Ismail and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 204

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1743

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ISMAIL AHMED FOUAD ISMAIL

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date31 January 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision under review and remits the matter to the Respondent for further consideration with a direction that the Applicant satisfies the character test.

[Sgd] R N J Purvis
  Deputy President

CATCHWORDS

IMMIGRATION – application for permanent residence, subclass 136 (skilled independent) visa - character test - discretion applied

Migration Act 1958 – s 501(1) and (6), Minister's Direction No 21

REASONS FOR DECISION

31 January 2003              The Hon R N J Purvis Q.C, Deputy President  

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

The Hon R N J Purvis Q.C., Deputy President

Signed:         L Bonouvrie
          ....................................................................................……………………………….

Associate

Date of Hearing  31 January 2003

Date of Decision  31 January 2003

Representative for Applicant      Mr Nicholas Poynder

Solicitor for Respondent              Mr Greg Peek

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N02/1743
By THE HON R. PURVIS, QC, DEPUTY PRESIDENT
ISMAIL and MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS
SYDNEY, 31 JANUARY 2003

THE D.PRESIDENT:   This is an application by Ismail Ahmed seeking review of a decision made by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs on 14 November 2002.  The application so made by Mr Ismail is further to an application made by him on 27 June 2000 for a permanent residence subclass 136 visa that is a general skilled migration visa to Australia.

In arriving at the decision of 14 November 2002, the delegate found that Mr Ismail was not of good character; the delegate relying on the provisions of section 501 6C, 2A and 62B of the Migration Act 1958. In the decision record for refusal under section 501 of the Act, the delegate inter alia said:

The evidence before the delegate includes outstanding arrest warrants issued in 1994 by the Santa Clara police department and they still being in force at the time of the application.

The delegate said that the outstanding warrants included those reparable to larceny, false identity and grand theft, Mr Ismail having committed credit card fraud, owing $20,521 to American Express, $1,478 to Citibank and that he also presented a dishonoured cheque to the value of $4,323; a total of US $26,322. It was further maintained by the delegate reparable to the finding made pursuant to section 501 that on Mr Ismail being interviewed by an officer of the Department of Immigration & Multicultural & Indigenous Affairs, that he made a number of misleading statements in so far as they are relevant to the application as it now stands.  They included the following:

When asked in Mr Ismail's application for entry to Australia, you signed declaration confirming that Mr Ismail has never been charged with an offence that is awaiting legal action, is that correct?  Mr Ismail's response was "yes". When invited to comment, he responded "no".  He was asked if he was the subject of any outstanding convictions or charges in the United States.  He responded "no".  When informed that the Department had reason to believe that Mr Ismail had made false declarations on his application to enter Australia and invited to comment, he replied "no".

It was further alleged that he did not declare outstanding charges even with the answers so provided.  He said that he was not aware of the charges.  The delegate said that this statement in effect by Mr Ismail was unlikely to be true.  It was stated in the decision that Mr Ismail was aware of committing the offence and chose not to disclose his information at the interview. 

It was further stated in the decision record that Mr Ismail had used other names and that he had chose not to disclose what was described as aliases.  A finding was made that the combination of the names used during Mr Ismail's time in the United States led the decision-maker to conclude that Mr Ismail was attempting to avoid detection.  Further it was said that the seven years prior to and I quote Mr Ismail's outstanding warrant being exposed:

During the processing of Mr Ismail's permanent visa
           application, he did not take any action to rectify the
           situation.  The delegate found this to be a contempt for
           the law.

Accordingly, upon these findings, the delegate concluded that Mr Ismail was not of good character.

Turning attention to the discretion that might be available to the decision-maker and the matters then to be considered, the decision-maker made mention of the alleged aliases, Mr Ismail's denial of the charges brought against him in the United States, concluded that one could not be satisfied that there was no risk of recidivism and stated that the Australian community would not consider it appropriate to overlook the character concerns of a person who has left a country owing over 50,0000Australian dollars.

Mention was also made of the deterrent aspect.  The Tribunal refers to these matters as they are germane to the application as it is now before it, for it is agreed between the parties that the issues primarily to be determined by the Tribunal at this time relate to three aspects.

First, whether Mr Ismail was or was not aware up until recent time of the issue of warrants in the United States against him and the claims made by the various finance companies.  Secondly, whether he left the United States in 1994, well-knowing at the time that he had outstanding obligations and that legal process had been issued against him and thirdly, whether he did or did not use other names with an intent to mislead.

