Chan v Minister for Immigration, Local Government and Ethnic Affairs

[1991] FCA 615

Re: CHAN YEE YUEN; CHAN CHEUNG WAI LING and PEGGY YUET MEI PHAN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G181 of 1991
FED No. 615
Administrative Law
(1991) 31 FCR 565

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - application for a migrant entry visa - 30 year old conviction - whether applicant could thereby be said to be not of good character - relevance of government policy and policy implied by the Migration Act - whether decision unreasonable.

HEARING

SYDNEY

#DATE 18:10:1991

Counsel for the applicants: Mr P. Roberts

Solicitors for the applicants: David Landa,

Stewart and Co.

Counsel for the respondent: Mr N. Williams

Solicitor for the respondent: Australian Government Solicitor

ORDER

The decision of 21 December 1990 refusing a migrant entry visa to the First Applicant be set aside.

The matter be remitted to the Respondent to be reconsidered according to law.

The Respondent pay the Applicants' costs of the proceedings.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These proceedings are brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act") seeking orders of review with respect to a decision made in December 1990 by an officer of the Department of Immigration, Local Government and Ethnic Affairs refusing a migrant entry visa to the first applicant, Mr Y.Y. Chan.

1. The application has been brought by Mr Chan and his wife, who are residents of Hong Kong, and by his daughter who is an Australian citizen resident in Australia. The visa was sought when Mr Chan was approaching retiring age. He and his wife applied for visas so that they could join their daughter in Australia. Mr Chan's visa was refused on the ground that he "Failed to satisfy character requirement".

2. The problem has arisen from the fact that, in 1960 in Hong Kong, Mr Chan pleaded guilty to the offence of and was convicted of "membership of Triad Society". He was bound over on a recognisance of $HK500 to be of good behaviour for three years. When, in 1987, Mr Chan first made application for a migrant entry visa, he did not disclose the conviction, although when he applied for the second time in June 1989, he did so.

3. Because of the operation of s.6(4) of the Migration Legislation Amendment Act 1989 (Cth) ("the Amendment Act"), counsel are agreed that the statutory power to be exercised by the decision-maker was that under s.11A of the Migration Act 1958 (Cth) as it read prior to the 1989 amendments. That section conferred a general discretion to grant or refuse a visa.

4. Mr N. Williams, counsel for the Minister, therefore submitted that regard was to be had to the Minister's policy with respect to character requirement as in force prior to the development of the policy on character requirement as it is presently enunciated. In my opinion, the policy current at the time of the decision was not irrelevant. Under the Act as it presently stands, there is a requirement that an applicant be "of good character". No such criterion was expressed in the earlier legislation but officers of the Department properly took that criterion into account in the discretionary grant of visas and permits. If Mr Chan presently satisfies the policy as to "good character", I see nothing in the earlier legislation or in s.6(4) of the Amendment Act which expressly or impliedly would refuse the grant of the visa or permit sought.

5. There was before the decision-maker a statutory declaration by Mr Chan which stated, inter alia:-
   

"1. On 10th March 1960 I appeared before a court of Hong Kong on a charge of being a member of a triad society. I was charged for that offence because an Informer falsely reported to the Police Department that I was a member of triad society in exchange for reward. In fact I was never involved or associated with any triad society. On this 1960 case and notwithstanding this truth I pleaded guilty for convenience only and on the mistaken belief that the matter would thus be dealt with in a speedy and less costly way and I was not aware of the seriousness of a guilty plea record.

2. I hereby declare that I never was and am not a member of or associated with any triad society whether in Hong Kong or elsewhere."

A letter from Mr Chan's solicitor dated 1 June 1989 stated:-

"The abovesaid offence of our client went back to 1960, a time when the calibre and integrity of the members of the police force were loose. We are instructed that this was the primary cause of the offence which we are instructed was actually fabricated. The brief facts we are told were that at that time our client was a welder. He was and is a law-abiding good citizen. In the same working environment our client met one other worker who was also a police informant. The said worker on 3 occasions requested our client to make respective loans which our client granted to him. On the fourth occasion our client refused. One day after work when our client left the factory premises he was stopped by a plaincloth police. Our client was subsequently charged for the said offence of being a triad member. In fact we are instructed that the said police informant taking revenge of our client refusing to grant the fourth loan had alleged to the police that our client was a triad member which was totally false and groundless. We are sadly informed that in the olden days a police informant would get HK$5.00 for any `report' which would simply been accepted by his police boss without investgation (sic). Our client was told by the police that the charge was trivial and that everything would be okay if he admitted the charge forthwith. Due to ignorance of law and insufficient financial means to employ his own lawyer for advice and in the honest belief that to plea guilty despite such innocence would be the quickest and easiest way to shun away the nightmare our client therefore pleaded guilty and was convicted notwithstanding the truth."

