King and Minister for Immigration and Multicultural Affairs

[2001] AATA 361

DECISION AND REASONS FOR DECISION [2001] AATA 361

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V01/165
GENERAL ADMINISTRATIVE  DIVISION)

Re:            ANTHONY LOVELL KING

Applicant

And:         MINISTER FOR IMMIGRATION AND
  MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Deputy President G.L. McDonald
Date:             10 April 2001
Place:            Melbourne

Decision:For reasons given orally, the decision under review is set aside, and the matter remitted to the respondent with a direction that, while the applicant does not pass the character test, the discretion provided for in section 501(1) of the Migration Act 1958 should be exercised in his favour so that his bad character should not prohibit him from obtaining a visa.

(sgd) G.L. McDonald
  Deputy President
           KING and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Application Nº V01/165
Deputy President G.L. McDonald
Melbourne
Tuesday, 10 April 2001
IMMIGRATION — refusal of spouse visa on character grounds — applicant arrived in Australia in 1990 on basis of qualifications as a basketball player — application for spouse visa on the basis of a de facto relationship with an Australian citizen — de facto relationship ceased — forged and false documents lodged in support of visa application — subsequent marriage to an Australian citizen — further application for a spouse visa on basis of marriage — whether the applicant passes the character test — Ministerial Direction Nº 17 — past and present general conduct — applicant not of good character — exercise of discretion — decision set aside.
Migration Act 1958 ss.245(1)(b), 499, 501(1), (6)(c)(ii)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Ex Tempore Reasons for Decision
This is an application for the review of a decision, made on 31 January 2001, of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") made pursuant to s.501(1) of the Migration Act 1958 ("the Act") to refuse the applicant a Subclass 309 Spouse (Provisional) Visa. Section 501(1) of the Act is as follows:

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.

The respondent submits that you do not pass the character test pursuant to s.501(1) of the Act because having regard to your past and present general conduct you are not of good character as provided in s.501(6)(c)(ii) of the Act, and that the general discretion in s.501(1) should not be exercised in your favour. If I find that you are of good character, I do not have to consider the exercise of the discretion.
The evidence leaves me satisfied that there are a number of matters connected with your visa application which need to be addressed in order to make a finding as to your character.   In fact there are seven matters.   The first, whether the Tribunal is satisfied as to your explanation of the circumstances surrounding the signature forged by your friend, "Priscilla", on the statutory declaration made on 18 February 1997 in the name of your former partner, Ms Filomena Crea.   Secondly, are the contents of that document, which you acknowledge were written by you, true?   Thirdly, are the contents of your statutory declaration made 18 February 1997 in support of your visa application true?   This issue is to be determined by reference to your interview with the Department of Immigration and Multicultural Affairs ("the Department") held on 26 February 1997, and your evidence to the Tribunal, taking into account Ms Crea's statement to the Department made on 25 February 1997.   Fourthly, are the contents of the statutory declaration made on 6 February 1997 of your supporting witness, Ms Marika Zahra, who is now your wife, true, and if not, is that a matter which reflects on your character.   Fifthly, are the contents of the statutory declaration made on 11 February 1997 of your second supporting witness, Mr Tyrone Lake, true, and if not, is that a matter which reflects on your character.   Sixthly, were all or any of the abovementioned documents intended by you for lodgement with the Department in support of your visa application?   Finally, if the Tribunal finds there are irregularities in the documents associated with your visa application, have you involved others, other than your wife and Mr Lake, in your actions, and if so, does this reflect adversely on your character?
In your evidence to the Tribunal you stated that you prepared the contents of the statutory declaration to be made by Ms Crea.   Subject to the contents being true, there is nothing wrong with you doing that.   You said, and I accept, that you had a longstanding genuine relationship with Ms Crea that commenced shortly after you arrived in Australia in 1990.   The relationship survived several periods of lengthy physical separation.   You moved into your own apartment in Toorak in approximately January 1996.  Ms Crea continued to live in the last apartment you occupied together at 17/4A Wando Grove, East St Kilda.   You said that after moving to Toorak you continued to see Ms Crea "off and on", that some of your personal affairs were not separated from those of Ms Crea, e.g. a bank account which remained in joint names, and that you did not consider that your relationship with Ms Crea had ended until she refused to sign the statutory declaration you had prepared for her in support of your visa application. 
According to your answer to questions 47-48 in the interview with the Department, Ms Crea stated to you she did not feel "right about doing it" by which, I take it, she meant signing the statutory declaration, " 'cos we're not living together any more".   You retained the unsigned document, which you stated you left on a table in the front room of your residence.   That the unsigned statutory declaration was left there with a number of other documents relating to your visa application.  You stated that the forgery of Ms Crea's signature on the statutory declaration was carried out by a woman known only to you as "Priscilla".   You had met Priscilla three or four weeks previously and had seen her at various nightclubs.   She, like you, came from Chicago, so you had a ready rapport with her.   She was in the company of a friend when she came to your apartment on the occasion when the forgery is said to have occurred.   You stated in your evidence that you had no idea she forged the signature, and it only came to your knowledge when, approximately one to two weeks later, Priscilla telephoned you from Chicago to enquire as to your immigration application, and in the course of conversation, she mentioned that she had signed the document in Ms Crea's name.
You said that you then contacted the Department to report the events I have just described.   Before knowing of Priscilla's actions, however, you stated that you had scooped the visa application documents up from the table, inadvertently including the forged document, and took them to have your statutory declaration witnessed by a friend who was a police officer, Detective Sergeant Craig Rhodes.   This was done at a basketball training session.   Again, you say unbeknown to you, Det Sgt Rhodes attested to the forged signature on the statutory declaration in Ms Crea's name.
Finally, and again, you say unbeknown to you, Det Sgt Rhodes lodged the documents with the Department for processing.   You said that you understood that he had a contact in the Department.   I shall return to this aspect after I consider the contents of the statutory declarations.  
Dealing first with your statutory declaration made 18 February 1997.  In answer to question C, which is as follows:

State whether you and your spouse or interdependent partner are currently living at the same address.  If you are living separately, state reasons and whether this is a permanent arrangement.

Your answer is:

Yes, myself and Fil still live at the same address . . .

Given that you had first moved to one address in Toorak and then to another address, before the statutory declaration was made, and you had obviously left the East St Kilda address, the statement that you still live at the same address and had done so for a five year period, is clearly false.   Nor can it be truthfully said you were living with Ms Crea at that address.   Whether the state of confusion you claimed to have with respect to your relationship with Ms Crea existed in fact, you had not lived at the East St Kilda address from at least June 1996.
In answer to question D, which asks for a description of the nature of the relationship, you again state that you "have lived together" for a period of seven years.   Aside from the periods of physical separation when you returned to the United States of America ("the United States") and travelled elsewhere, from which I draw no adverse inference, an objective reading of your answer would lead the reader to believe your relationship with Ms Crea was extant and on-going, yet this was clearly not the case.
In your interview with the Department, you admit the relationship had ended.   At page 69 of the supplementary documents, you were asked, at question 371:

Well, do you agree that the documents that you've supplied to the department suggests that it's a continuing relationship, but in fact it was not?

Your answer is:

Exactly.  It's genuine, it's definitely genuine . . .

Then you go on to say:

But in terms of continuing, no, I wouldn't say it was. 

You were then directly asked at question 377:

Your relationship had in fact ended?

And your answer was

Yeah.   That I did know.

And you were asked again about the relationship, and to question 383 answered:

. . . I knew that we wasn't in a relationship, but I didn't have - you know -  too many other options . . .

And then you continued to say that you did so in order to get permanent residency, stating at question 384:

I was just trying to get permanent residency . . . but in – in terms of continuing it ended in 96. 

