Shoesmith and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 95 (15 February 2002)

Last Updated: 21 March 2002

CATCHWORDS - IMMIGRATION - visa cancellation - character test - whether applicant not of good character - past criminal history - decision set aside.

Migration Act 1958 ss. 20, 31, 499, 500 and 501,

Migration Regulations 1994 Schedule 2 and 4

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994)

Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision 9822, 7 November, 1994)

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 10910, 2 May, 1996)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

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

DECISION AND REASONS FOR DECISION [2002] AATA 95

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2001/1511

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL SHOESMITH

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 15 February, 2002

Place: Melbourne

Decision: The Tribunal:

1. sets aside the decision of a delegate of the Minister dated 12 November, 2001; and

2. substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 26 November, 2001, the applicant, Mr Michael John Shoesmith, applied for review of a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister") dated 12 November, 2001. The decision was to cancel Mr Shoesmith's bridging visa (class WA/subclass 010) on the bases that the Minister reasonably suspected that he did not pass the character test and Mr Shoesmith did not satisfy the Minister that he passed the character test pursuant to s. 501(2) of the Migration Act 1958 ("the Act"). As he was a "person in the migration zone" within the meaning of the s. 5 of the Act when he was given notice of the decision and left Australia of his own volition rather than be placed in immigration detention, his application remained subject to the time limits set out in s. 500(6A)-(6L) of that legislation. He met the relevant time limits in lodging his application.

2. At the hearing, Mr Shoesmith was represented by Mr Hughan of counsel and the Minister by his solicitor, Ms McKenzie. The documents lodged pursuant to s. 500(6C) of the Act ("G documents") were admitted in evidence together with statements of Mr Shoesmith, Ms Alannah Ockwell, Ms Shannon Ockwell, Mr Rex Williams, Mr Peter McKane and Mr Matthew Ahern, documents relating to the assets and commitments of Mr Shoesmith and Ms Alannah Ockwell, a bundle of photographs, a commendation of Mr Shoesmith by the General Officer Commanding for Northern Ireland, an extract from Archbold's Criminal Pleadings, a report dated 10 January, 2002 by Mr David Bruce, who is a forensic psychologist and a note of an interim decision by Ms Angela Wyatt dated 3 April, 2001 regarding the genuine nature of the relationship between Mr Shoesmith and Ms Alannah Ockwell. Mr Shoesmith gave evidence in support of his case together with Ms Alannah Ockwell, Ms Shannon Ockwell and Mr Bruce. No evidence was led in support of the Minister's case.

THE ISSUES

3. The first issue is whether Mr Shoesmith passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.

BACKGROUND

4. Ms McKenzie indicated that a number of the factual issues in this case were not disputed by the Minister. In light of that and on the basis of both the oral and written evidence, I have made a number of findings of fact that I will set out in the following paragraphs.

5. Mr Shoesmith was born in Bradford in England on 19 September, 1968 and was 33 years of age at the date of the hearing. He is an only child and his parents separated when he was very young. After the separation, Mr Shoesmith first saw his father when he was 18 years of age. Since then, he has only seen his father on three occasions and not in the last five years. His father continues to live in Bradford but his mother now lives in Spain. He has a daughter who was born on 15 February, 1998 from a previous relationship. His former partner has sole custody of their daughter and Mr Shoesmith speaks with her every fortnight regarding the welfare of their daughter. The only other relative that Mr Shoesmith has in the United Kingdom is his grandmother.

6. Mr Shoesmith attended school in Peterborough and left when he was 16 years of age to become an apprentice kitchen fitter. He continued in that employment until he joined the British Army in October,1989 when he was 21 years of age. At the time, he wanted to leave Peterborough, make a new life and have some excitement and saw the Army as an avenue to enable him to do those things. Mr Shoesmith served with the 1^st Battalion, Royal Anglian Regiment Infantry for the next nine years. He saw service in Northern Ireland during three tours of duty in 1991, 1993-94 and 1995-96 as well as in Bosnia during one tour of duty in 1995.

7. Before going to Northern Ireland on the first occasion in 1991, Mr Shoesmith had completed 21 weeks of basic infantry training and a further three months of training directed specifically to service in Northern Ireland. That additional training included riot training, first aid, vehicle and helicopter training, shooting and range work and how to handle the public. Each tour of duty in Northern Ireland was approximately six or seven months in duration. He was posted to the counties of Fermanagh, Tyrone and West Belfast in which the police were unable to provide a service due to violence and threat of terrorist attacks. On his first tour in Fermanagh, Mr Shoesmith engaged two armed terrorists who were sneaking up on his section and were about to ambush it. In recognition, he received a commendation from the General Officer Commanding for Northern Ireland. When posted in East Tyrone, Mr Shoesmith's platoon headquarters were bombed and shot at. On the last night of the platoon's being posted there, the headquarters came under heavy attack. It was under heavy mortar attack on the last night the platoon was there. While serving in West Belfast, his best friend was killed when a booby trap in a wheelie bin exploded. Mr Shoesmith was walking a little behind his friend at the time. He blamed himself as he later realised that the atmosphere in the street had been uncharacteristically quiet and he felt that he should have known that something was about to happen. His friend's death was extremely traumatic and distressing to him and it took him a long time to recover from it.

8. Mr Shoesmith was sent to Bosnia with the first NATO combat troops and was not part of the United Nations peace-keeping forces. The role of the NATO troops was to close and engage the enemy when local factions attacked the local population or fought each other and when this occurred, the combat troops would close and engage them with maximum force.

Mr Shoesmith's life with Ms Alannah Ockwell

9. Mr Shoesmith met Ms Alannah Ockwell in Kenya in February, 1998. He was training with the Army and Ms Alannah Ockwell was on holiday on a safari camping tour when they were both camped at the same safari lodge. Mr Shoesmith introduced himself and they spent a few days together at the time. After they went their separate ways, they kept in touch over the telephone and through letters. When Ms Alannah Ockwell travelled on to England after her African holiday, they started to live together. That was at the beginning of June, 1998. Over the next 15 months, they lived at the home of Mr Shoesmith's mother in Peterborough. Later, they moved to London and continued to live together.

10. Mr Shoesmith always knew that Ms Alannah Ockwell wanted to return to Australia. It was all right to live in England during the term of her working visa but she would not be happy living anywhere else other than Australia on a permanent basis. She felt a very strong need to be near her mother, two brothers and sister and friends. Mr Shoesmith found the prospect of moving to Australia "pretty scary". He had never been to Australia and he was just starting his own business which was starting to prosper. Despite all that and as Ms Alannah Ockwell wanted to return to Australia, he wanted to "give life in Australia a go" (Exhibit A, paragraph 23) because he loved her.

11. At first, Mr Shoesmith had not understood what it was like to be part of a family with siblings who fought one day and then got on well with each other. He was able to help his partner's younger brother by teaching him such skills as driving a tractor and using a chain saw. Her older brother had been unable to do this as he suffers from muscular dystrophy and their father left home when her younger brother was a baby.

