Bulfin and Minister for Immigration and Ethnic Affairs

[2000] AATA 982

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION [2000] AATA 982

ADMINISTRATIVE APPEALS TRIBUNAL)
  N° V00/1045
GENERAL  ADMINISTRATIVE DIVISION)
  KEITH WILLIAM BULFIN
  Applicant
  MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS
  Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:              25 October 2000
Place:            Melbourne

Decision:The decision under review is set aside, and a decision substituted that the discretion to cancel the applicant's visa under section 501(2) of the Migration Act 1958 not be exercised.

(sgd) Graham McDonald
  Deputy President
KEITH WILLIAM BULFIN and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Application Nº V00/1045
Deputy President G.L. McDonald
Melbourne
Wednesday, 28 October 2000
IMMIGRATION — cancellation of permanent residence visa on character grounds — applicant migrated to Australia from New Zealand in 1970s — resided continuously in Australia since 1977 — criminal convictions for "white collar" crimes involving large amounts of money — fails to pass the character test due to substantial criminal record — whether discretion should be exercised — Direction Nº 17 — seriousness of the crime — risk of recidivism — community expectations — repugnance of the crime — severe adverse affect on Australian wife and children — length of time spent in Australia — decision set aside

Migration Act 1958 ss.499, 501

Extempore Reasons for Decisions

Mr Bulfin, you are applying for a review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to cancel your special category New Zealand visa.

The notice of cancellation of the visa under the provisions of section 501(2) of the Migration Act 1958 ("the Act") is dated 23 August 2000. It is conceded and the Tribunal accepts that as a result of your convictions and the sentences imposed in the County Court of Victoria on 12 September 1997 for a number of dishonesty offences, that you do not pass the character test provided for in section 501 of the Act. The issue before the Tribunal is whether or not the discretion contained in section 501(2) of the Act should be exercised in your favour, ie, whether the decision to cancel your visa should be set aside, even though, you are in the terms of the statute, a person not of good character.

The exercise of that discretion is governed by Direction Nº 17 ("the Direction") issued pursuant to section 499 of the Act. The Direction is binding on the Tribunal. In considering the terms of the Direction to reach a decision, the Tribunal bears it in mind that it is not its function to punish you for the crimes that you have committed. That has been the role of the County Court and of the Court of Appeal of Victoria. The Tribunal's role is as stated in the preamble to the Direction, to consider the protection of the Australian community from criminal conduct.

The exercise of the discretion is governed by the considerations set out in Part 2 of the Direction.   While clause 2.2 requires the Tribunal to have most regard to the three primary considerations nominated, it also requires the adoption of a balancing process, which takes into account all relevant considerations.   The primary considerations are set out in clause 2.3 and they are as follows:

(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 relationship between a child or children and the person under consideration, the best interests of the child or children.

While you have three children, they are all now over the age of 18 years and their interests cannot be considered as primary considerations. They do however arise for consideration under the provisions of clause 2.17 of the Direction and I shall return to that later in this decision. 

Clause 2.5 of the Direction requires the Tribunal to assess the level of risk to the community, having regard to the factors set out:

(a)the seriousness and nature of the conduct in which you have engaged;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa cancellation may prevent or discourage similar conduct (general deterrence).

Clause 2.6 of the Direction sets out a number of offences considered by the Government to be very serious and sub clause (l) nominates the offences with which we are concerned today.  And that states:

serious theft (including "white collar" crimes)

and goes on to say —

such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.

I must, as a first step, assess the seriousness of your conduct. I do not propose to set out the details of your offences. They are set out in the reasons given by Williams J at the time he sentenced you. His Honour's description of the facts in relation to the offences was adopted by the Court of Appeal, Charles JA in particular at page 53 of the Report [(1998) A Crim R 40], and was not questioned by any of the other judges. It is sufficient, for my purposes, to relate that there were four areas identified by the sentencing judge as involving your criminal conduct.