In your evidence to the Tribunal you claimed to be confused as to the meaning of the terms "relationship" and "de facto relationship", and said that because not all of your affairs had been separated from those of Ms Crea, you still regarded the relationship as continuing up until she refused to sign the statutory declaration.  
I am unable to accept you as being confused as to what was being asked of you in completing the statutory declaration.   I am satisfied that you set out to represent your relationship with Ms Crea as being on-going, that you both lived and had been doing so for five years at the apartment in East St Kilda.   You knew that was false, but did so in order to secure your visa.   The same impression, namely of an on-going close relationship, is evidenced in answer to question D in the statutory declaration you prepared for Ms Crea to sign.   It too, leaves the reader with the impression that you are continuing to live together.
Ms Crea, according to your evidence, appreciated the nature of the falsehood and declined to cooperate with you in signing the statutory declaration.  
In her evidence to the Tribunal, your wife, Marika, admitted her statutory declaration dated 6 February 1997 was based on a number of assumptions:   that you and Ms Crea were continuing to live in a de facto relationship; that you were a close couple who spent a lot of time together; that you and Ms Crea loved and cared for each other and supported each other in every way, and were always there for one another.   As well as that, your relationship with Ms Crea was stated in Marika's statutory declaration to be genuine and "will continue in the future".
As at 6 February 1997, not any of these assumptions were correct. I am unable to accept Marika invented the information in her statutory declaration. At the very least I am satisfied that you misled her into believing the information contained in her statutory declaration, which you knew to be wrong, in order to garner her support for your visa application. I note incidentally that she pleaded guilty to one count of making a false statement in a material particular contrary to s.245(1)(b) of the Act in the Magistrates' Court, in relation to the statutory declaration.
Similarly, if Mr Tyrone Lake is as close a friend to you as is claimed, it is difficult to accept he would have believed, as at 11 February 1997 that you were still living together with Ms Crea, when in fact you had physically separated.   It is also difficult to accept his statements in his statutory declaration that your relationship with Ms Crea was continuing and the issuance of a visa to you would make the commitment between you and Ms Crea more secure and complete. 
Ms Crea, in her statement to the Department made on 25 February 1997, confirmed you as living physically separate from her since early 1996, and states that the relationship between you ceased in June 1996.   She denies signing the statutory declaration, which was lodged by Det Sgt Rhodes, and asserts that her signature on it is forged.   That is accepted by you as being the case.   It is evident to the naked eye that the signature on Ms Crea's statutory declaration purports to be her signature, and as Ms Crea says, it is evident that it is a poor copy of her signature.  
I find it fanciful that a night club acquaintance of yours, known only to you by her Christian name, took it upon herself, without any consultation or arrangement with you, to forge a signature on a statutory declaration which happened to be in front of her, that this document unbeknown to you was among those given to Det Sgt Rhodes.   That, despite the fact that there was not anybody claiming to be Ms Crea present, Det Sgt Rhodes witnessed the forged signature, and again, unbeknown to you, lodged the documents with the Department.   The series of coincidences, when viewed against the misleading contents of the statutory declarations, is too great for me to accept your account of the events as being true.   The fact that you contacted the Department to report Priscilla's action, is in my view equivocal.   It occurred at or even after the time Ms Crea provided her statement dated 25 February 1997 to the Department concerning her involvement.   I note also that you pleaded guilty in the Magistrates' Court to four offences connected with these events, namely one count of making a false statement in a material particular, and three counts of presenting a forged or false document. 
Further, I am unable to accept Mr Calhaem's submission made on your behalf that the incident is a one off event, and as such is incapable of reflecting on your character, which in all other respects is accepted as being exemplary.   I am satisfied that you persisted with this fictitious story before me, now some four years after you first sought to convince the Department as to its truth.
I do not regard the attempted deception of the immigration authorities and this Tribunal as being insignificant.   The leniency with which you were dealt with in respect of the four criminal charges may be appropriate in the context of the consideration of the criminal offences by the Magistrates' Court.   In the context of seeking to deceive the immigration authorities in order to gain a visa, the events should, however, be regarded as substantially more serious.
In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said, at 155:

The observance of truth in dealing with officials in migration matter (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.   To lie consistently, as Mr Lachmaiya has over a period of years, . . .

and for which I can substitute you:

. . . is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.

I appreciate that in looking at character, and particularly in considering good character, that the words are to be used in their ordinary sense, namely, and I am quoting here from Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431, and this is now the generally accepted definition, namely:

. . . a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.   The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion.

