Mahoni and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 465
•12 May 2004
CATCHWORDS – PRACTICE AND PROCEDURE – stay hearing – stay sought of decision refusing spouse visa – refusal decision cancelled bridging visa by operation of law – cancellation decision not reviewable by Tribunal – if granted, stay of decision refusing spouse visa ineffective in preventing detention of applicant – order refused.
MIGRATION – VISA – spouse visa – refusal of character test – past and present criminal conduct – past and present general conduct – whether substantial criminal record – failure to comply with visa conditions – false and misleading statements – exercise of discretion – decision set aside.
Migration Act 1958 ss. 13, 14, 15, 20, 31, 82, 189, 196, 198, 200, 234, 253, 476, 477, 482, 499, 500, 501, 501F and 501G
Administrative Appeals Tribunal Act 1975 s. 41
Migration Regulations 1994 Schedules 2 and 4
Social Security Act 1991
Administrative Decisions (Judicial Review) Act 1977 ss. 15 and 16
Judiciary Act 1903 s. 39B
Federal Court of Australia Act 1976 ss. 19 and 23
Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146
Long v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 159
Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342
Challoner v Minister for Immigration and Multicultural Affairs (No 1) [2002] FCA 1600
Guss v Johnstone [2000] FCA 1593
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366
Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Webber and Secretary, Department of Social Security (1989) 18 ALD 422
Nguyen v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2000) 101 FCR 20
Re Lavery and Supreme Court of Queensland (No. 2) (1996) 23 AAR 52
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rozsa v Samuels [1969] SASR 205
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Chim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1340
Re Singh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 370
DECISION AND REASONS FOR DECISION [2004] AATA 465
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/309
GENERAL ADMINISTRATIVE DIVISION )
Re SOSEFO MAHONI
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 12 May, 2004
Place: Melbourne
Decision:The Tribunal:
1.set aside the decision of the respondent dated 29 January, 2004; and
2.substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 4 March, 2004, the applicant, Mr Sosefo Soakai Mahoni, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 29 January, 2004. In that decision, the delegate refused Mr Mahoni’s application for a subclass 820/801 (Spouse) visa (“Spouse Visa”) on the basis that he did not pass the character test under s. 501(6)(c)(i) of the Migration Act 1958 (“the Act”).
At the hearing, Mr Mahoni was represented by Mr Hurley, of counsel, and the Minister by his solicitor, Mr Wee. The documents lodged pursuant to s. 501G of the Act were admitted in evidence (“G documents” and “supplementary G documents”). Also admitted were witness statements of Sanualio Afeaki, Uinise Blake, Maikeli Uoifalelahi, Akata Misiloi, Lose Misiloi, Dr Geoffrey Talia’uli Afeaki, Vateli Mahoni and Tracy Moore, a letter from Bluescope Lysaght, transcript of the proceedings held in the Tribunal on 11 March, 2004 and three screen dumps from the computer records maintained by the Department of Immigration and Multicultural and Indigenous Affairs (“Department”). Mr Mahoni gave oral evidence in support of his own case together with his wife and Ms Moore.
ISSUES
There are two aspects to be considered in this case. One relates to Mr Mahoni’s application to stay the operation of the Minister’s decision and the other to his application to review that decision. In so far as the first is concerned, I refused his application for a stay on 11 March, 2004 and it was agreed by both parties that I should give written reasons for my decision in the course of considering the substantive application. That aspect raises for consideration whether the Tribunal has power to stay the decision. If it does, it is relevant to consider whether staying the decision would give Mr Mahoni the benefit he seeks i.e. release from detention. In so far as the second aspect of the case is concerned, it raises two issues. The first issue is whether Mr Mahoni passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
A number of factual matters were not in dispute between the parties. In light of that and on the basis of the evidence that was given in this matter, I have made the findings of fact that I set out in the following paragraphs.
Mr Mahoni was born in Tonga on 10 April, 1976. He was raised by his grandmother until he was three years of age and then, after his grandmother’s death and for the next 11 years, by his aunt. His mother lived in New Zealand and, although he had never known her, he moved to that country to live with her when he was 14 or 15. Mr Mahoni found life with his mother and his uncle, who is his mother’s partner, very difficult as he stated that his uncle punched and hit him. When he was 17 or 18, he moved to a friend’s house in the same street.