At the hearing of the application, the applicant Mr Ismail, was represented by Mr Poynder of counsel; the respondent Minister by Mr Peek, a solicitor with the Australian Government Solicitor.  There was admitted then to evidence the T documents which were marked T1 to T23 as well as other written material which was identified by way of exhibits A to D.  Mr Ismail gave evidence by telephone connection with Egypt and he was cross-examined.

The legislation and ministerial directions relevant to this application are, so far as the legislation is concerned, and as I have already mentioned, are found in section 50116 of the Migration Act and as to the ministerial directions, direction number 21, paragraphs 1.8 to 1.11. I will not read at this time onto the record the wording of the Act or the directions. They will be deemed to be incorporated into these reasons.

Turning to the factual situation as it appears generally from the evidence, Mr Ismail was born in Egypt on 18 December 1969.  He is a citizen of that country. Mr Ismail, following his secondary education, completed a number of courses of a tertiary nature, concluding with the obtaining of a batchelor of engineering degree from Cogswill College in the United States.  He describes himself at this time as an experienced and skilled software engineer.  He is now married and his wife also holds tertiary qualifications in business administration.  She claims to be experienced as a technical writer.

From August 1990 until May 1994, the applicant lived and studied in the United States.  It was in April 1994, shortly prior to the conclusion of his studies, that he entered into a transaction to purchase scuba diving gear from a shop in California.  The cost of the gear was $4,263.  For one reason or another and no doubt from the shopkeeper's point of view for greater caution, the indebtedness was to be satisfied by way of taking a credit card imprint and also Mr Ismail providing the shopkeeper with his own personal cheque.  This he did.  On the following day, Mr Ismail, not wanting to be doubly charged for his purchase and being satisfied himself that the credit card company would honour the charge, cancelled the cheque.

The shopkeeper sought to deposit the cheque to his account, but was informed or notified by the bank that payment on the cheque had been cancelled.  He reported this matter to the police authorities and seemingly process was then commenced by the law enforcement agency.  However the shopkeeper did present the credit card documentation to the credit card company and he was paid.  He did not however, seemingly, inform the authorities of this fact.

Another event that took place at or about the same time, when Mr Ismail was questioned by police in relation to his driving, he presented his international drivers licence at a time when his American driving licence had been suspended.  He says that he realised his error in not informing the police of the state of his American driver's licence, went to the police to clarify matters and nevertheless seemingly was charged.

Mr Ismail left the United States the month following the happening of these events that I have just narrated.  From 1994 up until 1999, Mr Ismail worked in Egypt, met his present wife and travelled to a number of countries.  It is of some relevance to the issues to be determined in this matter that upon leaving the United States and returning to Egypt, Mr Ismail applied for a credit card with the same company that had issued the card to him in the United States, that is American Express, and was granted one.  It was in June 1999 that Mr Ismail first travelled to Australia.  He had meetings with various companies and individuals and in due course, applied for a business long stay visa sponsored by his prospective employer. The visa was granted.

In October 1999, Mr Ismail married his present wife and in the same month, they both travelled to Australia, he having returned to Egypt for the purpose of the wedding.  Following his return to Australia in October 1999, Mr Ismail obtained employment with his original sponsor and later was employed as a professional services consultant with a computer software company and later with a German software vendor, carrying on business also in Australia.

He was on a salary of no less than $100,000 with his wife as a technical writer being on a salary at that time of no less than $50,000 per annum.  As he had in Egypt, so did he in Australia, apply for a credit card with American Express.  The card was granted to him.  Whilst in Australia working for the companies that I have just mentioned, he travelled out of the country on a number of occasions and in November 2000, was granted a five year visa enabling him to travel to and from the United States.  He says that he did not have at any time any problems or difficulties with his visa.

As I have already mentioned, it was in June 2000 that he applied for the visa that is the subject of the present application.  It is not necessary in these reasons to detail the various steps that were taken by him, subsequent to his application.  Suffice to say that in May 2001, Mr Ismail and his wife departed Australia for New Zealand, where it was that the present application was in fact made. It was whilst they were in New Zealand that it came to the attention of the respondent that there were outstanding legal proceedings in the United States.  Seemingly, as a consequence of the transactions that had taken place in 1994, the proceedings instituted at the behest of the shopkeeper had remained on foot and the finance company, American Express, had not been paid for the charge that been entered against it by Mr Ismail.  By the time the matter was brought to the attention of the respondent, the original charge of $4,263 had with interest charges, become a debt of some $20,000 or so.

