Southall and Minister for Immigration and Multicultural and Indig enous Affairs [2003] AATA 409 (2 May 2003)

Last Updated: 7 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/116

GENERAL ADMINISTRATIVE DIVISION	)
	Re	EMMA SOUTHALL

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

The Hon C R Wright QC., (Deputy President)

Date 2 May 2003

Place Perth

Decision

The decision under review is affirmed.

[Sgd The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration - character test - prospective spouse visa - best interests of child.

Migration Act 1958 - ss234, 501

REASONS FOR DECISION

2 May 2003

The Hon C R Wright QC., (Deputy President)

THE APPLICATION

1. The review applicant, Emma Southall is the 23 year old fianceé of the visa applicant, Paul Gee of Halifax, West Yorkshire, England aged 37 years. On 18 May 2001 the visa applicant sought the grant of a Prospective Marriage visa Class TO (Subclass 300) which would, if granted, have entitled him to enter and stay in Australia for a period of 9 months, during which time he would have been expected to apply for a Subclass 801/820 visa. He was sponsored by the review applicant.

2. On 25 March 2002 the Minister's delegate refused the visa applicant's application on the grounds that he failed to pass the character test prescribed by s501(6)(c)(i) and (ii) of the Migration Act 1958 ("the Act").

3. On 19 April 2002 the review applicant lodged an application to review the delegate's decision with the AAT at the Perth Registry. The applicants were represented by Mr Lance Fee and the respondent was represented by Mr David Blades. Oral evidence was taken from both applicants. The visa applicant gave his evidence by telephone link with the United Kingdom. Oral evidence was also taken from the review applicant's sister Rebecca Kate Southall and her father Anthony David Southall both of whom live in Perth, Western Australia.

4. Documentary evidence was also received. It consisted of:

(a) The section 37 ("T") documents - Exhibit "A".

(b) A folder of documents prepared by the review applicant (100 pages) - Exhibit "B".

(c) A psychological report relating to the visa applicant dated 11 march 2003 - Exhibit "C".

(d) Incoming passenger cards completed by the visa applicant (4) dated respectively (i) 14.11.99, (ii) 11.6.00, (iii) 3.11.00 and (iv) 6.2.01 - Exhibit "D".

BACKGROUND

5. The visa was born in Halifax on 5 March 1966 and is a citizen of the United Kingdom. He has resided in Halifax all his life except when travelling abroad. He had a previous de facto relationship with Tracey Gibson and is the father of her child, Jamie who was born on 10 March 1986. Jamie is currently 17 years old and lives in England with his mother. The visa applicant's mother and father also live in England. His only sibling, a sister, resides in Scotland.

6. The review applicant was born in Weston-Super-Mare, England on 12 January 1980. Ms Southall migrated to Australia with her family on 22 January 1997 and was granted citizenship on 11 May 2000. Ms Southall has a father, mother, brother, sister and four grandparents all of whom reside in Australia.

7. The applicants met in Perth on 20 November 1999. They commenced a relationship on 21 January 2000. Their daughter, Keeley Amber Gee, was born in the UK on 7 January 2003. They currently reside together in Yorkshire in the UK. The review applicant returned to Australia on 14 March 2003 for the review hearing.

CHARACTER ISSUES

8. Mr Gee arrived in Australia on a short stay tourist visa on 14 November 1999. He had previously visited Australia twice in 1996 (T501-502). (Exhibit "D" (i)).

9. The visa applicant entered Australia again on 11 June 2000. On the incoming passenger card he declared that he had no criminal convictions (Exhibit "D" (ii)). He left Australia on 8 September 2000.

10. He applied for a further short stay tourist visa on 11 February 2000 (T104-105). In the application form for that visa, he signed a declaration stating: "I have never been convicted of a crime or any offence in any country". (T105). The visa was granted and he left Australia on 25 April 2000.

11. He entered Australia again on 3 November 2000. Again on the incoming passenger card he declared that he had no criminal convictions (Exhibit "D" (iii)). He left Australia 10 days later on 13 November 2000.