In 1994 and 1995, Mr Mahoni was convicted of various offences in the District Court of Otahuhu in New Zealand:
| Date of offence | Date of sentence | Offence | Sentence |
| 9 June, 1994 | 10 June, 1994 | Burgles (Oth Prop) (Under $500) by NGT | Corrective Training – 3 months begin 22 December, 1994 (sentence imposed on review) |
| 14 June, 1994 | 15 June, 1994 | Disorderly Behaviour s4, S/Offences Act | Sentence if “CAL…[illegible]” - 6 months begin 15 June, 1994 |
| 29 June, 1994 | 27 July, 1994 | Burgles (Oth Prop) (Under $500) by NGT | Non resident “PD...[illegible]” - 3 months begin 27 July, 1994 |
| 2 June, 1994 | 22 December, 1994 | Incite violence/disorder/ lawlessness | Corrective Training – 3 months begin 22 December, 1994 |
| 17 June, 1994 | Shoplifts (Under $500) | Corrective Training – 3 months begin 22 December, 1994 | |
| 28 June, 1994 | 22 December, 1994 | Wilful Damage | Corrective Training – 3 months begin 22 December, 1994 |
| 11 June, 1994 | Burgles (Oth Prop) ($500-$5000) by NGT | Corrective Training – 3 months begin 22 December, 1994 | |
| 18 May, 1994 | Burgles (Oth Prop) (Under $500) by NGT | Corrective Training – 3 months begin 22 December, 1994 | |
| 21 May, 1994 | Burgles (Oth Prop) (Over $5000) by NGT | Corrective Training – 3 months begin 22 December, 1994 |
| 4 May, 1994 | Burgles (Oth Prop) (Under $500) by NGT | Corrective Training – 3 months begin 22 December, 1994 | |
| 2 September, 1994 | 3 Charges Failure to Answer District Court Bail | Corrective Training – 3 months begin 22 December, 1994 (on each charge) | |
| 8 August, 1994 | Breach of Supervision | Corrective Training – 3 months begin 22 December, 1994 | |
| 4 March, 1995 | 18 December, 1995 | Unlawful Takes Motor Vehicle etc | Non Resident “PD...[illegible]” – 5 months begin 18 December, 1995 |
| 4 March, 1995 | 18 December, 1995 | Operated a vehicle carelessly | Non Resident “PD...[illegible]” – 5 months begin 18 December, 1995 |
| 11 May, 1995 | UNL get into/upon m/vehicle – m/cycle | Non Resident “PD...[illegible]” – 5 months begin 18 December, 1995 | |
| 10 July, 1995 | Burgles (Oth Prop)($500-$5000) by NGT | Non Resident “PD...[illegible]” – 5 months begin 18 December, 1995 | |
| 7 July, 1995 | 18 December, 1995 | Wilful Damage | Convicted and Discharged |
| 12 October, 1995 | Burgles (Oth Prop) (Under $500) by NGT | Live and work by “PD...[illegible]” Non Resident “PD...[illegible]” – 5 months begin 18 December, 1995 Supervision – 6 months begin 18 December, 1995 |
(G documents, pages 42-43)
Mr Mahoni, who works as a labourer and machine operator, came to Australia on 6 September, 1999 on a Subclass TR-676 (Visitor) visa (“visitor visa”) that was valid until 6 December, 1999. By that time, his aunt and her family had come to Australia from Tonga. They did so in 1997. He had visited her in Tonga on two previous occasions. His father, who was an itinerant fisherman and whom he had never known as an infant, now lives in Australia as well and has done so since approximately 1979.
On 13 December, 1999, Mr Mahoni was detained by officers of the Department but permitted to remain on condition that he make arrangements for his departure and present a ticket to the Department by 24 December, 1999. Mr Mahoni did not make those arrangements and did not report to the Department but remained in Australia where he has worked with a panel beater as well as with James Hardie Industries and, more recently, as an Operators’ Assistant with Bluescope Lysaght. He was given permission to work on 16 October, 2000 (T documents, page 25).
Mr Mahoni and his wife, Mrs Vateli Mahoni, met in December, 1999 and started to live together shortly afterwards. Mrs Mahoni was born on 17 June, 1979 and is an Australian citizen. Based on their evidence, I find that they started a relationship almost immediately and were married in Sydney on 30 October, 2000.
On 24 December, 2000, Mr Mahoni was detained by officers of the Department for overstaying his visa and remained in detention until 4 January, 2001. He was detained as a result of his being stopped by the police when he was driving a motor vehicle while unlicensed. His wife was seven months’ pregnant at the time and she could not drive. During that time, he was detained and held variously at Police Station Lockups or at the Villawood Detention Centre. While in detention, he applied for a Spouse Visa and was granted a Bridging Visa while his application was under consideration. At the time, his wife was expecting their son, TJ jnr (baptised Tuakalau Joseph), who was born on 6 February, 2001. TJ jnr is an Australian citizen.
Mr Mahoni has been convicted of six offences in Australia:
| Court | Date of conviction | Offence | Sentence |
| Griffith Local Court | 12 April, 2002 | Contravene Apprehended Domestic Violence Order Common Assault | Recognizance To Be of Good Behaviour – 18 months Recognizance To Be of Good Behaviour – 18 months |
| Griffith Local Court | 28 November, 2001 | Contravene Apprehended Domestic Violence Order | Fined $200 |
| Griffith Local Court | 13 September, 2001 | Maliciously Destroy or Damage Property Common Assault Have Custody of an Offensive Implement in a Public Place | Recognizance To Be of Good Behaviour – 12 months Recognizance To Be of Good Behaviour – 12 months Fined $100 |
(G documents, page 45)
Mr and Mrs Mahoni moved to their current address in April, 2003 and sent the Department a copy of the lease (G documents, pages 71-72). On 3 November, 2003, Mr and Mrs Mahoni had a second child, a daughter, Sonya-Renee Akata, who is also an Australian citizen.
On 23 February, 2004, officers of the Department attempted to serve a notice of the delegate’s decision on Mr Mahoni at his home where he has lived for the past year with his wife and family. Mr Mahoni was told of their attempt when his wife telephoned him. He contacted his priest, Father Paul Lasalo, who telephoned Mr John Young, who is a migration agent. Father Lasalo contacted the Department and it was arranged that Mr Mahoni would go to the Department that afternoon.
Mr Mahoni has been receiving $520 per week from his employment with Bluescope Lysaght but he was on unpaid leave from 23 February, 2004 until 17 March, 2004. His services have been terminated as a result of his being in detention and unable to return to work. There is no guarantee that he will be able to return to that employment were he to be released (Exhibit H).
THE EVIDENCE
The convictions
Mr Mahoni explained his sentences as being for three months in a youth training centre and to his then being required to serve as a volunteer in the New Zealand Army for six months to learn discipline. His time in the Army was shortened to three months. He said at the hearing of the stay application that he had committed those offences as he had nowhere to go and no money and needed food. At the time, he was living on the streets. He was young, although over the age of 18 years, and did not know what to do. Mrs Mahoni said that it was some time in 2000 that her husband told her of his convictions in New Zealand.