The first related to the re-financing of Lassiter's Casino in Alice Springs where you falsely represented the casino as having a value of $48 million, when you knew its true value to be $25 to $30 million. Secondly, you falsely represented its income to be $5.23 million per annum, while knowing it in fact to be $4.23 million, and that you made this representation by altering the figures, and that you represented a source of income from a related venture to be $360,000 per annum when in fact you knew it to be nil.  You did this in order to represent that there was a cash flow to service the loan on the inflated value that you attributed to the casino.

The amount borrowed was subsequently increased by a further $2 million and a sum of $500,000 was siphoned off from that to a company controlled by you.  You gained by these activities in two ways. You received a higher commission as a result of the higher value of the mortgage, and secondly, you gained by taking a secret commission, in this case totalling, as the judge found, $899,000, which was siphoned into a company, 70 per cent of which was controlled by you and 30 per cent by your co-offender, Brown.  The money received by way of secret commission was lent to support a caravan park venture in Queensland, which ultimately failed, and the money was lost.

The second group of offences related to the Gaffney/Drage matters and involved a similar modus operandi on your part.  Williams J described the arranging of loan applications containing various falsehoods, for instance, overstatement of the purchase price of the properties, obtaining inflated valuations from an accommodating valuer, misrepresentations as to the income of the borrower and his capacity to repay, and inaccurate statements concerning the purposes for the loan. In these transactions, apparently, $500,000 was siphoned again into another company in which you and a man by the name of Robinson were involved.  Inevitably, all of the mortgages involved in the second set of offences went into default.

The third group of offences involved you making similar deceptions with the respect to the purchase of the Dreamworld venture, where again, you arranged for property values to be over-represented, liabilities and commitments to be understated and income overstated.  Again, your motive was to acquire a higher fee for introducing business, and again, the judge found you took a secret commission which was placed in the company in which you had the 70 per cent interest.

The final group of offences related to what the judge described as the MAM offences, in which you arranged, and Brown administered, mortgage loans between investors and specific mortgagors.  Again, there was a course of falsification of documents, including you falsely representing yourself to be a director of a company and executing mortgages on behalf of that company in your falsely assumed role, and in which, you overstated the value of mortgaged properties to investors and falsely executed a declaration of trust for mortgages which did not exist.

The company through which you and Brown carried out these offences, MAM Limited, eventually collapsed and went into liquidation. The first three groups of offences involved arranging loans through the Order of the Sons of Temperance Friendly Society ("OST").  Williams J found $242 million of a total of $390 million lent by OST, being a high proportion, obviously, of their portfolio and a high proportion of which were in default was "by no means an insignificant contributing factor" to the state of the loan portfolio.  

OST member funds were frozen.   Some members chose to accept a discount ranging between 5 and 20 cents in the dollar to recoup the capital invested.  They made this choice in 1996.  Others waited another two years to recover the total of their capital.  Whichever option the members chose, it is clear that they lost the value of any interest and inflation had the effect of reducing the value of their capital investment.   His Honour found the MAM matters occurred between mid 1991 and early 1992 and investors, so far, have received 78 cents in the dollar, with a possibility of more if civil litigation, currently under way, is successful.

In total the judge found that $1.899 million was received by way of secret commission and channelled into the support of the, ultimately unsuccessful, Queensland caravan park venture.  I have read and taken into account, but am not bound by the conclusions reached by Williams J with respect to your culpability in relation to the offences.  His Honour set those out on page 62 and following of the documents before me.  In my view, the course of criminal conduct in which you engaged cannot be explained by reference to an optimistic view of an ever increasing property market in which your deceptive activities would be successfully hidden and that, "Nobody would ever suffer." 

There are several reasons for this conclusion, firstly, the large sums involved in the transactions.  Secondly, the variety of deceptive conduct in which you were engaged, including, changing documents, pretending to be a director of a company when you were not, falsely inflating values, etcetera.  Thirdly, the involvement of a number of people in the offences. In saying that, I am not suggesting you are necessarily the ringleader, but, that you were prepared to deal with a number of dishonest people in organising the falsified transactions in which you engaged.  And, finally, the large sums you siphoned off by way of secret commission which his Honour found totalled just on $1.9 million.

