Darnia-Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3019
•20 August 2021
Darnia-Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3019 (20 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3938
Re:Hana Darnia-Wilson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:20 August 2021
Place:Sydney
The Tribunal is satisfied that the Visa Applicant passes the character test. The matter is remitted to the Department for further processing.
................................[SGD]........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – visa refusal – Migration Act 1958 (Cth), subsection 501(1) – character test – sentence imposed by foreign court – substantial criminal record – paragraph 501(6)(c) – Direction No. 90, Annex A, applied to character test – decision set aside and remitted.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (Cth)
Guardianship Act 1987 (NSW)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Victims Rights and Support Act 2013 (NSW)CASES
BHP Group Limited v Impiombato [2021] FCAFC 93
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113
DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242
Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 8
HYST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4427
Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42
Markaj and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1494
Markaj v Minister for Immigration and Border Protection [2020] FCA 1511
MGV [2017] NSWCATGD 40
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
NBL [2019] NSWCATGD 5
Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135
Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976Vallance v R [1961] HCA 42; (1961) 108 CLR 56
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Jennifer Jett and Austin Ramzy, ‘From Protester to Prisoner: How Hong Kong Is Stifling Dissent’, The New York Times (online), 28 May 2021 (updated 4 June 2021) <
Kaitlin Thals, ‘Greste: I will fly home soon’, The New Daily (online), 3 February 2015 (updated 3 February) < Falk, ‘Kuala Lumpur tribunal: Bush and Blair guilty’, Al Jazeera (online), 28 November 2011 <
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
20 August 2021
The Visa Applicant is a citizen of the United States of America.[1] I refer to him simply as the Applicant. His wife, Ms Hana Darnia-Wilson seeks review of a decision of a delegate of the Respondent to refuse to grant a Visitor visa to him.
[1] Attachment to Submissions, Part 4 filed 28 June 2020, item L.
In 1995, the Applicant was convicted of possessing drug paraphernalia and growing cannabis and sentenced to a term of two years imprisonment (18 months suspended) by a court in North Dakota. A few years previously, in 1991, he was sentenced for possessing stolen goods.
The Applicant is presently resident in Turkey. His wife is an Australian citizen and lives in Cairns.[2] They were married in Indonesia in January 2015.[3]
[2] See Attachment to Submissions, Part 3, item K.
[3] Marriage certificate filed 28 June 2020 and T10/41.
On 19 June 2017, the Applicant boarded a flight from Indonesia to Australia. During the flight he filled out the arrival card indicating that he intended to stay in Australia for 45 days. In response to the question ‘Do you have any criminal conviction/s?’ he answered yes.[4] He was refused entry and returned to the United States the following day.[5]
[4] T19/57.
[5]T19/58.
In August 2017, he applied for a Visitor visa to enter Australia to visit his wife. His request was refused by the Department of Home Affairs.
The delegate found that he had a substantial criminal record and therefore failed the character test. The delegate decided to exercise the discretion to refuse the Applicant’s request for a visa, concluding that:
[the Applicant] represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the risk of [the Applicant] reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.
The Applicant now seeks a merits review of the delegate’s decision.
The matter was heard by the Tribunal on 12 July 2021 by videoconference. The Applicant and his wife provided evidence to the Tribunal.
LEGISLATION
Under section 501 of the Migration Act 1958 (Cth) (‘the Migration Act’), a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in subsection 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to subsection 501(6) of the Act.
Subsection 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.[6]
[6] The preceding three paragraphs are taken in part from Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – Annex A – Application of the character test.
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character;
...
Otherwise, the person passes the character test.
The delegate found that the Applicant had a ‘substantial criminal record’ by reason of the sentence imposed by the court in North Dakota, and therefore failed the character test by reason of the combined effect of paragraphs 501(6)(a) and 501(7)(c).
The delegate did not identify any other criminal activity or convictions. Specifically, the delegate did not rely on subparagraph 501(6)(c)(i) relating to past criminal conduct.
Paragraph 501(7)(c) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;…
At the end of the hearing before the Tribunal, I asked the Respondent whether this applied to the facts of the present case. Did this provision apply to sentences imposed by the courts in foreign countries? Or was it confined to sentences imposed by state, territory or Commonwealth courts?