In relation to the first set of convictions in Australia, Mr Mahoni said that he had been out drinking with a friend. He and his wife began to argue and she called the police. The assault conviction had been in relation to his wife whom he thought feared that he might do something but he did not do anything. In giving evidence, Mr Mahoni said that he had been holding a stick about half a metre in length. The malicious damage conviction was in relation to his own telephone. Mr Mahoni said that his conviction for contravening the Apprehended Domestic Violence Order (“ADVO”) arose out of another argument with his wife. He has never hit anyone; his wife just thought that he might. Everything arose out of arguments with his wife. He pleaded guilty to finish everything. Mrs Mahoni said that she went to court but never gave evidence.
Mrs Mahoni said that she and her husband were living together when he was charged with his first breach of the ADVO. She had not asked for the ADVO to be lifted and she should have done so. She could not recall the circumstances leading to her husband’s second conviction for assault in Australia. He has not touched her, she said.
Mr Mahoni said that he had not had any convictions since 12 April, 2002. He stopped drinking on 30 October, 2002, which was his wedding anniversary.
Mrs Mahoni supported her husband’s evidence that he had not had any alcohol to drink since their wedding anniversary in 2002. All of his convictions in
Australia relating to damage to property and assault arose out of their relationship, which has now matured. She said in her affidavit that she has forgiven him and recognises that he did what he did when he was under the influence of alcohol. Her husband is not a threat to any other person, she said. Her oral evidence was consistent with her earlier written statement in response to a letter from the Department dated 20 March, 2003 (G documents, page 50) and her statutory declaration lodged with the Department on 4 November, 2003 (G documents, page 68). In those statements, Mrs Mahoni said that, since her husband stopped drinking, they have been more in love than when they first met. He is a changed man. At the time, he was working very hard with Bluescope Lysaght and, in November, 2003, had recently been offered a permanent position with the firm.
In giving her evidence, Mrs Mahoni said that they had done everything together before their first child. They never had a fight; just little arguments. Having a baby was stressful and they had little income. They started having arguments. Before they had their first child, they would go out drinking beer, Jim Beam and spirits. After the birth of their baby, Mrs Mahoni said, she changed. She stopped drinking and hardly ever went out and expected her husband to do the same. Only when he drank did they have arguments. He would be yelling and screaming at her and she became scared. Mrs Mahoni said that he never hit her and he just scared her. Since he has given up drinking, he goes to his work every day and is always there for the kids. He never goes out anymore to drink and only goes out occasionally. She is no longer scared of him.
Mr Mahoni’s statements on immigration documents
In his application for a Spouse Visa lodged on 4 January, 2001, Mr Mahoni was asked whether he had “been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” (G documents, page 7). He ticked the box marked “No”. In giving evidence, Mr Mahoni said that he thought that the question was referring to convictions in Australia. He did not have any convictions in Australia at the time.
In cross-examination, Mr Mahoni was asked about the other forms that he had completed in order to apply for a visa. He could not recall if they asked him for details of previous criminal convictions or, if he had been asked, whether he had declared them or not. Mr Mahoni agreed with Mr Wee that he had never been interviewed about his convictions.
In the same application for a Spouse Visa, Mr Mahoni had been asked whether he had “… been excluded from or asked to leave any country (including Australia)?”. Again Mr Mahoni had ticked the box marked “No” (G documents, page 7). In cross-examination, he said that he could not remember why he had answered in that way. When he met his wife, he just wanted to stay in Australia but he denied completing the form in that way because he wanted to remain in Australia. He also denied coming to Australia with the intention of remaining permanently. During the time between his first arrival and his being given permission to work, he lived on money given to him by his family. Mrs Mahoni confirmed that was so in her evidence.
Mr Mahoni’s breach of visa conditions
Mr Mahoni said that he had not bought his ticket to leave Australia in December, 1999 as he did not have the money to do so. At the time, he was with his girlfriend, who later became his wife. A minute prepared by the Department stated that Compliance had called Mr Mahoni on 8 February, 2000 and that he had answered the telephone (G documents, page 25). There is no note as to the purpose of the call although it is implicit in the note that it was to do with his failure to leave Australia. Mr Mahoni does not recall the telephone call. He does recall being given permission to work and that is the subject of the next note in the Department’s minute. The note, dated 16 October, 2000, also recorded his then address and telephone number and that his wife was due to give birth on 28 January, 2001.
Mrs Mahoni said that she had not known at the time that her husband had been detained by officers of the Department in December, 1999. She was not aware that he had been given a bridging visa that meant that he had to leave Australia by 24 December, 1999. She became aware of it later on and estimated that it was around her birthday in April, 2000. When her husband was detained in December, 2000 as a result of a driving without a licence, she had known that he did not have a visa. They had intended doing something about it after their baby was born in February of the following year.
Mr Mahoni’s becoming aware of the decision and his subsequent actions
Mr Mahoni said that he had gone to his aunt’s house on the day that the Department’s officers visited his home. Sometimes he did that just to have a rest. While he was there, his wife telephoned him and told him that the Department and the police were looking for him. Mr Mahoni said that he questioned her as to why they were looking for him and she told him that they were there to take him. He instructed Mr Young to accept the decision on his behalf and Mr Young did so on 27 February, 2004.