The decision-maker was of course entitled, if he chose to do so, to take the conviction at its face value. But the question remains as to what the conviction conveys.

1. Some further facts were known as to Mr Chan. It was known that he was married to Mrs Chan for many years and that their daughter, Peggy, was born in 1964. There was on file a certificate from Pacific Islands Shipbuilding Co. Limited dated 22 February 1962 which certified that Mr Chan was employed as a welder in their shipyard from 12 September 1958 until 1962. The certificate said:-
   

"During this period we have found him to be a good and willing worker, also very hardworking conscientious and trustworthy. Due to a complete change in the organisation, we are unable to keep him but would gladly recommend him to anyone requiring his services."

There was also a certificate undated from Yau Wing Co. Limited, marine and civil engineering contractors, which certified that Mr Chan was employed as a welder from 1963 until February 1982. The certificate stated:-

"Mr Chan has a good performance in our company because of his obedience. ... His friendly manner also makes him easy to get along with our colleagues."

There was also a certificate from Fai Wong Engineering Co. which certified that Mr Chan was in their employment as a welder from February 1982. The certificate stated:-

"I have always found him to be efficient in his work with extremely pleasing and friendly manners."

Accordingly, the evidence showed that Mr Chan was in steady and long term employment as a welder from 1958. The material did not suggest that Mr Chan had any ill-gotten gains. It was known that Mr and Mrs Chan had lived in the same premises at Room 914, Block 41, Sau Mau Ping Estate, Kowloon since 1968 and that Mr Chan had no police record other than the 1960 conviction. Moreover, there was on file a report from the office of the Australian Consulate General in Hong Kong which stated inter alia:-

"Mr Chan was interviewed this morning regarding the 1960 conviction.

...

Mr Chan explained that he was working as a labourer in a ship building yard when the offence occured (sic). He claims a `friend' continually harassed him for money which he gave until on the fifth occasion he refused. Mr Chan said he had already given this `friend' a total of HK$200.00 and he just wasn't prepared to continue handing out money that he could ill afford. Mr Chan said the `friend' was a known police informant. He (the friend) apparently annoyed that Mr Chan wouldn't cooperate, went off to the police claiming Chan was a Triad member. Mr Chan said this `friend' was given HK$5.00 reward by the police. Mr Chan denies ever being a Triad member or being involved in illegal activities. However, he does admit having gambled in mahjong but claims the extent of betting would not have amounted to an illegal act. ...

Mr Chan's financial standing does not suggest he has wealth beyond what would be expected from his salary and commitments. He claims he presently earns HK$5,000 per month working at a ship building yard and pays HK$229.00 per month rent for his government flat. His wife does not work and they have no dependants or outstanding debts. ...

It is difficult to judge if Mr Chan is/was a Triad member. I do not believe he would have forgotten such an incidence and therefore do not accept his claim that the existance (sic) of the conviction slipped his mind at interview in 1987. However, he does not hve any physical features such as tatoos (sic), etc which are common for Triad members. Ms Monica Siu (another A Based officer) spoke to Mr Chan in Cantonese and agrees that he doesn't seem a `typical Triad type'. She said he appeared as a simple old Chinese man."

There was no suggestion in the material that Mr and Mrs Chan's daughter Peggy was not a respectable and respected member of the Australian community. She is a secretary employed by a bank. She and her husband are both in employment in Sydney.

1. In the light of this information, it seems to me that it was not open to a reasonable decision-maker to conclude that Mr Chan was not of good character. The only matter against him was the 1960 conviction for which an explanation was given and for which Mr Chan had received no penalty other than a bond. Even if the explanation were doubted, or not accepted, there was nothing else in his record to show that Mr Chan was other than a steady and reliable employee, a good husband and a good father.

2. The Migration Act in its earlier form conveyed a policy insofar as it specified in s.16 certain requirements for the disclosure of convictions. The section provided inter alia:-
   

"16.(1) Where ... a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who - ...

(c) at the time of entry is or was a person of any of the following descriptions, namely: ...

(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;

(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;

(iv) a person who has been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while he was of unsound mind;

...

that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognizes him to be a person referred to in this sub-section."

Mr Chan's conviction was not encompassed by this provision.