All of the above lead me to conclude that you were prepared to participate in an extensive course of criminal conduct of the sort abhorred by honest businessmen and the community at large.   While in comparison to some other notable failed business fraudsters, your creditors have at least received a large proportion of their capital back, and I take that into account.  However, it is not true to say, as I am satisfied that you have, that they did not lose money as a result of the criminal activities in which you engaged. They clearly did.  Your activities have caused disruption to business, individual investors and to the Government - the matters set out in the Direction.  The latter, namely, the Government, having to expend resources in investigating your criminal activity, prosecuting you, and the others connected with that activity, and bear the cost of imprisoning you.  There are also, of course, the costs involved in these proceedings.

The community is, in my view, rightly justified in regarding your crimes as being repugnant, particularly, when they were committed without regard to the consequences to your family or to the community, but, instead to satisfy your greed.   And I think in this respect I accept what Williams J had to say of you, when speaking of you and the co-offender Brown, and I am reading from page 69 of the papers before me:

I wish to emphasise my view that neither can escape from the fact that whatever pressure affected their behaviour or whatever motivations or excuses they had, they were both involved, Bulfin more than Brown, in fraud and misappropriation of vast sums of money.  They were both members of the finance and business world where tens of thousands of operators at all levels every day are dealing with money and money entries.

If total honesty does not prevail financial chaos and loss must ensue. Such operators can with considerable ease perpetrate fraud and/or make false entries in books and records which can result in profit or gain to themselves and which can be extremely difficult to detect.  It is often like trying to find a needle in a haystack. 

Accordingly, there is a high onus on all such operators to act honestly for the sake of the whole system.  Bulfin in particular failed in this regard and Brown to a lesser extent also…The fact that, in the end, neither party gained any benefit out of their deeds does not alter the fact that they failed the test of honesty and did so with very large sums of money and by so doing contributed to losses to many investors. 

His Honour then went on to say:

I have read the victim impact statements tendered which indicate at times that some of the investors have lost all or most of their savings, which in some cases took a lifetime to accumulate.  A number of victims claimed to have suffered insecurity, anxiety and material deprivation by reason of their money losses and I am satisfied this would be so.   I am aware, as was quite rightly emphasised by counsel, that there existed at the relevant times other independent reasons for investments failing [no doubt that is a reference to the state of the market] which may have contributed to the losses as well and I have borne this in mind. However, it cannot be denied that the behaviour of these two individuals in relation to these offences they have committed constitutes not an insignificant contributing factor to the losses. 

Apart from the disregard shown for the funds of the investors in both the OST and the MAM matters I should add that the MAM offences involve in addition a complete abuse of the trust enjoyed by both parties by reason of their roles in setting up and administering mortgages. 

The only mitigating factor in relation to all of this is your subsequent co-operation with the police and the authorities and also with the liquidator, in giving evidence in civil proceedings, in order to try and see that the people responsible are prosecuted, in the case of the criminal cases, and the money recovered, in the case of the civil case.  I shall return later in these reasons to consider the weight that should be accorded to that feeling of repugnance which relates to the commission of your offences.

I want to turn now to the risk of recidivism, that is, of your committing like offences again.  This Tribunal has said before, and it was reiterated by Mr I. Joblin, psychologist, in his evidence, that it is impossible, and indeed, unwise to conclude that you will never re-offend.  The nature of the crimes committed, involving as they do, deception and secrecy, the apparent ease with which you embarked upon them and their extent, would tend to a conclusion that there is a real risk of you re-offending.

However, the evidence of Mr Joblin as to your greatly heightened level of consciousness of your wrong-doing, your resistance to falling into what he described as a "jail culture", your need to be with and rely on your family, combined with the bad experiences visited on them by way of serious threats of harm to them, and to the blowing up of the three cars at the family house, and on you, when in jail, by being threatened and assaulted, leave me satisfied that you are unlikely to re-offend.

While some weight must also be placed on the effect cancellation of your visa may have on like-minded people to commit like offences, greed assumingly an endemic feature of human behaviour, I doubt others would be influenced not to commit such offences based on greed as a result of your visa cancellation.

