Cini and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 36 (16 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1099

GENERAL ADMINISTRATIVE DIVISION )

Re Helen Cini

Applicant

And Minister for Immigration, Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date 16 January 2003

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in favour of Jone Veiseivalu.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - subclass 309 spouse (provisional) visa application - character test - whether the Visa Applicant passes the character test - substantial criminal record - held the Visa Application fails the character test on the basis of his past criminal record - discretion that the Tribunal may exercise where the Visa Applicant fails the character test - primary and other considerations - held decision of the Respondent set aside.

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

Re Djidjelli and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 1238

Re Gunner and Minister for Immigration and Multicultural Affairs (1997) 50 ALD 330

Re Jupp and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 458

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

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

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

16 January 2003 Mr RP Handley, Deputy President

1. This is an application by Helen Cini ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 19 June 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Jone Veiseivalu ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Ray Turner, Solicitor, of Yandell Wright Stell, Lawyers, and the Respondent was represented by Murray Allatt, 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 Applicant. Oral evidence was given by the Applicant in person, and by the Visa Applicant by telephone.

BACKGROUND

3. The Applicant, Ms Cini, was born in Australia on 15 April 1969 and is aged 33. Ms Cini was first married on 29 November 1997 to James Cini. They were divorced on 3 May 2001. There were no children of the marriage.

4. The Visa Applicant, Mr Veiseivalu, was born in Fiji on 2 August 1963 and is aged 39. Mr Veiseivalu was first married on 9 November 1990 to Adi Keva Baubau with whom he had four children: Salesi Veiseivalu who was born on 16 March 1992 and is aged 10, Ana Lily Tuifagalele who was born on 19 August 1993 and is aged 9, Lilo Sitella who was born on 6 March 1996 and is aged 6, and Mosese Fatafemi who was born on 1 July 1998 and is aged 4. Mr Veiseivalu and his first wife were divorced on 12 January 2001. The Suva Magistrates Court ordered that custody of the four children be granted to Ms Baubau "with reasonable access" to Mr Veiseivalu "who is to pay the family in kind, money and food" (T p99).

5. Mr Veiseivalu has a criminal record comprising a number of offences committed between 1980 and 1990. These include burglary and larceny for which he received sentences of imprisonment, the longest term being three years.

6. On 9 December 1997, Ms Cini and Mr Veiseivalu met at the Treasure Island Resort, Fiji, whilst Ms Cini was on holiday. Mr Veiseivalu worked at the Resort at that time. They commenced their relationship on 12 December 1997. On 4 November 2001, Ms Cini and Mr Veiseivalu were married at Suva, Fiji.

7. On 5 December 2001, Mr Veiseivalu lodged an application for a subclass 309 spouse (provisional) visa at the Australian High Commission in Suva. On 19 June 2002, a delegate of the Respondent decided to refuse Mr Veiseivalou's application on the ground that he did not pass the character test because of his substantial criminal record, and because the delegate was not persuaded that the Minister's discretion should be exercised in Mr Veiseivalu's favour. On 2 August 2002, Ms Cini lodged an application for a review of this decision with the Tribunal. Ms Cini is pregnant. Her expected date of delivery is 27 March 2003.

RELEVANT LAW AND POLICY

8. Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides 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), as follows:

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

"Substantial criminal record" is defined in s 501(7) to include a person who "has been sentenced to a term of imprisonment of 12 months or more".

9. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 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.

10. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

11. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

12. There is no dispute that Mr Veiseivalu does not pass the character test because of his "substantial criminal record". The issue, therefore, is whether the Tribunal should exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa.

EVIDENCE

13. Mr Veiseivalu gave evidence that, as a child, he did not have a good upbringing. From when he was in primary school, he and his siblings were looked after by an uncle while his parents worked in the Solomon Islands. When his parents returned to Fiji, the children were sent to boarding school. However, when Mr Veiseivalu was about 13, his father died and he had to leave school to support himself. He obtained a job as a shoe shine boy but got in with "the wrong crowd of boys", with whom he lived, who were "a little older and street smarter" (A1). As a result, between 1980 and 1990, he committed a number of criminal offences, for the most serious of which he was sentenced to a term of imprisonment of 3 years in July 1986. With remission for good behaviour, he served about one year and nine months of this term.

14. Mr Veiseivalu's first significant conviction was for "shop breaking and entering and larceny" when he was aged 17 (T p107). He was the guard when others broke into a shop. Of the other offences of which he was convicted, Mr Veiseivalu said he was not guilty of the offence of robbery with violence (September 1983). He fed a criminal who broke out of prison and was caught with this person. But he was not involved in the robbery. He was also not involved in the burglary of which he was convicted in January 1989. He was, however, guilty of the other house breaking and larceny offences. He was convicted of the offence of growing dangerous drugs because he shared a house with a man who grew marijuana in the garden. His last conviction, on 10 October 1990, for common assault. He said he did not physically assault anybody and was wrongly blamed for swearing.

