The Tribunal sets aside the decision under review and in substitution decides that despite being satisfied that refusal to grant the Spouse (Provisional) (Subclass 309) Visa to Shane Karl Best is justified under section 501 of the Migration Act 1958, the power to refuse to grant the Visa should not be exercised.

................SIGNED.............................

IMMIGRATION - Spouse Visa - applicant deemed not of good character - criminal record - offences 13 years ago - since married - stable for many years- discretion exercised in applicant's favour - decision to refuse visa set aside

Migration Act 1958: s.s 499, 501

Kelly Margaret Best, the Review Applicant, is an Australian citizen, having been born at Blacktown, New South Wales, on 27 April 1978. She is married to Shane Karl Best, the Visa applicant, who is a New Zealand citizen, having been born at Wanganui, New Zealand on 6 July 1971.

On 20 November 2002, Shane Best applied for a Spouse (Provisional) (Subclass 309) Visa.

On 25 May 2004, a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided to refuse to grant the Visa on the grounds that Shane Best did not pass the "character test" as defined in s.501(6) of the Migration Act 1958 and further that the discretion allowed for under s.501(1) of the Act should be exercised to refuse to grant the Spouse Visa.

Kelly Best seeks a review of the decision to refuse the grant of the Spouse Visa to her husband Shane Best.

Kelly Best and Shane Best live in New Zealand. The Tribunal hearing was held in a Brisbane hearing room, with telephone link to Kelly and Shane Best. Kelly Best represented herself and Shane Best. The Respondent was represented by Ms. Bianchi, solicitor.

It is common ground between the parties that Shane Best has a criminal record in New Zealand. He was convicted of committing a series of offences in 1990, 1991 and 1992.

The question for determination by the Tribunal is whether the character failings of Shane Best, as demonstrated by his convictions and their possible impact on the Australian community, outweigh his apparent good character since he was released from prison in 1994, as evidenced by his subsequent successful marriage which has produced two children in the ensuing years, and his stable work history.

The relevant subsections of the Act for the purposes of this review are contained in section 501, and provide:

"501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate - natural justice applies

(1) 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.

Note: Character test is defined by subsection (6).

Character test

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

(a) the person has a substantial criminal record (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;

Otherwise, the person passes the character test.

Substantial criminal record

(7) For the purposes of the character test, a person has a substantial criminal record if:

....

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

The New Zealand criminal record of Shane Best is:

Non resident PD 6 months begin 24.4.91 supervision 1 yr begin 24.4.91 on each charge

There is no doubt that Shane Best has been sentenced to a term of imprisonment of 12 months or more. He therefore is deemed to have a "substantial criminal record" and does not pass the "character test" within the meaning of those terms in s.501 of the Act.

The Tribunal nevertheless has the discretion within s.501 of the Act to determine that despite being satisfied that refusal to grant the visa is justified, the Tribunal should not exercise the power to refuse to grant the visa.

When exercising the discretion to decide whether or not Shane Best should be permitted to enter Australia, the Tribunal is bound to take into account directions made by the Minister pursuant to s.499 of the Act:

(1) the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers

(2A) A person or body must comply with a direction under subsection (1)."

The relevant direction made by the Minister in this matter is Direction 21, "Visa refusal and cancellation under section 501 of the Migration Act 1958", (the Direction). The relevant sections of the direction are as follows:

"PART 2 - EXERCISING THE DISCRETION

2.1 If a non-citizen does not pass the Character Test, decision makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

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

The protection of the Australian community and members of the community;

The expectations of the Australian community; and

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.

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that 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 may include:

(a)

the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

(b)

genuine marriage to or defacto or interdependent relationship with, an Australian citizen...

