Elliott and Minister for Immigration and Multicultural Affairs - [2000] AATA 363

DECISION AND REASONS FOR DECISION [2000] AATA 363

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/103

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CHRISTOPHER ELLIOTT
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell

Date1 March 2000
PlaceSydney

Decision FOR the reasons given orally at the conclusion of the hearing in this matter the decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that Christopher Elliott passes the Character test under s501 of the Migration Act (1958) for the grant of a visa.

(Sgd) Duncan Chappell  ..............................................
  Dr Duncan Chappell
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - citizen of the United Kingdom - same sex partnership - Subclass 814 interdependency (reserve) visa - permanent residency application - refusal to issue - not of good character due to past and present general conduct - public interest criteria - character test - alleged false or misleading statutory declarations - bogus document - effect of stress on relationship - enduring moral qualities – no evidence of intent to deceive or mislead
Migration Act (1958) s 501, 500(1)(b), 501G, 500(6B), 500(6H), 500(6J)
Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187

REASONS FOR DECISION

1 March 2000 Dr D Chappell

This is an application brought by Mr Christopher Charles Elliott for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 11 January 2000. That decision, made pursuant to s501 of the Migration Act 1958 (the Act), refused Mr Elliott permanent residency under a Subclass 814 interdependency (reserve) visa. The refusal was based on a finding that Mr Elliott was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr Elliott was represented by Mr Brian Hillman of Reilly Hillers, Solicitors. Mr Elliott gave personal testimony to the Tribunal in support of his case. So too did Mr Dennis John Ross, a former partner of Mr Elliott. The respondent was represented by Ms Juanita Kapel, an advocate from the Department of Immigration and Multicultural Affairs (DIMA). One witness was called to testify on behalf of the respondent, Ms Carlene Larkins, an official employed by DIMA, who was the case officer involved in Mr Elliott's matter in 1995.
The Tribunal had before it documents relating to the decision provided by the respondent to the applicant pursuant to s501G(2) of the Act (the 501G documents). These documents were lodged on 19 January of this year. I find specifically that this was within the time prescribed by s500(6B) of the Act. The Tribunal also received into evidence a number of exhibits including written statements for Mr Elliott and Mr Ross. I also find formally that the terms of ss500(6H) and 500(6J)of the Act have been met in regard to these statements and associated documentary exhibits.
The Minister's policy direction, made under s499 of the Act was tendered as an exhibit (R1). The transcript will show the discussion that took place about this tender and the reasons that were given by the Tribunal for accepting that document as an exhibit.
Turning now to the legislative and policy considerations which must guide the Tribunal in this matter it is a condition of a subclass 814 visa that the applicant must satisfy the public interest criteria 4001 as detailed in the Migration regulations. This public interest criteria requires that an applicant pass the character test as set out in s501 of the Act.
The question therefore for the Tribunal to consider is whether Mr Elliott is of good character for the purposes of s501. If the Tribunal is satisfied that he is not of good character, it may nevertheless still exercise the discretion under s501 not to refuse the granting of a visa.
It was contended in general by the respondent that Mr Elliott did not meet the character test because of his past and present general conduct. Section 501 states:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Then under s501(6), it is said:

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:
…
(ii)
the person's past and present general conduct;
the person is not of good character;

The specific contentions made by the respondent are detailed in its Statement of Facts and Contentions (paragraphs 17-23). I would like to summarise briefly what these Contentions are. It is noted that paragraph 1.9 of the policy direction sets out matters which should be considered when deciding whether an applicant is of good character, and which in the absence of countervailing circumstances constitute a failure to pass the character test to which I just referred. They include:
(b) whether the non citizen has in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
According to the respondent's Statement of Facts and Contentions, Mr Elliott's former partner, Mr Ross, made a statutory declaration which purported to have been subscribed and declared by him before a Justice of the Peace in Darlinghurst, New South Wales on 15 March 1995. It was contended that Mr Ross was in fact not in Australia on that date.
Mr Ross' statutory declaration also stated:
We've now been cohabiting together for about four years.

In fact, contended the respondent, Mr Ross and Mr Elliott ceased cohabiting in late 1993.
Mr Ross also declared:

Our relationship is as strong and committed as ever.

In fact it was contended by the respondent that Mr Ross had left Australia four months earlier and was in the process of ending the relationship. The respondent further submitted that the applicant knew that his relationship with Mr Ross was finished when he submitted the statutory declaration to the Department. The respondent also contended that Mr Elliott had made a statutory declaration himself, dated 20 March 1995, in which he declared that he and Mr Ross were living at the same address at 56 Pauline Avenue, Coogee when in fact Mr Ross had left Australia in December 1994 and did not return to live with Mr Elliott.