12. He made a further visit to Australia on 6 February 2001. On the incoming passenger card he declared, yet again, that he had no criminal convictions (Exhibit "D" (iv)). He returned to the United Kingdom on 4 May 2001.

13. By application in May 2001, Mr Gee applied to the Australian High Commission in London for a subclass 300 - Prospective Marriage Visa (the visa). In the application form, in answer to question 69: "Have you, or any other person included in this application, ever: ... been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?" the applicant ticked the "yes" response. The form required more information following an affirmative response to that question and stated: "... you must ... give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention". The applicant wrote immediately underneath the above-quoted text: "Breach of the peace and driving offences".

14. At the end of the form (T120), the applicant signed his name to a series of dot point declarations which included the following:

"I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.

I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled."

There was a warning above the dot point declarations that "Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information."

15. In fact the visa applicant has a long record of offences committed by him over a period of about 13 years between 1983 and 1996. That record is set out hereunder in tabulated form.

Age	Date	Offence	Penalty
17	11.11.83	Using threatening, abusive, insulting words or behaviour	Fine £50
18	31.10.84	Theft of vehicle	Fine £100 Compensation £120, driving licence endorsed
19	29.07.85	1. Using threatening, abusive, insulting words or behaviour	Fine £75
20	07.03.86	Using threatening, abusive, insulting words or behaviour	Community service order 120 hours bound over 12 months
20	11.07.86	1. Driving whilst disqualified 2. NR *	Fine £150 Costs £17 Disqualification from driving 2 years and licence endorsed. Fine £50, driving licence endorsed
21	12.03.87	1. Using threatening, abusive, insulting words or behaviour 2. Assault occasioning actual bodily harm 3. NR* 4. Driving whilst disqualified	Imprisonment one month, wholly suspended 2 years Costs £30 Imprisonment 5 months, concurrent, wholly suspended 2 years Fined £75, driving licence endorsed Fine 175, disqualification from driving 2 years and licence endorsed
23	10.05.89	Violent disorder	Fine £300 Compensation £145
23	31.10.89	Breach of community service order	Fine £25, order to continue
23	19.02.90	Driving whilst disqualified	Fine £200, resulting from original conviction of 30.03.89
27	05.11.93	Using threatening, abusive, insulting words or behaviour	Fine £300 Costs £30
29	23.5.95	Drunk and disorderly	Conditional discharge
30	19.06.96	1. Using threatening, abusive, insulting words or behaviour (6 counts) 2. Breach of conditional discharge on 23.5.95	Fine £100 Costs £40 Fine £75 in respect of original offence, drunk and disorderly

* It is not entirely clear what "NR" denotes, but it is inferred that it means "No Registration".

16. It was submitted by the respondent that the visa applicant failed to pass the character test, both because of his extensive history of offending, and his false and misleading declarations upon visa applications and passenger entry cards which have been referred to above. Additionally it was submitted that the visa applicant failed to "contact an Australian Embassy to discuss his visa options when he was granted an Electronic Travel Authority (ETA) through a travel agent both on 11 November 1999 and 2 February 2001 on the basis that travel agents are aware that persons with a criminal record cannot be issued with an ETA and must be referred to the nearest Australian diplomatic office".

17. There was some evidence that travel agents almost invariably take such steps as have been suggested, but the visa applicant denies that on either occasion when he received an ETA, he received such advice. There is no persuasive reason to make a positive decision one way or the other on this issue, because, in my opinion the other evidence, as to which there is no substantial dispute, clearly establishes that the visa applicant fails to pass the character test. This conclusion was virtually conceded by Mr Fee in his opening remarks and in his closing he said "We have no disagreement with a finding that he does not pass the character test".. These concessions were properly made, but taking the view that these observations do not necessarily constitute a formal or binding admission, I have satisfied myself by reference to the Minister's Direction No 21 and decided cases, both of the Federal Court and the AAT which I have referred to in a number of published decisions in recent weeks, that the visa applicant fails the character test under s501(6)(c)(i) and (ii) as alleged.