Mr Ismail, when confronted with this situation by a representative of the respondent in New Zealand, denied knowledge of the process and when it was put to him that he should have disclosed the currency of the proceedings in the United States, denied that he had misled the respondent in this regard.  No doubt partly by reason of the fact that his application for a visa was being delayed or the process referable to consideration of his application was being delayed by reason of the information referable to the proceedings.

In June 2001, Mr Ismail went to the United States, as he puts it, to determine the issue of the outstanding warrant.  He appeared in court on the charge referable to the information that he had given to the police at the time he had been pulled over by them. He gave an explanation and the charges were dismissed. 

There remain the matters pertaining to the cheque and payment being stopped on it and discharge was adjourned to a later date.  He returned to Australia and later again travelled to the United States to be present on the adjourned date of the hearing.  Seemingly, he had retained a lawyer in California to act for him and it was by reason of inquiries made by that lawyer, that the existence of the indebtedness to American Express became known to Mr Ismail as well as a debt outstanding to Citibank Visa.  The American Express debt by this time was said to be in the amount of $20,521.19 and the Visa debt in an amount of $1,478.80.

On the advice of the American lawyer, Mr Ismail settled the outstanding debts and no further action was then taken in relation to them.  In the course of his cross-examination before the Tribunal, Mr Ismail, whose evidence the Tribunal has no reason not to accept, said that all of the counts that were laid against him, related to the same matter and that with specific reference to the cheque, the merchant had never informed the police that he the merchant had been paid by American Express.  When it was put to him by Mr Peek that he did not contest or challenge the quantum of the amount said to be paid, he said that the lawyer told him of the amount to be paid and he was happy just to resolve the matter.  He pleaded guilty, no contest to one charge again in the context of having the matter resolved.

He said if he had not taken this course of action, he would have had to return to Australia, fly again to the United States, continue retaining the American lawyer and these costs he could just not afford.  The paying of the restitution and the amounts that have been just mentioned, were intended he said to resolve all issues and they did so.

With reference to the use of various names, it was suggested to Mr Ismail that this was done deliberately by him in order to obtain an advantage.  Mr Ismail in reply said that the names to the extent that they generally differed were all in fact part of his family name and that as to occasions when he used the name David in association with the name Ali, that this was to simplify his interchange with other students at the university. He did change his name or did use the name David on his licence and he said that this was also in aid of simplification and minimising difficulties in the United States.

As I have already mentioned, it is maintained on behalf of the Minister that Mr Ismail was aware of the proceedings that had been instituted against him in 1994 in the United States or if he was not, he should have been aware of them; that he left the United States in 1994, well knowing that he owed the various monies that I have just mentioned and aware of the outstanding warrant and that he used various manifestations of his name and the name David, with intent to mislead.

Before proceeding further, mention should be made of evidence before the Tribunal, as it is contained in a detailed statement, given by Mr Ismail's wife as seen in exhibit C, when she makes mention of his generosity, sensitivity and honesty and of the reaction that she observed in her husband when they were first informed of the outstanding proceedings in the United States.  The respondent did not seek to cross-examine the wife on her evidence and her deposition stands as supportive of, from admittedly her own point of view, but able to be accepted by the Tribunal in an objective sense as to the character of Mr Ismail.

There is also before the Tribunal, a reference given by Mr Douglas Richards, an Australian who worked with Mr Ismail in the multinational software development firm where Mr Ismail was employed and who speaks of Mr Ismail as well-liked and respected by Mr Richards and other colleagues and seen as a honest, dedicated and highly skilled professional with a kind, friendly nature.

The matters that I have narrated above are those that pertain to the issues now before the Tribunal.  On behalf of Mr Ismail, Mr Poynder of counsel, submitted as to the first issue, that Mr Ismail was clearly not aware of the issue of the process against him and that he left the United States being not aware of the charges or the warrants; that the non-discharge of the indebtedness could be attributed to carelessness, but that the Tribunal should accept that Mr Ismail left the United States and moved to Egypt, he believing that all his outstanding debts had been paid or if they had not been paid, that the credit card company would seek payment from him in Egypt. 

As to the use of other names, it was submitted that Mr Ismail had not here sought to mislead and although he failed to disclose what might be described as aliases, his conduct in this regard was said to be very low in the scale of seriousness and in any event, the use of another name or names, was not done with intent to deceive and there was no evidence of any advantage sought to be gained by him. 

It was further submitted on behalf of Mr Ismail that the false information charge having been dismissed, that the matters that now warranted attention by the Tribunal were those that related to the credit card indebtedness and the cancellation of the cheque transaction.  As has already mentioned, it was submitted that there is no issue.  The debt was not paid but the Tribunal should accept the evidence of Mr Ismail to the effect that he believed that it had been paid and the fact that he was not pursued in Egypt or indeed in Australia by the credit card company was supportive of this fact.