The Respondent pressed for a broad approach, saying that the provision extended to sentences imposed by foreign courts. He submitted that the scheme for approving foreign visitors to Australia would be undermined if the provision were to be given a narrow territorial scope.
The suggestion that a person automatically fails the character test if sentenced to 12 months or more by a foreign court or tribunal is a startling proposition. There have been many persons of character, from Mandela to Ghandi, to journalists in Egypt,[7] and modern democracy activists in Hong Kong,[8] who must fail this standard. Some former Presidents and Prime Ministers may struggle.[9]
[7] Kaitlin Thals, ‘Greste: I will fly home soon’, The New Daily (online), 3 February 2015 (updated 3 February) < (Accessed 7 August 2021).
[8] Jennifer Jett and Austin Ramzy, ‘From Protester to Prisoner: How Hong Kong Is Stifling Dissent’, The New York Times (online), 28 May 2021 (updated 4 June 2021) < (Accessed 6 August 2021).
[9] President George Bush and Prime Minister Blair convicted before a tribunal in Malaysia for waging war against Iraq: see Richard Falk, ‘Kuala Lumpur tribunal: Bush and Blair guilty’, Al Jazeera (online), 28 November 2011 < (accessed 6 August 2021).
I invited the Respondent to make written submissions on the point, which were provided to the Tribunal.
I am satisfied that paragraph 501(7)(c) does not apply to sentences imposed by courts or tribunals in foreign countries. The reasons for my decision on this point are provided in Part 2 of these reasons.
PART 1 - DOES THE APPLICANT PASS THE CHARACTER TEST?
The Respondent contends that the Applicant’s record of offending supports a negative assessment of his character. The question for consideration is whether, having regard to the Applicant’s past criminal conduct, he fails the character test.
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
…
(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; ...
I take the expression ‘criminal conduct’ in subparagraph 501(6)(c)(i) to be wide enough to include behaviour that would be regarded as criminal if committed in Australia. The Applicant’s conduct in relation to the growing of marijuana and the possession of drug paraphernalia, possession of stolen property etc., satisfies this description. In my respectful view, ‘criminal conduct’ would not include conduct that is not stigmatised as criminal in at least some part of Australia.
Direction No. 90
Section 499 of the Migration Act provides that the relevant minister may, for the purpose, relevantly, of assessing visa refusals under section 501 of the Migration Act, give directions to decision-makers under the Act. Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction No. 90’ or ‘the Direction’) is the current direction. The Tribunal is required by subsection 499(2A) to comply with the Direction.
Annex A, Section 2 of Direction No. 90 is headed ‘Application of the character test’. Paragraph 5 provides:
5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))
(1) A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2) The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3) In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person's character.
a) In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] '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.'
(4) In order to fail this limb of the character test, 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'. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
a) In Godley, Lee J went on to say 'For a finding to be made under section 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 judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character'.
'Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
Paragraphs 5.1 and 5.2 provide:
5.1 Past and present criminal conduct
(1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
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.
5.2 Past and present general conduct
(1) The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
a) in considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
(2) The following factors may also be considered in determining whether a person is not of good character:
a) whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
i. involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
ii. a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
iii. involvement in war crimes or crimes against humanity;
b) whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal/deportation; or
c) whether the person has been:
i. dishonourably discharged; or
ii. discharged prematurely;
from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct that, in Australia would be regarded as serious.
(3) Where a person is in Australia and charges have been brought against that person in a jurisdiction other than an Australian jurisdiction, and those charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of its impact on the person's overall character.
Consideration
I turn to consider the factors identified in 5.1 above. The task of the Tribunal is to assess the Applicant’s present character and to identify his enduring moral qualities.
a) the nature and severity of the criminal conduct
The Respondent has tendered a document from the Federal Bureau of Investigation (FBI) relating to the Applicant’s criminal history in the United States.[10] The Respondent has also tendered a separate document relating to his criminal history in California.[11] The California record refers to a number of minor drug related offences between 10 April 1991 and 25 October 1993.[12]
[10] T5/22 – 31.
[11] T6/32 – 36.
[12] In terms of providing the facts of a conviction, these records do not appear to be in a form that would satisfy the Evidence Act 1995 (Cth). Subsection 178(2) states that ‘Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or a registrar or other proper officer of the applicable court’. The Tribunal is not however bound by the rules of evidence.
