Campbell and Minister for Immigration and Border Protection (Migration)

Campbell and Minister for Immigration and Border Protection (Migration) [2017] AATA 908 (20 June 2017)
Division:GENERAL DIVISION
File Number: 2017/1991
Re:Colin Campbell
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:20 June 2017
Place:Brisbane

The decision under review is affirmed.
..........................[sgd]...............................
Senior Member T. Tavoularis
MIGRATION – Visa refusal – Applicant is a citizen of the United Kingdom – Applicant applied for a New Zealand Citizen Family Relationship (Temporary) visa – Does Applicant fail s 501 character test – Applicant has a history of Tax offences in New Zealand – Applicant fails character test for different reason - should discretion to refuse visa be exercised – whether primary considerations weigh against or in favour of exercising the discretion – discretion to refuse Applicant’s visa should be exercised – Applicant’s visa correctly refused - decision under is affirmed (for different reasons).
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation of a visa under
s501CA (“the Direction”)
REASONS FOR DECISION
Senior Member T. Tavoularis
20 June 2017
INTRODUCTION

This is an application for review of a decision by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse Mr Colin Graham Campbell (“the Applicant”) a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa (“461 visa”) pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”). Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision of the Minister’s delegate.
BACKGROUND
The Applicant is a citizen of the United Kingdom (“the UK”). He is currently 59 years old. He first entered Australia on 13 January 2013 on an Electronic Travel Authority (Class UD) visa. Upon entry he declared his convictions on his incoming passenger card and was then interviewed by immigration officials. The Applicant was immigration cleared.
The Applicant has never departed Australia and has remained here since 13 January 2013.
On 18 July 2013, the Applicant lodged an application for a subclass 461 visa.
On 9 December 2016 a delegate of the Minister notified the Applicant of an intention to consider refusing him to grant the subclass 461 visa under section 501(1) of the Act. The basis of this notification was the Minister’s belief that the Applicant did not pass the character test.
On 5 January 2017, the Applicant provided a response to the aforementioned notification from the Minister. That response was in the form of electronic communications and included respective curriculum vitaes for himself and his wife and other documents relating to both his and his wife’s personal circumstances. There is no suggestion in the material that the response was in any way insubstantial or otherwise lacking in detail.
Then on 3 March 2017, the Minister’s delegate refused the Applicant’s application for the 461 visa on two principal grounds:
(a)The delegate thought the Applicant did not pass the character test upon application of s 501(6)(a), with particular reference to the provisions of s 501(7)(d). Specifically, the delegate found the Applicant to have a “substantial criminal record” because, the delegate thought, the Applicant had been sentenced to two or more terms of imprisonment involving a total custodial term of 12 months or more; and
(b)The delegate applied the relevant primary and other considerations described in Direction 65 (made under s 499 of the Act) and then applied all of the evidence before him/her and saw fit to exercise the discretionary power in s 501(1) of the Act to refuse the Applicant’s 461 visa application because the Applicant represented an unacceptable risk to the Australian community.
Upon receiving notification of the Reviewable Decision,[1] the Applicant then applied to this Tribunal for review of the delegate’s Reviewable Decision on 7 April 2017.[2]
[1] On 7 March 2017, Exhibit 4, G-documents, G2, pages 19-21.
[2] Exhibit 4, G-documents, G1, pages 5-6.
It is this application made on 7 April 2017 that is presently before the Tribunal.
ISSUES
The Minister’s decision to refuse the Applicant’s 461 visa application was made on the ground that the Applicant did not pass the character test due to s 501(6)(a) (and s 501(7)(d)) of the Act. In reviewing this decision I must consider and address both of the following issues:
(a)whether the Applicant passes the “character test” as defined in s 501(6) of the Act; and
(b)whether, having regard to the considerations in Ministerial Direction No. 65 (“the Direction”), the discretion in s 501(1) of the Act to refuse this Applicant’s visa should be exercised.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
There is an initial difficulty plainly apparent in the reviewable decision. The delegate has found that the Applicant has a “substantial criminal record” as defined by s 501(7) of the Act. As readily conceded by the Respondent, this is obviously incorrect because the Applicant was not sentenced to a term(s) of imprisonment of more than 12 months as that term is defined in s 501(12) of the Act. This is because the Applicant was not subject to actual detention in a facility or institution. I note and agree with the Respondent’s contention that the Applicant is thus not affected by s 501(6)(a) of the Act.
The Applicant contends that he passes the character test[3] and in the event he is not found to do so, the discretion in s 501(1) of the Act to grant the 461 visa should be enlivened. The Respondent contends that the Applicant does not pass the character test pursuant to ss 501(6)(c) and 501(6)(d) and that, as a consequence, the Tribunal should exercise a discretion in s 501(1) to refuse the grant of the subject 461 visa.
[3] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), para. 41.
Before commencing any discussion as to whether or not the Applicant does or does not pass the character test, it is necessary to have regard to the totality of his criminal offending.