At the hearing of the stay application, Mr Mahoni agreed with Mr Wee that he had been “in hiding” (transcript, page 16). In cross-examination, Mr Mahoni said that he had told his wife that it was all too much trouble. He should simply leave the country as he cannot afford not to work. As it is, he can only afford to feed his family. Mr Mahoni had previously been detained. He understood what would be entailed in detention if he were detained again. In cross-examination, he said that he had left work because he wanted to fix everything up and not just go to Villawood Detention Centre and leave his children. Mr Mahoni acknowledged that he moved to his aunt’s house as he was trying to avoid detention. He travelled from his aunt’s house to his own house and collected some of this things. The children were in bed at the time. Had he wanted to avoid the Department altogether though, he would not have come to the Tribunal, he said.
Mrs Mahoni said that she was at home when the officers from the Department visited. She said that they had a search warrant and searched the house. She asked the officers whether they were intending to detain her husband and they told that they did not. She assumed that her husband’s visa had been cancelled. When she asked if they wanted to arrest him, she was told that they wanted to talk to him and give him some documents. She told her husband what had happened. Her husband stopped working on that day and lived with her cousin, who is his aunt. Mrs Mahoni said that he did that because he was scared. She and her husband and children had been at her cousin’s house after the officers had visited their house. They went between the two houses.
Mrs Mahoni said that Father Lasalo had got in touch with the Department and it gave her husband until the Thursday to go in to it. The lawyer then got in touch with the Department and set up an interview for the Monday or Tuesday but did not get in touch with Mrs Mahoni or her husband. All of the interviews that had been arranged meant that he could not continue with his work, she said. Mrs Mahoni denied that they were avoiding officers of the Department. She said that they had to go to the Department with the lawyer and the lawyer was in touch with the Department. The appointment arranged for the Thursday was for an interview. She did not expect that he would be detained at that time, she said. The first appointment that had been made was replaced by the second made by their lawyer. They were then advised to come to the Tribunal as they did for the stay hearing.
Mr Mahoni said that he had not been aware of the arrangements that had been made by Father Lasalo and so did not keep it. He continued to work at Bluescope Lysaght until 22 February, 2004 but stopped working because he “… didn’t know what to do” (transcript, page 27). He stopped working because he wanted to get his children together and leave. His wife would live with her parents if he could not stay in Australia but she did not want their children to be without her and he did not want to be without his children.
The future
Before she became a mother, Mrs Mahoni had commenced studies towards a psychology degree at the University of Wollongong. She has had to return home to her parents with her two children while her husband has been in detention. She does not want to go to New Zealand because her whole family is in Australia. She had told her husband that they should sort things out in Australia before they thought further on that subject. If he were not permitted to remain in Australia, she did not think that she would follow him but return to her parents with her children and find a job.
Views of Mr Mahoni’s family and friends
Four of Mr Mahoni’s friends and family made statements in his support. Made them in precisely the same terms. Those terms were to endorse their previous statements that were included in the G documents and then to refer to their having met him at various family functions since then. Each stated that “He has on each occasion shown himself to be a responsible and caring member of the family and a most devoted husband and father” (Exhibits A, B, C, D and E). Each was confident that he regrets his previous behaviour and that he would not offend again.
Akata Misiloi spoke earlier of her brother in law’s being an excellent father and a good husband to her sister. She was a supervisor at Mr Mahoni’s place of work with Bartlett Enterprises at Griffith and wrote that she had found him to be a good and reliable employee. He has improved himself since he married her sister.
Mrs Lose Misiloi is Mr Mahoni’s mother in law and she wrote of their ongoing relationship and commitment to each other.
Sanualio Mulinuu Afeaki is Mr Mahoni’s father. He wrote that his mother had cared for his son as he was away most of the time as a seaman. When his mother died, his sister, Mrs Winnie Blake, cared for his son. Mr Mahoni then went to live with his birth mother before deciding to move to Australia when his sister and her family moved here.
Mr Mahoni’s adopted mother, Mrs Uinise Blake said that Mr Mahoni’s birth mother had returned to Tonga for him when she became a permanent resident of New Zealand. Although he had gone to New Zealand, she and he had kept in touch with each other as they both feel that she is his real mother. When she moved to Australia, Mr Mahoni moved to Australia, married and had children.
Maikeli Tuakalau Uoifalelahi is the Working Coordinator for the Catholic Tongan Community at Griffith. He wrote that Mr Mahoni was very much involved in the community of the Church. In addition, Mr Mahoni has done some community service under his care and he has attended and successfully completed it.
Dr Geoffrey Talia’uli Afeaki wrote in his first letter that he has known Mr Mahoni all of his life. He reported that Mr Mahoni is a diligent young man who works hard for his family. He has shown himself to be a dedicated religious gentleman and has shown himself to be enthusiastic in his own community activities. In his later letter, Dr Afeaki added that Mr Mahoni has been “so remorseful” since he had seen him in December, 2003 (Exhibit F). Mr Mahoni had continued to show a good standard of character to his family and the community.
Ms Tracy Moore gave a lengthy statutory declaration and also gave evidence (Exhibit J). She did so in her private capacity but has been a police officer for eight years works as a Police Prosecutor in New South Wales. In her statutory declaration, she wrote in part:
“I have known Sosefo Mahoni since early 2000. I came to know him when he began dating my friend, Vateli Mahoni. When they wed on October, 30 2000 I along with my partner were witnesses to the marriage. Not long after the marriage Vateli gave birth to their first child, Tuakalau. We would often associate together at their home and at social functions and I have always found Sosefo Mahoni to be sincere, friendly and most generous. He is a hardworking young man who strives to support his small family. He has continually sought employment in Australia in order to support his family financially. …” (Exhibit J)
Ms Moore then referred to Mr Mahoni’s suffering “adversity” while he was in New Zealand and to his being “… a rebellious teenager and as a result of his inability to accept his parent’s separation and desertion he began to commit offences and get himself into trouble with the police and hence a criminal record” (Exhibit J). In her oral evidence, Ms Moore said that the offences that he had committed were typical juvenile offences committed when he was young and “off the rails”. She had not been told if any were against the person or if there were any of robbery. What she did know is that it was a “long” list of convictions. Ms Moore said that she had obtained all her information about Mr Mahoni’s convictions from his wife. Mr Mahoni has never spoken with her about it.