12. When he arrived in Australia, Mr Shoesmith was not permitted to work. Permission was not given until October, 2000. Until he obtained it, he and Ms Alannah Ockwell lived with her mother and her two brothers on a farm. He helped her mother by doing extensive renovations on the old farmhouse including replacing the roof, building a sunroom and working in the garden. In addition, he helped the elderly owner of the farm with heavy lifting and other jobs. He planted trees for Landcare and helped an elderly neighbour with repairs on her house. Mr Shoesmith did not receive any payment for any of this work.

13. At the time he was unable to work and did not know anyone, Mr Shoesmith became a little unsettled and quite frustrated and angry. At the time, he was also haunted by his experiences in the Army. He would yell when he had been drinking. At the same time, he did not want to talk to Ms Alannah Ockwell about his experiences as he felt that she would not understand them. As a consequence, Mr Shoesmith and Ms Alannah Ockwell consulted her general practitioner in approximately July, 2000 and he recommended that he see a psychologist, Mr Bruce. Ms Alannah Ockwell would go with Mr Shoesmith to some appointments but not to all. Consultations continued with Mr Bruce for the next year.

14. The day after he was granted permission to work, Mr Shoesmith started work at Woftam Maintenance. He socialises with his work colleagues and has organised family fishing competitions for them. On alternate Friday nights he meets them at a local hotel for a meal and a couple of beers and then he goes home to Ms Alannah Ockwell or she joins them. He has always behaved well since being in Australia.

15. Ms Alannah Ockwell, who has a Bachelor of Arts degree and a Bachelor of Social Welfare from Monash University, has also worked since returning to Australia. In September, 2000, she changed positions and started as a housing support worker assisting homeless families. Her work requires her to deal with situations involving drug use, domestic violence and financial difficulties. She is used to seeing people who are not coping. Over time, she gets to know them quite well and follows them up to a year.

Previous convictions

16. Mr Shoesmith was convicted of ten offences arising out of five sets of circumstances while he lived in the United Kingdom. In summary, four of the offences were against the person, three were against property, one for theft and kindred offences and two for offences relating to police. In addition, Mr Shoesmith was reported for common assault and cautioned as a result. The details of those offences of which he was convicted together with the sentences are:

Date of conviction(s) (court) Offence(s) (Place of offence(s)) Sentence

11 June, 1987 (Peterborough Crown Court) Handling (Peterborough) Fine: £200.00 Costs: £110.00

15 March, 1995 (Peterborough Magistrates Court) 1. Using violence to enter premises 2. Assault on police (Peterborough) 1. Community service order 100 hours 2. Community service order 100 hours (concurrent) Compensation: £250.00 Costs:£32.00

16 October, 1995 (District Court Martial in the United Kingdom) Common assault on adult Fine: £650.00

6 May, 1998 (North East Essex Magistrates Court) 1. Damage property where value of damage £5,000.00 or less 2. Damage property where value of damage £5,000.00 or less 3. Violent behaviour in a police station 1. Community service order 120 hours; Compensation £99.62 to Waggon and Horses Public House, Colchester; Costs £80.00 2. Community service order 120 hours (concurrent); Compensation £569.88 to Essex Police Headquarters Community service order 120 hours (concurrent)

9 April, 1999 (Peterborough Magistrates Court) 1. Common assault 2. Common assault 3. Assault occasioning actual bodily harm 1. Imprisonment 5 months 2. Imprisonment 5 months (concurrent) 3. Imprisonment 5 months (concurrent)

(G5)

THE EVIDENCE

Service in the Army

Mr Shoesmith

17. Mr Shoesmith said that he found his service in Northern Ireland to be a very confusing time as he felt that the Army was caught in a game of "piggy in the middle". Mr Shoesmith said that he "witnessed things in Bosnia that made him feel sick, such as the mistreated and misplaced women and children and the pure abuse of human life" (Exhibit A, paragraph 5). Of his life in the Army, Mr Shoesmith said that:

"... Violence is a central part of army culture and lifestyle. It is taught and it is a tool of army employment. I witnessed and was part of a great deal of violence as I served in a number of trouble spots around the world. I had some very disturbing experiences during those years." (Exhibit A, paragraph 4)

Offences

18. Mr Shoesmith said that his first conviction occurred when he was 18 years of age. A friend of his had taken four cans of diesel oil from the Hire Plant at which he worked. He put the cans in Mr Shoesmith's van and asked him to hold onto them for the weekend. Later that evening, Mr Shoesmith was stopped in a routine police check and questioned about the cans. In order to protect his friend's job, he told the police that the cans were his. Subsequently, he pleaded guilty to a charge of handling. While the conviction was shown on his record, his friend paid the £200.00 fine. In cross-examination, Mr Shoesmith said that he regretted the offence and did not want it on his record. At the time, he thought that he was doing the right thing by protecting his friend but he was young and stupid. If the same thing were to happen today, he would say "no".

19. Mr Shoesmith said that all of his offences occurring between 1995 and 1999 were committed in the company of Army personnel and were related to Army life. In the main, the offences occurred during what he described as "cooling-down periods after tours, which were generally scary and stressful times" (Exhibit A, paragraph 10). At the time, he felt that no-one outside the Army knew what he had been through. Often the incidents leading to the offences arose from the anger that most of the Army personnel felt from being a "forgotten Army" and from no-one's caring what they had seen or been through. At the time, the troubles in Northern Ireland had been going on for the previous 26 years and people were sick of it and did not want to know about it. They did not want to know about the chip shop blown up with 10 people inside. Mr Shoesmith felt that he had served the country and that the civilians were not really bothered that the Army personnel had done that and, in doing so, risked their lives. He experienced a bit of resentment about this. These emotions led to his having outbursts of anger resulting in the offences of which he was convicted. Soldiers were not offered any counselling after returning from conflicts.

20. The offences for which he was convicted on 15 March, 1995 were committed when he had returned from East Tyrone. He had broken up with his girlfriend over the telephone while he had been away and returned to find that she had moved all of his belongings out of the house they rented together and that the sum of £1,000.00 had been taken from his bank account. On his return home, he attempted to contact her over the telephone and at home on several occasions during the day. When she failed to answer the door on his final visit to the house, he continued to knock loudly on the door and to kick it two or three times. His former girlfriend called the police and Mr Shoesmith left when he heard a police siren a few minutes later. As he was passing a police station later that evening, Mr Shoesmith said that he was approached from behind by two police officers. The police officers did not announce who they were. He resisted them and a confrontation broke out. In cross-examination, Mr Shoesmith said that he admitted the offences immediately. He felt bad to be in court.