Applicant’s Criminal History
His criminal history may be stated thus:
·11 April 2001 – Wellington District Court (New Zealand) – convicted of
o6 counts of Failing To Furnish A Required Return (in relation to offences that occurred between 1996 and 2000); and
o10 counts of Failing To Deliver GST Return (in relation to offences that occurred between 1997 and 2000)
oFor this offending, the Applicant was ordered to pay costs in the sum of $500.00. The Applicant was also discharged.
·23 March 2012 – Wellington District Court (New Zealand) – convicted of
o7 counts of Evades/Attempts Evade Assess/Payment Tax (in relation to offences that occurred between 2003 and 2009)
oFor this offending, the Applicant was sentenced to:
·         9 months of home detention;
·         250 hours of community work;
·         Payment of a sum for “Reparation” at $100/week
·13 February 2013 – Palmerston North District Court (New Zealand) – respective warrants issued for the arrest of the Applicant consequent upon (a) certain unpaid fines for the offending relating to the period 2007-2012 and (b) a Failure to Appear.[4] Both of those warrants (as best as I can ascertain) remain live in New Zealand.
[4] See Exhibit 4, G-documents, G5, p 87-91.
The Applicant has not been convicted of any offences whilst in Australia.[5] However, I note there is reference in the G-documents to a group of “pending matters” from Maroochydore Magistrates Court involving 46 charges of fraud, 7 charges of forgery and 7 charges of what appears to be obtaining or dealing with identification information.[6] I do not recall any evidence about this group of charges being put to the Applicant at the hearing and, for the purposes of this decision, I will presume those matters were resolved or otherwise not proceeded upon by the prosecuting authorities prior to the filing of the application presently before the Tribunal.
[5] See Australian National Police Certificate dated 24/2/2015 in Exhibit 4, G-documents, G6, p 92.
[6] See Australian National Police Certificate dated 15/10/2013 in Exhibit 4, G-documents, G6, p 93.
Section 501(6) of the Act provides a number of circumstances in which someone does not pass the “character test”. In the decision under review, the delegate sought to apply s 501(6)(a) of the Act which provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection (7). Section 501(7) specifies that 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; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
….
The wording of that provision is clear: it relates to the sentence imposed by a court, not the amount of time a person has actually served.
It is initially necessary to review and consider the Applicant’s criminal history, the totality of any sentences for terms of imprisonment, and pattern of behaviour to ascertain whether he is not of good character as anticipated by s 501(6) of the Act.
As mentioned above, the Minister’s delegate has, in my respectful view, erroneously found that this Applicant has a “substantial criminal record” in circumstances where he was not sentenced to a term of imprisonment for the necessary period of 12 months.
The question therefore arises whether this Applicant does not pass the character test pursuant to another provision of s 501(6) of the Act.
Section 501(1) of the Act provides that the Respondent may refuse the grant of a visa if the person does not pass the “character test”. The various thresholds for meeting the character test appear in s 501(6) of the Act. The Respondent contends that ss 501(6)(c) or 501(6)(d) have application such as to demonstrate that this Applicant does not pass the character test. Both of those sections are stated as follows:
“s 501(6)(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; or
s 501(6)(d): in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia...”
Distilled into a singular contention, the Respondent says the Tribunal should not be satisfied that the Applicant passes the character test because when one has regard to his past and present criminal conduct and general conduct, he is not of good character[7] and/or were the Applicant allowed to remain in Australia there is a risk that he would engage in criminal conduct in this country.[8]
[7] Section 501(6)(c)(i) and (ii) of the Act.
[8] Ibid, s 501(6)(d)(i).
Section 501(6)(c) – not of good character due to past and present criminal or general conduct
Guidance for the application of this section can be found at paragraph 5 of Section 2 of Annex A (“the Annex”) to Direction No. 65 of the Act. It provides that the concepts of “criminal conduct” (s 501(6)(c)(i)) and “general conduct” (s 501(6)(c)(ii)) are not mutually exclusive. Conduct for the purposes of s 501(6)(c) can be both general and criminal at the same time or one or the other.
The Annex refers to any assessment of good character to involve a consideration of all the relevant circumstances of a given case so that as complete a picture as possible of the person’s character can be arrived at.
The Annex then goes on to cite the comments of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 (at paragraph [51]):
The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character...
The Annex then affords a decision maker relatively broad scope in the application of this limb of the character test because a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of good character. The broadness of that decision making scope also appears in the requirement that the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
Further reference then appears in the Annex to the comments of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 to this effect:
“For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment…”
Paragraph 5.1 of Section 2 of the Annex then sets out a number of factors to be taken into account in any consideration of a person’s good (or otherwise) character on the basis of past or present criminal conduct:
(a)The nature and severity of the criminal conduct;
(b)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(c)The cumulative effect of repeated offending;
(d)Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and
(e)The conduct of the person since their most recent offence, including:
(i)     The length of time since the person last engaged in criminal conduct;
(ii)    Any evidence of recidivism or continuing association with criminals;
(iii)    Any pattern of similar criminal conduct;
(iv)   Any pattern of continued or blatant disregard or contempt for the law; and
(v)    Any conduct which may indicate character reform.
