crossan approached a lawyer in early 2001 about Family Court proceedings because he was frustrated at not being able to see his son.

35. Although Mr Crossan continued paying bills in respect of the Roselands house until it was sold, Ms Power approached the Child Support Agency and, in about November 2000, Mr Crossan agreed to deductions being made from his salary by the Agency in respect of Padraig. Despite this agreement, Mr Crossan claimed that Ms Power did not pass him correspondence from the Agency until February or March 2001, by which time the Agency claimed that he was in debt to the tune of between $2,500 and $3,000. The Agency subsequently reduced this amount when Mr Crossan provided documentation showing the amounts he had paid in respect of the Roselands house and Ms Power's bills.

36. Mr Crossan commenced Family Court proceedings for contact orders in respect of Padraig in about March 2001. By agreement, the Court made orders permitting Mr Crossan to collect Padraig each Sunday at 9:30am returning him at 4:30pm in the afternoon. After an initial order that Padraig should be returned to his mother's home between 12 noon and 2:00pm was waived, Mr Crossan began taking Padraig to Ms Mace's home in the Blue Mountains to spend the day. Mr Crossan and Ms Mace gave evidence that after being shy initially, Padraig also began to develop a good relationship with Ms Mace and her children and would have a happy time with them all in the Mountains playing and going out on bushwalks.

37. Mr Crossan claimed that on six or seven occasions since the Family Court Order has been in place, Ms Power has prevented him from seeing Padraig on the excuse of his being sick. On only one occasion has Mr Crossan seen a doctor's note that Padraig was sick and, even then, Mr Crossan said that he should at least be allowed to see his son on such an occasion. Ms Power's account of the effect on Padraig of his spending time with his father is totally different. She described Padraig as being in turmoil through this period, wetting his pants, having nightmares and being difficult. Ms Maureen Power confirmed this and Ms Bianca Power recalled Padraig being very quiet on Padraig's returning from a visit with his father. Ms Shane Power claimed that since Mr Crossan has been detained in Villawood, this turmoil has resolved and Padraig now appears to be a happy small boy. He has a good relationship with his grandparents and extended family and, particularly, with a cousin, Harrison, who lives at Avalon. Both Ms Bianca Power and Ms Maureen Power confirmed the loving relationship which Padraig has with his mother and other members of the family.

38. Mr Crossan and Ms Power gave contradictory evidence about Mr Crossan's conduct towards Ms Power. She claimed that he pushed and shoved her although acknowledging that he had never slapped or punched her, even when drunk. She said he intimidated her by coming very close to her and by being abusive. On one occasion, on the advice of her daughter, she saw the Domestic Liaison Officer at Marrickville Police Station with a view to possibly taking out an Apprehended Violence Order against Mr Crossan. However, Ms Power considered that this might exacerbate the situation and decided against it. Ms Maureen Power gave evidence as to Mr Crossan continually phoning the Marrickville house to try and talk to Ms Power and that, on some occasions, he was abusive on the phone. By contrast, Mr Crossan said he is a passive person. He has never laid a hand on Ms Power. He said she was constantly dissatisfied with his conduct and, when she started shouting at him, he would stand up for himself in arguments. On these occasions, they would shout at each other. He said that after his experiences in Northern Ireland, his outlook towards conflict has changed because he has realised that violence does not solve anything. Peace can only be achieved through dialogue and negotiation.

39. Mr Crossan said there is no legal impediment to his returning to Ireland. However, he does not want to return because of Padraig, with whom he wishes to spend as much time as possible, and because of Ms Mace with whom he wants to spend the rest of his life. Of his relationship with Padraig, Mr Crossan said he wants to do all the usual things that a parent does with a child; he wants to be there for him, and to be an influence on him and to be a part of his son's life. He also wants Padraig to know about his family background and the culture of Ireland.

40. By contrast, Ms Power said she has fears for Padraig and herself from Mr Crossan's threatening behaviour. In her opinion, it is in Padraig's interest for all contact with his father to cease. Ms Maureen Power said she believes her daughter is frightened for her life and security, and prays that Mr Crossan will not be permitted to remain in Australia. She believes Mr Crossan is using Padraig as a means to enable him to remain here.