(c)

the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d)

family composition of the non-citizen's family, both in Australia and overseas;

(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter)

(h) any evidence or rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances"

The Tribunal received the following material as evidence:

(a)

The section 37 statement which contained (among other things):

(i)

The Delegate's decision;

(ii)

The Applicant's application;

(iii)

Statements by Kelly Best and Shane Best;

(iv)

Numerous character references in support of Shane Best;

(v)

Statements from relations;

(vi)

Family photos;

(vii)

Certificates showing that Shane Best has completed various vocational courses in the last few years;

(b)

Oral evidence by telephone from both Shane Best and Kelly best; and

(c)

A statement by Adele Kay Coll, a former member of the New Zealand Police with 17 years service, who was serving at the Greymouth Police Station at the time Shane Best was charged with raping his then girlfriend.

There was no issue between the parties as to the essential facts of this matter. The only factual issues which were not accepted by the Respondent related to statements of good character in some of the reference reports of co-workers and employers of Shane Best. They had made their statements without being made aware of his criminal record. Otherwise the evidence placed before the Tribunal on behalf of Shane Best was unchallenged and not contradicted by any evidence to the contrary.

The Tribunal has no reason to not accept the material placed before the Tribunal and finds as follows:

(a)

Shane Best:

(i)

He was born in Wanganui, New Zealand on 6 July 1971, as Shane Karl Mackie.

(ii)

His mother divorced and re-married when he was young. He has been known as Shane Best from school age to the present.

(iii)

He attended primary school at Huntly Granity School from 1976-1981, Greymouth Intermediate School from 1981-1983 and then Greymouth High School for a further two years. Upon leaving school his reading and writing skills were very poor.

(iv)

In about 1997, when he was 16 years of age, he began a sexual relationship with a woman, age not known to the Tribunal, which lasted for about five years. The relationship produced two children, a boy born in May 1990 and a girl born in August 1991. These two children have been raised by their maternal grandmother in New Zealand. He had regular access to them for many years but they have recently expressed the view that they do not wish to have further contact with him. He and Kelly have left the door open to them.

(v)

In 1990, 1991 and 1992 he committed and was convicted of the criminal offences set out in paragraph 9 above.

(vi)

He spent two years in prison from July 1992 to July 1994.

(vii)

During his time in prison he did an anger management course. He also did other courses to improve his reading, writing and social skills.

(viii)

Upon his release from prison he worked as a farm hand, sports ground maintenance worker, barman, sawmill worker, factory worker, car dismantler for 12 months and then as a road maintenance labourer for about 18 months. He then became a heavy earthmoving machine operator, which he has continued to do until the present. He has been in constant employment since his release from prison in 1994.

(ix)

He has had no convictions for any offences since his release from prison.

(b)

Kelly Best:

(i)

She was born in Blacktown, New South Wales, on 27 April 1978.

(ii)

She is the youngest of a family of nine children. She has one brother and seven sisters.

(iii)

Her parents separated when she was only a few years old.

(iv)

When she was about four years old her mother re-married and migrated to New Zealand with her new husband. Her mother took her, her brother and four of her sisters to New Zealand. The three elder sisters remained with her/their father in Australia. One of her sisters who originally went to New Zealand with her mother later returned to live permanently in Australia.

(v)

From the age of about four to sixteen she lost contact with her father and her sisters in Australia. At the age of sixteen she set about tracing them and regaining contact. Her father and stepmother have visited her twice in New Zealand in the last five years.

(c)

Kelly and Shane Best

(i)

They met in October 1994. According to Kelly Best it was "love at first sight". They began living together on 17 October 1994 and have done so ever since. Shane Best told Kelly about his having spent time in prison, and criminal past, at the beginning of their relationship.

(ii)

They have two sons, one born in November 1995 and the other born in October 1997.

(iii)

Kelly Best's attitude towards Shane Best can probably be summed up by reference to her statement which appears in the T-documents. She said:

"I have two children with Shane, and he is the most loving father to our two boys, he shows support, caring, loving, and the most important of all friendship towards our children. Shane is always there to help me with the children and has been this way since our first son was born in 1995. Shane was there for me both emotional and physically when the children were up in the middle of the night with illness or teething, he was there to help me and the boys through anything.

Shane has always been by my side when I have needed him, I have not had the best of luck in my past either. For example my mother in New Zealand is a manic depressant and has tried on several occasions to over dose herself on medication and has been very lucky to have survived, but on each occasion has been admitted to hospital, and Shane has always been there for me both for physical and emotional support, every time I have needed it.