15. Mr Veiseivalu said he finally realised that his constantly getting into trouble was not the sort of life he wanted. So in 1990, he left the group of boys and went to look for employment elsewhere on the island. He got a job as a carpenter by day and a musician by night at one of the island's major resorts. Mr Veiseivalu said he had played the ukulele since he was a boy and he played the guitar at the resort to entertain guests. He can play all sorts of music, including island music, country, rock, and jazz. Working in the hospitality industry, he learned discipline and social skills. He expressed regret for his criminal conduct but said he has changed since then and moved on.

16. Mr Veiseivalu and Ms Cini met in 1997 when she was holidaying at the Treasure Island Resort where he was working. Their relationship developed from there. He told her of his criminal record soon after they met. Ms Cini has been back to Fiji on a number of occasions, spending her holidays and up to four months with Mr Veiseivalu on one occasion. She said she often gets sick when she is there. The services are poor. For example, water has sometimes been cut off for up to two weeks and they have had to rely on rainwater. Most recently, Ms Cini spent Christmas and New Year with her husband, returning to Australia in early January 2003.

17. Both Mr Veiseivalu and Ms Cini gave evidence that it was Ms Cini who filled in Mr Veiseivalu's migration application form on his behalf. They did this at the Australian High Commission in Suva at a time when they were excited at the prospect of Mr Veiseivalu coming to Australia. Ms Cini said her husband is not very good with writing and spelling. She is a bit impatient and thought it would be better if she completed the form. Ms Cini has also helped her husband compose other letters and statements, for example his statement dated 30 December 2002 (A1) and letters to the High Commission dated 31 January 2002 (T p109) and 8 March 2002 (T p128).

18. Both Mr Veiseivalu and Ms Cini gave evidence that they did not discuss the questions in the migration application form at the time that Ms Cini filled this in. They had previously been to the Fijian police to apply for Mr Veiseivalu's police clearance and Certificate of Rehabilitation, which were to be sent directly to the High Commission. Mr Veiseivalu applied for these in advance of lodging his migration application because he wanted to be up front about his past in making his application. Mr Veiseivalu's Certificate of Rehabilitation dated 3 December 2001 (T p133) states that the period of rehabilitation in respect of his conviction has expired. Mr Veiseivalu said his wife thought it was therefore not necessary to refer to his criminal convictions in answering question 67 about past convictions in the application form (T p65). Ms Cini said she completed the form quickly - they both thought his convictions were in his past, they had applied to the police to send his record to the High Commission, and she did not think anything more of it. She said, in retrospect, she was an "idiot".

19. Mr Veiseivalu said if he were permitted to come to Australia he would like to establish a home to raise his family, get a job and buy a house. He wants to further his studies by completing a Certificate in Building Studies - Residential. He already has references from his work as a carpenter.

20. Ms Cini said her baby - a girl - is due on 27 March 2003. If her husband is not granted a visa, she will stay in Australia for the future of her child. She believes it would be better for her child to grow up in Australia where the public services, including medical treatment, hygiene, education and childcare, are better than in Fiji, and where she can obtain employment. She has enquired and there is very little chance of her getting a job in Fiji. Her husband is currently living with his parents in Fiji in an overcrowded house. He does not have a home for her there. She earns $400 per week in Australia; he earns $90 per week in Fiji. Ms Cini said even if she was on her own and not going to have a child, she would only consider living in Fiji for short periods. If her husband is not allowed to come to Australia and therefore unable to support her, she will have to apply for the sole parent pension.

21. Ms Cini said her mother has been ill for the past 10 years. Her mother suffers from "Sjogren's syndrome with post-encephalitic dementia" (Professor Denis Wakefield, Consultant Pathologist, report dated 17 August 2001, T p118). She has also recently been diagnosed as having a brain tumour for which she is awaiting surgery at St Vincent's Hospital. Ms Cini's father gave up work 10 years ago to look after her mother, relying on their savings to assist in their financial support. Ms Cini is currently living with them temporarily in their one bedroom home, with her furniture etc in storage. She will have to find other accommodation for herself shortly because her parents have been offered a Housing Commission home.

22. Ms Cini said she has one brother who is married with a child and lives in Greece. He is unable to provide any assistance to their parents. Her mother is unable to do anything by herself and, while her father speaks reasonable English, they rely on Ms Cini to accompany them to medical appointments, to fill out forms and to provide other help when needed.