41. Both Mr Crossan and Ms Mace's evidence is that they have a close and loving relationship and plan to marry and spend their future together. They are awaiting the finalisation of Mr Crossan's divorce on 27 May 2002. Ms Mace said that if Mr Crossan has to return to Ireland, she will be unable to go with him because she would not leave her two daughters who are aged 14 and 16. She would just have to get used to living on her own again with her children. Ms Mace said in the 18 months she has known Mr Crossan, she has never seen him violent and he is clearly not an activist. Ms Mace's son, James Brownlee, who is 18 and still living at home, said he has a good relationship with Mr Crossan and is aware of his conviction in Ireland. His mother and Mr Crossan get on very well together and his mother would be devastated if Mr Crossan had to return to Ireland. Mr Crossan also gave evidence that he would be devastated if he had to return to Ireland and be separated not only from his son, but also from Ms Mace. The fact that Ms Mace is a Presbyterian and he is a Catholic has never been a problem between them, even though such a relationship would have been very unlikely in Ireland.

42. Jill Burrettt, a registered psychologist who has a Master's Degree in Child Psychology, gave evidence about counselling Mr Crossan and Ms Power in an effort to resolve issues affecting Padraig's contact with his father. Ms Burrett said Mr Crossan's motivation appeared to be sincere and she understood that he hoped to extend his hours of contact with Padraig to enable him to establish a deeper relationship. Mr Crossan told her that he and Padraig have a wonderful time together and that Padraig often told him that he loved him. Mr Crossan was frustrated by his unsuccessful attempts to extend his contact with Padraig and to establish a better relationship with Ms Power to facilitate this. Mr Crossan told her that he wanted to be more involved in his son's life.

43. Ms Geraldine Woods, an administrator at the University of New England, gave evidence of her relationship with Ms Power, whom she knew as Siobhan de Power, from the time they first met in late 1993 when attending a function for Australian Aid for Ireland. Ms Woods had heard of Ms Power previously through other members who had spoken highly of her, and Ms Woods said she was somewhat in awe of Ms Power. She and Ms Power quickly became friends and Ms Power told her that she had been born in Ireland and of how she had escaped from Ireland while she was heavily pregnant with Bianca. Ms Power said she and her husband had been in a car when they were stopped by soldiers on the border between Northern Ireland and the Republic. She pretended to go into early labour and the soldiers took her to hospital. Subsequently, she was able to escape from the hospital and managed to get a flight to Australia. Her husband was taken away by the soldiers and subsequently shot. Ms Woods said she felt in awe of and sorry for Ms Power and the troubled life she had, although she did ask at the time how Ms Power had managed to get on a plane to Australia when she was so heavily pregnant. Ms Power also told this story to Ms Woods' mother.

44. In 1994, Ms Woods met up with Ms Power and Ms Bianca Power in Ireland while she was travelling overseas. When Ms Woods went to Long Kesh Prison to visit another prisoner, Gerard Butler, she also met Mr Crossan. Later that year, Ms Power said she had been asked to set up a branch of Saorise in Australia to raise money for and publicise the situation of political prisoners in Northern Ireland. When other members of the Australian/Irish community in Sydney discovered that Ms Power had not been authorised by Saorise in Ireland to set up such a branch, this caused a split in the Australian/Irish community. Ms Woods went in person to the Sinn Fein office in Belfast who told her that Ms Power had never been authorised to set up a branch in Australia.

45. Ms Woods recalled that after a meeting which she and Ms Power and another member of Australian Aid for Ireland, Ann Duffy, had attended, Ms Power told them that she would bring Mr Crossan to Australia via New Zealand where they would live first for about six weeks. Ms Power made it clear that she intended to bring Mr Crossan into Australia via the "back door", without his revealing any information about his conviction in Northern Ireland.

SUBMISSIONS

Applicant

46. Mr Jones, for the Applicant, said the Applicant concedes that he does not pass the character test. The issue, therefore, is whether the Minister's discretion in s 501(1) of the Act should be exercised in favour of Mr Crossan. This requires a consideration of the primary and other considerations set out in Direction No. 21. With regard to the first of the primary considerations, the Protection of the Australian Community and Members of the Community, Mr Jones submitted that the community is not in any danger from Mr Crossan. Whilst Mr Crossan acknowledges that he committed a serious offence, this was at the age of 21, in the specific circumstances of republican protest in Northern Ireland, and Mr Crossan acknowledges that he did a stupid thing and was probably duped. He paid a heavy price for this when he was imprisoned and therefore separated from his family and community and deprived of his liberty for a significant time.

