Keene and Minister of Immigration and Multicultural Affairs - [2001] AATA 327

DECISION AND REASONS FOR DECISION [2001] AATA 327

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/994

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID STUART KEENE
  Applicant
           And    MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon. C R Wright QC., (Deputy President)

Date23 April 2001
PlaceBrisbane

Decision      The decision under review is affirmed.
  [The Hon. C. R. Wright Q.C.,]
  Deputy President
CATCHWORDS
Migration – visa – interdependency visa – good character – criminal conduct – false information in visa application.

Migration Act 1958 – s.501
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs Judgment of Lee J.
Lachmaiya v Department of Immigration and Ethnic Affairs 1994, 19 AAR 148.
Lata and Minister of Immigration and Ethnic Affairs (2001) AATA 128.
Maatouk and Minister for Immigration and Multicultural Affairs (2000) 1023.
Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935.

REASONS FOR DECISION

23 April 2001 The Hon. C. R Wright QC., (Deputy President)

The applicant David Stuart Keene is a New Zealand citizen aged 36 years who was born on 21 May 1964. He arrived in Australia on 7 January 1999 and is now employed under contract as an Associate Lecturer at University of Southern Queensland in Toowoomba. The applicant's male partner Mr Sione Pola'apau (also known as John Finau) is a 34 year old Tongan citizen born on 20 July 1966. Mr. Pola'apau currently resides in Tonga.
The applicant and Mr Pola'apau met in New Zealand in December 1990 and commenced a homosexual relationship. Between July and October 1991 they committed themselves to a permanent relationship and appeared to have continued in that relationship to the present time, albeit that they are residing in different countries.
On 10 October 2000, the Minister's delegate refused to exercise his discretion in favour of Mr. Pola'apau on character grounds pursuant to s.501 of Migration Act 1958 ("the Act"), and as a consequence Mr. Pola'apau's application for an interdependency Sub-Class 310 visa was refused. The present application is for a review of that decision.
Pursuant to s.499 of the Act, the Minister has issued a number of directions to be considered by his delegates in determining whether or not to exercise a discretion under s.501 of the Act. Those directions are entitled "Visa Refusal and Cancellation Under s.501". In exercising a discretion under s.501 a 2-stage process is involved viz. (a) consideration of whether or not a visa applicant passes the "character" test and (b) if the applicant does not pass the "character" test a consideration of whether the relevant discretion should none the less be exercised to refuse the visa.
Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. Section 501(6)(c)(I) of the Act provides that a person does not pass the character test if having regard to that person's past and present criminal conduct, the person is not of good character. Section 501(6)(c)(ii) provides that a person does not pass the character test if having regard to that person's past and present general conduct, the person is not of good character.
"The Visa Refusal and Cancellation under s.501" direction was issued on 17 June 1999. The direction provides that there three primary considerations for a delegate to take into account, these are:
(a) the protection of the Australian community;
(b) the expectations of the Australian community; and

(c)the best interests of the child in cases involving a parental relationship between a child and the visa applicant.

Obviously paragraph (c) has no relevance to the present visa application.