Ms Moore had thought about Mr Mahoni’s past and its effect on his behaviour today and said:
“… I can honestly say that his negative past is not reflected in his personality or character today. Vateli Mahoni, his wife, is a young woman who was raised in a strict Catholic upbringing. I have known her since she was 9 years old. She is a young woman with no criminal record and from my observations of them together as a family they are very proud parents who endeavour to teach their young son ways of the Church, values and morals. As a result, their young son has impeccable manners and is always well behaved. I believe that Sosefo Mahoni is a great father and is very proud of being a parent. They attend church regularly as a family.” (Exhibit J)
As part of her final comments, Ms Moore said that:
“… I do believe that Sosefo is capable of being a law abiding citizen and believe he should be given a chance. I think it would be detrimental to this young family to separate them. I have spoken with Vateli, and she has indicated to me that she could not move to New Zealand and leave her parents here in Australia. Both her parents are elderly and are both Australian citizens. Her brothers and sisters are also citizens and all reside in Australia. …” (Exhibit J)
In her oral evidence, Ms Moore said that she sees the family either fortnightly or monthly as she and Mrs Mahoni are very close. They speak on the telephone at least fortnightly. She sees Mr Mahoni with the children and he is great with them. He no longer drinks and those days have been put behind him and are totally gone. She was aware of the three sets of convictions committed in Australia. Mrs Mahoni had told her that her husband had “flown off the handle” and Mrs Mahoni had not presented with any physical injuries as a result of the events leading to the convictions. Ms Moore said that alcohol had been “a bit of an issue” in the first year or two of Mr and Mrs Mahoni’s relationship for both of them. Both Mr and Mrs Mahoni were very young and both were going out to night clubs. Jealousy and insecurity played a big part in their relationship. This, however, was all before their first child was born and she now rarely sees them going out. She has not seen Mr Mahoni consume alcohol since some time in 2001 or 2002. About a month ago, they all had a barbecue. Ms Moore did not recall Mr Mahoni’s drinking any alcohol even though she and her partner had taken four cans of bourbon and coke and a six pack of beer. Mr Mahoni is a good husband and it would cause significant hardship to Mrs Mahoni were he not permitted to remain in Australia. If he were sent back, the marriage would fall apart. All of Mrs Mahoni’s family is in Australia. Mrs Mahoni has never said to her anything bad about her husband.
LEGISLATIVE FRAMEWORK
The power to stay the decision – s. 41(2) of the AAT Act
The making of an application for review to the Tribunal does not affect the operation of the decision or prevent action being taken under that decision. That is the effect of s. 41(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). The Tribunal is, however, given power to stay or affect the operation or implementation of a decision by s. 41(2) which provides that:
“The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
Minister’s power to refuse a visa if person does not pass character test
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Migration Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Bridging Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 in Schedule 4 of the Migration Regulations provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.”
The consequences of the refusal of an application for a visa under s. 501(2)
Section 501F applies if the Minister makes a decision under, among others, s. 501 to refuse to grant a visa to a person or to cancel a visa that has been granted to a person (s. 501F(1)). As Mr Mahoni held a Bridging Visa at the time, s. 501F(3) is applicable in this case and it provides:
“If:
(a)the person holds another visa; and
(b)that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.”
Mr Mahoni’s Bridging Visa is neither a protection visa nor a visa specified in any regulations for the purposes of s. 501F(3). Consequently, his Bridging Visa was cancelled when his Spouse Visa was refused.
The fate of Mr Mahoni’s Bridging Visa is linked to that of his Spouse Visa for s. 501F(4) provides that:
“If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2)or (3) is also set aside or revoked, as the case may be.”
Review of the decision made under s. 501F is the subject of s. 501F(5):
“A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.”
What is the “character test”?
The “character test” is set out in s. 501(6), which provides that:
“For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
A “substantial criminal record” is defined in s. 501(7) to mean, in part, that:
“…a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e)…”
The term “imprisonment” means “… any form of punitive detention in a facility or institution” (s. 501(12)).
CONSIDERATION
Is there power to stay the operation of the decision?
Mr Hurley submitted that the Migration Act intends that s. 41(2) of the AAT Act have its full force and effect and so enables a decision under s. 501(2) to be stayed. Its effect is not affected by the operation of s. 501F. If it were otherwise, its operation in relation to stay a decision under s. 501(2) would be pointless if its effect could be negated by the operation of s. 501F(3). The only way in which the provisions can be reconciled is if the reference to a decision in s. 501F is a reference to a decision that has not been stayed. Mr Hurley referred to my decision in Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146. In that decision, I considered an application to stay the operation or implementation of a decision to cancel a Bridging E Visa that had been issued to Mr Kurukkal pending the finalisation of his application for a TE Religious Worker (Subclass 428) Visa.
In Re Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs, the parties did not question my power to make an order under s. 41(2) of the AAT Act. Rather, it was assumed that I had the power but it was the scope of that power that was in question. I would note, though, that s. 501F did not have any role to play in that case. As will become clear from my reasons below, I consider that, in the circumstances in that case, s. 41(2) does give the Tribunal power to stay a decision to refuse or cancel a visa when s. 501F, or a provision with similar consequences, is not raised.