21. The offence of assault on 16 October, 1995 was committed in Bosnia when he was on leave from carrying out duties. A large fight broke out between the non-combatant troops, the Polish forces, Canadian forces and the combatant troops of which Mr Shoesmith was a part. As a result of the fight, a number of soldiers was charged and the offences were heard by a court martial. Mr Shoesmith later explained that things were rough in Bosnia. The combatant troops he was with were pretty upset about non-combatant troops living it up every night. They were highly trained and highly strung and released their tensions. Those tensions came out like that, he said. It was part of their lifestyle. A group or unit would stick up for each other. They were a unit and not individuals. If one was in trouble they were all in it. They lived together and stuck up for each other. If a mate in the unit was in trouble, others in the unit would help him because tomorrow they may be under fire in the field and he will help them. Their training was not to let a mate down as one day they could be relying on him to save their lives. That was drilled into them, Mr Shoesmith said.

22. The offence in respect of which Mr Shoesmith was reported on 4 December, 1996 was committed on the night before he was to go to Belfast for a six month tour. It arose out of an inter-unit fight and everybody involved in the fight received a caution. This is not a matter that is the subject of his criminal record.

23. The events leading to his three convictions on 6 May, 1998 arose shortly after he had returned from his tour in West Belfast which he found to be a most stressful tour. He was drinking and playing pool with other soldiers from his platoon at a local pub. Mr Shoesmith became involved in a disagreement with a bouncer when the bouncer asked them to be quiet. A scuffle broke out as the bouncer threw them out of the pub. He said that he was pushed out of a door but accidentally pushed out a small pane of glass when he put out his hand to stop himself falling. When he was taken to the Colchester Police Station, he was surrounded by seven or eight police officers. Mr Shoesmith said that he immediately felt intimidated and began to panic. The police officers picked him up and Mr Shoesmith damaged a perspex counter cover when he resisted them.

24. The two offences of which he was convicted on 9 April, 1999 were committed at a party at a local pub when he left the Army. Many soldiers were there to farewell him and it was a very rowdy night with a lot of alcohol drunk. Later in the evening, a fight broke out between the soldiers and the locals at the pub. When Mr Shoesmith saw what was happening, he said, he moved over to the disturbance. He was stopped by a man who told him to keep out of it. Mr Shoesmith pushed that man away quite forcefully and he stumbled backwards. As a result that man fell onto his wife and pushed her against a wall. The man then grabbed him and forced him to the floor where he pinned his arms to his side. Mr Shoesmith head butted the man, who he later discovered was an off-duty police officer. Mr Shoesmith served five weeks of the five month concurrent sentences imposed upon him but was then released on a TAG electronic home detention programme. That programme required him to remain within 25 metres of a telephone at home between 7.00pm and 7.00am for a further five weeks. He did not breach the requirements of the programme.

25. Mr Shoesmith said that his time in prison gave him a huge shock. It changed his whole perspective on his life and on his surroundings. He said that he never wanted to relive the experience or want anyone he knows or cares about to endure that experience. After his release, he sought some independent debriefing counselling to help him to reintegrate back into civilian society. When he returned from his tours of duty in the Army, he had not been offered such counselling sessions. He said that counselling and the like was frowned upon by the Army and by his fellow soldiers. The sessions he sought out himself were run by the Soldiers, Sailors, Airforce Families Association once each week for six weeks. Mr Shoesmith said that he found the sessions enormously helpful. Despite the sessions, Mr Shoesmith said that he found it a very difficult task to readjust to civilian life after nine years in the Army.

26. Of his convictions, Mr Shoesmith said that he was very ashamed and embarrassed about it. Could he change the past, he would. He is very aware that his actions were wrong and especially so when he thinks about them from the victims' point of view. At the time that he committed them, they did not seem to be as serious to him as they do now. That followed from the fact that violence was then part of his life.

27. Mr Shoesmith said that he was unlikely to commit any further offences. There were several reasons that he gave for his belief. In the first instance, he said, he has had a complete change in attitude. After he had been in Australia for two months or so, he began to suffer from nightmares and cold sweats. He was also suffering from mood fluctuations, feelings of frustration and drinking too much. Mr Shoesmith said that he had also smashed some crockery and raised his voice to his partner but not hit anyone. With encouragement from Ms Alannah Ockwell, he sought advice from a general practitioner who referred him to a psychologist, Mr David Bruce. He consulted Mr Bruce on nine occasions over the following year. Acknowledging that he was suffering from post traumatic stress disorder ("PTSD") and that it was due to his experiences in the Army and since acknowledging that he had been unable to deal with his emotions, Mr Shoesmith said, was not an easy thing for him to do at first. He said that Mr Bruce helped him a great deal and, as a consequence, he started to put things in perspective. Mr Shoesmith said that he feels that he understands himself a lot better now. He is now able to talk to people generally, and his partner in particular, about his experiences. Since June, 2001, he has not seen Mr Bruce as Mr Bruce told him that there was no need to do so. Mr Bruce is always available should he need him.

28. The second reason is related to his learning from his sessions with Mr Bruce that alcohol was a trigger for his behaviour. He has moved to change his ways and now only drinks light beer. He is better able to deal with his emotions so that they do not turn into outbreaks of anger. He still goes to the pub and has a drink with his friends but does not get into trouble. Earlier, he did have a drinking problem but he confronted it with Mr Bruce and sorted it out.

29. The third reason for Mr Shoesmith's belief that he will not re-offend is found in his not associating further with his former Army colleagues. When he was in the Army, he lived in a violent world with people who were used to violence. Violence was an every day part of life. Outbursts of violence would be triggered by heavy drinking sessions. One thing would lead to another and steam would be let off.

30. The fourth reason to be found in Mr Shoesmith's evidence is that he has too much to lose to get into more trouble. There are too many things that he cares about in Australia to lose. He would not jeopardise his life in Australia with his partner whom he loves very much. If he were to re-offend, he would almost certainly be deported and he would not run that risk, he said. Although he had shown a bad attitude to authority on a couple of occasions, Mr Shoesmith said, his attitude has changed. He will abide by Australia's laws if he is permitted to return.

31. Although not specified as a reason, a fifth reason lies in the way in which Mr Shoesmith now faces upset. He no longer lets things build up or to simmer but talks about them instead. If people needle him now, he talks about it with that person or with a close friend. No longer does he turn to drink but gets the problem out into the open. He has a lot more respect for people. If he saw a friend getting into a fight now, he would tell him that they were leaving and leave before the fight broke out. If the friend were being attacked and he could not guide him away, he would put himself between the friend and the other person and keep him away from the situation.

32. In cross-examination, Mr Shoesmith agreed with Ms McKenzie that, apart from the issue of his visa, all had been going very well for him in Australia. In fact, it had been excellent; he had a house, a job and his group of friends was getting bigger and bigger. He agreed with her that life could change for him in the future. When asked whether it was more difficult to deal with issues when life was not going so well, Mr Shoesmith replied that the things he faced now were the hardest things he had ever done. He could not see them getting much bleaker but he is the sort of person who, if he is unemployed, has a job in a week. He does not wait for a job but goes and gets one. If things were to get worse, he would have to take the ups and downs as they come. At the moment, he is coping. He and Ms Alannah Ockwell talk to each other every day on the telephone and he has engrossed himself in his work six or seven days each week. In addition, he is keeping active. When asked how he would have dealt with such a situation previously, he replied that he would have turned to drink. He does not feel the need to do that now and does not want to. Alcohol is behind him and he has strength. Mr Shoesmith said that he felt "pretty calm" and positive. To get frustrated would only make matters worse and harder.

