Anthony and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 424
•15 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 424
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/244
GENERAL ADMINISTRATIVE DIVISION )
Re KERRY ANTHONY
Applicant
And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Wright QC
Date15 May 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution orders the visa application be remitted to the respondent with a direction that: (a) The visa the subject of the application for review should not be refused on character grounds under s 501 of the Migration Act 1958.
.................(Sgnd).................
Deputy President
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – visitors visa – character test – whether discretion should be exercised in the applicant's favour
Migration Act 1958
Lachmaiya v DIEA (1994) 19 AAR 148
Goldie v MIMA [1999] FCA 1277
WRITTEN REASONS FOR ORAL DECISION
15 May 2002 Deputy President Wright QC
The review applicant is the husband of Jacquelyn Carole Anthony, a New Zealand citizen who applied for a visitor visa sub-class 676 on 25 February of this year. Mrs Anthony, who was born in England on 9 December 1956, is now residing in New Zealand. She last entered Australia on 18 April 2000. She was at that time the holder of a sub-class 976 electronic visitor visa. On that occasion she travelled to Australia on her UK passport using her name, Goldsmith, which was the surname of her second husband.
She advised that she'd used her UK passport because a New Zealand passport, which she previously had, had been stolen and it had not been renewed at the time she travelled to this country. She said she'd had very short notice of her trip before coming to Australia. In 1997 or 1998, the date is not quite clear from the record, she was convicted in the Auckland District Court on forty-four charges arising out of the misappropriation of $25,575.86. This money had belonged to her then employer. She was convicted of these offences and was given a total effective sentence of twelve months imprisonment on all charges.
She acknowledged that she had been sentenced to twelve months imprisonment in respect of each charge but that all sentences were to be served concurrently. She served six months of this sentence before her release from custody. She claims to have made reparation of the whole of the money embezzled from her employer before the sentences were actually imposed. There is no direct evidence confirming this payment but I see no reason to doubt her evidence as to this particular matter. Mrs Anthony failed to disclose these convictions and sentences when arriving in Australia in April 2000.
She departed from Australia to holiday in Thailand with her husband on 20 October 2001, some 15 months after her three month visitor visa had expired. She says that she didn't realise that she was unable to lawfully stay here believing that as a New Zealand citizen she had that entitlement. The Minister's delegate who assessed her latest visa application took the view that she failed the character test under s 501(6)(a) of the Migration Act 1958, observing that she had a substantial criminal record as defined in s 501(7) of the Act, and had also breached immigration laws by not disclosing her criminal history on entering Australia in 2000 and by over-staying her visa by fifteen months.
The delegate considered the provisions of the Act and Ministerial Direction No 21. He concluded that his discretion should not be exercised in the applicant's favour and consequently refused to grant the visa that she now seeks. Personal factors, which were pressed upon the delegate to persuade him to exercise his discretion in favour of the applicant included her stated desire to return to Australia in order to assist her husband, the review applicant, to sell their Australian assets so that they could start a new business in New Zealand.
My role as a merits review tribunal is not to simply assess whether or not there was evidence upon which the Minister's delegate was justified in reaching the conclusion which he did. My role and duty is to reassess the evidence, including any fresh evidence presented before me at the Tribunal hearing today, for the purpose of coming to the correct or preferable conclusion on the facts as now established. Having taken this course, I have concluded that by reason of her criminal convictions and clear breaches of migration law, the applicant does not pass the character test. I'm unable to conclude that she has as yet regained a good character.
Restitution of monies, whether pursuant to a Court order or otherwise, is not necessarily an indication of rehabilitation or reformation. I am also of the opinion that the visa applicant has not been frank and truthful as to her use of the UK passport to gain entry to Australia. In my opinion, there is a high probability that she took this course in the hope and expectation that it would assist her to conceal her criminal record from immigration officials.
I'm also of the view that she did not hold a genuine belief that she was entitled to stay indefinitely in Australia as a New Zealand citizen, notwithstanding her use of a UK passport and the grant of a three month visitor's visa in relation to that particular passport. The offences of which she was convicted were serious. They clearly suggest a course of fraudulent conduct over a substantial period of time rather than a single criminal episode. The sum involved was, as I've already said, quite substantial.