Paragraph 5.2 of Section 2 of the Annex offers guidance in the assessment of a person’s past and present general conduct. It is possible to take this Applicant’s convictions in New Zealand into account, even though they occurred in a jurisdiction other than Australia. Those charges have not been resolved in absentia and, as such, the conduct giving rise to that offending can be taken into account in the assessment of a person’s overall character.
There is no contest between the parties as to whether or not this Applicant’s offending is to be regarded as violent. Clearly, it is not. The remaining question is whether his offending can be regarded as serious.
This Applicant’s offending does not constitute interference with the rights of another. Rather, it relates to a refusal to meet the usual and necessary requirements of a duly constituted authority responsible for raising revenue for the continued sustenance of a given community or, indeed, a given nation (New Zealand).
There is no doubt every individual has the right to legally arrange his/her financial affairs so as to arrive at an optimum position insofar as exposure to income and other taxation is concerned. There is no suggestion of outright fraudulent activity or other deliberate conduct by this Applicant (and/or his associated corporate and/or incorporate entities) to defeat the interests of the New Zealand taxation authorities.
Rather, his conduct, as I understood it, derives from a dilatory approach to legislatively imposed and unavoidable obligations to meet the lodgement of certain taxation documents and to account for taxation (and other associated) liabilities arising therefrom. As will be discussed later in these reasons, the essence of this Applicant’s contentions is that most, if not all, of the trouble he has had with the revenue authorities in New Zealand that, in turn, gave rise to the criminal offending for which he was duly sentenced is a result of:
(i)Dilatoriness in complying with relevant deadlines for lodging relevant documents and paying resulting liabilities;
(ii)Such dilatoriness arising from his business difficulties in the property development sphere in New Zealand consequent upon a downturn in that country’s property market resulting from the Global Financial Crisis in or about 2008;
(iii)An apparent reliance on his accountant to assure him that “all would be well” and that everything would be “put right” insofar as those compliance issues were concerned;
(iv)An apparent reliance on his legal representative during the trial of his charges in New Zealand resulting in the sentences imposed upon him.
Despite what the Applicant may contend, he cannot avoid the reality that his dilatory conduct has resulted in his conviction on something like 23 counts of taxation offences spanning the years 1996-2000 and 2003-2009. I am inclined to agree with the Respondent’s contention that this Applicant’s conduct is that of a frequent offender, certainly insofar as taxation offences are concerned.
The offending is not of an identical nature through the course of the years. It has worsened and demonstrably so. I am prepared to accept that the early phase of his offending (1996-2000) was largely concerned with offences relating to “failure to lodge” type offending or other relatively non-serious regulatory breaches. The sentencing regime is likewise fine-based with no reference to any custodial element.
Be that as it may, the offending during the period 2003-2009 did graduate into a paradigm of actual evasion or attempted evasion to meet very significant taxation liabilities. The seriousness of the offending, to my mind, derives from the sophisticated corporate structure established by or on behalf of the Applicant to meet the requirements of his, by then (i.e. 2003 onwards) significantly sized property development activities. As is now becoming all too familiar, aspiring participants in the property development space during the halcyon days of the early 2000s up to circa 2008, experienced often significant financial pressure arising from a requirement to continue servicing debt in circumstances where property was not selling and funds consequently became short to meet the ongoing requirements of financiers and tradespeople necessary to complete the various projects.
This Applicant’s offending was committed within a corporate structure that must surely have been well-known to him. The totality of the shortfall – in total tax not recovered – was estimated by the sentencing judge in New Zealand to be “…somewhere between $140,000 and $190,000.”[9]
[9] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Annexure – Sentencing Remarks – per Tuohy J.
The sentencing court duly sentenced the Applicant to a nine month period of home detention, 250 hours of community work and made an order that he be responsible for payment of $10,000 “in reparations”, over and above the actual taxation figure that was not paid. As best as I understood the evidence, the taxation authorities in New Zealand must have subsumed the totality of the tax debt via the respective bankruptcies of the Applicant and/or his wife and/or the placement of the corporate entities into external administration.

There was further evidence at the hearing that the relevant financiers called up their respective loans and liquidated the secured properties to meet their exposure. It seems, therefore, that this component of the sentencing regime referred to as $10,000 “in reparations” is intended as a punitive and ongoing measure on the Applicant. This assumption is borne out by the reality of at least one of the two live warrants in New Zealand relating to this Applicant’s failure to meet the $100/week obligation towards the $10,000 reparation figure that was part of his sentencing regime.
It is also difficult to disagree with the sentencing remarks of the sentencing judge in New Zealand who noted that the Applicant “…really does not have any remorse or true acceptance of criminal wrongdoing here… He continues to blame his accountant.”
This lack or absence of remorse, to my mind, became apparent in the initial way the Applicant sought to give his evidence. Viewed objectively, the initial theme of his evidence was to the effect that he was the busy businessman consumed in meeting the daily requirements of his commercial activity and that he otherwise left all aspects of taxation compliance with his minions, the principal one of which was, apparently, his accountant. This theme of being let down by his paid consultants was sought to be visited on his legal representative who acted for him when these criminal charges were heard and determined, before judge and jury, in the Wellington District Court.