I would also like to say that Shane is a very loving, gentle, caring, husband, as well as a father. Shane has always been a good provider for our family, he is always there to lend a hand if anyone needs one. He works well with anyone and has never been without a good job for long. Shane is not only my husband but also my best friend, we have no secrets between each other and continue to share everything that happens in our day to day lives. We never raise our voices to each other and I feel that nothing will ever part us. Shane is a very patient man and he is not shy to show me or our boys how he feels. Shane has spent a lot of time playing and sharing his knowledge with the boys, as both boys are intrigued with knowing as much as they can about anything."

(iv)

Shane Best's attitude towards Kelly Best (and himself) can probably be summed up by reference to his statement which appears in the T-documents.

"I admit I do have a bad past and have been to prison but that is now in my past. The time I spent in prison gave me time to reflect on my previous way of life and, to ensure that my life would be different when I regained my freedom, I undertook alcohol and anger management courses. I emerged from prison with a totally different outlook on life realising the opportunities and experiences which were available to me.

One of the best things ever to happen to me was to meet Kelly Smith who is now my wife and mother of my 2 young sons. We have a very loving and close relationship and I could not imagine life without her or my sons. My family is my life. Since Kelly came into my life I have become a new person, providing for her and our sons and have never been without employment. She has given me new direction in life and alcohol is no longer a problem for me. I have lived my life since then totally as a law abiding citizen and have not received so much as a parking ticket.

I do not believe that I am a danger to the community in New Zealand nor would I be in Australia should my visa application be approved. My wife, as an Australian citizen, has yearned to return to her home country for many years and we both firmly believe that our hopes and dreams for the future could be fully realised in Australia. My wife also wishes to be reunited with her family on a permanent basis. Kelly and the children spent several months with her parents in Australia earlier this year, the boys attending the local school, and all three are really keen to return. The boys were finally getting to know their grandparents and a special loving bond was being formed when they had to return to New Zealand. Both boys have expressed a desire to return to Australia."

(v)

Kelly and Shane Best talked between themselves for many years about settling in Australia to be closer to her father and her Australian sisters, to have a fresh start for themselves and to give their sons a wider range of opportunities.

(vi)

Kelly Best had "asked around" about the possible impact of Shane Best's criminal record on the likelihood of his being able to migrate to Australia. She acquired an understanding (not from any official government source) that Shane Best's criminal record could be a problem for him in migrating to Australia but that after a lapse of ten years since his last conviction his criminal record would be "spent".

(vii)

In 2002 Kelly and Shane Best put their plan of settling in Australia into action. They sold everything they owned which they did not intend to send to Australia. They used the proceeds to buy one-way tickets to Australia.

(viii)

At 8.00am on 22 October 2002, Kelly and Shane Best with their two boys arrived at Brisbane airport. Kelly Best had filled in the incoming passenger cards. In answer to the question on Shane Best's card about criminal convictions, she put a cross in the "No" box. She did so because she believed that the ten year lapse would mean that he had no criminal record. Nevertheless, Shane Best was taken aside at the airport and told that he would not be permitted to enter Australia because of his criminal record. He was forced to fly to Wellington, New Zealand, and from there to make his way back to Christchurch.

(ix)

Kelly Best and their two sons remained in Australia for eight months, in the hope that her husband Shane would be able to join them. When it became clear that the visa approval process was going to take a lot longer than she originally thought, Kelly Best and their two sons returned to New Zealand.

(x)

During the time that she remained in Australia, Kelly Best and their two sons lived with Kelly Best's father and step-mother, and the two boys attended the local primary school.

(xi)

Kelly Best's father has been in poor health due to cancer but recently his health has improved. It is her wish that she, her husband and their sons have as much time as possible with her father, their grandfather, before he becomes too incapacitated.

I accept that Kelly and Shane Best have a genuine, stable marriage. They also have two sons of whom they are proud. I accept that it is the desire of Kelly Best to have close contact with her father and sisters in Australia, to make up for a lot of lost time during her first sixteen years. I accept that it is her desire that her boys have as much contact as possible with their grandfather.