47. Mr Crossan is now totally removed from that situation both geographically and politically. In the meanwhile, the circumstances in Northern Ireland have changed and significant progress has been made towards resolving the conflict there peacefully. Mr Crossan has expressed his support for that peace process. Mr Jones said Mr Crossan had no knowledge that the boot of the car he was driving when he was arrested contained explosives. However, there was no requirement in Northern Ireland to prove intent for a person to be convicted of this offence. Mr Jones noted that both the British and Irish Governments recognised the political nature of the conflict in Northern Ireland and treated prisoners accordingly.

48. With regard to the driving offence committed by Mr Crossan in April 2000, Mr Jones said that Mr Crossan immediately recognised the stupidity of what he had done when he gave false information to the police and he sought to rectify this situation straight away on the next day. Mr Jones said this conviction did not establish any pattern of criminality. He noted that the car accident occurred just after Mr Crossan had received notice of the Minister's intention to refuse his application for a visa and at a time when his marriage was failing. Mr Jones suggested that Mr Crossan was not well equipped to deal with such problems.

49. Mr Jones submitted that Mr Crossan's relationship with Ms Power was doomed from the beginning. He was a young man, not well educated and without much life experience, who had served a long sentence in prison. She was a sophisticated, well educated woman, more than 17 years older than Mr Crossan with a specific agenda of her own. When Mr Crossan was released from prison, he went straight into a marriage, left his own community of family, friends and other support mechanisms, and travelled to a different society where he had no such support mechanisms. Then, fairly soon after, he became a father. Mr Jones suggested that Mr Crossan might have had a better chance in his new life if he had had some professional help. However, Mr Jones noted that when he put this suggestion to Ms Power, her reaction was one of bewilderment.

50. Mr Jones said that although Mr Crossan may not have been a good husband, this was in the context of a bad marriage. He was never a physical threat to Ms Power and never inflicted physical violence on anyone. At worst, he was drinking too much at the time, was angry at the situation and self-destructive. Mr Jones drew attention to the letter written by Mr Crossan to Ms Power and her family in September 2000, when he said he was at his lowest ebb. He blamed himself for the failure of the relationship but, notwithstanding this, emphasised his love for Padraig.

51. Mr Jones submitted that Ms Power's evidence should not be believed because she is prone to mix the truth with embellishment and exaggeration. This was confirmed by Ms Woods' evidence. Ms Power admitted to breaking the rules of Long Kesh Prison by exchanging notes illicitly with the Mr Crossan. It is also clear that it was Ms Power who was the prime mover for Mr Crossan entering Australia and deciding the route of entry. After his release from prison, Mr Crossan relied on her making the necessary arrangements and, in all the circumstances, she was clearly the more guilty party.

52. Mr Jones said that in late October 2000, Mr Crossan met Ms Mace, an Australian citizen, with whom he has established a good and loving relationship. She is a person with no interest in and little knowledge of Irish politics. Mr Jones said the Tribunal has no reason not to believe Ms Mace who gave evidence that Mr Crossan is a man who has got his life back into order and is trying to develop a normal relationship with his son. With regard to the second of the primary considerations, the Expectations of the Australian Community, Mr Jones submitted that the Australian community would expect that a person in Mr Crossan's situation would be given a "fair go and another chance".

53. Mr Jones submitted that the most important of the three primary considerations in this case is the Best Interests of the Child. Padraig is three and a half years old and, while he probably lives in a loving family with Ms Power and her other family members, this should not be used to justify the loss of a father, especially in the case of a boy. Mr Jones said that Ms Power, who used an Irish version of her own name, now wants to change Padraig's name to an Anglicised version, Patrick, and wants to cut Padraig off from his father and his father's family and culture. Moreover, Mr Jones suggested, there are hidden messages in Ms Power's and her family's attitude towards Mr Crossan: for example, Ms Power's story of how she gives Padraig lollies to prepare him for the contact with his father and tells him to "be a brave boy".