When pressed about how these consultants apparently let him down and caused him to now have the history of offending that he has, the Applicant’s evidence was, at best, less than convincing and, more likely, self-serving. I initially asked the Applicant whether the accountant would be called to confirm his contention that all episodes of non-compliance could be laid at the door of the accountant. The Tribunal was told the accountant would not be appearing as a witness.
I then put it to the Applicant that if, as he contended, all of this could be laid at the door of the accountant then, surely, the Applicant would have some type of action against the professional indemnity insurer of the accountant for the Applicant’s exposure to the loss for which the Applicant was ultimately sentenced. Similarly, I put it to the Applicant that most, if not all, professional consultants, be they solicitors, accountants or medical professionals, are bound to act on the instructions they receive from their clients. If those instructions are ignored, and the given professional consultant does not meet appropriate ethical and/or other professional standards, then a complaint can reasonably be made to that consultant’s professional body. As I recall his evidence, the Applicant has apparently parted on bad terms with the accountant and has not seen fit to at least cause the accountant to alert his professional indemnity insurer of a possible claim nor has he otherwise seen fit to lodge a complaint with the professional body regulating accountants in New Zealand. I therefore have significant misgivings about the Applicant’s evidence that most, if not all, of his problems with the New Zealand taxation authorities derive from errors or omissions or other acts of deliberate inactivity or inattention by his accountant.
I also asked the Applicant about his firsthand knowledge of documents that must surely have come across his desk as part of his regular commercial activity in New Zealand during the time he conducted the property development business. I put it to him that it is difficult to believe that absolutely every single one of the communications from the New Zealand taxation authorities were only ever received by the accountant and viewed solely by the accountant. The Applicant accepted that he was aware of the nature and type of communications that were being sent by the New Zealand tax authorities. He also accepted that adverse consequences may well have resulted if the requirements of those notices/communications were not reasonably met. Despite that, the Applicant maintained at the hearing that he nevertheless relied on his accountant to attend to all of the requirements of the tax authorities and to otherwise ensure neither the Applicant nor his various entities were ever placed in harm’s way. I have difficulty accepting this contention.
The Applicant adopted a similar evidentiary posture in relation to the legal representative, Mr Ewen, who appeared for him and otherwise conducted the contested hearing of the various charges resulting in the Applicant’s criminal convictions. An initial item of interest for me was why – if the conduct giving rise to the offences / charges were so clear, blatant and irrefutable – did the Applicant see fit to actually take the determination of those charges to a formal hearing before judge and jury? I was also interested to know why the Applicant either chose to or was advised to contest these charges in circumstances where an early plea of guilty resulting in a saving to the state of the conduct of trial, would most likely have resulted in a less significant sentencing regime.
Once again, the Applicant responded with evidence to the effect that all of this was Mr Ewen’s doing. It was apparently the advice of Mr Ewen to take these matters before judge and jury, to run the risk of being found guilty of these charges before judge and jury and to then bear the consequences of a resulting sentence that would, in all likelihood, have been less significant if the charges were dealt with by way of early plea. I inquired whether Mr Ewen was being called as a witness so that this evidence could be verified with him. Mr Ewen was not called as a witness.
I similarly have misgivings about the Applicant’s apparent incapacity to either then or now fully meet or otherwise contribute to the $10,000 sum for reparations. The Applicant’s evidence was that he could not raise this money in Australia because his visa status precluded him from engaging in remunerative employment here. Be that as it may, it is nevertheless notable that no apparent attempt was made to address part or all of this $10,000 obligation while he remained in New Zealand. Resources were raised and expended by him and his wife in deciding to relocate to Australia. A perhaps more responsible decision may have been to remain in New Zealand and to square away his obligations with the law enforcement authorities there before looking at a fresh start here. The $10,000 obligation is not a resolved issue in the minds of the New Zealand authorities. Otherwise, they would not have issued at least one of the two warrants for his arrest in that country.
I also think it is quite significant for this Tribunal to have regard to the Applicant’s corporate structure pursuant to which he conducted his property development activities that gave rise to his difficulties with the taxation authorities in New Zealand.
At first blush, one may think the totality of his offending, as outlined at paragraphs [14-15] of these reasons, may be relatively short. However, the true nature of the offending is best understood by reference to the sentencing remarks of His Honour Judge Tuohy. Those comments reveal a pattern of conduct that can only be viewed as concerted and deliberate thus giving rise to the charges that were originally proffered against the Applicant. A precise description of the actual offences demonstrates a more knowing and active involvement by this Applicant in the totality of his taxation affairs at the relevant time.
Judge Tuohy refers to “…four counts of aiding and abetting his company, Onslow Construction Limited, to knowingly provide a false GST return, intending to evade the assessment or payment of GST, one count of aiding and abetting Onslow Construction Limited to knowingly provide a false income tax return, with the intent to evade the assessment or payment of income tax, one count of aiding or abetting Falkirk Trust to knowingly not provide a GST return, intending to evade the assessment or claiming of GST and another count of aiding and abetting Falkirk Trust to knowingly evade the assessment or payment of GST.”[10]
[10] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Annexure – Sentencing Remarks – per Tuohy J, paragraph 2.