The delegate referred to the Applicant's criminal history in the USA from 1991 to 1995 relating to drug and theft related convictions as follows:
18 September 1991 - PC-receive etc known stolen property—180 days imprisonment
13 August 1995 — Manuf/del of a cont substance—2 years and 18 months imprisonment;
13 August 1995 — Poss of drug paraphernalia—6 months imprisonment (5 months suspended for 2 years); and
12 September 1995 — Manufacturing of a controlled subst-FB—2 years imprisonment (18 months suspended).
There is also a reference in the records to a charge on 10 April 1991 of child indangerment (sic) and being under the influence of a controlled substance.[13] However, it appears that those charges were dismissed. The Applicant said that his ex-wife was a drug user and that he was separated from her at the time of these events. In his letter of 15 November 2020, he stated:
The child endangerment they dropped because I was taking my son to the hospital to have checked as he had gotten into my wife’s drug paraphernalia and she was unreachable. So better safe than sorry, I took him to the hospital just in case she had something in there he might have ingested. There was nothing, he was fine. But I was charged because I brought him in, since it wasn’t my paraphernalia, they dropped the charge. Also, the charge from 2008 was similar. I was driving her car and got pulled over. Apparently, she had some amphetamine hidden in the dash that they found. They knew exactly where it was like someone had told them. I explained it wasn’t mine and others drove the car. I wouldn’t testify against my wife so they asked me for help to make a drug buy from someone they knew and they would drop it. I went to the people several times but couldn’t get them to sell me drugs. after that I moved. I wasn’t even living there in that 2009 incident. I don’t know what that is but maybe since it’s the same city as the 2008 charge, they did that because I didn’t get them the drug buy. I did do as I promised and they didn’t prosecute.
[13] T5/26.
The record also states that the Applicant was arrested on 6 April 2008, and again on 2 January 2009 for possession of drugs in Minnesota, but that he denied the charges and they were dropped.[14]
[14] T5/30.
The Applicant has suggested that the FBI record contains duplicate offences and errors. He also gave evidence to this effect at the hearing.
Having heard from the Applicant, I am satisfied that he was convicted of two drug offences in North Dakota in 1995, and received a sentence of 2 years (18 months suspended). He also was convicted of receiving stolen property in California in 1991, and was sentenced to 180 days. The record does not show exactly how much time he served in prison, but the Applicant says that it was a matter of months.
b) the frequency of the person's offending and whether there is any trend of increasing seriousness
The FBI record contains multiple entries for the period 1991 – 1995.[15]
[15] T5/26-29.
The Applicant claims that some of the items relied upon by the delegate are duplicates. He said there was only one offence of manufacture, which he says relates to growing marijuana, which he says involved only one plant. The record does not provide any details of the alleged offending other than the charge and sentence.
c) the cumulative effect of repeated offending
During his early period of offending between 1991 and 1995 the cumulative effect of offending was considerable.
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
The Applicant has indicated that he was a heavy drug user in this early period. His attitude appears to fall into the ‘everybody was doing it’ category, which may reflect a certain irresponsibility and immaturity.
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
These offences occurred between 25 and 30 years ago.
The Applicant told the Tribunal that he was ‘into’ drugs in the nineties and his crimes were related to drug use, whether possession and under the influence, to theft related crimes like car theft and receiving stolen property. Everything was for the purpose of getting money to buy drugs, the actual purchase of drugs or using the drugs.[16] This is the limit of his offending.
[16] T9/40.
The Applicant stated that attitudes in the United States towards recreational drug use had changed considerably in recent years, especially towards cannabis. He pointed to recent reforms in North Dakota in relation to the decriminalisation of the possession of small amounts of cannabis, and that cannabis is now widely and legally available for sale in California.
He has provided several references attesting to his good behaviour.
He said he wanted to come to Australia to see whether it was a ‘good fit’ for him and whether it was a place he wanted to live permanently with his wife.
His wife also gave evidence to the Tribunal. She attested to his reformed character and indicated that he was entirely drug free and an inspirational mentor and life coach. She was keen for him to come to Australia and hoped that they would live together in this country. She also expected him to be an excellent role model for her daughter.