Ms Alannah Ockwell

33. Ms Alannah Ockwell said that Mr Shoesmith had told her about his convictions. Her understanding was that they were mainly assault charges and the majority due to fights in pubs. Before he saw Mr Bruce, Ms Alannah Ockwell said, Mr Shoesmith would drink heavy beers which are heavier than heavy beers in England.

Mr David Bruce

34. In his report, Mr Bruce set out a history of Mr Shoesmith's service consistent with that given by Mr Shoesmith in evidence. He saw Mr Shoesmith on a voluntary basis (at times alone and at times with Ms Alannah Ockwell) on nine occasions between 31 July, 2000 and 4 June, 2001. Mr Shoesmith was experiencing a lot of domestic difficulties by getting overly angry and then getting distressed about it. While he was not engaging in any personal violence, he was thumping walls and the like. Mr Bruce wrote:

'3. There is no doubt that military personnel develop many coping strategies to enable them to continue to function under such conditions. The most common is to assume a 'hardened' façade and to live in a 'macho' and superficially uncaring way, supported frequently by excessive alcohol in off-duty hours. This inevitably results in a great deal of fighting and general violence between related groups of soldiers as a 'spill-over' or acting out of the strain caused both by the traumatic experiences and by the effort to cover them up emotionally. These phenomena are well reported in all military history from the earlier times of organised warfare. The Duke of Wellington refers to many draconian measures he employed to deal with violence within his own forces and it remains a problem today. The introduction of psychological services to military establishments in modern 'civilised' warfare has ameliorated the need for extreme punishment but its very presence attests the need to deal with what is really a natural and expected phenomenon.

4. Michael Shoesmith did not have appropriate treatment when he left scenes of severe conflict although he did later receive some effective counselling. When I saw him he was suffering from a quite severe chronic post-traumatic stress disorder that was causing him to use alcohol excessively and to have episodes of fairly explosive violence, which alarmed him as well as those close to him. The disturbed behaviour was not caused by the alcohol but was released by it. Alcohol is a depressant substance that reduces a person's capacity for inhibition of behaviour. It will therefore heighten the possibility for acting out of behaviour that is present as a result of other factors. Over a series of lengthy sessions (approximately 1½ hours each) I believe he was assisted to come to terms with his feelings and to be able to deal with the tendency to over-react. He accepted that it is 'all right' to talk of his feelings and fears, and in so doing they lost a lot of their residual impact. He adopted measures to monitor his own reactions and particularly was able to reduce his alcohol intake.

5. By the time I stopped regular contact, I think Michael had settled down to a good relationship with Allanah and with regular employment that he enjoyed and at which he thrived. We discussed his ideas of obtaining trade qualifications in Australia to enable him to utilise the technical skills he undoubtedly has but which cannot be fully utilised until he gets a formal 'ticket'. Allanah telephoned me in September 2001 to tell me that Michael had maintained his improvement and that he was very much 'a different man' to the one I first saw. She confirmed that everything in their life was going very well." (Exhibit L)

When Mr Shoesmith ceased his visits, Mr Bruce ended by saying, it seemed that he was functioning very well. There is no reason to anticipate any serious relapse.

35. In giving oral evidence, Mr Bruce said that alcohol was quite a feature in Mr Shoesmith's condition. When people with PTSD find that their irritability is becoming too much, they may turn to alcohol to alleviate the symptoms. Alcohol, however, makes the feelings worse as it is a depressive substance that takes away their inhibitions. Alcohol makes them worse. Mr Bruce told Mr Shoesmith to "cut right back" on the intake of his alcohol. If he had to drink on social occasions, he should drink only light beer.

36. Mr Bruce considered that Mr Shoesmith responded very well to treatment. He was very determined to improve, Mr Bruce said. When he stopped seeing him, Mr Shoesmith was not having any unusual domestic disputes and had resolved a lot of problems. In Mr Bruce's opinion, Mr Shoesmith's prognosis is very good in view of the improvement he showed in the year. Mr Shoesmith was very committed and wanted to get on with his life. He and Ms Alannah Ockwell were a "pretty devoted" couple who stuck together during torrid times at the beginning and before they saw him, Mr Bruce said. The strength and tranquillity of their relationship improved as the consultations continued. They were dealing with each other much more easily. Mr Bruce saw theirs as a lasting arrangement.

37. In cross-examination, Mr Bruce said that there was certainly a greater chance of a person's re-offending where he had a violent life in the Army and a criminal history than where he did not have that history. It was not a substantial risk in Mr Shoesmith's case though. Most of his PTSD derives from some extremely traumatic experiences. If he were back in a military combat, there would be big problems but not in an ordinary civilian context. In a civilian context, he is no greater risk than any number of the rest of the population. It is not possible to say that there is no risk of a person's exhibiting violent behaviour. If Mr Shoesmith is leading a normal life, the risk of his doing so is not particularly significant. The pressure that he is under at the moment is a very different sort of pressure for Mr Shoesmith. He has had various pressures over the time that Mr Bruce saw him and Mr Bruce did not see much reaction in him at all.

The incoming passenger card

Mr Shoesmith

38. Mr Shoesmith agreed with Ms McKenzie that the incoming passenger card asked him to state whether or not he had any previous convictions. He had ticked the box "no" and agreed that this was incorrect. He said that he did not think at the time that it was a very serious thing to do. Before he left England, he had been told by his travel agent, who was also a friend, that he should not fill it in correctly for he would be delayed at the airport when he arrived there. At the time, he intended to stay only two or three weeks and wanted very much to see Ms Alannah Ockwell whom he had not seen for nine weeks when she had left England at the expiration of her working visa. Seeing Ms Alannah Ockwell was the most important thing on his mind at the time. Mr Shoesmith said that he did not intend to deceive the Department of Immigration, Multicultural and Indigenous Affairs ("Department") in any way and fully disclosed his criminal record when he applied for permanent residence. He now understands, and accepts fully, that this was the wrong thing to do.

Ms Alannah Ockwell

39. Ms Alannah Ockwell said that she had travelled a lot but had never given any consideration to the purpose of the incoming passenger cards. Her understanding has now changed but previously she had not been able to believe that the incoming passenger card completed by Mr Shoesmith had even been kept.

Mr Shoesmith as others know him

Mr John Barrett

40. Mr Barrett, who is 44 years of age, first knew Mr Shoesmith when he joined the company for which he worked making kitchens. Mr Shoesmith was then 16 or 17 years of age. He was a pleasure to know, Mr Barrett said. Mr Shoesmith was always friendly and happy. He and his wife and children all loved him.

41. Mr Barrett had known about Mr Shoesmith's first offence at the time that he committed it and believed that he had stood up for someone else. It was unfortunate. Mr Shoesmith was generally a friendly fellow and did not go looking for trouble. He was very helpful and would do anything without question. In addition, he was very trustworthy and for two years babysat Mr and Mrs Barrett's children.