The respondent's Statement of Facts and Contentions also referred to a statutory declaration which had been submitted by the flatmate of both Mr Elliott and Mr Ross, a Ms Weaver, in which she had asserted that:
I know them to be in a caring and ongoing relationship.

Ms Weaver also stated:

They shared the present address since September 1994.

It was contended by the respondent that in fact Mr Ross had left Australia in December 1994 and had not returned. The respondent submitted that Mr Elliott had in fact provided three misleading statutory declarations, to enhance his chances of being granted permanent residency, when he knew that the relationship which he had had with Mr Ross was not likely to continue. He was therefore not a person of good character having regard to his past and present general conduct.
I turn now to consider the evidence which is before the Tribunal in this matter. Both Mr Elliott and Mr Ross provided the Tribunal with detailed written statements (exhibits A1, A2 and A3) and also gave oral testimony about what had occurred in the course of their relationship. The evidence showed that Mr Elliott was and is a citizen of the United Kingdom and that he commenced his relationship with Mr Ross, who is an Australian citizen, in about May 1991.
The written statements provide a sequential and full summary of what it was said occurred. In his statutory declaration (exhibit A2) dated 4 January 2000, Mr Ross talked about the establishment of his relationship with Mr Elliott and said that on the basis of that relationship, Mr Elliott had applied to the respondent for residence in Australia. That independent relationship was in fact recognised and a visa was granted on that basis. The relationship continued at Wonderland Avenue, Bondi until the end of 1993 when Mr Ross indicated that he began to feel considerable pressure from his work. The relationship then entered a difficult period that lasted for some months.
In a second affidavit, dated 17 February 2000 (exhibit A3), Mr Ross gave more details of the nature of the pressure that he had been experiencing at that time. Mr Ross indicated that he was working at the AIDS Centre, Woolloomooloo for the New South Wales Department of Health. In the course of his professional work, he was involved in care, supervision and general social assistance to AIDS patients. One of these patients for whom he was responsible was suffering from AIDS related dementia and, as a consequence of that dementia, developed some paranoid tendencies and began stalking Mr Ross; confronting him at various times in places; and threatening to stab him with a syringe of his infected blood. Mr Ross said that he was advised against taking any police or related action against this patient because of his condition but the effect of the stalking and harassment was such as to place him under significant stress. He sought professional help for this and was treated as having suffered post traumatic depression, a condition which he said he was not really fully conscious of having experienced. As a result of this he said he was given a suitable anti-depressant and sedative treatment over a period of some months. He also said that the stress and the medication led to severe mood swings including irrational, atypical, behaviour, exaggerated fears and a general feeling of helplessness.
Mr Ross stated that it was not only very hard for him to maintain his employment but it was also very difficult for him to maintain a stable relationship with his partner, Mr Elliott. It was against this background that the relationship between Mr Elliott and Mr Ross went through a considerable time of disruption and also some periods of separation. It led to a decision that Mr Ross and Mr Elliott should spend some time apart in separate accommodation in order to give Mr Ross some space. Mr Ross sought to work through these issues with Mr Elliott and Mr Elliott continued to spend most of his time with Mr Ross at their residence at Wonderland Avenue in Bondi.
In mid 1994, Mr Ross said that he took holidays in the United Kingdom where he stayed with Mr Elliott's sister and parents. This was a demonstration of the closeness of his relationship with Mr Elliott. Mr Ross said that he considered himself to be part of that family and he maintained contact with Mr Elliott who was in Australia at this time. Mr Elliott, it would seem, had found a new place for Mr Ross to live with him when he returned to Australia. That place was in Pauline Avenue, Coogee. Mr Elliott himself indicated that he returned to England in August 1994 and joined Mr Ross, first at Whitechapel and then with Mr Elliott's family. Mr Elliott and Mr Ross eventually came back to Australia and the place they now considered to be their joint residence at 56 Pauline Avenue, Coogee.
The poor state of health that was being experienced by Mr Ross continued, as a result of the factors I have already mentioned and which are set out in his affidavit (exhibit A3). Mr Ross said that towards the end of December he decided he still needed to have time apart to recover from these difficulties and to improve his state of health, and he returned to the United Kingdom. He also indicated that the decision was in part made so he could assist with nursing a friend who was himself sick with aids. Mr Elliott and Mr Ross, both in their statements and personal testimony, clearly viewed the relationship as continuing despite the absence of Mr Ross.
It was against this background that the events then transpired which have in essence led to the present proceedings before the Tribunal. In about late February 1995, a DIMA officer, Ms Larkins, contacted Mr Elliott and made a request for some information. That request, recorded in the form of a letter dated 21 February 1995 addressed to Mr Elliott at 56 Pauline Avenue, Coogee, dated 21 February 1995 stated:
Dear Sir,
Prior to your case being sent to the Minister for decision I would appreciate you sending in updated statutory declarations (one from yourself and the other from your nominating partner) as well as updated evidence of cohabitation, this evidence should relate to your recent change of address around October 94.
I apologise for the delay in the processing of your application. As soon as the statutory declarations etc., are returned to this office, the application will be forwarded to the Minister.
(s501G documents: folio 1)