The Applicant’s wife provided an email in which she stated:
my husband fully admits these were all wrong and has turned his life around over a decade ago. He does lots of charity now and informal counselling. He recently received certification as a forgiveness life coach to help people remove the traumas that cause us to have the subconscious self-destructive impulses like he used to.[17]
[17] T1/1.
She also provided information about the supposed errors in the FBI record.
ii. any evidence of recidivism or continuing association with criminals
The Applicant gave evidence that his drug using days were over. He has also provided various references, including from his wife, to support that claim. I accept that the Applicant is not a drug user and is not likely to engage in or be associated with any drug related activity in the future.
iii. any pattern of similar criminal conduct
There is no pattern of conduct, certainly not in the past two decades.
iv. any pattern of continued or blatant disregard or contempt for the law
There is some evidence of that his attitude towards US drug laws in the nineties was one of disregard, although I cannot discount the possibility that he was simply addicted.
He said that he fitted into a drug culture that was especially prevalent in California and in some other parts of the United States.
He gave evidence to the Tribunal that he is no longer a user of recreational drugs. He had converted to Islam which was opposed to mind altering substances and was now into personal training and life coaching, especially for those who had experienced grief and trauma.[18] He was philosophical about his participation in the drug culture in the nineties. It was a stage of his life that was now closed.
[18] Applicant’s Letter, 10 October 2020.
In his letter of August 2017 he said:
I don’t remember the details of each incidence. But I can tell I was guilty of whatever the charge was at the time. I was into drugs at that time in my life and every crime was related to drug use, whether possession and under the influence which are obvious, to theft related crimes like car theft and receiving stolen property. Everything was for the purpose of getting money to buy drugs, the actual purchase of drugs or using the drugs.
At a point in my life many years ago I realized that the only possible result of that pathway was death or prison, so I began cleaning my act up. It didn’t happen overnight and sometimes I backslid but I did stay on the path to clean up.
I can honestly say “I’m not that person anymore”. I gave up the various drugs, and the need to commit crimes in support of drug abuse disappeared. I long ago decided to be a positive force in my life and the lives of others.
If I am granted a visa, I will not break any laws and will be of no trouble to authorities.
In his letter dated 15 November 2020, he stated:
All that stuff from the 80s and 90s mostly I’m guilty of. It was all related to drug addiction in some way. Addictions will make us into people we don’t recognize. And I was equal opportunity, I abused all drugs. I might have accepted stolen property and such but I was never violent. None of my crimes were violent because that’s not whom I am or ever was. I was just someone in pain trying to self-medicate it away. I think the addictions stem from subconscious pains and feeling of inadequacy that we medicate over with drugs because we don’t know what else to do. It’s the easy soft path unfortunately.
v. any conduct which may indicate character reform
The Applicant has provided several references of a completely different style of living which is centred on religion and counselling.
In his letter of 10 October 2020, he stated:
To Whom it may concern
I would like to say something about my past drug use as the possibility of using again was brought up as a reason to deny the visa.
My wife said to discuss this without bringing God into it. I cant.
I have been to 2 in patient treatment centers and have gone to hundreds of 12 step meetings. As an atheist I found them not really solving the issue. The 12 step systems requires a belief in a higher power and it was suggested to use anything if your were atheist. So my councilor suggesated I use a coffee cup as that coffee cup made it through the day without using. Unfortunately that coffee cup always failed me. An inanimate object just doesn’t work as a higher power.
What works it seems is a change of heart. Sometimes a traumatic or highly emotional event can cause that. A real desire to do and see things differently. A lot of time that just comes from age. The person is just too tired of living that lifestyle to maintain that lifestyle.
For me it was kind of both. I got tired of living the bad boy life. And I wanted to clean up my karma. So I started to change my life, and after a few years of slowly trying to be a better person I had a come to meeting moment as it’s called. God made Himself known in my life and caused me to search for who is God and what is it He wants or expects from me. It is at this point where I discovered Islam. Kind of through the back door as I explored why there was so much hateful propaganda against it. I realized for me, it’s the Truth about God. It’s a religion of abstinence, even alcohol, and to me that makes sense, God would want us to do the things that are best for us. Charity is required. That makes sense to me that God would require that of us. Some might say, What happens if you quit the religion? And I say well I like my life too much now to go back to the ruinous way I used to live but also the truth for me is, if you’ve seen and experienced what I have, there would be no way I would or could deny God. Its who I am now and it’ll be the way I am on the day I die.