54. Mr Jones submitted that for Mr Crossan, his personal turmoil has in part been resolved by his new relationship. The evidence is that when Padraig visits Mr Crossan and Ms Mace at their home in the Blue Mountains, Padraig seems a normal child. Mr Jones suggested that Padraig may be attempting to separate out the two sides to his life.

55. Mr Jones said that now Mr Crossan has come to terms with his past, he may be able to turn his experiences for Padraig's benefit. Generally, the best interests of a child are that the child should be permitted the best possible contact with both parents. Mr Jones said the acrimonious way in which parents split up, does not mean that the turmoil can be resolved by removing one of the parents. In particular, in Mr Crossan's case, it is a question of all or nothing. If Mr Crossan has to return to Ireland, for all intents and purposes Padraig will not have a father for the rest of his childhood. Ms Power's family has made it fairly clear that if Mr Crossan is not permitted to stay, they will sever all contact with him.

56. Referring to paragraph 2.15 of Direction No. 21, Mr Jones said there is no evidence of abuse or neglect by Mr Crossan in the sense of the words used there, and the turmoil that Padraig may have experienced was a result of the breakdown of the relationship between his parents, and only affected him indirectly. With regard to paragraph 2.16, Mr Jones noted that at the time of Mr Crossan's detention, his relationship with Padraig was developing satisfactorily and had excellent prospects for the future. Mr Jones submitted that Padraig's best interests are that Mr Crossan be permitted to remain in Australia.

57. With regard to the Other Considerations to which decision-makers are referred by paragraph 2.17, Mr Jones submitted that a person has the right to choose a life partner. Here, Mr Crossan and Ms Mace have established such a relationship and it would be devastating to Ms Mace if she is separated from Mr Crossan. She cannot leave her daughters and go to Ireland.

Respondent

58. Mr Cureton, for the Respondent, submitted that Ms Woods' evidence should be excluded pursuant to s 500(6H). In any event, he submitted that Ms Woods' allegations about Ms Power's lying should not be accepted because these matters were not put to Ms Power in cross-examination. Mr Cureton also submitted that little or no weight should be given to a letter addressed to the Respondent from the Ambassador for Ireland dated 19 April 2002 which had been placed before the Tribunal at the Ambassador's request. Mr Cureton said the Respondent has not had an opportunity to cross-examine the Ambassador on the letter and there is no indication as to whether his Excellency has any personal knowledge of Mr Crossan or whether he knew of Mr Crossan's convictions in Australia.

59. Mr Cureton submitted that Mr Crossan was not a credible witness. His evidence lacked candour and he sought to mislead the Tribunal. There is also evidence of his lying in answering the Incoming Passenger Card and in the first statement that he made to police after his motor vehicle accident in April 2000. Mr Cureton submitted that Mr Crossan lied to the Tribunal when he said that he never read the depositions in relation to the explosives which were found in the boot of the car he was driving when arrested. This evidence is contradicted by the letter Mr Crossan wrote to "Shaky" in which he details the explosives and detonating devices in the boot of the car. Mr Crossan's evidence was that Ms Power had asked him to "beef up" his account for Shaky. However, Ms Power's evidence and Ms Bianca Power's evidence also indicates that Mr Crossan knew about the explosives in the car. Mr Cureton said Mr Crossan also lied about the extent of his involvement in the republican movement: he was evasive and vague, and his evidence that he did not know the person who asked him to drive the car is implausible. Mr Cureton referred the Tribunal to Ms Bianca Power's evidence that Mr Crossan had discussed various other "jobs" he had done before driving the car with explosives in the boot.

60. With regard to the exercise of the Minister's discretion under s 501(1) in accordance with Direction No. 21, Mr Cureton referred to the first of the primary considerations, the Protection of the Australian Community, and submitted that Mr Crossan does pose a risk to the community both in a general sense and in a particular sense to Ms Power and her family. Ms Power has said that she is frightened by Mr Crossan's threats on the phone and his past violent behaviour. Mr Cureton said that the evidence indicates that Mr Crossan is not equipped to deal with stressful situations.

61. With regard to the general community, Mr Cureton said the Applicant has conceded that he committed a serious offence for which he was convicted in Northern Ireland. Referring to paragraph 2.6 of Direction No. 21, Mr Cureton submitted that Mr Crossan has been involved in "organised criminal activity" (paragraph (b)), "terrorist activity" (paragraph (g)), and crimes involving violence or the threat of violence, which are of special concern to the welfare and safety of the Australian Community (paragraph (n)). Moreover, Mr Crossan committed a serious offence against the Migration Act when he made a false statement on the Incoming Passenger Card on entering Australia.