CONSIDERATION OF THE LAW AND FINDINGS

23. As stated above, there is no dispute that Mr Veiseivalu does not pass the "character test" by reason of s 501(6)(a) of the Act, because he has a "substantial criminal record", defined in subsection (7) as including a person who has been sentenced to a term of imprisonment of 12 months or more. The Tribunal notes that Mr Veiseivalu was convicted between 1980 and 1990 of 11 offences for which he received fines and sentences of imprisonment, several of which were for terms of more than 12 months, the longest being three years (T p10).

24. The issue for the Tribunal therefore is whether to exercise the residual discretion under s 501(1) to decide, nevertheless, not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.

25. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 explains:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community

26. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (a), drug-related crime, in subparagraph (c), serious crimes against the Act, in subparagraph (l), serious theft and in subparagraph (n), any other crimes involving violence or threats of violence.

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

28. Before addressing the primary considerations, it is appropriate to make some general findings. The Tribunal notes that, essentially, the facts are not in dispute. The Tribunal finds that Ms Cini completed the migration application form for her husband in his presence while they were at the Australian High Commission in Suva. The Tribunal accepts Ms Cini's evidence that she did this quickly because, at the time, she and her husband were excited at the prospect of his coming to Australia. They had already applied to the Fijian police for a Clearance Certificate and Rehabilitation Certificate for Mr Veiseivalu to be sent directly to the High Commission, and because of this and because Mr Veiseivalu believed his rehabilitation had been recognised in Fijian law, they ticked "No" to question 67 in the migration application form asking about previous convictions. Ms Cini said she did not think anything more of it and was an "idiot" for not doing so. The Tribunal accepts their explanation and finds there was no intention on their part to mislead or make a false statement.

29. Thirteen years have now passed since Mr Veiseivalu was last convicted of an offence - common assault, relating to swearing, on 10 October 1990. His previous conviction, for house breaking, entering and larceny was on 24 May 1989 (T p107) when he was 26 years old. Other convictions took place over a period from 1980, when he was aged 17. The Tribunal accepts Mr Veiseivalu's evidence that in 1990 he made a conscious decision to break with his former ways and obtain proper employment. Since then, he has worked in the hospitality industry as a musician and a carpenter. He has presented good references from employers (T p100, 101). As mentioned, he has a Certificate of Rehabilitation dated 3 December 2001 (T p133) stating his "rehabilitation period" under a 1997 Fijian rehabilitation statute has expired, together with a letter from an Acting Senior Superintendent of Police dated 19 March 2002 (T p132) stating that he has known Mr Veiseivalu "since his young days and reports on his Rehabilitation Certificate confirm that he has kept himself out of trouble".

30. Mr Veiseivalu has also submitted a letter from the Youth Director of his Church, the Seventh Day Adventist Church, dated 20 March 2002 (T p131), stating that he has known Mr Veiseivalu for more than 20 years:

He comes from a good Christian background. Unfortunately, he fell into wrong company which influenced him to make wrong choices. This eventually resulted in some of his convictions. However he has learnt from his mistakes and has turned a new leaf in his life, especially so in his walk with his God.

He has made a positive turn around and since his return from prison, some twelve years ago, has made himself useful in the Church and in the community.

I have been observing him for sometime now and I can say with sincerity that he is matured in his outlook, very sincere and reliable.

31. On the basis of the above evidence, the Tribunal finds that Mr Veiseivalu is completely rehabilitated and, in the Tribunal's view, poses no threat to the Australian community which needs no protection from him.

32. Ms Cini is expecting a child on 27 March 2003. Her evidence is that the child's future would be better in Australia. She states she would not go to Fiji to live with her husband if he were refused a visa, because her child's future and, in terms of employment, her own, will be better in Australia. Ms Cini also provides support and assistance to her parents who live in Sydney. She has one brother who is married with one child who lives in Greece and is not able to provide such support and assistance. Her mother suffers from "Sjogren's syndrome with post encephalitic dementia" (T p118) and is also awaiting surgery for a brain tumour. She needs constant care and attention, provided by her father for the past 10 years with assistance from Ms Cini.

33. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that Mr Veiseivalu committed a number of serious offences in the period 1980 to 1990. However, Mr Turner for the Applicant, submitted that Mr Veiseivalu has been rehabilitated and that, as in Re Jupp and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 458, he poses no threat to the Australian community. Mr Turner also cited Re Djidjelli and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 1238 and Re Gunner and Minister for Immigration and Multicultural Affairs (1997) 50 ALD 330 in support of this proposition.

