Richards and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 90 (15 February 2002)

Last Updated: 28 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/230

GENERAL ADMINISTRATIVE DIVISION )

Re Gordon Richards

Applicant

And Minister for Immigration, Multicultural & Indigenous Affairs

Respondent

DECISION

Tribunal R P Handley, Deputy President

Date 15 February 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 in s 501(1) of the Migration Act 1958 should be exercised not to refuse the grant of a subclass 676 tourist visa to Garry Richards.

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

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Tourist Visa - where Visa Applicant convicted of use of obscene language and cultivating cannabis in New Zealand - "substantial criminal record" - sentenced to a term of imprisonment for twelve months or more - exercise of discretion - Expectations of the Australian Community - Protection of the Australian Community

Migration Act 1958: ss 499, 499(2A), 501(1), 501(6)(a), 501(7)

Re Margaret Barratt and Minister for Immigration and Multicultural Affairs [2000] AATA 1096

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

REASONS FOR DECISION

15 February 2002 R P Handley

1. This is an application by Gordon Richards ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 18 January 2001 to refuse the grant of a subclass 676 Tourist Short Stay Visa to the Applicant's brother, Garry Richards ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Warren Perram, Solicitor of Thomas Mitchell Partners, Solicitors, and the Respondent was represented by Elizabeth Warner, Solicitor of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and in person by the Applicant.

BACKGROUND

3. Gordon Richards (the Applicant) was born in New Zealand on 16 March 1951, is aged 50, and lives in Port Macquarie. His brother, Garry Richards (the Visa Applicant), was born on 20 March 1954, is aged 47, and lives in Hamilton, New Zealand. Garry Richards has two convictions: for use of obscene language, for which he was fined $40 on 1 April 1972; and for cultivating cannabis, for which he was sentenced to eighteen months imprisonment on 23 December 1988. Mr Richards was released after serving 9 months of this sentence.

4. On 21 January 1997, Garry Richards and his wife arrived in Australia to visit his brother. Mr Richards states that, on arrival, he declared on the incoming passenger card that he had previously been convicted of a criminal offence, and he was interviewed by an immigration officer at Sydney Airport. He explained the circumstances of his convictions and was granted a one month tourist visa Mr Richards and his wife stayed with his brother and they did "touristy" things together. This is the only occasion when Mr Richards has visited Australia since his conviction in 1988. They subsequently departed Australia on 28 January 1997.

5. On 3 January 2001, Mr Richards applied for a tourist visa in order to attend his brother's 50^th birthday party. On 18 January 2001, a delegate of the Minister at the Australian Consulate General in Auckland decided to refuse the grant of a visa pursuant to s 501(6)(a) of the Migration Act 1958 ("the Act"), on the ground that Mr Richards did not pass the character test because he has a substantial criminal record. On 22 February 2001, his brother, Gordon Richards, lodged an application for a review of this decision by the Tribunal.

APPLICABLE LAW

6. Under s 501(1) of the Act, the Minister may refuse the grant of a visa to a person if the person does not satisfy the Minister that the person passes the "character test". The "character test" is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (a) where "the person has a substantial criminal record (as defined by sub-section 7)".

Section 501(7) states:

For the purposes of the "character test" a person has a substantial criminal record if:

...

(c) the person has been sentenced to a term of imprisonment of twelve months or more;...

7. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 676 visa. Clause 676.221 requires that, at the time of the decision, the Visa Applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

Either:

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

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

8. 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".

9. 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.

10. The issue for the Tribunal to determine in this case is, therefore, whether Mr Richards passes the character test having regard to his criminal record. If the Tribunal decides he does not pass the test, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

ORAL EVIDENCE

Gordon Richards (the Applicant)

11. Mr Richards confirmed his Statutory Declaration dated 12 December 2001 (A1). Mr Richards said he had hoped his brother would be able to attend his 50^th birthday party in March 2001. His brother had previously visited Mr Richards for seven days in 1997. On that occasion, although he had been issued with a tourist visa at Sydney Airport, he had been told by the immigration officers that, for his next visit, he should apply for a visa in advance. They indicated that this would be straight forward. Mr Richards was therefore very disappointed when his brother's application for a visa was rejected.