62. Mr Cureton submitted that there is a high risk of Mr Crossan reoffending: there is the seriousness of his past conduct, the history of his lack of candour, his reoffending in Australia despite knowing that his conduct was being reviewed by the Department, and his conduct indicating a continuing lack of respect for the law. Mr Cureton noted that, even after his release, Mr Crossan continued to be interested in weaponry and explosives which form the subject matter of the offence for which he was imprisoned. Mr Cureton suggested that Mr Crossan has failed to take responsibility for his actions: for example, he has blamed others for the lie on his Incoming Passenger Card, has made excuses in relation to the false statement following his accident in April 2000, and has sought to avoid responsibility for the breakdown of his marriage. Mr Cureton said that the refusal of a visa to Mr Crossan would have a deterrent effect in that it would send a clear message to others that such conduct is not acceptable in the Australian community.

63. With regard to the second of the primary consderations, the Expectations of the Australian Community, Mr Cureton said that the Australian community would expect that a visa would not be granted to Mr Crossan in these circumstances. The community would have regard to the seriousness of the original offence for which Mr Crossan was convicted - his conviction for possessing explosives with intent to endanger life which is sufficient in itself to justify exclusion, and to his more recent misconduct, in particular, the offence committed against the Migration Act when he made a false statement on his Incoming Passenger Card. Mr Cureton referred to paragraph 2.12 of Direction No. 21 which provides that the "nature of the character concerns or offences" may be such that the person should not be granted a visa.

64. With regard to the third primary consideration, the Best Interests of the Child, Mr Cureton suggested that because of the volatile nature of the relationship between Mr Crossan and Ms Power, it may not be in the best interests of Padraig to permit further contact between his parents. At worst, if Mr Crossan is removed from Australia, Padraig will have the care and support of a loving mother, grandparents and an extended family. Mr Cureton said the evidence suggests that Mr Crossan has been an absent father through much of Padraig's life, and that even when he has been present, he has been liable to dangerous and drunken behaviour. Mr Cureton noted the evidence that Padraig has been getting on well since Mr Crossan's detention in Villawood, but that while Mr Crossan had contact with Padraig pursuant to the Family Court Orders, he was liable to loss of continence, nightmares and other behavioural problems. In any event, Mr Cureton submitted that because of the seriousness of Mr Crossan's conduct, the protection of and expectations of the Australian community, outweigh the best interests of Padraig.

65. With regard to the Other Considerations to which the Tribunal is referred by paragraph 2.17, Mr Cureton conceded that hardship will be caused by Ms Mace if Mr Crossan is removed from Australia. However, Mr Cureton contended that such hardship will be emotional only and noted that Ms Mace was aware of Mr Crossan's immigration status and past conviction at the time they commenced a de facto marital relationship. Mr Cureton also conceded that hardship will be caused to Mr Crossan by separation from Ms Mace and Padraig. However, such hardship will be lessened by Mr Crossan returning to his own country where he will have the support of his family and friends. In any event, Mr Cureton submitted that such hardship to Ms Mace and Mr Crossan is outweighed by the primary considerations of the protection of and expectations of the Australian community. In conclusion, Mr Cureton submitted that the Minister's discretion under s 501(1) should not be exercised in favour of Mr Crossan.

APPLICATION OF THE LAW AND FINDINGS

66. As stated above, the Applicant concedes that he does not pass the character test by reason of his substantial criminal record. Thus, the issue for the Tribunal to decide is whether to exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No. 21 as a guide to the exercise of its discretion.

67. 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

68. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, as Mr Cureton pointed out, in subparagraph (b), "organised criminal activity resulting in a conviction in Australia or elsewhere", in subparagraph (c), serious crimes against the Migration Act which include making false or misleading statements, in subparagraph (g), terrorist activity, and in subparagraph (n) "any other crimes involving violence or the threat of violence ... of special concern to the welfare and safety of the Australian community".