I agree with the delegate’s assessment that the prospect of any recidivism is low, and I would say, very low.
FINDING ON THE CHARACTER TEST
While his criminal record in the nineties is undoubtedly a stain on his character, the stain is barely visible at this point in time. The image of the palimpsest comes to mind.[19]
[19] Vallance v R [1961] HCA 42; (1961) 108 CLR 56, per Windeyer J, at [3].
I consider that sufficient time has elapsed that it is not reasonable to make an adverse character assessment based on these charges and convictions which occurred so long ago. In New South Wales offences of this sort are for most purposes expunged after 10 years.
The Applicant has been candid about his past offending and he appears to have a genuine attempt to ‘go straight’.
I am satisfied that his past offending in the nineties is not such as to call his character into question at this time, given the period that has elapsed and the lack of any evidence of subsequent wrongdoing.
I am satisfied that the provisions of subparagraph 501(6)(c)(i) do not apply, and that none of the other grounds for failing the character test apply. Therefore, in accordance with subsection 501(6), the Applicant passes the character test. There is therefore no requirement to consider the discretion to refuse to grant the visa: see Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
I therefore find that the Applicant passes the character test, and that his application for a Visitor visa should be granted.
PART 2 - THE FOREIGN COURT ISSUE
I turn to the question whether the expression ‘sentenced to a term of imprisonment’ in paragraph 501(7)(c) includes a sentence imposed by foreign court, that is, a court that is not a state, territory or Commonwealth court.
At the outset, I note that the question of extraterritoriality to be settled is not concerned with the jurisdiction of the Tribunal as such. Questions may arise as to the jurisdiction of a court or tribunal to adjudicate or decide a matter relating to subject-matter that lies beyond the territorial boundary of that court of tribunal. The common law presumption against extraterritoriality implies that a local court or tribunal does not have jurisdiction to adjudicate or decide matters that have no connexion with the local territory.[20] The Tribunal is not concerned with this sort of jurisdictional question, relating to the territorial limits of an adjudicative or administrative body.[21]
[20] In MGV [2017] NSWCATGD 40 the NSW Civil and Administrative Tribunal (CAT) held that it did not have jurisdiction to make a guardianship order under the Guardianship Act 1987 (NSW) where the subject person was no longer resident in NSW. The presumption against extraterritoriality applied. More recently, in NBL [2019] NSWCATGD 5 the question before the CAT was the power to review the making and operation of an enduring power of attorney appointment where the parties were residing in different States of Australia. The CAT appears to have made a provisional determination that it had jurisdiction.
[21] Such as arose in BHP Group Limited v Impiombato [2021] FCAFC 93.
The question is rather as to the proper interpretation of the words of a statutory provision, to which the Tribunal must give effect, namely, whether a sentence imposed by a foreign court is relevantly a sentence to which paragraph 501(7)(c) refers.
It is not controversial that the application of a statutory provision may depend on an occurrence or event which may occur or has in fact occurred outside the jurisdiction. This is commonplace within a federal system. Even within a unitary system, ‘external events’ may bear directly on the application of local laws.[22] A simple example is that of recognising foreign licences, whether to marry, drive a motor vehicle or pilot an aircraft. External administrative acts (which depend on the occurrence of certain events) do not present a conceptual challenge.
[22] See, for example, Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42.
There are many cases where an extraterritorial event has an immediate legal consequence within the jurisdiction. This is the subject of private international law. The determination of legal relations and rights in contract or torts or family law is a settled part of international commerce and a necessary adjunct to operating across boundaries in a federal system, and of course, internationally. The identification of a person’s marital status, for example, will depend on the rules governing the recognition of foreign marriages and divorces.[23] Those rules will determine whether the grant of a final order for divorce in Paris has immediate effect to change a person’s marital status in Australia.
[23] In Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976 Deputy President Block expressed the view at [20] that ‘This Tribunal would not in my view be entitled to question the validity of an order by a competent court of a friendly foreign jurisdiction’ (reference omitted).