Mr Wee submitted that the Tribunal cannot exercise its power to stay the operation or implementation of a decision when it has already taken effect. Once a visa is refused, as in Mr Mahoni’s case, there is nothing left to implement. Mr Wee relied on a decision of RD Nicholson J in Long v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 159 when he said in relation to the Minister’s decision to cancel Mr Long’s permanent residency visa:
“… absent statutory authority of the type which appeared in the former s 482 of the Act, the Court has no power to stay an administrative decision which has taken effect in law so as to affect legal rights so that there is no continuing aspect of the decision remaining to be stayed. If, however, the decision has continuing effects the Court has power, subject to any statutory provision, to stay those effects or some of them subject to it being otherwise appropriate for a stay order to be made. In this respect I note that s 15(1) of the Administrative Decisions (Judicial Review) Act distinguishes between the suspension of the operation of the decision and a stay of all or any proceedings under the decision.
I do not consider that a different result can be reached by placing reliance on s 23 of the Federal Court of Australia Act as the accepted source of the Court’s power to stay. This is because, absent such a provision such as the former s 482(2), the decision to the extent it has taken effect is beyond stay.” (at 166)
In reaching this conclusion, RD Nicholson J gained support from the following cases. The first was Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342 in which, his Honour said, Carr J had held that there was no power to stay a declaratory order, although there was power to stay certain administrative proceedings designed to give effect to the statutory consequences of such an order. In Challoner v Minister for Immigration and Multicultural Affairs (No 1) [2002] FCA 1600, Drummond J made an order restraining the Minister and his servants and agents from giving effect to the cancellation of the applicant’s electronic travel authority. The parties subsequently agreed on a variation to the order so that it read that the decision to cancel the electronic travel authority was stayed to the effect that it would otherwise have permitted the Minister to remove the applicant from Australia. In the bankruptcy jurisdiction, a distinction has been drawn between proceedings to stay a sequestration order and the suspension of the operation of a sequestration order. His Honour referred to a judgement of Sackville J in Guss v Johnstone [2000] FCA 1593. A “… stay of the proceedings under a sequestration order (as distinct from a suspension of the sequestration order) does not prevent the change of status and vesting of property which takes effect by statute on the making of a sequestration order …However, a stay in these terms prevents the taking of various administrative steps that are normally taken under the Bankruptcy Act once a sequestration order is made …” (Guss v Johnstone at [14] and Long at 166).
RD Nicholson J referred to the cases of Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, Long v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 366 and Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1, which he said had been decided under a different legislative regime when s. 482 had been included in the Act. Section 482(3) provided that “… orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or part of that decision” could be made if an application for review had been made under ss. 476 or 477 of the Act in relation to such a decision and the orders that could be made were those “that the Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal” (s. 482(2)). RD Nicholson J said that these cases were not relevant:
“The foundation of the reasoning of Hill J in Halmi was the clear legislative intent of Parliament that the Court had jurisdiction to stay the cancellation of a visa in circumstances provided for in the former s 482(2): see Halmi at 9 [34]. That is no longer the case, the provision having been repealed …” (page 164).
RD Nicholson J did not consider that the cases regarding stays made in relation to pensions assisted Mr Long’s case. He referred to the case of Re Repatriation Commission and Delkou (1985) 8 ALD 454 in which:
“Deputy President Hall (at 458 [12]) stated that the making of an order under s 41(2) ‘is predicated upon the premise the decision, or the aspect of the decision, sought to be stayed has not been implemented’. He said that in relation to the arrears, the decision of the Board had been given full effect and on that ground alone it would be inappropriate for the tribunal to make any order purporting to stay or otherwise affect that aspect of the decision under review because ‘there was nothing left to stay’. The position was otherwise in Re Webber and Secretary, Department of Social Security (1989) 18 ALD 422 where there was a case of continuing payments at a reduced rate so that the question of the rate of pay required consideration on each pay day with the result there was something left to stay.” (page 164)
In Re Repatriation Commission and Delkou, the decision under consideration had been that of the Veterans’ Review Board to receive a pension at the special rate. A lump sum representing the arrears of payment of the pension had been paid and Mr Delkou was receiving ongoing payments each fortnight. A stay had been sought in respect of both the arrears that had been paid as well as the ongoing payments. In Re Webber and Secretary, Department of Social Security (1989) 18 ALD 422 an order under s. 41(2) of the AAT Act had been sought in respect of a decision affirming that Mr Webber’s invalid pension should be paid at the married, rather than the single, rate under the Social Security Act 1991. The Tribunal analysed that decision as:
“… not one which once given is irrevocable either as to entitlement or as to the rate of payment. In this it differs from a decision that a lump sum of arrears is payable. That lump sum is computated once on the basis of events which have happened in the past and is paid once. Consequently, as in the case of Delkou, it can be said that once it has been paid, there is nothing left. All that can be done has been done. The case of continuing payments is different. It is a matter of practicality that they are not calculated, on each pension-day and that the amount of each instalment is calculated by dividing an annual amount by 26. The reality is that a different amount could be paid on each pension-day if the circumstances of the pensioner changed with that frequency as it is reviewable at any time.” (at 423)
On the face of them, there are differences between the outcome in the cases referred to in Long v Minister for Immigration and Multicultural and Indigenous Affairs and the outcome of the case itself as well as with the provisions of the Act that appear hard to reconcile. In Nguyen v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2000) 101 FCR 20, for example, Sackville, Marshall and Lehane JJ, who comprised the Full Court of the Federal Court, noted that Mr Nguyen, who had appealed against a decision affirming the Minister’s decision to deport him and had done so on the ground that he had not been accorded procedural fairness as he had not been provided with legal representation, had not made any request to the Tribunal to stay the operation or implementation of the deportation decision under s. 41(2) of the AAT Act. It is implicit in their judgement that their Honours assumed that the power would be open to the Tribunal to exercise even though the decision had been made and could be said to have taken effect as Mr Nguyen had been detained. It would also seem from the Full Court’s reference to the power in the context of Mr Nguyen, who had been detained as a criminal deportee, that it did not consider that there would have been nothing left to stay. This assumption would seem to be consistent with the provision of s. 500(6), which provides that an order for deportation is not taken to have ceased, or ceased to be in force, by reason only that the Tribunal has made an order under s. 41 of the AAT Act. No provision similar to that found in s. 500(6) is made in relation to other decisions that are made under the Act and that are reviewable by the Tribunal. That would suggest that the Tribunal has power to stay those decisions.