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

70. Before addressing the primary considerations, the Tribunal will make some general findings. First, the Tribunal notes that Mr Crossan committed the offence of possessing explosives with intent to endanger life on 13 February 1992, more than 10 years ago when he was aged 21. The Tribunal accepts his evidence that he was naive at the time and that young men in Ireland often had a romantic notion of assisting the republican cause. The Tribunal recognises that the conflict in Northern Ireland is of a political nature of many years' duration. Special arrangements were made by the British and Northern Ireland Governments for the treatment of prisoners involved in this conflict.

71. The Tribunal makes no finding in relation to any prior involvement Mr Crossan may have had in other criminal activities in Northern Ireland, given the contradictory evidence of Mr Crossan, Ms Shane Power and Ms Bianca Power. It is, nevertheless, appropriate that the Tribunal should comment on the credibility of the witnesses. The Tribunal found Mr Crossan's evidence to be credible although, as Mr Jones acknowledged, he appeared defensive. It would, however, be reasonable to conclude that such defensiveness could be the product of Mr Crossan's experiences arising from his conviction in Belfast and subsequent imprisonment.

72. With regard to Ms Shane Power, while the Tribunal acknowledges the turmoil which has affected both Mr Crossan and Ms Power as a result of the breakdown of their relationship, a breakdown to which, clearly both parties contributed, the Tribunal's view is that in giving evidence, Ms Power was prone to dramatise and exaggerate some events. The Tribunal also had doubts about the truthfulness of some of her evidence, in particular in relation to her bringing Mr Crossan to Australia and his completion of the Incoming Passenger Card. Ms Power was the more sophisticated, well educated, much older and more worldly partner in the relationship who, in the Tribunal's opinion, lead Mr Crossan in the events which followed his release from prison, and made the arrangements relating to his arrival in Australia.

73. While Mr Crossan and Ms Power were obviously happy in the early part of their marriage, as Mr Jones pointed out, with the differences between them both in age and background, there was always a risk that the relationship could ultimately fail. Soon after serving five years in prison, Mr Crossan found himself in Australia, in a totally different situation, and without the support mechanisms to which he was accustomed, and, within a relatively short time, he became a father. Essentially, Mr Crossan was immature in terms of his life skills and experience and ill-equipped to deal with his new situation. His evidence is that Ms Power "withdrew" from him and, it seems clear to the Tribunal, Mr Crossan also withdrew from her, in so far as he began to drink more with his friends and work mates, and sought to avoid returning home because of the conflict he anticipated there. Mr Crossan's behaviour would undoubtedly have exacerbated that conflict. It seems to the Tribunal that both Mr Crossan and Ms Power were capable of standing up for themselves in any argument and probably did so. There is no evidence that Mr Crossan was violent, although the Tribunal finds that he was verbally abusive. However, this turmoil was the making of both parties. As with many marital breakdowns, the dispute appears to have been more bitter because a child was involved and Mr Crossan and Ms Power were unable to resolve issues related to contact with and the residence of Padraig.

74. With regard to Ms Power's credibility, the Tribunal also notes the evidence of Ms Woods that Ms Power referred to herself as Siobhan de Power in the Australian/Irish community in Sydney, and Ms Woods' evidence as to the stories which Ms Power told her in the early days of their friendship. Contrary to Mr Cureton's submission, some of this was put to Ms Power in cross-examination. The Tribunal also noted that Ms Power's evidence contained no acknowledgment that she might also have contributed to the breakdown of the relationship. In the Tribunal's view, both parties should bear some responsibility for what occurred. Ms Power's attitude was uncompromising and made no allowance for Mr Crossan playing a role in the future life of his son.

75. Both Ms Power's daughter, Ms Bianca Power, who is aged 29, and her mother, Ms Maureen Power, gave evidence in support of Ms Power. Ms Bianca Power's evidence was credible and convincing but she acknowledged that she had no evidence that Mr Crossan was violent. Ms Maureen Power's evidence appeared to the Tribunal to be more exclusively supportive of her daughter.