42. When Mr Shoesmith decided to join the Army, Mr Barrett thought that it would provide him with direction in life. His lack of direction had been due to his being raised without a father figure. Mr Barrett said that he was there for him and gave him as much direction as he could. The Army definitely changed him from a boy to a man. He knew that Mr Shoesmith had been involved in fights in the Army but that was the job he was doing.

43. Mr Barrett said that he saw a change in Mr Shoesmith when he returned from Africa. He was a person who was very much in love. That changed him. He was a more caring person and loves his partner more than anything else in the world. Mr Shoesmith had no real family life in Australia and it is clear to Mr Barrett that he intends to make a go of his own family life to make up for the one he never had.

44. For the past two months since his return to England, Mr Barrett said, Mr Shoesmith has been living with him. Mr Shoesmith has changed since he left for Australia as he is now much more likely to talk about things and is a very much calmer person. He has turned into a "very, very nice person", he said. As to his drinking habits, Mr Shoesmith has a couple of little tins of beer now and again. It is Heineken beer which Mr Shoesmith describes as light beer. It is not what Mr Barrett drinks as he prefers something stronger. Mr Barrett can see that the present situation is fairly stressful for Mr Shoesmith but said that he has coped with it "pretty well". When he had been in England previously, Mr Shoesmith would go to the pub on most nights but he had only been twice since his return. Instead, he stays at home and watches television. He is a "pretty calm sort of chap but pretty stressed out", Mr Barrett concluded. Mr Shoesmith is not the sort of person to go out and look for trouble. He is no risk to anyone unless he is provoked and then he would react as anyone else would.

Ms Alannah Ockwell

45. Ms Alannah Ockwell said in her statement:

"Michael is a vibrant and colourful character. He is very charismatic. He has a heart of gold and wonderfully funny sense of humour. I know that he has committed criminal offences in the past, but that is behind him. By his attitude and behaviour to me, my family and our friends he has shown that he is a good person. After he came to Australia he fitted in very well with the local community. He is very hard-working and will continue to make a positive contribution to the community if he is allowed to return." (Exhibit C, paragraph 20)

In her oral evidence, Ms Alannah Ockwell added that Mr Shoesmith had mellowed since he had been in Australia. Apart from Mr Shoesmith's being aware of the consequences to himself were he to re-offend, Ms Alannah Ockwell said that he was aware how stressful the whole affair had been for her and her family.

Ms Shannon Ockwell

46. Ms Shannon Ockwell first met Mr Shoesmith in London in November, 1999 when he was living with her sister. She stayed in their home. Before she met him, she said that she was aware of a bit of his history and that he had been in the Army. She was a bit wary of him but she would be wary of anybody who was in a relationship with her younger sister. She thought that he was a "good guy", friendly and "really nice" to her when she was on her six week overseas' holiday. Everything was "fine" and she did not even think of his past. Ms Shannon Ockwell thought that her sister and Mr Shoesmith got along well and both seemed very happy.

47. During the six months that her sister and Mr Shoesmith lived with her mother, Ms Shannon Ockwell saw them regularly once a month and on a further couple of occasions when they visited her in Melbourne. They also spoke on the telephone. During that time, she found Mr Shoesmith to be very helpful and did things around the house without being asked. He was considered part of the family. Ms Shannon Ockwell was unaware of the matters that made Mr Shoesmith go to see Mr Bruce until recently. After Mr Shoesmith and her sister bought their house, she lived with them. She saw him helping people and there were always people popping in.

48. Since the family found out in November, 2001 that Mr Shoesmith's visa could be cancelled, life has been very stressful for them. The relationship of Mr Shoesmith and her sister has been as strong as it ever was but they are under stress. Mr Shoesmith has been frustrated at times but only about what has been happening. He has not shown it in aggressiveness or rudeness. His drinking has been confined to one or two light beers. Only once has she seen him intoxicated and he was not alone. In that state, he was happy and he and her sister woke her up by trying to be quiet when they returned home.

Mr Matthew Ahern

49. Mr Matthew Ahern has known Ms Alannah Ockwell since they met at school in 1988. He and his wife are her very good friends. They met Mr Shoesmith in May, 2000. Since then, the two couples have played in the same mixed netball team and enjoyed frequent dinners at each others' home. Mr Ahern and Mr Shoesmith also go fishing. Mr Ahern said in his statement that Mr Shoesmith would have a drink with dinner but it would only be light beer.

50. Mr Ahern said that he and his wife are very much part of their local community. Mr Shoesmith fitted into that community very well and was well-liked. He visited both his parents and his wife's parents and was most welcome. Mr Shoesmith has a very generous nature and was always offering to help people out. Mr Shoesmith helped him to build a shed and did some painting around their house.

51. Mr Ahern said that he knows that Mr Shoesmith has several criminal convictions in England but believes that he is a good person. He never saw any sign of violence or aggressive behaviour and always came across as happy and pleasant. Mr Ahern knew that he had a lot of stress on his mind but it never showed and he would have to drag it out of Mr Shoesmith to get him to say anything.

Mr Rex Williams

52. Mr Rex Williams is the Managing Director of Woftam Maintenance. He has known Mr Shoesmith since he started working for the company as a builder's labourer in October, 2000. Mr Shoesmith was first employed on a casual basis for a three month probation period. When the three month period, the company had no hesitation in offering him a full-time position and he accepted it. He remained until he left Australia in November, 2001.

53. Mr Williams said that he was aware of Mr Shoesmith's previous convictions and listed them in his statement. Despite them, he said:

4. ... I would have no hesitation in recommending Michael as a reputable character. Throughout the 12 or so months of his employment, I found Michael to be a very diligent and hard-working employee. He displayed great leadership qualities within our work teams and he was able to apply practical solutions to problems on the run. He quickly became an integral part of our team and was well-liked by his co-workers. Michael's background and skills in concreting, plastering, carpentry, tiling and painting just to name a few meant that we could use him in a multitude of roles.

5. I felt able to trust Michael with a high degree of responsibility. Some of the work we do for local government in particular requires us to have access to a range of secure areas. For example, we might do some work inside Shire offices and start work at 3.00 or 4.00 am or work on a Saturday so that we can work when the offices are closed. The workers need to have access to the place and so are provided with keys. We have done work of this nature for the Shire of Kardinia, the City of Casey and some schools and kindergartens. I had to trust the guys working in those places and I had no hesitation in having Michael do so.

6. Michael always displayed empathy towards his fellow workers, clients and the public in his work. He had a very good rapport with a lot of our clients, who have included teachers and other professionals. I guess the biggest part of that is being able to communicate effectively with a range of people and Michael did that very well. He would often sort out any problems that arose and went out of his way to try to make a client happy. We often received good reports back from them about Michael and I always had respect for their opinions because after all they are the ones paying the bills!

7. Michael was also able to work well with his colleagues. In the building industry things often happen at the last minute. If a job came up requiring last minute work and some guys to work on the weekend, I could always approach him and he would be prepared to help out.