18. The respondent submitted that the visa applicant had breached s234(1)(b) of the Act in making the declarations and providing the answers that he did in the immigration documents referred to previously.

19. Section 234(1)(b) provides:

"(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

...

(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular."

Upon conviction an offender is liable for imprisonment, a fine or both.

I accept that the visa applicant's many false and/or misleading declarations, particularly when viewed collectively, were serious matters reflecting very adversely upon his character.

20. The respondent also submitted that with respect to the visa applicant's history of offending.

"(a) It is immaterial that his offending was at the lower end of the scale. He offended consistently over a period of approximately 13 years.

(b) He may have never been imprisoned but in 1987 he was sentenced to two periods of imprisonment, albeit concurrent, both suspended for a period of 2 years. A suspended sentence is the second most serious form of sentence that can be imposed.

(c) His records reflects a disregard for the law in that he has reoffended whilst subject to a conditional discharge (19.06.96) and whilst subject to a community service order (31.10.89). In fact the only conditional sentence which seems to have had a salutary effect on his consistent offending are the suspended sentences imposed on 12 March 1987 because he does not have a conviction on his record when he was aged 22 years. However any effect this had is short lived as he was convicted of another offence on 30 march 1989 just approximately 18 days after the suspended sentence expired."

21. The visa applicant, whilst not disputing his offence record, attempted to explain many of his unlawful activities on the basis that they resulted from provocation by police and others or they had been effectively caused by other people initiating disturbances in which he became involved. He explained his last conviction in 1996 as being the result of intervention by him and his friends to prevent a man assaulting his wife. He explained this to the police when arrested but he was nonetheless prosecuted. What makes this and his other explanations very hard to accept is that he admitted that he had pleaded guilty to each and every offence with which he had ever been charged. He attempted to explain these pleas on the basis that if the police charged him he must be guilty and that in any event he didn't have the funds to afford legal advice. However this explanation is also hard to accept. On at least one occasion he had assistance from a legal aid solicitor and pleaded guilty on his advice. In the result I accept the submissions made by the respondent referred to in paragraph 17 above.

DISCRETIONARY ISSUES

22. The Minister's Direction No 21 obliges decision-makers including the AAT to have regard to 3 primary considerations and a number of other considerations. The importance placed by the Government upon the 3 primary considerations must be given weight, but a balancing process should be undertaken to pay regard to all relevant matters.

23. The 3 primary considerations are:

(a) the protection of the Australian community;

(b) the expectations of the Australian community; and

(c) the best interests of any child in any case involving a parental or other close relationship between a child or children of the person under consideration.

24. Protection of the Australian community. This includes factors such as the seriousness of the relevant conduct, the likelihood of repetition and the prospect of general deterrence if the visa is refused. The Minister's Direction makes it clear that "making a false and misleading statement in connection with entry or stay in Australia" is regarded as "very serious". The direction also makes it clear that in assessing an applicant's criminal conduct regard must be had to (a) the extent of his record, (b) the repugnance of the crime or crimes, (c) any mitigating factors and (d) the comparability of the sentences with those which may be expected in Australia for similar offences. Bearing these factors in mind, it is clear that the visa applicant's offences, whilst numerous were not at the higher end of the scale of seriousness. Nonetheless they extended over a significant period, albeit that there are no convictions for the last 7 years. The psychological report (Exhibit "C") is comprehensive. Paragraphs 28, 29, 30 and 31 of the report are worth repeating.

"Mr Gee completed an MMP1-2. The Validity Scales suggested that he was attempting to present himself in an extremely positive manner. He is attempting to avoid or deny unacceptable feelings, impulses and problems. This suggests he is psychologically naïve and tends to view the world in extremes. However, this tendency was not extreme and might be expected given the circumstances under which he was completing the MMPI-2. The Clinical Scales conform to a "within normal limits" pattern (as do the validity scales). That is, there were no psychopathological traits identified on the MMPI-2. All his Clinical Scale scores were within limits. His profile was therefore relatively flat. The two Clinical Scales which were most elevated (but well within normal limits) do reflect his past delinquent behaviour. These scales reflect some impulsivity and suggest he is a pleasant, active, out-going and energetic person but that when facing external restrictions he can show agitation and dissatisfaction.