The delegate is also obliged to have regard to other considerations and to adopt a balancing approach taking into account all relevant material, including the applicant's recent good conduct.
In 1989 Mr Pola'apau travelled to New Zealand upon a visitor visa which was valid for a period of three months. When he failed to depart after the expiry of that visa the New Zealand immigration service issued a removal order against him on 12 November 1993. This order was executed on 29 April 1995 and Mr Pola'apau departed New Zealand the same day. As a result of his overstay in New Zealand Mr Pola'apau was subject to a five year ban from New Zealand pursuant to its immigration legislation.
Mr Pola'apau has been convicted of a number of offences, (a) in 1992 in New Zealand he was convicted for fighting in a nightclub and fined $300; (b) in Tonga (i ) in 1997 he was found guilty of being drunk in a public place and fined $20 and (ii) in 1998 he was found guilty of theft and fined $100.
On 1 October 1998 Mr Pola'apau applied for a visitor visa to Australia. In his visa application form he (a) denied ever having been convicted of a crime or offence in any country (b) denied having being deported from any country (c) denied having been excluded or required to leave any country, and (d) swore a declaration to the effect (i) that the information which he had provided was complete and correct (ii) that he would abide by the conditions of the visa, and (iii) that all relevant details about his character had been declared.
On 7 October 1998 Mr Pola'apau arrived in Australia with a three month visitor visa. He overstayed that visa in Australia until he was issued with a bridging visa E on 12 October 1999 before departing Australia on 28 October 1999. On that day through his legal representatives Peter Bollard & Associates, Solicitors & Notaries, he applied for the interdependency visa. In his application he denied having been excluded from or having to leave any country including Australia. In the same application he stated that he was removed from New Zealand on 29 April 1995 with a five year ban placed upon him.
At an interview in relation to his visa application Mr Pola'apau admitted that on his visa application he had incorrectly denied the existence of the previous convictions and of his having been required to leave New Zealand as a result of the removal order. He explained these denials as being the product of a mistake on his part. He also stated during the interview, having then indicated that he was living with Mr. Keene during the period of overstay, that, despite not having indicated on his visa application that he intended to visit Mr Keene whilst in Australia, he did not understand that it was necessary to identify Mr Keene in addition to his relatives. When invited to comment upon his character Mr Pola'apau said "Give me a chance, I'll be able to be of good character in the future I have learnt from what I did before everyone is not perfect".
At the hearing before me, a statement by Mr Pola'apau was tendered (Exhibit A1).   In that document the applicant explains how he came to make the erroneous statements in the relevant documents and why he behaved as he did both in New Zealand and Australia.   He attributes the false statements to be a misunderstanding on his part or a consequence of bad advice given to him. Mr Pola'apau's statement was in the following terms:
"1.I completed and signed an application form to visit Australia on the 22nd of September 1998.   A visitor's visa (subclass 676) was granted on the 3rd of October 1998 and I arrived in Australia on the 7th of October 1998.   My visa expired on the 7th January 1999. I departed Australia on 28th October 1999 after obtaining a bridging visa E.
2.My purpose in applying to travel to Australia was so that I could be with my partner, David.   Once together in Australia we would apply for an interdependency visa on the basis of our relationship.   We had no choice but to do this in Australia. I had been removed from New Zealand in 1995, and all our attempts to allow me to return to New Zealand and live with David had failed.   Our lawyer had advised us that we may have had to wait until 2010 or even 2015 before they would let me back into New Zealand, and that it was best to seek life together in a new country.
3.When I completed the application form, I stated that the reason for my visit was to attend a birthday celebration.   I did not mention out relationship. One reason for this was that I feared that my application could be rejected because those considering it might disapprove of such relationships.   I also do not like to talk to strangers about the personal details of our relationship.   In New Zealand I did not mention my relationship to the Immigration Service for the same reasons.    In addition, as not everybody knows about relationship, I was worried about people in Tonga finding out about it.   There are many, who because of their strong religious beliefs, would strongly disapprove of out relationship if they found out about it.
4.In the application form I indicated that I had not been convicted of any crimes. This was not true as I have three convictions.   In the early 1990s I was fined $300 in New Zealand for fighting.   In Tonga I was fined $20 for drunkenness in 1997 and $100 for theft in 1998.   I did not declare these convictions because I did not think that they were very serious offences. I thought that the question only related to serious crimes or to crimes where the punishment involved a prison sentence.
5.Also in the application form I indicated that I had not been deported from any country.   I was confused about this question because when I had previously asked David about it, he made it very clear to me that I had been removed from New Zealand in 1995 and that I had not been deported. He said that in New Zealand law, deportation applies to persons who are convicted of a crime or who threaten national security or are suspected of being terrorists. So I answered no to this question.   I also answered no to the following two questions as I thought that they also applied to deportations.
6.I was also unsure as to whether or not I had actually been required to leave New Zealand as despite being served with a Removal Order in 1993, I had been led to believe, from both my immigration agent and the New Zealand Immigration Service, that no removal order had been served against me.
7.I should have asked about these questions but I did not want to bother the people at the High Commission and I thought that I had interpreted them correctly.   I also very much wanted to travel to Australia to be with David whom I hadn't seen since early 1995.
8.I did not intend to become an overstayer in Australia.    Our intention was that we would both travel to Australia in October 1998, and make an application for an interdependency visa through a lawyer.   Unfortunately, because David's employer would only commence his employment on the 1st of February 1999, he did not travel to Australia until early January 1999.   However, I decided to still travel in a October 1998.   We both believed that an application for an interdependency visa could be made whilst I was in Australia on a visitor's visa, even if that visa had expired.
9.Unfortunately, things in Australia took longer than we thought.   David took some time to find accommodation and settle in and it took a long time to find a lawyer especially as there was not one who specialized in immigration matters in Toowoomba.   We signed a contract with a lawyer (Peter Bollard) on the 2nd of March 1999 and commenced work on preparing our application. We first became aware of a problem in a letter from our lawyer dated 31st March 1999.   He advised, after examining my visitor's visa in my passport which we had sent him, that it contained a restriction (8503) on applying for any other visa (except for a protection visa) whilst in Australia.
10.I was unaware of this restriction until this letter was received.   When I picked up my visa from the Australian High Commission in Tonga the person who gave it to me talked to me about a lot of stuff that sounded very technical.   I didn't understand it all and didn't want to annoy him by constantly questioning him.   He gave me a form and said that I needed to sign it in order to get my visa so I signed it without reading it.