8. He picked up on differences in the way we do things in the building industry in Australia as compared to England quickly. It was almost like training for our other workers because they were able to see different ways of doing things. Sometimes the ways Michael did things was better and sometimes the way we did was, but either way, having Michael working with us broadened their understanding of how things work and gave them a bigger picture." (Exhibit G)

54. Mr Williams said that he did not have any reason to think that Mr Shoesmith would re-offend in the sense that he would be violent when drinking. They had been out together and Mr Shoesmith was always well behaved and never aggressive. He had a good time but was no different from anyone else. Mr Williams said that he believes Mr Shoesmith to be of good character. He would be keen to employ him again were he given permission to return to Australia.

Mr Peter McKane

55. Mr Peter McKane is employed as a skilled labourer by Woftam Maintenance. They became friendly through work and often socialised together while Mr Shoesmith remained in Australia. They would have two or three drinks after work on a Friday night and sometimes walk to a local hotel to have tea. Mr Shoesmith never got into trouble when they were out together and always conducted himself with good manners and a polite nature.

56. Mr Shoesmith also went to many family get-togethers of the extended McKane family. He met his parents and also his brothers and sisters and their children. Mr Shoesmith got on very well with the children. Mr McKane always thought Mr Shoesmith a very sensible and responsible person. He believes that he is a person of good character. Mr McKane and Mr Shoesmith together with Ms Alannah Ockwell would also see each other at the houses of mutual friends. Mr McKane and Mr Shoesmith both enjoy fishing and often went fishing together. Together, they entered a few competitions on Port Philip Bay with another workmate, Mr Stuart McDonald. Mr Shoesmith organised a social fishing day for workmates and their families.

57. He is aware of the offences of which Mr Shoesmith was convicted and set them out in his statement. Based on what he had seen of Mr Shoesmith over the year or so that he worked at Woftam Maintenance, he did not believe that Mr Shoesmith was likely to commit those sorts of offences again. He understood that most of his offences had been committed while he was out drinking with other soldiers in a local pub. Mr McKane said that he believed that Mr Shoesmith is a good person who fitted into life in their community and in Australia very well. He looked forward to his return. In conclusion, he said:

"10. Overall, Michael is a friendly and likeable person. He is very easy-going. He gets along with people of all ages and treats people with respect. He made friends here easily and fit in at work virtually from day one.

11. Michael was also always offering to help people and he was more than willing to come and help me do things. He helped my sister, her husband and their small child to move house and he voluntarily helped me to do some plastering at their place." (Exhibit H)

The future

Mr Shoesmith

58. He has gained the respect of his boss at work, Mr Shoesmith said. His partner's family has accepted him as part of them and he regards it as his own family. Mrs Wendy Ockwell has been like a mother to him and he has more friends in Australia than in the United Kingdom. Mr Shoesmith said that he has been quite surprised at how well people got to know him. He has not kept in contact with many of his friends in the United Kingdom and has not kept in contact with any from the Army as he wants to leave that part of his life behind. Mr Shoesmith said that he and Ms Alannah Ockwell have invested all of their financial resources and all of their lives. He is "99% sure" that his job would be waiting for him were he able to return to it.

59. Mr Shoesmith feels that his relationship with his partner would deteriorate quite rapidly were he not able to return to Australia. If their relationship does not continue, the financial ramifications will be huge, he said. There would be no way in which they could continue to meet the repayments on the house, the car and the furniture as well as pay for the airline ticket he used to return to the United Kingdom and his legal expenses.

60. Mr Shoesmith said that Ms Alannah Ockwell would not be happy in England where she would find it difficult to get the work for which she is trained. Her qualifications are not recognised and she would need to be re-trained.

Ms Alannah Ockwell

61. Since being notified of the possibility of Mr Shoesmith's visa being cancelled, Ms Alannah Ockwell said that she has been emotionally drained. Neither of them envisaged being separated in this way. She feels as though her life is hanging in the balance and her anxiety about the situation has affected her work detrimentally as she has been unable to concentrate. Her financial situation has also suffered severely. They had made many financial commitments on the basis that they had two incomes. Mr Shoesmith has been sending her money when he can as her income does not cover their joint financial commitments.

62. Ms Alannah Ockwell said that England was a nice place for a holiday but that she would not want to live there. From the enquiries that she made when she lived in England, she understands that her qualifications are not recognised. If she were to continue to work in the area she loves, she would have to retrain. Otherwise, she would be an unskilled worker.

63. If Mr Shoesmith is permitted to return to Australia, Ms Alannah Ockwell said, they plan to get a puppy, furnish their home, travel around Australia and start a family. They would like to raise their family in Australia. Ms Alannah Ockwell said that she could not bear to think that her children would have so little contact with their extended family and especially with her mother. Her mother is on a pension and could not afford to fly to England to visit them were they to live in that country. If Mr Shoesmith were not permitted to return to Australia, she did not know what would happen to the relationship. They cannot have a long distance relationship. They could sell the property and she could move over to England but it is not what she wants. She said that she would have difficulty in finding employment. Although she had looked after elderly people when she worked there, that was not what she wanted to do on a long term basis.

64. Ms Alannah Ockwell thought that Mr Shoesmith had already made a contribution to the Australian community and would continue to do so. His contribution has taken the form of doing a lot for people as well as well as paying his taxes and superannuation contributions. He is very knowledgeable and has a lot to offer, she concluded.

65. Ms Alannah Ockwell agreed with the proposition that her work might help her foresee any difficulties faced by Mr Shoesmith but said that it is always a different matter when it is your own. Despite that, she can pick up when things are not right. Since seeing Mr Bruce, her partner will go to her and tell her that he is not feeling quite right about something and will talk about it. At times, she will respond by telling him to cut the lawns and on others she and he will talk about it and he will be fine.

Ms Shannon Ockwell

66. Ms Shannon Ockwell said that the future of the relationship is up to her sister if Mr Shoesmith is not permitted to return to Australia. It would be difficult for her when her family is here and she needs her family. If Mr Shoesmith were permitted to return to Australia, the relationship would be even stronger. Ms Shannon Ockwell said that she thought the risk of Mr Shoesmith's re-offending would be extremely low. If he can return, he knows that he will be very lucky.

CONSIDERATION

Framework of Act

67. Under the Migration Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 ("the Regulations") (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion. Schedule 4 sets out the public interest criteria.

68. At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:

(a) the applicant satisfies the Minister that the applicant passes the character test; or

(b) the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or

(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass 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."

Section 501(1) of the Act provides that:

"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."

69. The "character test" is set out in s. 501(6), which, in so far as it is relevant, provides that:

"For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal history (as defined by subsection (7)); or

(b) ...;

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

(d) ...

Otherwise, the person passes the character test."

For the purposes of the character test, a person has a substantial criminal record if, among others:

"(c) the person as been sentenced to a term of imprisonment of 12 months or more;

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;" (s. 501(7))

70. Application of s. 501(7) in light of the two five month sentences (to be served concurrently) imposed upon Mr Shoesmith leads to the conclusion that Mr Shoesmith does not have a substantial criminal history as defined. Consequently, he does not fail to pass the character test by virtue of s. 501(6)(a).