But these examples are very different from the value-laden process of identifying a person’s good character. An assessment of character is quintessentially driven by local standards. I do not think it controversial or impolite to say that, in terms of crime and punishment, and assessments of good character, there is often a gulf between attitudes in different nations, even amongst allies.
Turning to the ambit of the statutory provision, paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
Subsection 501(12) provides:
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
I approach this issue as a matter of construction, and not as a constitutional question about the legislative competence of the Commonwealth to legislate on a particular topic.
The present case is concerned with the delineation of the words of a statute, which have potentially a universal or transnational character. The common law presumption against the extraterritorial application of statutes suggests that where a statutory provision is silent on the matter, the provision should be construed so as not to have extraterritorial effect, unless to do so would defeat the purpose of the legislation.
In Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235 at [42]-[43] Hill J noted:
[A]s a matter of interpretation, laws of a sovereign legislature should be interpreted, where possible, so as not to give them an extraterritorial operation. More precisely, it may be said that legislation, be it of the United Kingdom Parliament, the Commonwealth Parliament or a State, where expressed in general words, will be construed so as to confine those general words to operate in accordance with the generally accepted principles of nations, and not so as to operate extraterritorially: Barcello v Electolytic Zinc Co of Australasia Ltd [1932] HCA 52; (1932) 48 CLR 391 and cf Pearce and Geddes: Statutory Interpretation in Australia (4th ed at 130-2).
That there is such a rule of interpretation may for present purposes be accepted. The application of it must however, depend upon the context of the legislation, the legislative purpose and the construction of the statute as a whole.
The Criminal Code Act 1995 (Cth) (‘the Criminal Code’) expressly provides for extraterritorial reach in some clearly defined cases;[24] as does the Australian Citizenship Act 2007 (Cth),[25] and, importantly, the Migration Act.[26]
[24] See Criminal Code, section 15.4. The general rule relating to criminal offences under the Criminal Code is that ‘[t]he only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act’: see paragraph 1.1.
[25] Section 51.
[26] For example, section 5M, as discussed below.
The language of paragraph 501(7)(c) is of general application and is not explicitly limited in territorial or jurisdictional terms. This does not mean that the coverage of the provision is universal. A provision couched in words of apparent universal or extraterritorial application may be limited geographically.
In DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242, the NSW Court of Appeal considered the territorial scope of the Victims Rights and Support Act 2013 (NSW). The Court held that an act of violence had to occur in NSW in order to be compensable, despite the wording of the statute which was in general terms. Bell P spoke of the desirability of explicit legislative guidance as to the territorial reach in such cases. His Honour noted that:
Questions such as these frequently arise in circumstances where a statute employs general or apparently universal language and where the subject matter which the statute addresses may occur or exist outside as well as within the territory in which the relevant legislature is located. They go to the extent of the application of a statute to property which may be situated, or conduct which occurs, either outside the territory of the enacting legislature or partly outside that territory.
Unfortunately, there is no explicit legislative guidance on the matter in hand. There are however some indicators from section 501 that paragraph 501(7)(c) is limited to offences dealt with by state, territory or federal courts, and is not intended to have extraterritorial reach.
First, paragraph 21(1)(b) of the Acts Interpretation Act 1901 (Cth) provides that in any Act ‘references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.’ Section 21 essentially encapsulates the presumption against the extraterritorial application of statutes. Section 21 implies that the reference in paragraph 501(7)(c) to a ‘sentence’ is a reference to a sentence imposed ‘in … the Commonwealth’.
Second, the word ‘sentence’ is defined for the purpose of subsection 501, to include ‘any form of determination of the punishment for an offence.’ The term ‘offence’ is not expressly defined for the purpose of section 501, but forms part of the definition of ‘sentence’. Under section 5 of the Migration Act ‘offence against this Act’ includes:
(a) an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and
(b) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act.
There is no reference in the definition to offences dealt with by foreign courts.
Third, in some special cases the Migration Act makes explicit reference to offences dealt with in the court of a foreign country. For example, section 5M defines ‘particularly serious crime’, in terms of ‘a serious Australian offence’ or ‘a serious foreign offence’. The relevant section is as follows:
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
These terms are in turn defined in section 5 of the Migration Act.[27] For example:
[27] See KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [19].
serious foreign offence means an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
(emphasis added)
Given the existence of this defined special category of serious foreign offence, and the limitations imposed by the second limb of the definition, it would be surprising if the word ‘offence’ in subsection 501(12) had extraterritorial reach as a matter of course.