76. The Tribunal accepts Mr Crossan's evidence, which is supported by that of the Psychologist, Ms Burrett, that he has a real love for Padraig and wants Padraig to be a part of his life. The Tribunal does not accept that Mr Crossan is using his relationship with Padraig as a means of promoting his visa application as Ms Maureen Power suggested. The Tribunal has heard no independent evidence as to Padraig's psychological state. The Tribunal is presented with two sets of contradictory evidence as to the relationship between Mr Crossan and Padraig and the effect of that relationship on Padraig. The picture presented by Ms Shane Power and her mother is obviously coloured by the bitterness between the parties, and the Tribunal feels unable to make any finding as to the effect on Padraig of his relationship with his father. The evidence of Ms Mace and her son, Mr Brownlee, supports Mr Crossan's evidence as to the real effort he has made, at least since his relationship with Ms Mace, to re-establish his relationship with his son. In the Tribunal's view, there is no conclusive evidence to rebut the presumption that it will be in Padraig's best interests to maintain his relationship with his father.

77. In the Tribunal's view, the relationship between Mr Crossan and Ms Mace is mutually loving and supportive. The Tribunal accepts their evidence that they wish to marry and spend the rest of their lives together. The Tribunal notes Mr Brownlee's evidence that he and Mr Crossan have a good relationship and it would appear that Mr Crossan also has a good relationship with Ms Mace's two younger daughters.

78. Turning to Part II of Direction No. 21, with regard to the first of the primary considerations, the Protection of the Australian Community, the Tribunal recognises that the offence committed by Mr Crossan on 13 February 1992, for which he served five years of a 10 year sentence, is a very serious offence. Mr Crossan recognises the "stupidity" of his conduct. Given the Tribunal's finding that Mr Crossan was naive and immature at the time, and that the offence was committed in the particular context of the political conflict in Northern Ireland, the Tribunal finds that there is no likelihood of this conduct being repeated. With regard to Mr Crossan's misconduct in making a false statement in his Incoming Passenger Card, while Mr Crossan accepts responsibility for his false statement, nevertheless, the Tribunal finds that he was acting on the advice of Ms Power. She had sought immigration advice about bringing Mr Crossan into Australia and had organised a route into Australia via New Zealand which was intended to minimise the possibility that Mr Crossan might not be granted a visitor visa.

79. Mr Crossan was also convicted of a number of minor offences in relation to a motor vehicle accident on 12 April 2000. Of particular relevance is his being convicted of "false representation resulting in police investigation" for which he was fined $500 in relation to his having at first given a false statement to the police that his car had been stolen. The Tribunal accepts that the circumstances in which he made this statement were those of his having been notified of the Respondent's intention to refuse his visa application, and of his living in the same house as his wife when they were separated, while their relationship continued in turmoil. Mr Crossan's evidence is that he banged his head in the accident and accepts responsibility for acting stupidly in not giving a true account to the police. Having reflected on his conduct overnight, he sought to rectify the situation first thing the next day, by attending the police station to give a full account of what had actually happened.

80. With regard to the other allegations about Mr Crossan's conduct, there is no evidence that he has been violent in his relationship with Ms Power. The Tribunal is not convinced that he has made threats to Ms Power of the kind that she alleges and any verbal abuse the Tribunal takes to be part of the acrimonious exchanges between him and Ms Power over the breakdown of their relationship and his seeking contact with Padraig. In the Tribunal's view, there is no likelihood that Mr Crossan will be involved in any further criminal conduct, nor is he a threat to the Australian community, or to any members of the community. Once the outstanding issues in their Family Court proceedings have been resolved, it is to be hoped that Mr Crossan and Ms Power will, at least, establish a relationship sufficient to facilitate Mr Crossan's involvement in Padraig's parenting.

81. While the Tribunal accepts that, generally, the refusal of a visa where a person has committed a criminal offence will have a deterrent effect on others, in the particular circumstances of this case, involving an offence committed in relation to the political conflict in Northern Ireland, the Tribunal doubts whether the refusal of a visa would prevent or inhibit the commission of like offences by others.

82. With regard to the second primary consideration, the Expectations of the Australian Community, whilst the commission of such a serious offence might warrant a person being excluded from Australia, the circumstances in which the offence was committed and the events of the ensuing 10 years would, in the Tribunal's view, persuade the Australian community that a humane view should be taken of Mr Crossan's situation and his circumstances: Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054.