The Direction

71. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction - Visa Refusal and Cancellation under section 501 - No.21 ("the Direction").

72. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

... When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

73. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

74. The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that sub-section, the Minister states in the Direction:

"1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."

75. In considering whether a person is not of good character when measured against s. 501(6)(c)(i), the Minister directs decision-makers to take the following into consideration:

"(a) the nature, severity and frequency of the offence/s;

(b) how long ago the offence/s were committed;

(c) the non-citizen's record since the offence/s were committed, including:

  any evidence of recidivism or continuing association with criminals;

  a pattern of similar offences; and/or

  pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents." (paragraph 1.8)

76. With regard to s. 501(6)(c)(ii), the Minister directed, in so far as it is relevant to the circumstances of Mr Shoesmith's case:

"1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

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

  engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

  continual evasion or non-payment of debt;

  continual disregard as to payments of family maintenance;

  involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or

  involvement in war crimes or crimes against humanity.

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 ...

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."

77. In this case, the focus is upon Mr Shoesmith's criminal conduct as set out in s. 501(6)(c)(i) and upon his past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

"´Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)

78. After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)

79. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT Decision 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT Decision 10910, 2 May, 1996). In Prasad, Deputy President McDonald added:

"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)

80. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:

"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion ...

...

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)

81. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:

"... does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

... Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (paragraphs 8 and 24)

Does Mr Shoesmith pass the character test?

82. I will begin my consideration of whether Mr Shoesmith passes the character test with his criminal record. He does not deny it in any respect and, apart from his failure to acknowledge it on his incoming passenger card, he has not denied it in the past. I find that he revealed it fully in his application for permanent residence. There are two issues that must be considered at the outset. The first is the criminal record itself and the second is his failure to reveal it on his entry to Australia.

83. Mr Shoesmith's record began when he was 18 years of age. He pleaded guilty to an offence of Handling. I accept his evidence that he had not stolen the four cans of diesel oil in respect of which he was convicted and that he was not aware that they were stolen. He pleaded guilty in order to protect the employment of his friend who had taken the diesel oil and had asked him to look after it over a weekend. There is no material from the sentencing court in respect of either this conviction or any of Mr Shoesmith's other convictions. I have only the bare outline of the conviction itself and the sentence. Mr Shoesmith's explanation of the circumstances is consistent with his conviction. His explanation is also supported by its being the only offence of dishonesty for which he has been convicted. Putting to one side the incoming passenger card to which I will return, there is no suggestion of any dishonesty either in his subsequent criminal record or general behaviour.

84. I find that almost eight years passed before Mr Shoesmith was again convicted of an offence. By then, he had been in the Army for over five and a half years. He had seen two tours of duty in Northern Ireland by 1995 and had a further tour to Northern Ireland and a tour to Bosnia to complete before he completed his Army service. I accept his evidence that he had faced danger, risked his life and experienced most stressful situations before he committed his offences in 1995. I also accept his evidence that he and his Army colleagues felt that they had been forgotten by people in the United Kingdom and that they were unappreciated. This in turn led Mr Shoesmith to suffer outbursts of anger. I also find that Mr Shoesmith and his colleagues were trained to act as a unit in which each member was trained to look out for the well-being of its other members. This training extended to the behaviour of Mr Shoesmith and his colleagues when they were on leave from their duties and in a social context.

85. The offences that Mr Shoesmith committed over the four year period beginning in 1995 and ending with the farewell party when he left the Army had a common theme of some degree of violence either to person or property. In view of the fact that the offences for which he was convicted extended over a finite period while he was in the Army (or had just left in respect of the last three offences for which he was sentenced to imprisonment), I accept that they arose from a combination of camaraderie, anger and frustration and reaction to stress arising from his Army service rather than from any inherent characteristic in Mr Shoesmith to engage in violent behaviour or to have a blatant disregard for the law. All but the offences involving his former girlfriend and his offence of handling were committed while he was in the company of Army personnel. On the basis of Mr Bruce's evidence, I find that they also followed upon his excessive use of alcohol at the time. His excessive use of alcohol itself arose from his suffering from PTSD as a result of his Army service. Alcohol released his disturbed behaviour because it reduced the inhibitions on his behaviour.

86. While Mr Shoesmith's feelings of anger and frustration do not justify his offences, they do explain them. Equally, his loyalty to his colleagues and his Army training do not justify his committing acts of violence of any degree in the civilian world but they do explain them. His PTSD and his reliance on alcohol are consequences of his Army service and are also part of the explanation for his committing the offences. Explanations of themselves do not mean that he will not commit similar offences again. Changing influences and the steps taken by Mr Shoesmith to understand his feelings and actions and to change his reaction to situations do influence whether or not he will commit further offences.

87. What are the changed influences and steps? In the first instance, Mr Shoesmith has resigned from the Army and, putting to one side the offences and events that occurred at his farewell party and that I associate with his Army service, I find that he had not committed any further offences. Second, he has consulted Mr Bruce and gained insight both into the PTSD from which he suffered and into his resulting behaviour. I make that finding based on Mr Shoesmith's evidence and also on that of Mr Bruce. Mr Barrett, with whom Mr Shoesmith lives, also supports that finding for he finds Mr Shoesmith is now much more likely to talk about matters concerning him and is calm. Prior to his consulting Mr Bruce, he had not received any professional assistance from a psychologist or a psychiatrist. He had previously sought assistance from the Soldiers, Sailors, Airforce Families Association in the United Kingdom and had attended six counselling sessions but that had not given him the insight and benefit that he was able to obtain from Mr Bruce. Again on the basis of the evidence of Mr Shoesmith, Mr Barrett and Mr Bruce, I find that Mr Shoesmith has gained an insight into the effect that alcohol has on his behaviour and modified his intake by drinking only light beer. Fourth and on the basis of his evidence and that of Ms Alannah Ockwell and of Mr Barrett, he has gained stability in his life through his relationship with Ms Alannah Ockwell and her family and through his new circle of friends.

88. I find that Mr Shoesmith's change in behaviour is not likely to be a short-lived affair but is likely to continue into the future. Certainly, matters had been going well for him until he realised that his application for permanent residence might be refused. It could be said that it is easy to behave when all is going well. It should be remembered, however, that all was not going well for Mr Shoesmith during his early days in Australia. Although he was keeping himself busy helping Mrs Ockwell and the neighbours, he was frustrated. That was the time that he experienced angry outbursts and sought Mr Bruce's assistance. He has again faced extreme tension and upset over being refused permanent residence in Australia. On the basis of his evidence and that of Ms Alannah Ockwell and Mr Barrett (both of whom have been in a position to observe him closely), I find that he has not resorted to outbursts of anger or returned to alcohol. He has remained calm and, I find, exhibiting a maturity in his reactions. His reactions are consistent with those expected of him by Mr Bruce who said that he was not a risk to anyone unless, like anyone, he were provoked. In view of all of these matters, I have come to the conclusion that Mr Shoesmith is unlikely to commit further offences of violence or any offences at all.