I also appreciate in assessing your character, the need to balance the events adverse to you with those in your favour.   I accept as a fact that, although you came from a deprived background, you have managed to obtain a university degree, you have excelled in basketball, you work hard in your career, and have been successful in the time that you worked as a security officer with Crown Casino.   In addition, you have made voluntary positive contribution to youth in the sense of teaching the playing of basketball and encouraging youth to participate, and also in taking a leadership role in discouraging the young from taking illicit drugs.
I accept you as being in a genuine relationship with Ms Crea until at least mid-1996, and that you are now married and in a genuine marriage with your wife, one which has not been entered in an attempt to increase your chances of obtaining a visa.   I also accept that the Tribunal is not to determine this matter on the basis of you having a perfect character, but a good character.
Weighing the factors positive to you against those adverse to you, I am unhappily led to the conclusion that the latter outweigh the former, and find accordingly that you are not of good character as the result of your conduct and that you do not pass the character test.   I also find it is conduct in which you have involved others, including your wife, your friends and Det Sgt Rhodes.  
Despite this finding, it is open to the Tribunal to consider exercising the discretion in s.501(1) of the Act to grant you a visa. The exercise of that discretion is governed by Part 2 of the Ministerial Direction Nº 17 made under s.499 of the Act ("the Direction"). The Direction provides that there are three primary considerations. That is, the protection of the Australian community and members of the community; the expectations of the Australian community, and in all cases involving a child, the best interests of the child. There is no involvement of a child in this case, so I am restricted to looking at the protection of the Australian community and members of the community and the expectations of the Australian community.
I can also look at a number of other considerations that are set out in clause 2.17 of the Direction, and I shall cover both in this section of the reasons. I accept that Marika, an Australian citizen, is an only child with a very close relationship to her mother, and that her mother, Mrs Zahra, has striven in very difficult personal circumstances to give her daughter the best upbringing and education that she could. Like you, Mr King, your wife has achieved her accounting qualifications against the odds, and she has pursued and attained a successful career within Telecom over a 10-year period.
If you, as a result of these proceedings, are to be returned to the United States, Marika would face the prospect of greatly reduced contact with her mother.   Mrs Zahra, in her evidence, lamented the prospect of separation from her daughter in particular, but also from you. 
I note that you have been living in Australia since 1990.   I reiterate the positive contribution you have made and continue to make to the Australian community, which clearly arose before and continued during the occurrence of these events.   I can add, however, in terms of exercising the discretion that you are highly regarded by leading Australian basketball players and that you have a number of very good personal references, even although the referees may not have known of your (criminal) immigration offences.

Other than arising from the matters connected with your visa application, you have no relevant offending.   I accept that you obtained your human relations qualifications in the United States.   That since residing in Australia, you have successfully pursued your career and that it may be difficult for you to return to the United States and find equivalently paid work.   You stated that you want to stay in Australia, and I accept that you have few ties to the United States or to any members of your family who live there.
I also accept there will be adverse financial consequences to you and Marika.  You are jointly purchasing a house, and according to Marika have a large mortgage.   I accept that the worry associated with the possibility of you returning to the United States has caused Marika to become significantly unwell, and that her health may, or will be likely to deteriorate if you are returned to the United States, and she was placed in the invidious position of having to choose between her mother and her husband.   You say that you want to have a family.   Any children would be deprived of a choice of being brought up in Australia if you and Marika were to live in the United States as the result of the refusal of a visa for you in Australia.   I accept also that Mrs Zahra would be deprived of relevant close contact with her grandchildren. 
Now, I note Marika married you knowing that your visa issues had not been determined.   However, she may have been unaware, given that you had been in Australia since 1990, at the time of her marriage to you, of the problems associated with you obtaining a long-term visa.   However, aside from the visa issue, I accept there is nothing in your general background which would have alerted Marika to suspect you would have to face the difficult path in your attempt to obtain a visa.
I am satisfied in terms of the Direction that your presence does not represent a threat to the Australian community from which it needs protection. Indeed, the evidence before me, from Mr Dean Marks, demonstrates your very commendable restraint in the face of racial taunts when you were a security officer at the Crown Casino. I am also satisfied that the Australian community may be disappointed in your actions taken in order to obtain a visa. However, given your positive contribution, your genuine marriage to an Australian citizen, the high regard you have for Australia as a country, and your desire to continue your successful career and personal life here, I am also satisfied that the community would not expect you to be removed.
I am satisfied in relation to the other considerations referred to in the Direction that clause 2.17(c) is relevant. That is the degree of hardship which would be caused to immediate family members lawfully resident in Australia if you were to be returned is an issue for me to consider. I also consider that clause 2.17(d) and I have mentioned this, the composition of your family in Australia and overseas. In addition clause 2.17(i), whether the application is for a temporary or a permanent visa must be looked at, and 2.17(j), the purpose and intended duration of entry to or stay in Australia, including any significant compassionate circumstances, must be looked at.
I am also conscious in reaching a decision between the primary considerations and those set out in clause 2.17, that clause 2.2 of the Direction states:

The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 to 2.23.   Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa.

In this case, as I said, I am satisfied of the protection of the Australian community.   I am satisfied as to the expectations of the Australian community, and further I am satisfied of the genuineness of the marriage, and consequently the significant compassionate circumstances which exist in this case.
Bearing all these matters in mind, in order to reach a balanced decision, I am satisfied that the general discretion should be exercised in your favour. The decision under review is set aside. Accordingly the matter is remitted to the respondent with a direction that while you do not pass the character test, the discretion provided for in s.501(1) of the Act should be exercised in your favour so that your bad character should not prohibit you from obtaining a visa.