It is recorded that this request was sent to Mr Elliott by certified mail on 21 February 1995. We can also presume that it was this request that precipitated what followed. At the time that Mr Elliott received this request, Mr Ross was still in the United Kingdom and Mr Elliott in his evidence said that he informed Mr Ross by phone of the request and asked that a statutory declaration be prepared by him.

The statutory declaration that was in fact prepared has lead to the assertion that Mr Elliott is not a person of good character. It is therefore important to trace this particular series of events in detail and to look at the evidence that has been presented. Mr Ross said that he had been sent, to the best of his recollection, a blank statutory declaration form from New South Wales. He presumed that Mr Elliott must have sent those documents to him, although neither he nor Mr Elliott has a direct recollection of quite when or how they were delivered. Mr Ross said that he knew that the statutory declaration had to be witnessed by a Justice of the Peace and he did not know of any such person in the United Kingdom. He therefore called an old work colleague in Australia, Ms Dianne Phyllis Robinson, whom he knew was a Justice of the Peace and discussed his need for a declaration with her. He also discussed what he was saying in it and indicated that he would like her to attest the declaration.
The Tribunal has acquired a statutory declaration from Ms Robinson (exhibit A4) in which she gives a description of what she said took place when she received this call from Mr Ross in England. I should note that Ms Robinson was not able to attend the Tribunal to give evidence in person. The Tribunal received into evidence a certificate from Dr Richard Sippe dated 22 February 2000 (exhibit A5), stating that Ms Robinson is suffering from a depressive illness which totally incapacitates her and renders her unfit for court appearance.
Ms Robinson said in her statutory declaration that in 1995 she was employed as a nurse at the Darlinghurst Community Centre and in that capacity had known Mr Ross for some time. She said Mr Ross advised her of the relationship that he was in with Mr Elliott and that at some time Mr Ross had left the Darlinghurst Community Centre and had gone for a period to England from where he telephoned her in approximately March 1995. She said that Mr Ross explained to her he was going to make a statement concerning his relationship with Mr Elliott and this needed to be witnessed by a Justice of the Peace. According to Ms Robinson, Mr Ross said words to the effect:
I am telephoning you to tell you what I propose to say about our relationship with Chris. As you have known me for some time and will recognise by [sic] signature, I propose to send you the draft to have it witnessed by you.

Ms Robinson's statutory declaration then goes on to say that:

I received the statutory declaration.
From this I recognised the signature of Dennis John Ross and that the contents of the statutory declaration confirmed what Dennis John Ross had previously told me by telephone.
I therefore signed the statutory declaration.
Some time thereafter Christopher Charles Elliott collected the statutory declaration from me at Darlinghurst Community Centre.

(exhibit A4)

The declaration that Mr Ross in fact sent to Ms Robinson said the following:
I first met Christopher Elliott in August 1990 and we had lived together in a relationship since May 1991. We have now been cohabiting together for almost four years.
We moved to our present address in late September 1994 when we returned from our vacation with Christopher's sister and parents in the UK.
We share this address with Ms Debbi Weaver who also shared with us for a time at Tamarama.
Our relationship is as strong and committed as ever and am [sic] looking forward to fulfilling some of our long time goals once this application is finally granted.
(s501G documents: folio 2)
There was no date on the declaration but in his personal testimony, Mr Ross was shown the document and he said it was in his handwriting. He had signed it but he had not dated it because he thought Ms Robinson would do that. In fact it was dated 15 March 1995 and signed D.P. Robinson, JP at the bottom of the attesting section of that document. Mr Ross said that he had mailed the statutory declaration without it being attested back to Ms Robinson. After she had signed it, the next action was one taken by Mr Elliott which he both described in his testimony and which is also documented in the s501G materials.
Mr Elliott sent a letter addressed to Ms Janine Larkins, Residency Section, The Rocks which we take it is the respondent official's office. Mr Elliott gave his address as 56 Pauline Avenue, Coogee. The letter is dated 20 March 1995. It has the respondent's file reference on it. It said:
Dear Madam,
As requested, please find enclosed statutory declarations from myself and Dennis. I have also enclosed rental receipts from Ms Debbie Weaver and a statutory declaration from her, as we have lived with her since the end of September 1994. Please also find enclosed a statutory declaration from my sister, Miss Jane Elliott who we stayed with in England August/September 1994.
(s501 G documents: folio 3)