11.There was now some delay as we realized that I would have to apply for an interdependency visa outside Australia.   The delay was due to various factos: we had to obtain my file from DIMA to determine that I had signed an acknowledgement of the restrictions of my visa; we had to cancel our contract with our lawyer and sign a new one; we had to prepare the application for lodgment; we had to find A$1044 for my airfare; and we had to apply for a bridging visa.   All of this took time and meant that I did not depart Australia until the 28th of October 1999.
12.I did not purposely intend to overstay in Australia.   Up until the 31st of March 1999, I genuinely believed that I could apply for a visa whilst in Australia.   After I found out that this was not possible, I obtained a bridging visa and departed voluntarily and at my own cost."
It is submitted on his behalf that none of the behaviour considered adversely by the delegate should be attributed to an intent to deceive, attempted fraud or an intention to mislead. Unfortunately, the statement does not confront several aspects of the misconduct which has been alleged, but in any event I find the explanations to lack essential credibility.
A considerable volume of material was also tendered by the applicant bearing upon dealings between the applicant, Mr Pola'apau and the New Zealand authorities regarding his residence in New Zealand and the circumstances leading to his removal. It is possible to take the view that a motive short of deception by Mr Pola'apau or the applicant led to some of the events in New Zealand which resulted in Mr Pola'apau's removal.
Mr Pola'apau gave evidence by telephone from Tonga and was cross-examined by the respondent's counsel. I can accept that when he came to Australia upon a visitor's visa, he did not clearly understand he would thereafter be restricted from applying for an interdependency visa whilst still in Australia. None the less it is quite plain that when he found out difficulties were confronting him, he and the applicant embarked upon a course of deliberate deception which they hoped would enable Mr Pola'apau to remain in this country. In reaching this conclusion I am mindful of the explanation which was advanced that the applicant was the principle source of funds for Mr Pola'apau who was not really able to secure legal or other advice without financial assistance. His partner was still living in New Zealand when the visitor visa expired, but it is a little difficult to see why funds could not be transferred across the Tasman.
It is quite clear that Mr Pola'apau deliberately attempted to mislead the Australian immigration authorities by answering some of the questions in his visa applications falsely. As he acknowledged at one stage during his evidence he thought that the Australian authorities would not let him into the country if he disclosed the truth, in particular about the circumstances in which he was required to leave New Zealand. Although he did not acknowledge it to be the case, I am also quite satisfied that he failed to disclose his convictions because he believed that such disclosure would cause his visa application to be viewed adversely. He was also cross-examined about his reasons for failing to disclose in his initial visa application that he wished to come to Australia to reside with the applicant. He said that he did not wish it to be known in Tonga that he was in a relationship with the applicant. He explained that local people employed at the Australian High Commission in Tonga may pass on this information to friends and relatives. His explanation tends to ring true particularly as it was Mr Pola'apau intention to seek admission to Australia on the basis of his continuing relationship with Mr. Keene.
In relation to the statements made by Mr Pola'apau in A1 I make the following specific observations:
Paragraph 1       accepted.
Paragraph 2      accepted.
Paragraph 3        accepted.
Paragraph 4       not accepted. I find that Mr Pola'apau deliberately set out to mislead the immigration authorities.
Paragraph 5       I have some doubts about this explanation, but in any event it does not deal with the gravamen of the allegation against the applicant, who in his visa application of 22 September 1998 answered each of the 3 following questions "No".
(a)Have you been deported from any country?
(b)Have you left any country voluntarily prior to the execution of a deportation order?
(c)Have you been excluded from or required to leave any country?"
I am in no doubt that Mr Pola'apau and the applicant collaborated in supplying incorrect answers to at least questions (b) and (c) for the purpose of misleading the Australian immigration authorities.
Pargraphs 6 & 7    See comments in relation to paragraph 5.
Paragraph 8       accepted.
Paragraph 10      not accepted.
Paragraph 11      I accept that there was some delay while the interdependency visa problem was considered. It is plain that Mr Pola'apau was in no hurry to leave and I think that the matter was protracted by him and Mr Keene (the applicant) so that he could remain in this country as long as possible.
Paragraph 12      I do not accept the first sentence, but the remaining matters of fact are accepted.
Turning to the two issues raised by s.501, namely does Mr Pola'apau pass the character test and, if "no" should a discretion be exercised in his favour and a visa granted. In considering these questions I take account of the Minister's direction under s.499(1) to which reference has already been made.
A visa applicant does not pass the character test if he is not of good character by reason either of his criminal conduct or general conduct or both. Counsel for the respondent referred me to a number of decisions, both of the Federal Court and this Tribunal, dealing with the concept of "good character" in s.501. See Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277, para. 8. Irving v Minister of State for Immigration, Local Government and Ethnic Affairs Judgment of Lee J para.18. Lachmaiya v Department of Immigration and Ethnic Affairs 1994, 19 AAR 148 para. 32 and 33 and Lata and Minister of Immigration and Ethnic Affairs (2001) AATA 128, para. 95.
I have already mentioned the offences in which the applicant was involved and for which he received punishment which he failed to disclose in his application. Section 5 of the Act provides inter alia, that "crime" includes any offence. Consequently all of the offences in which Mr Pola'apau between 1992 and 1998 may properly be considered as "criminal conduct" under s.501(2)(a)(i). Penalties imposed in respect of those offences tend to support the view that they were not particularly serious. Whether viewed individually or collectively, I am satisfied that the applicant's involvement in those offences was not of itself, a sufficient basis for finding that he is not of good character. However they are not without significance. The two offences committed in Tonga were a relatively short time before Mr Pola'apau came to Australia, furthermore, they do provide a partial insight into his general character, and taken together with his overstaying visit to both New Zealand and Australia those convictions tend to indicate a willingness to disregard the laws of Australia, New Zealand and also Tonga. His overstay in New Zealand was of several years duration and in Australia he exceeded his visa permission by several months. In my opinion the most serious aspect of Mr Pola'apau's behaviour is his clear intent to mislead the immigration authorities by providing the false answers, which he did, in his visa applications. If convicted of an offence in respect of those falsehoods under the provisions of s.234 of the Act, Mr Pola'apau could receive a substantial fine or a significant term of imprisonment. There was no evidence of Mr Pola'apau's present good conduct, but on the other hand there was nothing to show that he has engaged in relevant misbehaviour since returning to Tonga.