89. Before leaving the issue of his convictions, I should mention the two offences involving violence towards the police. These offences were the subject of particular attention in the submissions. I do not consider that they raise any particular concerns over and above the other offences for which Mr Shoesmith was convicted. In particular, taken in the context in which they were committed, the offences cannot be regarded as indicating a disregard for law enforcement authorities or as indicating a propensity for violence against them. The offences were the culminations of sequences of events that had their origins in matters unrelated to law enforcement. They were not directed against law enforcement authorities as such.

90. That brings me to the second issue relating to the incoming passenger card. While his false statement on the incoming passenger card could be regarded in some circumstances as demonstrating a willingness to act in breach of the law in order to facilitate his own objectives, I do not consider that it does so in the circumstances of this case. I find that he was advised by his travel agent, who was also a friend, that disclosure of his past convictions would involve him in red tape on his arrival. There is no suggestion in the evidence that he understood that disclosure would result in his being refused entry. His entry would only be delayed. This finding is supported not only by Mr Shoesmith's evidence as to the red tape but also by his subsequent action in making a full disclosure of his convictions in his application for permanent residence. Full disclosure in that application is not consistent with the actions of a person who thought that he would be refused entry to Australia if he did not disclose his convictions initially.

91. Ms McKenzie submitted that insufficient time has passed to warrant a finding that Mr Shoesmith now passes the good character test. When his behaviour is viewed overall, I do not accept that there has been insufficient time. While there may have been serious grounds on which to question his good character at least for part of the four year period during which he committed his offences, those grounds are no longer valid. He has restored his good character and passes the character test. He has restored his character in part by the actions he has taken in addressing the issues that caused him to offend and in refraining committing any further acts of violence. He has failed to tell the truth on one occasion only and, rather than displaying a propensity to lie persistently, has consistently been frank and honest in his dealings with the Department. Mr Shoesmith has also restored his good character in part by his actions since arriving in Australia. Since meeting Ms Alannah Ockwell and since arriving in Australia, I find that Mr Shoesmith has willingly and readily assisted a number of people. He has done so without thought of payment in money or in kind. He has done so without any thought that his actions would assist him in his application to the Tribunal for they were undertaken before he knew that there would be any difficulty in his being able to remain in Australia. His help has not been confined to Ms Alannah Ockwell and her family but has extended to her family's neighbours and to his workmates. His help has taken the form of labour, organisational skills and advice.

The Minister's discretion

92. Although I have decided that Mr Shoesmith passes the character test, I will consider the exercise of the discretion should I be incorrect in that decision. Should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"...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." (Direction, paragraph 2.2)

93. The three primary considerations are:

"(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 2.3)

94. The Minister states that 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 (clause 2.4). He then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Shoesmith's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

95. Of particular significance in relation to the seriousness and nature of Mr Shoesmith's conduct, I must have regard to:

"... the Government's view that the following are examples of offences which are considered by the Government to be very serious:

...

(n) any other crimes involving violence or threat of violence:

  such crimes are of special concern to the welfare and safety of the Australian community;

...

..." (paragraph 2.6)

96. In considering past criminal conduct, the Direction sets out two matters that must be taken into account:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:

(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b) the repugnance of the crime:

  crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community." (paragraph 2.7)

97. In assessing such matters, regard must also be had to any relevant factors put forward by Mr Shoesmith as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.

98. Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. ..." (paragraph 2.12)

99. Mr Shoesmith has a child in the United Kingdom who lives with her mother and whom Mr Shoesmith has not included in his visa application. The Minister's direction in relation to children is not limited in its terms to children who are resident in Australia or who are included in Mr Shoesmith's visa application. If I am required to take his child's best interests into account, I have included that they do not affect my consideration one way or the other. His daughter lives with her mother and Mr Shoesmith maintains contact with her mother by telephone. He does not see her and there is no evidence that the situation would change whether he were in Australia or the United Kingdom.

100. Ms McKenzie submitted that cancellation of Mr Shoesmith's visa sends a clear message to others that violent conduct is not tolerated in Australia and that repeated crimes of violence will lead to refusal of entry because they demonstrate conduct directly impacting upon the welfare and safety of Australian citizens. Cancellation will also send a clear message that failure to disclose offences at the time of a person's arriving in Australia will not be tolerated. The Australian community, Ms McKenzie continued, expects that Mr Shoesmith would not be allowed to remain and would also expect that it would be protected from exposure to violence and from people who do not comply with its laws.

101. The behaviour behind Mr Shoesmith's convictions would be of concern were it not balanced by the reasons underlying it, the steps he has taken to address his behaviour and his subsequent good behaviour. The sentences imposed for his final three offences of five months imprisonment to be served concurrently indicate that the offences, when viewed against his previous record, were somewhat serious. His behaviour must, however, have been regarded as such that he did not present a threat to the community for he was released back into the community after only five weeks' detention. Mr Shoesmith's subsequent behaviour has not given any indication that he is a threat to the safety of Australians. When he thought that he was suffering feelings of anger and frustration, he immediately took steps to address his behaviour before it led to any problem for him or for the community.

102. For the reasons I have given above in considering his character, I consider that Mr Shoesmith's risk of re-offending is very small. It cannot be said that there is no risk at all but it is not feasible to say that of anybody. Given his personal attempts to rehabilitate himself and the manner in which he has maintained his good conduct in both good times and stressful times, I am satisfied that his risk of recidivism is negligible and so the risk to the welfare and safety of the Australian community is negligible.

103. To cancel Mr Shoesmith's visa on the basis of his failing the character test would not send a message to others that those with convictions for violent behaviour and those who make a single mistake on their passenger entry cards are not welcome in Australia so much as a message that Australia does not tolerate those who have strayed and does not tolerate mistakes in any circumstances even when the person has changed his or her ways and become a worthwhile and valued member of the community. Such a message is not the message that the Minister seeks to give. If Mr Shoesmith is permitted to have a visa, there is a message that his past behaviour is not tolerated by the Australian community and that it expects its residents to obey the law and respect the person and property of other residents. There is also a further message and that is that Australia recognises that a person need not be bound by his or her past mistakes and can become a worthwhile member of the community. Mr Shoesmith is such a person.

104. Taking all of these factors into account, it seems to me that the discretion, if it need be exercised at all, should be exercised in favour of Mr Shoesmith. For the reasons I have given, I:

1. set aside the decision of a delegate of the Minister dated 12 November, 2001; and

2. substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958.

I certify that the one hundred and four preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President)

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

Clancy Riddiford Associate

Dates of Hearing 29 January, 2002

Date of Decision 15 February, 2002

Counsel for the Applicant Mr Hughan

Solicitor for the Applicant Erskine Rodan & Associates

Counsel for the Respondent Ms McKenzie

Solicitor for the Respondent Blake Dawson Waldron