12. Garry is his closest brother to whom he normally speaks on the phone not less than once every two months, but sometimes more often. Garry keeps him informed of what his two other brothers in New Zealand and their families are doing. Mr Richards said he believed Garry to be a good family person, and a good parent to his sons. Mr Richards believes his brother has learned his lesson and paid the penalty in respect of the offence committed in 1988. He is not a threat to the Australian community. Garry's family are otherwise all in New Zealand, including, now one grandchild, and it is only ever likely that Garry will come to Australia for short visits. Mr Richards said that he would be very disappointed if his brother is unable to enter Australia, hence, the trouble he has gone to in challenging this decision. In particular, he would like to think, now that he is getting older, that his brother would be able to visit him in Australia if he became sick. His brother is a self- employed plasterer running his own business, employing one or two people.

13. Mr Richards said he is self-employed, running a small business employing up to 8 people on a full-time basis and others on a casual basis. The business involves the manufacture of show bags and their retailing in all states and territories except Western Australia and Tasmania. Mr Richards said he works most of the year because his is a "hands on", cash based business. He is often away travelling, attending agricultural shows around the country. He finds it hard to find time to make trips to New Zealand, the last occasion being in late January 2001 for about seven days when he went to visit his family, staying with Garry. Late January is the quietest period for his business. Before that visit, Mr Richards had not been to New Zealand for three or four years.

14. Mr Richards' family in Australia consists of his wife, who is English by birth and their nine year old son. While his wife spends more time looking after their son, she is also involved in running a small business manufacturing ironing board products. This is run under a separate business name, although this business and Mr Richard's business are owned by the same company. Mr Richards said his wife's mother has spent time with them in Australia, and three or four years ago they went to visit his wife's family in England.

Garry Richards (the Visa Applicant)

15. Mr Richards confirmed his Statutory Declaration dated 19 December 2001 (A2). Mr Richards said when he visited Australia in 1997, he had not applied for a visa before entering Australia. On arrival, he declared on the incoming passenger card that he had been convicted of a criminal offence. He was interviewed by immigration officers at the airport to whom he explained his conviction and the nature of his sentence. They issued him with a 30 day tourist visa and told him that when he returned to New Zealand, he should apply for a permanent border pass to enable him to enter Australia. This he did in January 2001 with a view to attending his brother's 50^th birthday. On the visa application, he revealed details of his convictions and that he had visited Australia in 1997. He supplied character references, both personal and work-related, with his visa application. Mr Richards said he was not invited to attend an interview to discuss his application and was therefore, given no opportunity, to discuss his situation. He said he would have attended for interview if invited.

16. Mr Richards acknowledged that his first conviction was for using obscene language at the age of 17. He has no convictions since being convicted of cultivating cannabis in 1988. At that time in 1988, he was employed by Land Corporation Development, a New Zealand Government company, managing a farm of 2,300 acres with 6,500 stock. He had had this job since April 1985, having worked previously on three other Land Corporation Development Properties. He was then a heavy smoker of cannabis smoking three or four cannabis, cigarettes a day. His wife also smoked occasionally. He had planted some cannabis seeds in order to provide for his personal use of the drug. When the seeds germinated, he planted them out. He was aware that some of the plants were likely to be male and others female and only the female plants would yield leaves which could be used. Therefore, a proportion of the plants would be discarded. Nevertheless, Mr Richards said there were far more plants than he needed, and what he was doing got completely out of hand and was ridiculous. He had no intention of selling any of the cannabis - it was purely for his personal use - and he believes this is why the jury acquitted him of the charge of supplying cannabis.

17. Mr Richards said police raided the farm and seized a large number of cannabis plants. However, he said a lot of the plants were not his and must have belonged to other locals who could also access the land from roads adjoining or crossing the property. He was tried at Rotorooa (check spelling) Court and sentenced to eighteen months imprisonment on the charge of "cultivate" cannabis. Ultimately, his sentence was reduced by half for good behaviour and, during the last three months of the nine months he spent in prison, he was permitted out on work release and could also return home on weekends. Mr Richards said he had tried to obtain a transcript of the court proceedings but had been unable to do so.

18. Mr Richards said his marriage was never the same after his conviction. He and his wife stayed together for the sake of their children but, finally, in late 1998, they separated. For the past two years, he has had a de facto partner, although they are not living together. His partner has three children of her own. Mr Richards has three sons from his marriage, aged 30, 25 and 21. He also has one grandchild from his oldest son.

19. Mr Richards works as a self-employed plasterer employing two to three people depending on his workload. He is currently looking for a house to purchase, his previous marital home having now been purchased by his son. Mr Richards currently rents a house in Hamilton.