It appears that where it is intended to convey that a foreign court is included, the Act does so in express terms.
Another example, from within section 501 itself, may be found in the 2014 amendments to the Migration Act which inserted two new paragraphs.[28] These additional grounds for failing the character test were expressly extended to convictions before foreign courts.
[28] Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).
Paragraph 501(6)(e) applied to sexually based offences involving a child, and paragraph 501(6)(f) inserted a reference to offences such as genocide and war crimes (loosely, crimes of universal jurisdiction recognised by international humanitarian law).
As a result of this amendment, a person does not pass the character test if:
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or …
(emphasis added)
The express reference to foreign courts in this context is a clear indication that these are special cases, so special that principles of universal jurisdiction are applied. [29]
[29] The notion that ‘All crimes is local’ is intended to limit the reach of criminal law within jurisdictional boundaries. Acceptance that some crimes are such as to attract universal jurisdiction developed within that constitutional context.
This tends to suggest that the deeming provision in paragraph 501(7)(c) does not apply to any case where a sentence is imposed by a foreign court or tribunal: expressio unius est exclusio alterius.
Fourth, the word ‘court’ is defined for the purpose of section 501. The definition does not explicitly embrace a foreign court for the purposes of the section. Subsection 501(12) states:
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
The inclusion of court martials and military tribunals in the definition of ‘court’ does not sit comfortably with extraterritorial extension.
As a matter of statutory construction, these are all strong indicators against the broad approach contended for by the Respondent. To the extent that the Tribunal has a leeway of choice, to apply Professor Stone’s memorable phrase,[30] it should not be held that a sentencing decision by a foreign criminal court or tribunal conclusively determines that a person fails the character test for the purposes of paragraph 501(6)(a) of the Migration Act. Neither the status of the court or tribunal, nor the subject matter of the criminal law of which the person is convicted, are alluded to in paragraph 501(7)(c).
[30] Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1, at [205].
PRECEDENT
When pressed for legal authority for the broad approach, the Respondent referred to two federal court cases. The first case involved the question whether a suspended sentence fell within paragraph 501(7)(c). It had nothing to do with foreign courts. Nicholas J expressed the view, obiter dicta, that paragraph 501(7)(c) applied to sentences imposed ‘abroad’ (presumably by a foreign court).[31]
[31] Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33 at [93] (Brown).
Importantly, his Honour’s comment predates by four years the important amendments to subsection 501(6) of the Migration Act, to which reference has been made above. His Honour’s passing observation was recently referred to by Kenny J in proceedings involving a sentence imposed by an Italian court. In Markaj v Minister for Immigration and Border Protection [2020] FCA 1511, Kenny J noted:
[12] There was little, if any, dispute that the applicant did not pass the character test for the purposes of s 501(1) of the Migration Act, since the Applicant had been sentenced to a term of imprisonment exceeding 12 months while residing in Italy: see ss 501(6)(a) and (7)(c)… As Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [93]:
Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision. [32]
[32] The decision by the Tribunal was set aside and the matter was remitted for reconsideration by the Tribunal: see Markaj and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1494, per Deputy President Britten-Jones.
It is apparent that Kenny J relied upon Nicholas J’s dictum without qualification. The learned judge did not refer to the potential limiting effect of the 2014 amendments to the Migration Act. Moreover, neither party raised the matter for consideration. With respect, I do not think that under these circumstances the decision is binding on the Tribunal.
Some Tribunal members have favoured the broad approach.[33] For example, in Petrovic and Minister for Immigration and Multicultural Affairs [2000] AATA 1135, Deputy President Breen did not doubt that a conviction before a court in Yugoslavia fell within the scope of paragraph 501(7)(c). The learned Deputy President stated that ‘The Tribunal must accept the fact of the conviction’(at [6]) and at [10] stated:
What the Tribunal is left with is a description of an event which occurred 24 years ago and was considered serious enough under Yugoslavian law to warrant a conviction and a lengthy criminal conviction. That the same event may not have been treated so harshly in Australia is something the Tribunal may have regard to, particularly as the legal system in Yugoslavia is quite different from that in Australia, but the fact of the conviction remains and cannot be disregarded in any way. To take this approach is not to go behind the conviction but, rather, to assess how seriously the Australian community would regard this particular instance of criminal activity in all of the circumstances. The mere fact that a conviction issues out of a foreign court does not of itself give cause for this Tribunal to question it. There would have to be clear evidence of a substantial miscarriage of justice, which is political in nature, before that issue would arise.