In Minister for Immigration, Local Government and Ethnic Affairs v Msilanga, the Full Court (Black CJ, Beaumont and Burchett JJ) also considered a deportation order as a result of which Mr Msilanga had been detained. Review was sought under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) of the decision to detain Mr Msilanga and of the decision to refuse to release him under what is now s. 253(9) of the Act and under s. 39B of the Judiciary Act 1903 to review that decision. Among others, an order was sought under s. 16(1) of the ADJR Act, s. 39B of the Judiciary Act and ss. 19 and 23 of the Federal Court of Australia Act 1976 (“FCA Act”) read with s. 15 of the ADJR Act to release Mr Msilanga from detention. Beaumont J, with whom Black CJ agreed, said:
“I am further of the view that nothing in s 15 of the ADJR Act is intended to derogate from the width of the powers given to the Court by s 23 of the FCA Act for use in an appropriate case: s 15 of the ADJR Act addresses a possible need to suspend the operation of a decision; but this provision is silent on, and does not address, the different question, with which we are now concerned; that is, whether the court has the power to order that a person be released from custody. It is true that an interim order under s 23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s 16 of the ADJR Act or s 39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter of power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate.” (at 179)
I have already referred to decisions relating to pensions. Taking them as an example, there are countless occasions on which the Tribunal has stayed the operation of decisions granting or refusing them. Repetition, of course, does not render correct that which is not correct but it seems to me that, if the mere fact of making a decision were enough to say that it had taken effect and so could not be stayed, there would be no basis on which any decision could be stayed. This is clearly not the intention of Parliament in making the provision it did in s. 41(2) of the AAT Act or in s. 500(6) of the Act. The case of Re Repatriation Commission and Delkou, does not lead to any different conclusion for the order was sought to prevent the payment of any amount, either arrears or ongoing payments. It was the fact that the arrears had already been paid by the Repatriation Commission and it was beyond its power to recover the money at that stage that led to the conclusion that the stay power could not be exercised.
By way of contrast, in a case such as Minister for Immigration, Local Government and Ethnic Affairs v Msilanga, the decision had been made and implemented by the Minister in the sense that a decision had been made to deport Mr Msilanga and he had been detained but there was no suggestion that the decision or decisions had taken effect in law and there was nothing left to stay. Indeed the Full Court dismissed an appeal from the Judge at first instance who had ordered that Mr Msilanga be released on bail.
Two things that do consistently arise from all of the cases including Long v Minister for Immigration and Multicultural and Indigenous Affairs, is that regard must be had to the decision in relation to which an order is sought. The second is that regard must be had to the nature of the order sought. This second aspect needs slightly more explanation. RD Nicholson J drew attention to the distinction in s. 15(1) of the ADJR Act between the suspension of the operation of the decision and a stay of all or any proceedings under the decision. While deciding that he had no power to order Mr Long’s release from detention as he had no power to stay the decision to cancel his visa, RD Nicholson J entertained the possibility that he could restrain the Minister from removing Mr Long from Australia. He did so on the basis that it “… may be within the Court’s power to control as a continuing effect of the cancellation” (at 166). The result is that consideration has to be given to whether the order sought would give an applicant what he or she sought if his or her application were successful.
The decision of which an order is sought under s. 41(2) of the AAT Act is the decision to cancel Mr Mahoni’s application for a Spouse Visa. Assuming that I have jurisdiction to consider the application, it would not achieve what Mr Mahoni sought. That is to say, it would not on its own have prevented his being taken into detention. Even if I had stayed the operation or implementation of the decision to refuse him a Spouse Visa under s. 501, my order would not have had the effect of rendering the decision to refuse as if it had never been. More importantly, it would not have led to the situation in which the Minister could be said not to have made the decision under s. 501. It is the making of the decision, and not whether the decision is operative or stayed, that triggers s. 501F. Once triggered, Mr Mahoni’s Bridging Visa was cancelled. It was the cancellation of his Bridging Visa that made him liable for detention and ultimately led to his being detained. That followed from the fact that his visa ceased to be of effect when it was cancelled (s. 82). As he no longer held a visa that was in effect and as he was a non-citizen in the migration zone, he was then no longer a lawful non-citizen within the meaning of s. 13 of the Act. He was then an unlawful non-citizen (s. 14 and see also s. 15). As an unlawful non‑citizen, he was then liable to detention.
Section 189 of the Act sets out the circumstances in which an officer must detain a person. In so far as Mr Mahoni is concerned, s. 189(1) is relevant and it provides that:
“If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”
Once a person has been detained under s. 189, he or she must be kept in immigration detention until he or she is removed from Australia under ss. 198, deported under s. 200 or granted a visa (s. 196).