It is self evident to say that the Australian community does not welcome its laws being breached by non-citizens.  I note, however, the ease of access of rights between Australians and New Zealanders, the fact of you being in Australia permanently from 1977, as well as your wife and family all being Australian citizens.

I shall now turn to the factors enumerated in clause 2.17 of the Direction — the other considerations.   From the evidence I accept the following. 

You have always and continue to enjoy the very strong support of your wife who has stood by you throughout.   If you were permitted to remain in Australia, her courage and fortitude - sorely tested as a result of the position in which you have placed her - would be of great assistance to you. 

You are genuinely close to your three children, twins aged 18 and a son aged 22.   They in turn reciprocate that with a high regard and love which they feel for you.  They have shown maturity beyond their years in dealing with their changed circumstances following your imprisonment. 

Your wife and children, who as I have said are Australian citizens, and whose ties are all in Australia, will be severely disadvantaged if you were to be returned to New Zealand, and they would find it difficult, not the least, financially, to visit you on a regular basis.

I accept that your family life will be likely to be destroyed if you were so separated.  In addition, your witnesses used varying expressions to describe the affect of separation on your family.  The Reverend H. Butterley found it to be inconceivable.  Ms J Miller, your sister-in-law, described it as horrific, and Mr N. Bryant described it as, "Absolutely devastating to the family unit" should that separation occur. 

I also take into account you have no other criminal record. 

I accept you will support your wife in looking after her elderly and infirm parents and that you have, over the years, come to regard them as being closer to you than your own mother and father, he having recently passed away.

And I also accept that you are not close to your siblings, or their families, in New Zealand, while acknowledging, there is obviously some contact between you.  You have, through your genuine and extensive interest in sporting activities, coached and been involved in your sports of interest, athletics, swimming and rugby, particularly, but, not exclusively, for the benefit of the youth of Victoria.   This has been a voluntary activity for which you are held in high community regard.   People you have coached are able to, and have offered you support, since your convictions.

You are a genuinely gregarious man who has, as Mr J Prescott affirmed, a strong sense of value of community.  You are, as you said in evidence, ambitious.  You have used your time in jail positively to obtain a master's degree in economics and you have the offer of a job, if released in Australia.  I accept you may have contacts in New Zealand through sport, but I also accept they are more nebulous than your Australian contacts.

I have found this a difficult case in which to reach a fair and balanced decision.  The covert crimes you have committed are, as I have found, repugnant to the community.  Balanced against that, I am satisfied that, for the reasons Mr Joblin determined, that you are unlikely to offend again.  I am mindful of the length of time you have spent in Australia, your strong and reciprocated connection to your Australian wife and Australian children and their great sense of loss if your visa is to be cancelled.  As well, I acknowledge the high level of commitment you have devoted to advancing sport and participating in community activities.

Your behaviour has been of a Dr Jekyll and Mr Hyde type.  Your personal life being on the one side and your business activities being on the other.  In the end, however, I am satisfied that factors favourable to you outweigh those against.  You have satisfied me that I should give greater weight to your personal circumstances, particularly, the severe adverse affect on your wife and children, the length of your residence in Australia, the unlikelihood of you committing further like offences, the high level of support you will be likely to receive if allowed to remain in Australia, compared to that you will be likely to receive if you were returned to New Zealand, and this can be of great advantage in your rehabilitation into the community.  Those factors outweigh the repugnance associated with your criminal activity and its unacceptability to the Australian community. 

Accordingly, the decision under review is set aside. A decision is substituted that the discretion to cancel your visa under section 501(2) of the Migration Act, not be exercised.

Now, there is one thing, Mr Bulfin, I want to add to all of this.  And that is that the Direction which governs the exercise of the discretion contains a provision that says, if once warned, you commit further offences, then the likelihood of your visa being cancelled is greatly increased. 

And let me state, I don't want to see you back here before this Tribunal and I am sure your family would like it even less.  And let me assure you, that if you do appear before this Tribunal again in the future, whosoever it might be constituted by, your chances of receiving this type of decision would be extremely slim.