83. The third of the primary considerations to which the Tribunal is referred by Direction No. 21, is the Best Interests of the Child. Padraig Power Crossan is now three and a half years of age. He lives with his mother and her family in Marrickville, and, until Mr Crossan's detention in Villawood, Mr Crossan had contact with Padraig pursuant to orders of the Family Court. The Tribunal notes the decision of the Full Federal Court in Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568, at paragraph 32, where the Court identified the approach to be adopted where the best interests of a child are concerned. First, the decision-maker must identify the best interests of the child with respect to the exercise of the s 501(1) discretion and, secondly, the decision-maker must assess whether the strength of any other consideration, or the cumulative effect of other considerations outweighs the best interests of the child understood as a primary consideration.

84. Applying this approach, as is recognised in paragraph 2.15 of Direction No. 21, in general terms "the child's best interest will be served if the child remains with its parents". Clearly, in a situation like that in the present case where the parents' relationship is at an end, the best that can be hoped for is that the child will live with one parent and have regular contact with the other. Here, there is no evidence that Mr Crossan has abused or neglected his child. All the evidence suggests that at least since about December 2000, when he commenced a de facto marital relationship with Ms Mace and his life began to "settle", he has actively tried to put in place contact arrangements to enable him to see Padraig. The Tribunal accepts Mr Crossan's evidence and that of Ms Mace that he has re-established a relationship with Padraig which was developing well at the time of Mr Crossan's detention. The evidence of Ms Shane Power and Ms Maureen Power indicates to the Tribunal that they would prefer to cut all contact with Mr Crossan and that they advocate his return to Northern Ireland. In the Tribunal's view, this attitude is a consequence of the breakdown in the relationship between Mr Crossan and Ms Power and neglects to give proper consideration to Padraig's best interests and to his maintaining a relationship with his father. The Tribunal therefore concludes that the best interests of Padraig will be served by Mr Crossan being granted a visa enabling him to remain in Australia.

85. The second step that the Tribunal must take, following the approach in Wan (supra), is to assess the strength of any other considerations and whether they outweigh the best interests of the child. Before making this assessment, reference must first be made to the Other Considerations to which decision-makers are referred by paragraph 2.17 of Direction No. 21. Where relevant, these Other Considerations may include: genuine marriage to an Australian citizen or de facto or interdependent relationship with an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; the degree of hardship which would be caused to immediate family members lawfully resident in Australia; and the family composition of the non-citizen's family, both in Australia and overseas.

86. As stated above, the relationship between Mr Crossan and Ms Mace is a genuine, mutually loving and supportive relationship which the Tribunal accepts will be confirmed in marriage once Mr Crossan's divorce is finalised. The Tribunal notes that Ms Mace was aware of the difficulties with Mr Crossan's immigration status and of his conviction in Ireland at the time she entered into the relationship. The Tribunal finds that significant emotional hardship would be caused to Ms Mace if Mr Crossan had to return to Northern Ireland. Ms Mace is not in a position to accompany him because she is supporting daughters aged 14 and 16. The Tribunal accepts that Mr Crossan has also established a good relationship with Ms Mace's daughters and her son, James Brownlee. The Tribunal notes that there is no impediment to Mr Crossan returning to Northern Ireland where his parents and siblings live. However, the Tribunal finds that significant emotional hardship would be caused to Mr Crossan, not only by fracturing his relationship with Padraig, but also by his separation from Ms Mace.

87. The final step is for the Tribunal to assess the strength of the primary considerations of the protection of and expectations of the Australian community, and the other considerations, and determine whether they outweigh the best interests of Padraig Power Crossan. In the Tribunal's view, Mr Crossan is no threat to the Australian community or members of the community and there is no likelihood of his repeating the criminal offence of which he was convicted in Northern Ireland. As noted above, the Tribunal considers that the Australian community would take a humane view of Mr Crossan's situation, including the hardship which would be caused to both Ms Mace and Mr Crossan if he had to return to Ireland. The Tribunal concludes, therefore, that the best interests of Padraig are paramount as a consideration in this case, and Padraig's best interests are that Mr Crossan should remain in Australia so that they can maintain a parental relationship. Thus, the Minister's discretion in s501(1) should be exercised in Mr Crossan's favour so as not to refuse the grant of a visa to Mr Crossan.

I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

Signed: .....................................................................................

Associate

Date/s of Hearing 22 April, 2 May and 3 May 2002

Date of Decision 10 May 2002

Representative for the Applicant Mr M Jones, Solicitor

Representative for the Respondent Mr N Cureton, Solicitor