Judge Tuohy further noted that “…The trial was quite long and involved an extensive amount of evidence and, indeed, involved charges on which the accused was either discharged, in relation to three counts during the trial or, was found not guilty in relation to one count.”
It is clear then that the Applicant vigorously contested the charges to the point where some were discontinued while others eventually went before the jury and then, the judge, for sentencing.
The conduct evincing the offending is, to my mind, clearly intentional and concerted. It cannot be reasonably believed that it occurred at the sole instigation or motivation of the Applicant’s accountant. For example, regard should be had to the further sentencing remarks of Judge Tuohy:
“…Mr Campbell was the sole director and shareholder of Onslow Construction Limited. It invoiced Quagliata Trust $333,000 for project management fees for a development, which Mr Campbell was carrying out through his entities at McLean Street, in Paraparaumu. Onslow Construction Limited received $260,000 from Quagliata Trust between October 2004 and January 2005. About a year later, well after the GST returns were due, Onslow Construction Limited filed nil GST returns for those four monthly GST periods, when in fact it had received $260,000 and invoiced $333,000, which was effectively profit from the development. Onslow Construction never paid the $28,888.89 GST, which it owed on those sales. That was Counts 4 to 7.”
A further example appears in the sentencing remarks of Judge Tuohy:
“…In terms of Count 8, that related to income tax Onslow Construction Limited ought to have declared, $231,111.11. That is the management fee it received, less GST, as income on which it was due to pay tax at 33%. The company filed a nil return towards the end of 2005 and thus evaded income tax of $76,266.67. There is some question as to whether the calculation should be slightly different but that question makes a difference of only $1000 and for the purposes of sentencing, it is not necessary to resolve it.”
Judge Tuohy goes on to outline the remainder of the conduct arising from the remaining counts. Suffice it to say that from the two examples provided above, the Applicant has exhibited wilfully dishonest conduct that, on the abovementioned counts alone, has deprived the New Zealand taxation authorities of over $100,000 in taxation revenue. Judge Tuohy added that “…It seems to me that it [the total amount of unpaid tax] is somewhere between $140,000 and $190,000. The only reason why it is necessary to make an assessment of the amount is to gauge the seriousness of the offending for the purposes of assessing an appropriate penalty…”
As against these comments, it should be noted that Judge Tuohy thought the Applicant “…is by no means amongst the worst in that regard.” His Honour also thought there was a lack of planning and pre-meditation. His Honour thought the conduct to be “…haphazard.” Be that as it may, the, in my view, crux of His Honour’s mindset in sentencing this Applicant derives from his comments that “…Nevertheless, the charges and the findings of guilt by the jury involved a finding of wilfully dishonest conduct. They are charges of helping one of his entities to knowingly provide false returns intending to evade the payment of tax.”
His Honour’s mindset is also evident in his deliberations about sentencing. His Honour noted “I reach the conclusion that a starting point of 21 months’ imprisonment is appropriate, which I reduce to 20 months for Mr Campbell’s previous good character, except for the tax convictions he has…I see no basis for either increasing or decreasing the sentence for the personal circumstances of Mr Campbell.” It was only after seriously considering 20 or 21 months’ of actual detention as a “starting point” that Judge Tuohy eventually moved towards home detention as an alternate sentencing regime.
I also note the Applicant has not given any indication of his undertaking any meaningful rehabilitation and there is no evidence of his taking steps to achieve a higher level of corporate governance and acumen such that he does not find himself in similar trouble in future. He spoke of finding work in his previously chosen field of writing procedural manuals for workplaces and of working as an employee or an independent contractor in that field. Be that as it may, there is nothing to mitigate against the Applicant again taking on an entrepreneurial guise and going back into business were he allowed to remain in Australia. His wife gave evidence of being a qualified chef and, as I gauged this Applicant, he seems to have a level of self-confidence that led me to think there was every likelihood he could re-enter the small business paradigm either in his chosen field of technical writing or as a co-operator (possibly with his wife) in a retail food business, for example.
The Applicant appeared to me to be trying to isolate his previous offending as an incident from his past. For similar reasons expressed by Judge Tuohy, I have misgivings as to whether this Applicant has really understood the severity of what happened or, more correctly, what he caused to happen in New Zealand. As noted by Judge Tuohy:
“[15] There also seems to be an underlying sense of entitlement in that benefits, which the community provides from taxes, roads, schools, hospitals, police et cetera are all enjoyed but there does not seem to be any problem with failing to contribute to them. One can see people appearing on tax fraud charges as not much different to benefit fraudsters or, indeed, people generally on charges of theft or dishonesty of one sort or another, the victims in this case being the fellow citizens of the person who is defrauding the Government of income tax or GST.”
Having regard to the totality of his offending, I consider (and find) that this Applicant’s past and present criminal and general conduct indicate he is not of good character and, accordingly, I am of the view that he does not pass the character test contained in s 501(6)(c) of the Act.