Indeed Mr Ismail said that whilst in the United States, he had incurred indebtedness with American Express in amounts totalling no less than $100,000 and that he whilst admitting that he should have checked the statements provided to him by American Express, assumed that the indebtedness was subsumed in the amounts that he had paid.  Thus is it said that there was no intent on the part of Mr Ismail to mislead the migration authorities and that the failure to disclose the situation that existed in the United States was by reason of influence of the situation and not otherwise.  He was unaware, it was said, of the proceedings pending in that country.  On behalf of the respondent Mr Peek has submitted that the statements made to the interview officer in New Zealand were clearly incorrect both as to the currency of proceedings and the use of other names. 

The tribunal, it was said, should be hesitant to accept the alleged lack of awareness on the part of Mr Ismail and should not accept his evidence so far as he not being aware of the existence of the indebtedness let alone the existence of proceedings.  It was submitted that it was most unlikely that a person in Mr Ismail's position would incur a debt in an amount exceeding the $4000 and not realise whether he had paid the credit card company in respect of this indebtedness or not. 

More specifically Mr Peek submitted that the tribunal should not be satisfied that the applicant passes the character test on account of the facts that he has what was described as a criminal record in the United States for crimes of dishonesty concerning, it was said, a fraudulent misappropriation of goods of a considerable base value.  A quibble of the defence, it was said, Australia would attract measurable sanctions. 

It was further submitted that no explanation as to the involvement of Citibank was given and the inference lies that the charges may have related to a broader range of credit card fraud than has been disclosed.  Admittedly that submission was made prior to Mr Ismail being cross-examined.  The tribunal is not satisfied that such an inference arises on the evidence as it now is. 
Likewise, a submission was earlier made that the charges were pressed by the prosecuting authorities in the United States even after the warrant seemingly was quashed, most likely at the urging or the credit card companies involved.  There is no evidence to that effect. 

Again it was said, with reference to the use of the drivers licence - the name David appearing on it - that Mr Ismail had, it was said, sufficient constructive knowledge of the facts given, giving rise to the offences to give rise to criminal intention.  Again, the tribunal does not find this to have been established on the evidence. 

Further, it was submitted that whilst the respondent concedes the offences occurred a number of years ago, "The dishonesty involved on Mr Ismail's part is sufficient to give rise to concerns about his present conduct.  This is particularly so if the tribunal finds that the applicant mislead the respondent during the processing of the application or the tribunal."

Further, it is submitted that the tribunal should find that Mr Ismail knew that he had accrued substantial debts in the name of David Ali or Ismail Ali and that this gives rise to the inference that he did so deliberately to avoid discovery of any problems in the United States arising from the time in which those names were used. 

The tribunal hastens to say that it is not satisfied Mr Ismail sought to mislead the respondent's officer in New Zealand during the processing of his application.  Nor is it satisfied that he has sought to mislead the tribunal.  it is further not satisfied that an inference can be drawn that the names I have mentioned were used to avoid discovery of any problems in the United States arising from the time when the names were used.  As the tribunal sees the position the conclusions sought by the respondent to be drawn in the respects that I have just mentioned are not opened to it. 

Mr Peek further submitted that Mr Ismail, if not actually aware of the existence of the proceedings in the United States and the currency of the indebtedness, should have been so aware.  This may to an extent be true, but an explanation has been proffered;  Mr Ismail has admitted that he should have examined the statements provided by American Express but says that he did not.  There is no reason for the tribunal not to accept his evidence in this regard.

As to the proceedings referable to the cheque, the tribunal is satisfied on the evidence that Mr Ismail was not aware of the currency of those proceedings, was not aware that the shopkeeper had reported the stop payment to the police, and indeed was not aware of the currency of those  proceedings until so informed by the respondent's officer in New Zealand.  Likewise, he was not aware of the position so far as the finance companies were concerned until he was informed of this fact by his American lawyer. 

The amount that Mr Ismail was in due course required to pay was of course way beyond the original debt, this on account of interest charges accumulating over a period of some seven years.  Thus the amount referred to in the delegates decision of some $A50,000 does largely represent the interest that had accumulated over those years and not the original debt.  Nevertheless there was still that debt still outstanding. 

The tribunal is of the view that it is to Mr Ismail's credit that he did in fact travel to the United States and that he did in fact do all things possible to resolve the situation there existing.  He, in effect, pleaded guilty so far as the cheque charge was concerned and bore the consequences.  He, on being informed of the amounts said to be owing to American Express and Visa, paid the amounts as claimed.