(emphasis added)
[33] See two recent decisions by Senior Member A. Nikolic AM CSC: Dougherty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 8 (12 January 2021); HYST and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4427 (6 November 2020).
The focus of the learned Deputy President’s comment was the extent to which it was permitted to go behind a conviction, although clearly he thought that the Tribunal must accept the fact of the foreign conviction. With respect, the suggestion that the application of paragraph 501(7)(c) depends upon showing some extra-legal political dimension to the decision of the foreign court is unworkable.
I consider that the better view is that the imposition by a foreign court of a sentence of imprisonment of 12 months or more is not, as a matter of law, sufficient to conclusively justify a finding that a person fails the character test by reason of having a substantial criminal record within paragraph 501(7)(c), as subsection 501 now stands.
For the above reasons, I decided that the expression ‘sentenced to a term of imprisonment’ in paragraph 501(7)(c) does not extend to a sentence imposed by a foreign court, and that the word ‘offence’ in paragraph 501(12), unless otherwise expressly stated, applies to offences defined under State, Territory or Commonwealth laws.
I therefore proceeded to consider the present application by reference to the Applicant’s past criminal conduct, taking the expression ‘criminal conduct’ under subparagraph 501(6)(c)(i) to be wide enough to include behaviour that would be regarded as criminal if committed in Australia. On that basis, I was not satisfied that the Applicant failed the character test.
A final observation. The delegate declined to exercise the discretion to grant the visa, applying Direction No. 79. The delegate found that the Applicant had a ‘substantial criminal record’ applying subparagraph 501(7)(c)(i). The delegate did not consider paragraph 501(6)(c) as a ground for failing the character test. Given the view that I have taken on the foreign courts issue, it might be said that the correct course is to remit the matter to the Department with a direction for the delegate to consider the matter under paragraph 501(6)(c). The Tribunal did not take this course for the following reasons. The reviewable decision is the refusal to grant the visa. The delegate’s decision that the Applicant failed the character test was a threshold question. The matters considered by the delegate under Direction No. 79 comprehend most of the matters considered in relation to the assessment of character by reference to paragraph 501(6)(c). The Tribunal is required to consider the matter de novo, standing in the shoes of the original decision-maker. It would frustrate the objective of the Administrative Appeals Tribunal Act 1975 (Cth) to provide a mechanism for review that is, amongst other things, economical, informal and quick, to remit the matter for reconsideration under paragraph 501(6)(c).
DECISION
The Tribunal is satisfied that the Visa Applicant passes the character test. The matter is remitted to the Department for further processing.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
...............................[SGD].........................................
Associate
Dated: 20 August 2021
Date of hearing: 12 July 2021 Date final submissions received: 29 July 2021 Advocate for the Applicant: Mr C Cathcart Solicitor for the Respondent: Mr T Galvin, Minter Ellison ANNEXURE A – ATTACHMENTS
T5 Attachment A—FBI Police Certificate 22.02.2017 22-31
T6 Attachment B—State of California Police Certificate 03.07.2017 32-36
T7 Attachment C—Kuwait Police Certificate—Good Conduct Certificate 15.05.2018 37-38
T8 Attachment D—Kuwait Police Certificate—Good Conduct Certificate 12.05.2019 39
T9 Attachment E—Personal statement made by the Applicant 08.2017 40
T10 Attachment F—Copy of marriage agreement (translated and untranslated versions) 41-42
T11 Attachment G—Letter and photographs from Hana Darnia-Wilson 14.01.2019 43-45
T12 Attachment H—Letter from Suhaimi Mustapha 17.05.2018 46
T13 Attachment I—Letter from Wajahat Sayeed 23.05.2018 47
T14 Attachment J—Letter from Jamal Alruwayeh Undated 48
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