34. Mr Allatt, for the Respondent, whilst recognising the passage of time since the offences occurred, noted that the character of the offences of which Mr Veiseivalu was convicted - involving house breaking and larceny - are of the kind which are the bane of any society, and submitted that there remained a risk of recidivism.

35. As noted above, the Tribunal finds, based on all the evidence before it, that Mr Veiseivalu, having undergone a complete rehabilitation, and there being no likelihood of repetition of these offences, poses no risk to the Australian community. With regard to deterrence, the Tribunal accepts that the refusal of the visa where a person has a criminal record has a general deterrent effect.

36. The second primary consideration is the expectations of the Australian community. The Tribunal has found that neither Mr Veiseivalu nor Ms Cini intended to mislead or provide false information by ticking "No" to question 67 of the migration application form asking about previous convictions. In the Tribunal's view, reasonable members of the Australian community (Jupp (supra) para 7(M)) would take into consideration that it is now more than 13 years since Mr Veiseivalu's last conviction and the evidence of his rehabilitation. In light of Ms Cini's responsibilities in respect of her sick mother and Ms Cini being about to give birth in Australia to her first child, the Tribunal considers that the Australian community would take a humane view of Mr Veiseivalu's situation and not expect that his visa application would be refused: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054.

37. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration".

38. The Tribunal finds that Mr Veiseivalu has four children from his first marriage, aged 4, 6, 9 and 10, who live with their mother in Fiji, who has custody. The Suva Magistrates Court order provided for Mr Veiseivalu to have "reasonable access" to his children and that he must "pay the family in kind, food and money" (T p99). No other evidence was lead about the children before the Tribunal although Mr Veiseivalu indicated in his application for a spouse visa that he and his former wife are not on good terms and that he has had no contact with them for three years (T p63).

39. The Tribunal also finds that whilst there are no children of the relationship between Ms Cini and Mr Veiseivalu, Ms Cini is pregnant with Mr Veiseivalu's child, with the expected date of delivery being 27 March 2003 (letter of Dr W Cox, Obstetrician, dated 3 October 2002 - AAT file). Ms Cini's evidence was that she wishes to raise her child in Australia because of the better health, education and other public services in Australia, and because her and, if he is permitted to come to Australia, her husband's ability to provide for their family in terms of employment and housing is greater in Australia. Ms Cini has spent her holidays and periods of up to four months living in Fiji with her husband.

40. Although no independent evidence was placed before the Tribunal about the situation in Fiji, the Tribunal accepts generally that the situation in Australia is probably better than that in Fiji in terms of the economy and the provision of public services. To that extent, the child's prospects may be better in Australia than Fiji. However, the Tribunal notes that given the lack of independent evidence and the fact that the child is still "in utero" and its specific needs are, therefore, unknown, the Tribunal has not given significant weight to this consideration.

41. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.

42. The Tribunal finds that Ms Cini has been aware of Mr Veiseivalu's criminal record since shortly after they first met. It would not, therefore, be unreasonable for her to expect that his character would be of concern to the Australian Government. The Tribunal accepts her evidence that if Mr Veiseivalu is refused a visa, she will remain in Australia and raise her child as a sole parent. Both she and Mr Veiseivalu will, therefore, undoubtedly suffer significant hardship. She has a strong commitment to her parents, particularly her mother who has had a serious illness requiring constant care and attention for many years. Ms Cini's only sibling lives in Greece with his family and is not in a position to offer the assistance and support provided by Ms Cini.

43. With regard to Mr Veiseivalu's character, the Tribunal has already made findings, above, as to his complete rehabilitation and good character. The Tribunal notes, in addition, that Mr Veiseivalu was granted a visitor visa for Australia in December 2001. He arrived in Australia on 24 December 2001 and departed on 6 March 2002 in accordance with the terms of his visa (T p142). Finally, the Tribunal notes that the subclass 309 visa which Mr Veiseivalu has applied for is a temporary visa pending the determination of a subclass 100 spouse visa application after two years.

44. Weighing up the primary and other considerations, the Tribunal finds the Australian community does not require protection against Mr Veiseivalu, that the community would take a humane view and expect that his application for a visa would not be refused, and that Ms Cini's and Mr Veiseivalu's as yet unborn child, whose expected date of delivery is 27 March 2003, would probably be better off in Australia. The other considerations to which the Tribunal is referred by paragraph 2.17 of Direction No 21, also favour the Applicant and Visa Applicant. In conclusion, both the primary and other considerations support the exercise of the Minister's discretion to not refuse the grant of a visa to Mr Veiseivalu.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

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

Associate

Date of Hearing 14 January 2003

Date of Decision 16 January 2003

Solicitor for the Applicant Mr R Turner

Solicitor for the Respondent Mr M Allatt