If I am to have power to stay a decision under s. 41(2) of the AAT Act, I must first have power to review that decision for, as Beaumont J said in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga, “… the stream cannot rise higher than its source…”. That is also clear from the nature of the power given by s. 41(2) of the AAT Act. It only permits the Tribunal to stay or otherwise affect the operation or implementation of the “… decision to which the relevant proceeding relates or a part of that decision …”. The “relevant proceeding” is “a proceeding before the Tribunal”.
The decision that has led to Mr Mahoni’s being detained is that under s. 501F and the Tribunal has not been given jurisdiction to review that decision. The limits of its jurisdiction are set out in, and circumscribed by, s. 500. That section grants jurisdiction only in relation to decisions under ss. 200 and 501 or to certain decisions in relation to protection visas. It does not grant it in relation to s. 501F. It follows that the Tribunal does not have power to stay or otherwise affect the operation or implementation of the decision cancelling Mr Mahoni’s Bridging Visa. As there is no power, it is irrelevant to consider whether or not such an order would have any effect upon his being detained.
The Direction regarding the character test
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant in this case. Of them, the Minister stated in the Direction:
“1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.”
In considering whether a person is not of good character when measured against s. 501(6)(c), the Minister directs decision-makers to take the following into consideration:
“1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen’s record since the offence/s were committed, including:
∙any evidence of recidivism or continuing association with criminals;
∙a pattern of similar offences; and/or
∙pattern of continued or blatant disregard/contempt for the law; and
(d) any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(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;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b) resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”
As I said in Re Singh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 370 (8 April, 2004):
“64. That brings me to the expectations of the Australian community. As a general rule, members of the Australian community are sympathetic to people who have had a difficult life in difficult circumstances. For those people, it can be forgiving of the transgressions made by people who are in those circumstances and who strive to better themselves and to make a new start. Members of the Australian community are also sympathetic to those who want to join their families and can also be forgiving of their transgressions. …”
This remains equally true in this case. Mr Mahoni is, in my view, a person to whom the Australian community would be sympathetic. True it is that he has transgressed Australia’s laws but he has done so without physical harm to others or damage to property other than his own. True it is that he did act without regard to other people’s property and did incite violence/disorder/lawfulness but that behaviour lasted only was a very short period. It is explained by his early life. He had a difficult start when his grandmother, who was his carer, died and he was then separated from his aunt, who had stepped into the place of his grandmother. His time with his mother and her partner in New Zealand was not a happy experience. I have already found that he committed offences at that time but stopped himself just as he did when he came to Australia some time again and had a short history of offending. He has the support of his wife and of his aunt who raised him in Tonga and who now lives in Australia.
That brings me to Mr Mahoni’s children. Until Mr Mahoni’s recent detention, they lived with their parents. Since then, they have stayed with their mother. I am satisfied that, should Mr Mahoni be required to leave Australia, Mrs Mahoni is unlikely to choose to leave with him and to live in New Zealand. She bases her decision on the fact that all of her family lives in Australia and has done for a long time. Although the possibility of her living in Tonga was not canvassed, I am satisfied that her reason for not wishing to live in New Zealand would apply equally to her not wishing to live in Tonga. Her children are still very small with her elder son being only a little over three years and her daughter just six months. They are at an age at which it is to be expected that they would be too young to leave their mother and so would remain with her. Without Mr Mahoni in Australia and without his contributing to the family, I find that they would live with their mother’s family and Mrs Mahoni would find work.
Although the children would be well cared for by their mother and her family, I am also satisfied that the children also need their father and I find that he is a most important part of their lives. They will need him increasingly so as they grow up. It is not in their best interests to be parted from either their mother or their father. It is in their best interests to remain with both their parents. Provided they live with both their parents, they are at an age where the place in which they live is not relevant. I also find that it is in Mr Mahoni’s best interests to remain with his wife and family. They have brought stability to his life and he has shown that he has been able to rise to put much of his past history behind him.
On the basis of her evidence, I am satisfied that Mrs Mahoni did not find out until approximately April, 2000 that her husband was not entitled to remain permanently in Australia. By that time, their relationship was well established and they were living together.
Taking all of these matters into account, I have decided that the factors relating to the interests of the children outweigh the other interests to which I must have regard. His past behaviour leading to his being convicted relates to two finite periods of his life and is not indicative of a person from whom the Australian community needs to be protected. There is a small risk of his committing further offences against the Act but, with the support of his wife and her family as well as that of his aunt and her family, which he regards as his adopted family, that risk is minimal. If he were required to leave Australia, I find that Mr Mahoni would not have the support of all of his family in Australia and of his good friends who have stood by him throughout the proceedings. His life would be poorer for his leaving as would the lives of his children. Given what I regard to be a minimal risk of his committing offences against the law of Australia, I am satisfied that Mr Mahoni’s interests and those of his children outweigh those relating to the protection of the Australian community. On balance, I have concluded that the discretion under s. 501 should not be exercised to refuse Mr Mahoni’s visa.
For the reasons I have given, I:
1.set aside the decision of the respondent dated 29 January, 2004; and
2.substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501 of the Migration Act 1958.
I certify that the one hundred and sixteen preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie
Signed: .....................................................................................
R. Crook Associate
Date/s of Hearing 13 April, 2004
Date of Decision 12 May, 2004
Counsel for the Applicant Mr T. HurleySolicitor for the Applicant Mr J. Young,
Australian Migration Program & InvestmentsSolicitor for the Respondent Mr B. Wee
Australian Government Solicitor
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