Section 501(6)(d) – Risk that the person would engage in similar conduct in Australia
Guidance for the application of this section can be found at paragraph 6 of Section 2 of the Annex. It relevantly provides that a person does not pass the character test if, in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in the conduct contemplated by s 501(6)(d) of the Act.
This provision is enlivened if there is evidence to demonstrate more than a minimal or remote chance that if allowed to remain in Australia, the person would engage in the type of conduct contemplated by it.[11] A finding of a person’s previous engagement is not sufficient for a decision-maker to find that the person has engaged in conduct contemplated by the section. It is necessary to identify a risk that the person would engage in such conduct.
[11] Section 501(6)(d)(i) of the Act refers to the risk of engaging in criminal conduct in Australia.
I think this Applicant’s risk of re-offending can be gauged by the attitude he has adopted toward his offending thus far. He seems more intent on making a fresh start rather than confronting and dealing with his past. The inclusion of the $10,000 for reparations was a specific component of his sentencing regime. It was not a cursory remark or order made by the sentencing judge. Indeed, it was simultaneously (1) a gesture of recognition by the sentencing judge that the New Zealand tax authorities had little or no prospect of recovering the approximately $140,000-$190,000 representing lost tax revenue arising from the Applicant’s conduct; while (2) setting an arbitrary, appropriate but not crushing “fine” to be paid by the Applicant as an obligatory part of his sentence. To be clear, I have little or no doubt that the sentencing judge looked at the totality of the Applicant’s financial circumstances at the time of sentencing and made the order about the $10,000 in the total expectation the Applicant would honour payment of it. As I have understood the evidence, the Applicant has at no time – either in the written or oral evidence – cavilled with imposition or payment of this sum.
Despite this, the Applicant saw fit to depart New Zealand without paying a solitary cent of the $10,000 reparations sum. At the hearing, he spoke of getting his visa, getting employment and paying the $10,000 as one of the first things he would do. It was clearly not one of the first things he thought of doing before departing New Zealand to come here. This further display of dilatoriness (following that which gave rise to his offending for which he was sentenced) has given rise to fresh difficulties this Applicant now has with lawful authority in the form of at least one live warrant for his arrest in New Zealand arising from this failure to pay (or meet the instalment payments for) this figure for reparation.
I therefore agree with the Respondent’s contention that the sentencing judge’s remarks about any real likelihood of future offending must be viewed in the context of being made before the Applicant breached the terms of his sentence by departing New Zealand thus intentionally defeating the obligation to meet payment of this sum for reparations.
It is, to my mind, also relevant to the question of any risk of re-offending that the trend of his offences is escalating in seriousness. This is not an Applicant with a consistently poor traffic history related to speeding, for example. This is an Applicant who fell foul of the authorities during 1996–2000 for, in essence, failing to meet some basic, but no less essential, regulatory requirements relating to the filing of documents.
Barely three years later, this offending had graduated both in severity and complexity to the extent where his while earlier offending may be viewed as perhaps oversights or inattention, the latter offending is of a clearly more serious and knowingly deliberate nature with specifically intended and unlawful outcomes. Notably, his most serious offending was committed between the ages of 39 and 50. It is difficult to be convinced he has overcome his propensity to offend in circumstances of financial difficulty or adversity. Until his evidence at the hearing was moderated by questions about the exact extent he could reasonably seek to rely on the apparent (but unproven) oversights, errors or inattention of his consultants, the Applicant was seemingly prepared to run a case on the basis that (a) all of this was due to the errors and omissions of others and (b) whatever he did (or caused to be done) was at the low end of this type of offending.
I also think it is notable that the Applicant chose to vigorously contest these charges and to run a seemingly lengthy defence before judge and jury. He has, of course, every right so to do although a more remorseful person would have, to my mind, taken an early plea with its attendant benefits on sentencing, squared the ledger with any monetary penalty in New Zealand and otherwise confront the reality of the situation.
I am therefore of the view that were he allowed to remain in Australia, there is a risk the Applicant would engage in the conduct prescribed in s 501(6)(d)(i) of the Act. Accordingly, the Applicant does not pass the character test pursuant to this section.
ISSUE 2: SHOULD THE DISCRETION IN S 501(1) TO REFUSE THE APPLICANT’S VISA BE EXERCISED?
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“… a decision-maker:… must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;…”[12]
[12] Direction No. 65, paragraph 7(1)(a).

The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia;
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that a decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulment obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1 of the Direction further provides that decision‑makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct, which includes the following:
(a).....
(b)….
(c)…..
(d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g)……
(h)…..
(i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
I have earlier found that this Applicant’s conduct causes him to fail the character test under s 501(6)(c). Such conduct is therefore viewed as serious pursuant to paragraph 11.1.1(d) of the Direction. The objectively serious nature of the conduct is evident from:
·the 23 incidents giving rise to intervention by lawful authority between 1996 and 2008;
·the trend of increasing serious of the Applicant’s conduct progressing from:
orelatively mundane failure to meet regulatory requirements relating to the lodgement of documents (1996 – 2000);
oattempted and actual evasion of the payment of taxation (2003 – 2009);
ofailure to comply with duly ordered sentencing orders (live warrant – New Zealand – February, 2013).