The letter is signed by Mr Elliott. The letter written by Mr Elliott was received by the respondent's officials on 21 March 1985. On Friday, March 24 1995 Ms Larkins had a conversation with Mr Elliott in which she expressed certain concerns about the material that had been sent to her and requested that he provide a copy of Mr Ross' passport. There is a file note recording these events, written shortly after Ms Larkins' conversation with Mr Elliott. The file notes state:

Mr Elliott came in today, he came in response to our telephone conversation I had with him on Fri. I had asked Mr Elliott to provide a full cert copy of the nominators ppt. My reason for this was (1) the stat dec signed by Mr Ross on 15/03/95 (2) M.D.R. that showed Mr Ross as being outside A/A since 17/12/94. Mr Elliott advised me today that Mr Ross had been in the UK since December 94 & that Mr Ross had recently married a UK cit & would not be returning to A/A. Mr Elliott stated that he would be w/drawing his application, I briefly discussed whether Mr Elliott was able to satisfy any other criteria. W/drawal will be forthcoming.
(s501G documents: folio 4)

That is signed by Ms Larkins. In personal testimony, Ms Larkins did confirm that she had suspicions about the authenticity of the statutory declaration which had been completed by Mr Ross. She said that there may well have been a belief that it was a forgery or bogus document but that she had not had it submitted to any expert. If it had been, there would be a note on the file to that effect. Mr Ross said that after he had completed and mailed the statutory declaration to Ms Robinson he did have a further conversation on the phone with Mr Elliott. When Mr Elliott indicated that the respondent's officials had asked to see his passport, Mr Ross informed Mr Elliott that he was in fact getting married and not returning to Australia despite still feeling strong affection for Mr Elliott.