20. Mr Richards said he has three brothers, two in New Zealand and his brother Gordon in Australia. Gordon is the oldest of the four brothers and regarded by Mr Richards as the "patriarch" of the family since they lost their parents at an early age. Mr Richards has a close relationship with Gordon and speaks to him on the phone in Australia more than he speaks to his other brothers in New Zealand. Mr Richards had hoped to visit his brother for his 50^th birthday in March 2001. He considers he is no threat to the Australian community. He demonstrated this at the time of his visit in 1997. He said he had the utmost respect for Australian law and understands the reasons for wishing to exclude those convicted of serious offences. However, when he had previously explained his circumstances to the immigration officer at Sydney Airport, he had been issued with a tourist visa. Mr Richards acknowledged that his brother Gordon had visited him in New Zealand in January 2001, staying with him whilst visiting other family members. Mr Richards said all three of his sons have a close relationship with Gordon, have visited him in Australia over the years, and have also worked for him.

21. In answer to a question in cross-examination, Mr Richards was adamant that he had never smoked cannabis since the day that he was charged.

SUBMISSIONS

The Applicant

22. Mr Perram, for the Applicant, said of the three primary considerations to which decision-makers are directed by Part 2 of Direction No. 21, only the first two are relevant. Considering first the Protection of the Australian Community, Mr Perram acknowledged that Mr Richards' 1988 conviction was for an offence of a serious nature. However, this offence was committed over thirteen years ago and the only other offence of which Mr Richards has been convicted is that of obscene language when he was a juvenile of 17. Since he was convicted in 1988, Mr Richards had led an exemplary life and in particular, Mr Perram noted Mr Richards' strident denial that he has ever used cannabis since his conviction. Mr Perram said it was clear from Mr Richards' evidence, that his trying to grow cannabis plants in 1988 was an aberration, that since that time he has been rehabilitated and there is no likelihood of repetition. Mr Richards is now self-employed and employs others in his business.

23. Mr Perram questioned whether there could be any deterrent effect in denying Mr Richards a visa, given that the offence occurred thirteen years ago in New Zealand.

24. The length of time since the offence occurred and the fact that Mr Richards' conduct has been exemplary since, and that he recognises "that he did a stupid thing", are matters to be taken into account in considering the second of the primary considerations, the Expectations of the Australian Community. Mr Perram noted that, in 1997, the immigration officer who interviewed him at Sydney Airport, and to whom he had the opportunity of explaining what had happened, did not think him a threat to the Australian Community, and presumably did not think it appropriate to refuse a visa in those circumstances. Mr Perram noted that Mr Richards was never given the opportunity to make submissions to the primary decision-maker at the Australian Consulate in Auckland.

The Respondent

25. Ms Warner, for the Respondent, said the parties agree that Mr Richards does not pass the character test. The issue, therefore, is whether the Minister's discretion should be exercised under s 501(1) of the Act. This requires a consideration of the application of Direction No. 21.

26. Looking first at the first primary consideration, Ms Warner noted the seriousness of the offence committed by Mr Richards in 1988. She emphasised that the offence involved a large number of cannabis plants and the quantity of cannabis involved would have exceeded that which could have been consumed by one person. Ms Warner conceded that the risk of repetition was negligible but said that the refusal of a visa in this case would have a deterrent effect. She referred the Tribunal to the decision in Re Margaret Barratt and Minister for Immigration and Multicultural Affairs [2000] AATA 1096, where the President of the Tribunal, Justice O'Connor, considered that the refusal of a visa would send a clear message to other members of the community which would have a deterrent effect [Mr Perram responded by seeking to distinguish this case on its facts, in particular pointing out that a mere fifteen months had passed between the Visa Applicant's convictions and only three months since completion of the sentence and the time of lodging the application to visit Australia. Thus, there was insufficient time to establish rehabilitation.]

27. With respect to the second of the primary considerations, the Expectations of the Australian Community, Ms Warner submitted that in the present case, the seriousness of the offence warrants the refusal of a visa. With respect to the other considerations to which decision-makers are directed, Ms Warner contended that the only real issue here is the inconvenience which might be caused to Mr Gordon Richards by his brother being unable to travel to Australia. Ms Warner noted that Mr Gordon Richards had travelled to New Zealand in late January 2001 and Mr Richards' evidence that late January, early February was generally a quiet time for his business. There is, therefore, no reason to prevent him visiting his brother in New Zealand and, in the meanwhile, they can continue to speak regularly on the phone as they do now. Ms Warner noted that Mr Garry Richards is also self-employed and has a limited ability to travel given his family commitments. Ms Warner said the brothers relationship had been maintained since the time of the offence in 1988 despite the brothers' other commitments.