Taking account of all relevant factors I have reached the conclusion that Mr Pola'apau is not of good character within the meaning of s.501 of the Act. I therefore turn to the question of whether a discretion should be exercised in his favour.
It is acknowledged at the outset that a refusal of his visa application may place strains upon his relationship with the applicant. On the other hand it is plain that there are no issues regarding children or other family members in this case. Accordingly the primary considerations arising under the Minister's direction relate to (a) the protection of the Australian community and members of the community; and (b) the expectation of the Australian community.
Dealing with the protection of the Australian community, I note that I have already dealt with the seriousness and nature of the conduct in question.
Having regard to the applicant's past history it seems clear enough that if granted a visa to enter Australia he may well overstay any time limit applicable thereto, and that he may well attempt to mislead immigration authorities. His convictions indicate a tendency to violence, but I see no significant risk that he will be involved in serious criminal conduct if admitted. However it seems to me that general deterrence viz. the likelihood that visa refusal would prevent or inhibit the committing of like offences by other persons, is a matter of consequence in this case. In Maatouk and Minister for Immigration and Multicultural Affairs (2000) AATA 1023 Deputy President Block said at para. 8:
"If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia."
The Minister's delegate in dealing with this matter observed that Tongan citizens, have the highest rate of overstaying their visas. The applicant, Mr. Keene contested this proposition and introduced exhibit A2 "DIMA Fact Sheet 80, Locating Overstayers in Australia". He suggested that the material and statistics contained in that fact sheet did not support such a proposition. He pointed out that the statistics depended on estimates only and that the section dealing with the overstaying rate dealt primarily with "tourist" numbers. These points are well made, but the statistics in so far as they may be relied upon do tend to show Tongan citizens have a high rate of overstaying, and accordingly the likely impact of a refusal of a visa to Mr Pola'apau in this case could well be significant in the small Tongan community in which he lives.
I agree wholeheartedly with the observations of the Hon. R N J Purvis QC., Deputy President in Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935 @ paragraph 41 where he said:
"The Australian community would not expect a decision-maker to readily condone or forgive a transgressor, one who deliberately seeks to mislead immigration authorities, this even be it the latter has expressed contrition and is a member of a family unit… Persons seeking to enter Australia have a moral and a legal obligation to be truthful in their dealings with immigration authorities and to abide by the Australian Law. The Tribunal concurs with the submission made on behalf of the respondent that the Australian community would not expect this conduct to be condoned or rewarded through the grant of a visa. (See Turinin v Minister for Immigration and Multicultural Affairs [2000] AATA 731, para 31.)."
On the whole of the material before me I am of the view that a discretion should not be exercised in favour of Mr Pola'apau, and as a result the decision under review should be, and is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C. R Wright QC., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  5 and 6 April 2001
Date of Decision  23 April 2001
Representative for Applicant   Applicant appeared in person
Counsel for the Respondent    Mr Ben Cramer
Solicitor for the Respondent    Blake Dawson Waldron