Opinion

My opinion is based on the written information with which I was supplied, my interview with Mr Gee and the results of the MMPI-2 he completed. These sources were consistent in their contribution to the following opinion.

Mr Gee presents as a sociable, self confident and energetic person. He has a good employment history and takes responsibility for his own circumstances. Mr Gee has a history of offending behaviour characterised by immature and aggressive behaviour. Mr Gee, in the past, and to some extent in the present, may over-value his own opinion and be unwilling to be guided by or take advice from others. However, Mr Gee no longer involves himself socially with activities which are likely to lead to further offences. He is also aware of the longer term consequences of his behaviour and, I think, is probably more willing and able to control himself and not to follow his initial impulses. I consider that Mr Gee is a low risk of re-offending.

I consider it likely that initially Mr Gee was not aware that he was required to disclose his offending record. This may be because he is inclined to believe what suits him and that he reassured himself that his record had been spent. Discovering that his past offences stay with him will, I consider, contribute to his lowered likelihood of re-offending."

On the basis of this report I accept that the prospect of recidivism by the visa applicant is low, but by no means non-existent.

25. Mr Fee submitted that general deterrence hardly ever results from the refusal of visas, if at all. He suggested that this sort of information is just not passed on by migration agents to their clients. I am not prepared to accept a generalisation as broad as this. I cannot believe that a diligent agent would be so remiss as to avoid making such matters known to prospective immigrants. More importantly however, I reject the notion that such individuals do not become aware of the significance attached to truthfulness and the absence of misleading conduct in their dealings with the Department if the departmental officers and review tribunals consistently refuse visas to serious offenders in the absence of highly compelling special circumstances such as best interests of a child or spousal hardship.

26. The Expectations of the Australian Community. As Deputy President Block mentioned recently this is a difficult concept. There may be many different views in the community as to the desirability of granting or refusing a visa in cases where the character test has not been met. The appropriate way to apply this principle is to ask what would be the expectation of an ordinary moderate member of the community fully conversant with the relevant facts. This approach will be reflected in my final decision after I have considered the family circumstances of the applicants and their child.

27. The Best Interests of the Child. The principles relating to this issue in the Minister's Direction are spelt out in paragraphs 2.13 to 2.16 inclusive.

28. Paragraph 2.16 is of particular relevance. It provides as follows:

"2.16 When considering the best interests of the child, decision-makers should have regard to the following:

(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen's prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances."

29. Keeley is now 4 months old. She was born in the UK. She is currently a citizen of the UK but may acquire Australian citizenship under s10B of the Australian Citizenship Act 1948. It is impossible to say what impact separation from one parent would have on the child at this stage of her development, but it may be assumed that it is highly desirable that she should not be separated from either. She has spent no time in Australia except when visiting with her mother for the hearing. It was suggested by the review applicant that the educational facilities and standard of health care in the UK compare unfavourably with those in Australia. This view was strongly urged upon me by Mr Fee, but in the absence of compelling evidence I feel unable to accept it. Apart from anything else standards can vary considerably within a country. Some places may provide better services in the UK than places in Australia and vice versa.

30. Other considerations. A comparison of the relative benefits flowing from family structures in Australia and those in the UK are of significance. Mr Anthony Southall and his family, including the review applicant arrived in Australia as immigrants from the UK. Australia is now their permanent home. All four of the review applicant's grandparents have also migrated from the UK and settled permanently in Australia. The review applicant has no remaining members of her immediate family in the UK. She told me that the sister and brother of her maternal grandmother live in Wales and all of her father's family live in South Africa. She has old school friends to whom she writes in Weston-super-Mare where she lived and was educated before coming to Australia. She does not want to live in England. Not only is the climate harsher there but the social milieu in which she now finds herself living with her partner the visa applicant is considerably less salubrious and satisfying than either Perth or Weston-Super-Mare.