28. Ms Warner submitted that the seriousness of Mr Garry Richard's criminal conduct and the importance of general deterrence far outweigh the inconvenience which will be caused to Mr Gordon Richards if a visa is refused, and the Tribunal should therefore affirm the decision under review.

CONSIDERATION OF THE LAW AND FINDINGS

29. There is no dispute that pursuant to the definition of "substantial criminal record" in s 501(7) of the Act, which includes a term of imprisonment of twelve months or more, in accordance with s 501(6)(a), Mr Garry Richards does not pass the character test. The issue for the Tribunal to determine, therefore, is whether, notwithstanding that Mr Richards does not pass the character test, it should exercise the discretion in s 501(1) to not refuse the grant of a subclass 676 Tourist Visa. In doing so, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.

30. Paragraph 2.2 of Direction No.21 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

31. Examples of what the government views as serious offences are set out in paragraph 2.6. These include, in paragraph (a), the production of illicit drugs. The Tribunal has no doubt that the offence committed by Mr Richards for which he received a sentence of eighteen months imprisonment was a serious one. However, as directed by paragraph 2.8, the Tribunal must also take into account any relevant mitigating factors, and notes Mr Richards' evidence that his intention, whilst "ridiculous", was purely to cultivate the cannabis plants for his personal use. The Tribunal notes Mr Richards was acquitted of the second charge of supplying cannabis.

32. The Tribunal also notes that the offence took place 13 years ago and that the only other conviction that Mr Richards has is for using obscene language at the age of 17. Mr Richards has not re-offended since 1988 and, as the Respondent conceded, the Tribunal finds the likelihood of his re-offending is negligible. In deed, the Tribunal was impressed by Mr Richards' strident denial that he had ever smoked cannabis since the day he was charged. Certainly, all the evidence, including five references tendered by Mr Perram (A3 to A7) support a finding of complete rehabilitation.

33. With respect to general deterrence, the Tribunal notes that Mr Richards was permitted to enter Australia on a tourist visa in January 1997. On this occasion, he had the opportunity to explain his situation to an immigration officer who, having heard his explanation, issued him with the visa. In the Tribunal's view, the Expectation of the Australian Community, the second primary consideration, would be that given the length of time since the offence was committed and the rehabilitation which has occurred since, the refusal of a visa to Mr Richards would serve no useful purpose. The Tribunal notes the decision of the President of the Tribunal, Justice O'Connor, in Barratt (supra). Although this case also involved a charge of "cultivate cannabis", one of a number of offences of which the Applicant was convicted, in the Tribunal's view this case should be distinguished because of the short period that had elapsed between the conviction and completion of sentence and the application for a visa, being lodged namely, fifteen months and three months respectively. There was therefore little opportunity to establish rehabilitation.

34. The third primary consideration, the Best Interests of the Child, is not relevant in this case, but the Tribunal must also consider the Other Considerations to which decision-makers are directed by paragraph 2.17 of Direction No. 21. The Tribunal finds that there would be some limited inconvenience to Mr Gordon Richards if his brother were unable to visit Australia, although he acknowledged that he is able to visit New Zealand from time to time in late January/early February when his business is at a "quiet time". The Tribunal notes that apart from Mr Richards' wife and child, he has no other relatives in Australia, his three brothers and their families all being in New Zealand.

35. The Tribunal finds that Mr Garry Richards has an established family and business life in New Zealand. Although he separated from his wife in late 1998, he is now in a new relationship, he has three sons from his former marriage and one grandchild. Mr Richards is self-employed as a plasterer employing two to three others according to demand. While his former marital home has now been purchased by his oldest son and Mr Richards is renting a house in Hamilton, he s contemplating purchasing a house in the near future. The Tribunal finds that Mr Richards has no desire to visit Australia on a longer term or permanent basis. His wish is purely to visit his brother from time to time, and for this purpose he needs a tourist visa because of his past criminal conviction.

36. A weighing of the primary and other considerations leads the Tribunal to conclude that there are strong grounds for exercising the discretion not to refuse the grant of a visitor visa to Mr Richards. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion in s 501(1) of the Act should be exercised not to refuse the grant of a subclass 676 Tourist Visa to Garry Richards.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

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

Associate

Date/s of Hearing 11 January 2002

Date of Decision 15 February 2002

Solicitor for the Applicant Mr W Perram, Thomas Mitchell Partners

Solicitor for the Respondent Ms E Warner, Australian Government Solicitor