I make no value judgment as to whether the family would otherwise be as well off in New Zealand as they would in Australia, but I do accept that there would be significant emotional and stability advantages in the family living in Australia with the support of Kelly Best's Australian family.

I accept Shane Best's claim that he expresses genuine remorse for his criminal conduct when he was 19, 20 and 21 years of age. I also accept that his conduct over the past twelve years shows evidence of rehabilitation and good conduct. He has been supported by references from neighbours, relations, people from whom he has rented houses, employers and work-mates. Whilst it is true that not all of the referees knew about Shane Best's criminal record, the references at least show that he has been a reliable, stable person in relation to his employment and to his home rental obligations.

The contentious issue in this case involves the specific offences Shane Best committed which had a sexual character, namely sexual intercourse with a girl under the age of 16 and the rape offence. The question is whether the character of the offences indicate that he poses a potential danger to the Australian community. That is, is he likely to re-offend?

The seriousness or otherwise of the convictions for having sexual intercourse with a girl between the age of 12 to 16, would normally depend on the age difference between the accused and the girl involved. Shane Best was 19 years old at the time of the offences. The actual age of the girl involved is unknown, other than she was under 16 years and over 12 years. He was sentenced to what appears to have been 12 months probation/supervision with some restriction on his place of residence for six months. I infer from the lightness of the sentence that the court did not regard the three offences as particularly heinous.

The conviction for the offence of rape committed on 6 March 1992 was a serious matter. This conviction seems to have been the main factor in the Delegate's decision to refuse the Visa. However, the Tribunal has been provided with a statement by a former New Zealand police officer who had some knowledge of the circumstances of the offence, which sheds some extra light on the matter. Adele Kay Coll, who served for 17 years in the New Zealand police force, provided a statement in which she said that she was on duty at the Greymouth Police Station when Shane Best entered the police station to report that he had just raped his girlfriend. Her statement contains the following description of the event:

"He came to the counter of the Greymouth Police Station. He advised me that he had come to admit that he had just raped his girlfriend so he thought he would come straight to the Police Station.

I immediately cautioned him and he was arrested. As a result of this an investigation began and a complaint taken from the complainant.....

Throughout the investigation BEST was totally co-operative with Police and pleaded Guilty at the earliest opportunity."

He was sentenced to three years in prison, of which he served two, which, on the face of it, would normally be a light sentence for rape. I infer that the sentencing judge took into account that there had been a sexual relationship between Shane Best and the woman, that he had shown remorse at the first opportunity, that he had been completely co-operative with the police investigators and that he had spared the women the ordeal of a trial by pleading guilty.

His attack on his former girlfriend was a vicious thing to do and cannot be condoned. However, I am satisfied that he is genuinely remorseful. At the Tribunal hearing he did not attempt to justify his actions back in 1992, other than to say that he was a different person then. He was certainly a lot younger than he is now.

I believe, as far as one is able to do in these matters, that Shane Best has been rehabilitated and that, because of his domestic and work record since he was released from prison in mid-1994, he is not likely to re-offend.

I find that he is unlikely to present a danger to the Australian community and members of the community. They should not need protection from him.

I am conscious of the fact that the expectations of the Australian community are that persons of poor character should not be admitted to Australia because of the significant risk that such persons may not obey the laws of Australia.

Whilst I accept that the character of Shane Best when he was aged between 19 and 21 was so poor that he would not then have been a person who would have been allowed to enter Australia, I accept that he is now at the age of 33 years a person of good character. He has changed decidedly for the better.

The decision under review is set aside and in substitution the Tribunal decides that despite being satisfied that refusal to grant the Spouse Visa to Shane Best is justified under section 501 of the Act, the power to refuse to grant the Visa should not be exercised.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

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

R. Link, Associate

Date/s of Hearing 24 November 2004

Date of Decision 19 April 2005

Solicitor for the Applicant Mr and Mrs Best, by telephone

Solicitor for the Respondent Clayton Utz lawyers