However, I think that an equally serious aspect of the matter is the visa applicant's attempt to conceal her criminal past from the Australian immigration authorities, which was in turn compounded by her lengthy over-stay and what I consider to be her lack of candour while giving evidence today. Mr Cramer referred in his written facts and contentions to the cases of Lackmaiya v DIEA (1994) 19 AAR 148 and Goldie v MIMA [1999] FCA 1277 as authority for the proposition that breaches of migration laws are to be regarded as very serious matters.
10. In my opinion, as I've already said, the applicant quite clearly fails the character test, not only in respect of s 501(6)(a), but also in respect of s 501(6)(c)(ii). The issue of discretion was also dealt with by the delegate in his decision. He dealt with it in Part D of the written decision dated 6 March 2002. It appears from my reading of the papers that that decision initially raised the visa applicant's ire due to typographical errors and an alleged misconception by the delegate of the nature and effect of a sentence of imprisonment and other minor mistakes.
11. However, the delegate's decision was subsequently corrected and retyped and I don't understand that the offending passages have given rise to any complaint for the purposes of today's hearing. They were, in any event, of a minor character and have no relevant bearing upon the proceedings at the present time. I must say that having read the delegate's decision on the question of discretion I find myself in almost complete agreement with the substance of what he said, and also with the views which he put forward in those reasons. In Mr Cramer's statement of facts and contentions in paragraph 13 and following, there are propositions put forward in respect of the exercise of the discretion and I must say that, generally speaking, I agree with what he too has written.
12. However, on the issue of the applicant's predisposition to breach immigration laws in the future, and her risk of over-staying if a fresh visa is granted, I think it can be said that the likelihood of this appears to be somewhat remote. I accept the evidence of the review applicant that he is winding up his affairs in Australia with a view to moving permanently to New Zealand. And, unless I've been completely hoodwinked by both parties and their evidence, I find that their intention is that the visa applicant, if given the opportunity to come to Australia, will live here with her husband, the pair of them working diligently to finalise their affairs before departing as soon as possible once more for New Zealand.
13. I think that both applicants have enough sense to realise that anything short of complete co-operation with the Immigration Department in future would almost inevitably result in future problems of considerable magnitude involving possible prosecutions, fines and/or even imprisonment. If a visa is granted upon the present application I think it can be appropriately limited but I will return to this later. In my opinion the real question going to the heart of the exercise of my discretion today is whether there would be a substantial risk of sending the wrong message to other potentially dishonest visa applicants if Mrs Anthony's bad conduct does not result in her ineligibility for a visa on this occasion.
14. The review applicant is genuinely experiencing anxiety and depression brought about by his workload in selling up his Australian assets, transferring his business to a purchaser who obviously needs instruction in all aspects of its operation, and in preparing his books to a sufficient standard for his accountants to be able to close off his business affairs satisfactorily. In addition, he is shipping his possessions and effects to New Zealand and will need to come to grips with his new business as a motel proprietor soon after he gets there. His wife has capabilities as a bookkeeper and financial manager which appear to me to far exceed the review applicant's capacities.
15. I'm quite satisfied that her presence would not only assist him in regaining his mental equilibrium but would also enable them as a couple to make a speedy transition to New Zealand. The review applicant freely concedes that there are no real hardship issues in respect of his wife personally, but he asks for compassion to enable his position to be stabilised without the considerable cost and possible delays of engaging the services of professional accountants and lawyers to sort out his affairs before migrating to New Zealand.
16. The question, therefore, is do these considerations outweigh the other factors which arise for assessment in relation to the discretion including, of course, the detailed matters incorporated in the Minister's Direction, which it is obligatory for me to bear in mind. This question has exercised my mind considerably since I first read the papers in this case. My initial reaction was to affirm the decision of the delegate, however, this is a very unusual case. It's unlikely that a parallel will be found in future disputes and it is therefore unlikely to have any value as a precedent in respect of future contests of this kind.
17. By the slenderest of margins, and not without a great deal of hesitation, I have concluded that the delegate's decision should be set aside and that the visa applicant's application should be remitted to the respondent for reassessment without reference to the character issues which have been involved in this review proceeding. I also recommend that if a visa is to be granted to the applicant it should be limited to a period not in excess of six weeks.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Wright QC.
Signed: ............................................................................
AssociateDate of Hearing 15 May 2002
Date of Written Reasons 3 June 2002
The Applicant Appeared in Person
Solicitor for the Respondent Mr B Cramer, Blake Dawson Waldron
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