Across the 12 year period of offending, it can be fairly stated that the Applicant’s offending was frequent (or, put another way, frequently recurring). Twenty-three incidents across 12 years is, to my mind, frequent. I therefore find, in accordance with paragraph 11.1.1(f) of the Direction that this Applicant’s conduct was both frequent and of increasing seriousness.
While not having the characterization of violent offences, the Applicant’s taxation evasion offences were nevertheless viewed as sufficiently significant to warrant a sentence comprising:
·nine months of home detention;
·250 hours of community work;
·Payment of $10,000 in reparations.
In my view, it is therefore safe for a decision-maker to have reference to paragraph 11.1.1(d) of the Direction as a relevant factor pointing to the seriousness of this Applicant’s conduct.
In its Statement of Facts, Issues and Contentions,[13] the Respondent relevantly notes:
“…. that the Sentencing Act 2002 (New Zealand) provides (and provided in 2012) that a sentences [sic] of home detention can only be imposed where a court would otherwise sentence the offender to a ‘short-term sentence of imprisonment’. A short-term sentence is defined as a sentence of up to 24 months (see s 4(1) of the Sentencing Act 2002 (New Zealand) and s 4(1) of the Parole Act 2002 (New Zealand)…”
[13] See Exhibit 2, Respondent’s SFIC, para [45].
As I noted earlier in these reasons, the Respondent:
“…further notes that the sentencing Judge’s comments indicate at [22] that, as a starting point, he thought a sentence of 20 months imprisonment was appropriate (after a reduction of one month for [the Applicant’s] ‘previous good character’…”
There is no doubt that the seriousness of the Applicant’s offending in New Zealand is similarly viewed in Australia. Offences relating to tax evasion and failure to comply with all or part of any criminal sentence are a relevant factor pointing to the seriousness of the conduct under review pursuant to paragraph 11.1.1(d) of the Direction.
Having regard to the totality of the above factors, I find that the nature and seriousness of this Applicant’s conduct supports a finding that Primary Consideration 1 weighs in favour of refusing the Applicant’s visa.
(b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have cumulative regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. Stated briefly they are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account
(i)     information and evidence… on the likelihood of the non-citizen reoffending;
(ii)    evidence of rehabilitation achieved by the time of the decision…, and
(iii)    the duration of the intended stay in Australia.
Were the Applicant to re-offend here to the extent of the second phase of his offending in New Zealand (2003–2009), I think it can be fairly said that such offending would pose a risk to the Australian community. I find it difficult to accept that any reasonably minded member of our community would not consider that the wilfully dishonest avoidance of taxation in the range of $140,000-$190,000 would pose an unacceptable risk for the community. This is because the raising of taxation is precisely for the benefit of the community. How can a person’s conduct that wilfully and dishonestly deprives the Government of almost $200,000 in fundamentally essential revenue not be harmful to that community’s interests? As rightly noted by the sentencing Judge:
“…the victims in this case being the fellow citizens of the person who is defrauding the Government of income tax or GST.”[14]
[14] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, Annexure – Sentencing Remarks – per Tuohy J, paragraph [15].
In earlier paragraphs of these reasons ([60–68]), I have sought to describe factors pointing towards a likelihood of the Applicant engaging in further criminal or serious conduct were he to be granted a visa. For the purposes of paragraph 11.1.2(3) of the Direction, there is no evidence from any independent and authoritative source on the likelihood (or otherwise) of the citizen re-offending nor is there any evidence of rehabilitation or other remedial intervention.
Having regard to all of the factors, I find that the Applicant presents an appreciable risk of harm to the Australian community. Accordingly, I consider that Primary Consideration 1 weighs in favour of refusing the visa.
Primary Consideration B: The Best Interests of Minor Children in Australia
It is common ground that the Applicant does not have minor children in Australia and thus this factor does not require consideration.
Primary Consideration C: Expectations of the Australian Community
Prior to any discussion of this primary consideration, regard ought firstly be had to the Government’s intention behind the giving of legislative effect to the Direction:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.”[15]
[15] Paragraph 6.2 of the Direction.
Secondly, regard must also be had to paragraph 11.3 of the Direction which provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.”
This Applicant entered Australia in 2013 on a tourist visa while well into his 50s. He has not lived here for most of his life or from a very young age. It is, to my mind, safe to find:
·the Australian community would have a low tolerance of this Applicant’s criminal and serious conduct given his presence in and contribution to the Australian community for only a short period of time; and consequently,
·the Australian community would reasonably expect that people with this Applicant’s history of criminal offending should not be afforded the privilege of being allowed to come to, or remain permanently in, Australia.[16]
[16] See paragraph 6.3 of the Direction; sub-paragraphs (5) and (6).
The Applicant tepidly contends:
“…that, on balance, and in light of the circumstances surrounding his [the Applicant’s] offences…, the Australian community would expect that the Applicant should be permitted to remain in Australia.”[17]
[17] See Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 60.