Mr Ross said at the time he was in a very disturbed state and was still suffering from the post traumatic stress disorder for which he had been receiving treatment. He did get married on 25 March, which was his birthday. Mr Elliott withdrew his application on 31 March 1995, as he had said he would to Ms Larkins, and he left Australia shortly afterwards.
I think the only other evidence that needs to be referred to in any detail is that Mr Elliott then subsequently returned to Australia and on 9 July 1997 lodged an application for permanent residency on the basis of his relationship with a new partner, Mr Carl Webster. That relationship was totally apart from what has just been described in relation to his prior period of residency and relationship with Mr Ross.
The question of character or possible bad character arose following Mr Elliott's return to Australia when he sought the granting of an extended eligibility temporary Subclass 826 visa. The nature of those queries are documented in some detail at folios 37 and 38 of the s501G materials. After explanations had been provided by Mr Hillman on Mr Elliott's behalf, the visa that he sought was granted, that is, the temporary Subclass 826 visa. The issues as to character were considered to have been dealt with satisfactorily so far as the respondent's officials were concerned and authority for that is to be found in the 501G documents, folios 54-58. I do not think there is, at this point, a necessity to delve into the intricacies of the exchanges that took place between the respondent's officials and Mr Hillman through that period but suffice it to say that there is considerable documentation included in the material before the Tribunal which relates to that period.
I turn now to consider the specific issues that are before the Tribunal. As I said at the outset s501, even in its much revised version, requires the consideration of two distinct issues by the Tribunal. The first of these is whether Mr Elliott has satisfied the Tribunal that he has passed the character test or, more particularly, in this instance, that test as set out in s501(6)(c)(ii). The second issue which is only required to be answered if the first is resolved unfavourably for Mr Elliott is whether, in the circumstances, the Tribunal should still grant him the visa he seeks despite an adverse finding as to character.
I have already made mention of the contentions made on behalf of the respondent that Mr Elliott fails to meet the character test based on his provision of a bogus document and also as a result of making false and misleading statements to the respondent's officials in March 1995 about the nature of his relationship with Mr Ross. On behalf of the applicant, Mr Hillman contended that there was no bogus document in this case and also no false or misleading statements. Mr Hillman contended that a detailed explanation had been provided to the respondent of the circumstances under which the statutory declaration of Mr Ross had been prepared and also, of course, to the Tribunal. The attesting by the Justice of the Peace, Ms Robinson, might not have been according to legal dictate but the contents stated the situation as it was viewed by Mr Ross at the time. Mr Ross had gone through a difficult period in his own personal life and was under substantial stress and strain but he and Mr Elliott had an ongoing and strong relationship which went through the period from 1991 until 1995, despite there being periods when both Mr Elliott and Mr Ross had been living apart from one another - Mr Ross in order to get some space, as he put it, and Mr Elliott both for his work purposes and also as a means of maintaining his relationship with Mr Ross.
Mr Hillman contended that there was no attempt by either of the parties to the relationship to deceive or mislead the respondent. When, in fact, the relationship had ended, as it did, a situation which was most distressing for Mr Elliott, Mr Elliott admitted this to the respondent's official, Ms Larkins, and departed the country promptly. Mr Hillman said that since that time and, indeed, at that time Mr Elliott was a person of exemplary character and he drew the attention of the Tribunal to Mr Elliott's curriculum vitae and also to an employer's reference which was written in very positive terms (exhibit A6).
I found both Mr Elliott and Mr Ross to be frank and credible witnesses. Each gave a detailed account of their relationship together. This relationship commenced in a serious way in 1991 and continued until Mr Ross' marriage on his birthday on 25 March 1995. Even after the relationship ended, it would seem both Mr Elliott and Mr Ross still care and have feelings for one another. I accept the evidence that has been presented by both Mr Elliott and Mr Ross that the relationship was not always an easy one and, in particular, that Mr Ross was experiencing significant work related stress which affected his behaviour in perverse and strange ways. I accept also that during the relationship both Mr Ross, for reasons of personal space, and Mr Elliott, largely because of work commitments, were absent for periods overseas, separately.
I do not believe that Mr Ross had decided to end the relationship when he left Australia to go back to the United Kingdom in December 1994. While he may have been deceiving Mr Elliott about his new relationship with another partner whom he married, as he said, on an impulse, he still wished to continue his relationship with Mr Elliott and intended to resume cohabitation. Mr Elliott himself certainly wished that relationship to continue. The Tribunal finds the explanations given about how Mr Ross' statutory declaration came into existence to be convincing and credible. It was not in the Tribunal's view a forged or bogus document, nor was it a false or misleading document in a significant way given both Mr Elliott's and Mr Ross' respective beliefs about the nature of their relationship and its ongoing qualities.
The Tribunal, equally, does not consider Mr Elliott's statutory declaration to be false and misleading. It did no more than support the view that the relationship was a continuing one from their perspective. It is apparent from the documentary evidence that I have reviewed in some detail, and from the personal testimony of Ms Larkins, that from the respondent's perspective it was these three statutory declarations which together raised doubts about Mr Elliott's character. Despite these doubts the respondent's officials still granted a Subclass 826 visa.
It was not until the permanent residency application was made that the respondent reviewed the situation in any detail. Only then did the respondent reach the conclusion that Mr Elliott did not, in its view, pass the character test. In the Tribunal's view, Mr Elliott does meet this test. It is not the case that any false, bogus or misleading information has been presented to the respondent.
There is also compelling evidence from Mr Elliott's curriculum vitae that he is a man of considerable ability and talents. He has held a number of important positions. His employers trust him. These are the type of objective facts by which it is possible to measure the enduring moral qualities of a person and which form the very essence of the criteria required to assess character as the Full Federal Court has eloquently stated in cases such as Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187. These decisions are, of course, also binding decisions on this Tribunal.
Having reached the decision then that Mr Elliott does meet the character test, there is no need to proceed to the second issue regarding the exercise of the discretion under s501. I should add that if the Tribunal had reached an adverse conclusion about Mr Elliott's character, it would still have exercised the discretion not to refuse the granting of a visa under s501. Mr Elliott is a person who now has substantial and significant connections to Australia. He is also a person who has made significant contributions to this country through his work as I have already indicated. It would, I believe, cause him significant hardship to have to give up these connections and the results of his endeavours and to have to return to the United Kingdom.
Mr Elliott has also displayed an unblemished record of conduct since 1995 and there would seem to be no reason to view him in any way as a threat to the Australian community or as a person who might engage in further unlawful or harmful behaviour. Thus, the decision under review is set aside. The matter is remitted to the respondent with a direction that Mr Elliott passes the character test under s501(1) of the Act and should be granted the permanent resident visa that he seeks.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Chappell.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 March 2000
Date of Decision  1 March 2000
Solicitor for the Applicant         Mr Brian Hillman
Solicitor for the Respondent    Ms Juanita Kapel