31. The review applicant says she was unaware of the visa applicant's record of convictions until he applied for his prospective marriage visa. Her father in his evidence say he was shocked by the visa applicant's record when first informed of it by Emma, and he said this occurred about 3 or 4 months after the visa applicant's "relationship" started with his daughter. According to the review applicant, she and the visa applicant began their relationship on 21 January 2000 and became engaged on 18 December 2000. They started permanent cohabitation with each other in the UK on 20 February 2002. Just when the "relationship" referred to by Mr Southall started is a little difficult to say, but whatever other conclusion may be drawn it is plain that the review applicant was well aware of the visa applicant's character issues before she became pregnant with their child. It should also be noted that she has remained in the UK living with the visa applicant in Halifax since 20 February 2002 except for a period of about 7 weeks in August to October 2002 when she returned to her parents' home in Australia. The visa applicant enjoys a good relationship with the visa applicant's son Jamie now aged 17 years "we see him once or twice a week" she said. Jamie is no longer dependent on the visa applicant. She also said that she "gets on well" with the visa applicant's parents, but she does not see them as a substitute for her own family in Australia.

32. The review applicant completed an undergraduate degree in psychology at Curtin University in Perth in November 2001. She wishes to undertake an honour degree and then a master's degree with a view to becoming a clinical psychologist. She says "I would be unable to complete this [sic] degree in the UK due to the distance that would need to be travelled and the up front fee structure currently operating that we would not be able to afford. In addition, the syllabuses of material covered in Psychology degrees in Australia and the UK vary markedly. Therefore, refusal of Paul's visa would prevent me from completing my further education whilst raising our family". I do not accept this conclusion. The cost structure of tertiary education may impose something of a financial strain on resources, but I see no reason to conclude that residency in the UK, possibly elsewhere than Halifax if it is so unattractive as a home town, will create a significant impediment to the attainment of further qualifications. The view applicant claims to be suffering from depression, but there is no medical evidence to sustain this contention.

33. It has not been disputed that the applicants are involved in a genuine de facto relationship and wish to marry. The visa applicant claims that he has abandoned the dissolute ways of his youth and is now no longer a member of the Halifax Scooter Club in which he saw the genesis of his past misdeeds. As already mentioned he gave lengthy explanations of his previous convictions, but in the absence of objective confirmation of his accounts I regard them with considerable circumspection. However, I think he has matured somewhat in recent years. I have already commented upon his risk of reoffending. He says his drinking habits have been modified. He is a qualified welder and at one stage held a responsible job as a BSB Metal Spinning Ltd foreman. Exhibit "B" contains 18 or more written character references from friends and acquaintances verifying his claim to be a helpful congenial and honest individual. He is also well regarded by members of the Southall family including the review applicant's father. He is presently unemployed, but states that he would like to start a mobile welding business in Australia. He is purchasing his own home in Halifax. It is currently worth about £40,000. He owes about £15,000 on the mortgage. There is no reason to suppose that either of the applicants or their child suffer chronic or other illnesses.

34. I do not doubt that the review applicant would like to return to Australia with the visa applicant and their child. She has spent the greater part of her life in the UK before the family migration in 1997, but I do not doubt that she finds the Australian climate and way of life more congenial. However I do not regard these wishes as the appropriate touchstone for resolving this matter. I am unable to conclude that it is in the best interests of the child, Keeley that the visa applicant should be allowed to enter Australia. Keeley will be well able to adapt to life in the UK. As things presently stand she is being raised in her father's home town. Both parents are, or were, citizens on the UK. Keeley has paternal grandparents close by. I am not prepared to conclude that her education or health care are in jeopardy. Taking sympathetic account of the situation of both applicants as well as the well being of the child, I am not persuaded that my discretion should be exercised in the visa applicant's favour.

35. The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 23 March 2003

Date of Decision 2 May 2003

Counsel for the Applicant Mr Lance Fee

Solicitor for the Applicant

Counsel for the Respondent Mr David Blades

Solicitor for the Respondent Australian Government Solicitor