I have significant difficulty being persuaded by that contention.
I have made findings as to (inter alia):
·the seriousness and relative frequency of the Applicant’s offending (23 incidents across a 12 year period);
·his purported vigorous defence – before judge and jury – of his wilfully dishonest conduct resulting in the deprivation of some $140,000 - $190,000 of income tax revenue to the New Zealand Government;
·the gradual escalation of the seriousness and sophistication of his offending;
·the continuing currency of his offending (outstanding warrants) in New Zealand;
·his readiness to lay the blame (without proof) for the cause and sentenced outcome for the totality of his offending at the door of others;
·his apparent lack of remorse and the absence of any rehabilitation or other remedial intervention.
Having regard to the totality of the above factors, I consider that the expectations of the Australian community are such as to support a refusal of this Applicant’s visa application. I accordingly consider the above factors support a finding that Primary Consideration C strongly favours a refusal of the visa.
Other Considerations
I now turn to the other considerations listed in paragraph 12 of the Direction.[18] I refer to each subparagraph and comment as follows:
[18] Direction No. 65, paragraph 12(1).
(a)International non-refoulement obligations – it is common ground that this consideration is of no relevance to this application;
(b)Impact on family members – the Respondent concedes a refusal of the visa will “significantly inconvenience” the Applicant’s wife, Mrs Campbell. I agree. Mrs Campbell gave evidence at the hearing. She is both an impressive and stoic lady who has been by the Applicant’s side since 2004. She has, in my respectful view, an excellent work ethic, having worked at a dairy concern in New Zealand in the 2000s. Upon arriving in Australia, she immediately set about gaining qualifications in cheffing. She told the hearing that cooking is a passionate interest of hers. She is also growing her qualifications in cheffing and hospitality and is the current breadwinner in the household she shares with the Applicant. She holds down reliable employment in the hospitality industry, often working weekends for extra money. I accept she may be compelled to return to New Zealand with the Applicant were I to refuse his visa. Be that as it may, I am also mindful that a return to any one of New Zealand, the United Kingdom or the Philippines is within the realms of realistic possibility because:
·they have developed a circle of friends in New Zealand, having resided there for a number of years before coming here, plus the Applicant has a daughter in New Zealand; or
·the United Kingdom is the Applicant’s country of citizenship and his sister resides there; or
·Mrs Campbell’s family – who, as I recall her evidence – all reside in the Philippines and are involved in the hospitality business there;
·Mrs Campbell’s qualifications as a chef can be readily applied in each of those aforementioned countries.
(c)Impact on victims – I think the Respondent’s contention is fairly made: that is, were the Applicant to reoffend in Australia, the Australian community would be impacted by the denial of taxation revenue intended, ultimately, for the benefit of our community;
(d)Impact on Australian business interests – it is common ground that this consideration is of no relevance to this application.
REFERENCES[19]
[19] There are a series of references appearing in Exhibit 4, G-documents, G27, page 351-360. Those references relate to an earlier phase of this application and were not pressed by either side to any great extent, or at all, during this hearing.
It is prudent to include some albeit brief commentary about the references furnished on behalf of the Applicant. They appear as an annexure to the Applicant’s Reply.[20] I discussed these four references with the parties’ representatives towards the end of the hearing. It was, as I recall, common ground that little regard should be had to the references of Mrs Mini Mathew and Ms Barbara Nishizawa because neither reference talks about the Applicant’s criminal history. The reference of Kris Ubando does contain a cursory reference to the Applicant’s home detention and community service in New Zealand. I note this reference speaks well of the Applicant.
[20] See Exhibit 3, Applicant’s Reply dated 6 June 2017. These four references were discussed during the hearing.
Of course, by far the most important reference is that of the Applicant’s wife, Mrs Campbell. Given her proximal relationship to the Applicant, its objectivity must be viewed in that light. I have, however, sought to capture what I consider to be the most pertinent aspect of that reference in my commentary around other consideration (b) (impact on family members).
CONCLUSION
I have made a finding that on the basis of his offending, the Applicant does not pass the character test as defined in s 501(6)(c) and (d) of the Act. In then considering whether to exercise the discretion afforded by s 501(1) of the Act to refuse to grant the visa, I have had regard to the considerations referred to in the Direction. Primary Considerations A and C weigh strongly in favour of refusing the visa. I have assigned no weight to Primary Consideration B. I acknowledge that some weight should be allocated to the Other Consideration (b) (impact on family members) but not to the extent it outweighs the considerations which favour refusal of the visa.
DECISION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.................[sgd]..............................
Associate
Dated: 20 June 2017

Date of hearing: 9 June 2017

Advocate for the Applicant: J. Samuta (Samuta Migration)

Solicitors for the Respondent: T. Aviram (Clayton Utz)

[2017] AATA 908

20 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Date of hearing:	9 June 2017
Advocate for the Applicant:	J. Samuta (Samuta Migration)
Solicitors for the Respondent:	T. Aviram (Clayton Utz)