It is true to say as Mr Peek submitted that by paying the restitution Mr Ismail admitted that he had done wrong.  He does not resile from the fact that the debts should have but he says that he was not aware of they being outstanding and when so informed he did pay them.  It is true to say as Mr Peek submitted that the Minister's direction 21 might well embrace non-payment of the debt, but the direction would require that there be an intent on the part of an applicant to be dishonest, to mislead, or to commit fraud.  The tribunal does not see these elements present in the present matter. Nor does the tribunal see the conduct of Mr Ismail referable to stopping payment on the cheque.  Even be it that he did not contest the charge in the United States as being of the nature of a serious offence as referred to in the Minister's directions.  

So far as the use of names is concerned Mr Peek submitted that whilst he may have had a legitimate right to use the names, perhaps except for the name David, this should have been disclosed in the migration application form.  This may well be so, but the explanation proffered by Mr Ismail is one that the tribunal is minded to accept. 

For the reasons just given the tribunal is satisfied that the applicant does not fall within the category of a person who is not of good character and is satisfied that the applicant does not fall within the legislative prescription of a person not of good character.

However, even be this so it is desirable that some observations and findings should be made referable to the situation that might have eventuated if the finding had been otherwise and the tribunal had been required to look to the discretionary factors.  They are, as they were made to primary and other considerations; the protection of the Australian community; the seriousness and nature of the conduct; the risk of recidivism; and questions of general deterrence and community expectations; and as to other considerations, hardship, contribution, the Australian community, and the like.

Each of these matters has been addressed by the representatives of the parties in their submissions and it is fair to say that the matters that pertain to them are those as have already been discussed in these reasons.  It was submitted on behalf of the applicant that the offences in the United States are at the lower end of seriousness.  The false information charge was dismissed.  The charge referrable to the credit card indebtedness and the consequent settling of that matter,r be it with a penalty imposed by the court, suggests that it was not regarded as overly serious.  The failure to disclose the existence of the outstanding debts to the respondent's officers has been explained by reason of lack of knowledge and so far as the aliases were concerned, no advantage was gained and they were not used with intent to mislead. 

On behalf of the respondent it is said that the conduct was dishonest in nature and is a concern in terms of protection of the community.  Further, that the misleading statement in not disclosing aliases could constitute an offence under the Act and the tribunal is not persuaded that any offence was committed or that there was prima facie evidence of any offence being so committed. 
Even be it a finding had been made adverse to the applicant with reference to character the tribunal would not have been satisfied that the conduct of Mr Ismail was of a nature that falls within the ministerial guidelines.  The question of recidivism does not really arise.  The events took place in 1994 in the circumstances that have been mentioned and there is no evidence of any conduct by Mr Ismail of a reprehensible, let alone criminal, nature since that time.  As I say, the matter of recidivism, the likelihood of Mr Ismail committing like conduct in the future does not arise.  Questions of deterrents likewise would not have arisen for serious consideration in this matter.  The situation that did arise was peculiar to Mr Ismail and the events that lead to the unfortunate consequence in 1991. 

So far as community expectations are concerned it is the view of the tribunal that a community appropriately informed of all the circumstances would not expect that a visa would not be granted to a person in the circumstances of this case. 

There are the other considerations that also have had to be considered and they are of some significance.  Admittedly, at this time Mr Ismail and his wife are living in Egypt.  However, there is evidence before the tribunal that is a consequence of the information that came to the attention of the respondent's officer in New Zealand, and the sequence of events that there followed, that Mr Ismail has suffered measurable financial hardship.  He has been without his professional position in Australia and his wife was forced to surrender her position, also in Australia.  They were caused to move back to Egypt and at the present time neither of them seemingly are employed.  This even be it they each have significant qualifications. 

The evidence before the tribunal is to the effect that Mr Ismail's qualifications were dearly sought in many countries and in Australia and that opportunities commensurate with his qualifications are available in this country.  It is apparent also from the evidence that whilst in Australia Mr Ismail made a significant contribution to the economic activities of this country. 

As I say, having found that Mr Ismail is not a person who is not of good character, it was not necessarily incumbent to consider the discretionary factors but it is apparent that even if the tribunal had been satisfied that he was not of good character, of which it is not so satisfied, the discretionary factors would have been exercised in his favour. 

For these reasons the tribunal is of the view that the decision under review should be set aside and the matter remitted to the respondent for further consideration with a direction that the applicant satisfies the character test.