1. Nor did Mr Chan's conviction offend the policy current in 1989 which provided:-
   

"6.1.1. Applicants for migration must be of good character. The requirement covers three aspects:

. whether the applicant is a risk to Australia's security (ie likely to engage in espionage, sabotage, subversion or terrorism)

. whether the applicant has broken the law . whether the applicant has a history of criminal activity or other anti-social behaviour."

Paragraph 6.5.2 of the policy recited the paragraphs of s.16(1)(c) to which I have referred. Paragraph 6.5.4 referred to "a serious offence" not within those categories, without specifying what such an offence might be, and to the circumstance where the applicant "is known or believed to be involved in behaviour or activities of a seriously anti-social nature".

1. It does not seem to me to be reasonably open to a decision-maker to have concluded that the 1960 conviction and bond was "a serious offence" of this nature. Nor did the material tend to show that Mr Chan was currently involved in criminal or anti-social behaviour. In these circumstances, paragraph 6.5.4 would not have applied. The policy then stated:-
   

"6.5.5 Where an applicant has been convicted of one or a limited number of minor offences, decision rests with the overseas post. Where approval is recommended, the decision may be taken by a DILGEA officer at ASO 7 or above, or in those countries where no Department of Immigration, Local Government and Ethnic Affairs officer is based, the First Secretary.

6.5.6 In considering people convicted of minor offences, officers should take into account: . the nature of the offence . how old the applicant was when the offence was committed

. how long ago it was committed . the applicant's record since . how many offences were committed."

That policy sensibly required that a conviction for a minor offence should be considered for what it was and that the applicant's history since should be taken into account.

1. The policy current when the decision was made dealt with the matter as follows:-
   

"2.2 The overall objective of the character requirement is to protect the resident Australian community from the actions and influence of people who may: . threaten the security of the nation through acts of espionage, sabotage, politically motivated violence or foreign interference; promotion of communal violence or attacks on Australia's defence system; (the `security' element of the character requirement); or . pose an unacceptable threat to public safety or property (the `penal' element of the character requirement). ...

2.4 A person is taken not to meet the character requirement i.e. not to be of good character if:

(a) in the case of an applicant for a visa or an entry permit of any class (excluding those referred to at paragraph 1.1 above):

(i) ...

(ii) the applicant

(A) has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year; or

(B) has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or

(C) has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind; or ...

(iii) the applicant has in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights; and

(b) in the case of an applicant for an entry visa having effect as a permanent entry permit, or for a permanent entry permit - the applicant has at any time been convicted of offences (other than an offence referred to in paragraph (a)) in circumstances indicating, in the reasonable belief of the Minister, an habitual contempt, or disregard, for the law."

Again, Mr Chan's conviction did not offend these criteria.

1. Mr Chan's application went first to an officer of the Department. It was then reviewed by an Immigration Review Panel which, without stating reasons, recommended that the appeal be rejected. The decision was then made by an officer of the Department of Immigration, Local Government and Ethnic Affairs, an officer of Level ASO7, who affirmed the previous decision and refused Mr Chan's application. No reason has been given for these decisions save a lengthy report and recommendation which went with the papers to the Immigration Review Panel.

1. The report put before the Immigration Review Panel discloses a fundamental flaw because it directly relates Australia's present concern with membership of a Triad Society to Mr Chan's 1960 conviction. The report stated:-
   

"The conviction remains intact. However, in considering the penalty imposed it does not seem excessive."

The report then commented:-

"The offence itself (membership of Triad Society) is viewed with the utmost concern. ...

It is also noted that current legislation in Hong Kong imposes heavier penalties for the offence of being a member of Triad Society. These penalties reflect the seriousness with which the offence is viewed in today's environment."

The report thus related today's view of membership of a Triad Society to Mr Chan's conviction in 1960, overlooking Mr Chan's record in the 30 years since.

1. Mr Chan's conviction should have been considered for what it was. That 1960 conviction is not of itself proof that Mr Chan is or has in recent times been a member of a Triad Society and it is not evidence of a conviction which, at the present time, Australia would view with serious concern. It is a conviction which ought to be weighed up in the light of what is known of the circumstances surrounding it. The earlier policy specifically so provided.

2. In these circumstances, it seems to me that the decision-maker failed to weigh up the facts known as to Mr Chan in the light of the policy as disclosed by the Act and as stated by the Minister and that no reasonable decision-maker could have come to the conclusion that Mr Chan was not of good character merely on the basis of that 30 year old conviction.

3. For these reasons, it seems to me that there was an error of law in the decision and that it must be set aside. The matter should be remitted to the respondent to be reconsidered according to law. This will enable the respondent to make further enquiries or obtain further information if he wishes to do so. The respondent should pay the costs of the proceedings.