Manunivavalagi and Minister for Immigration and Multicultural Affairs - [2001] AATA 900

DECISION AND REASONS FOR DECISION [2001] AATA 900

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1108

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Soroveveli Manunivavalagi
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date31 October 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Ratu Joji Tupow Vitukawalu passes the "character test" referred to in section 501(1) of the Migration Act 1958.

..............................................
Deputy President
Mr R P Handley
CATCHWORDS
IMMIGRATION - Preferential Family visa - character test - past and present general conduct – Applicant was Visa Applicant's father and from a family of Chiefs in Fiji - whether Applicant had illegitimate daughter that was "remaining relative" of Visa Applicant - whether Visa Applicant involved in conduct indicating a disregard for Australian law - whether Visa Applicant provided bogus document or made false or misleading statement in connection with application for visa

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 104.223; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

Mr R P Handley

This is an application by Soroveveli Manunivavalagi ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 22 June 2000 to refuse the grant of a sub-class 104 (Preferential Family) visa to the Applicant's son, Ratu Joji Tupow Vitukawalu ('the Visa Applicant").
At the hearing, the Applicant was represented by Martin Churchill, Solicitor, and the Respondent was represented by Zac Chami, Solicitor, of Clayton Utz Lawyers. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by the Visa Applicant by telephone and by the Applicant in person.
BACKGROUND
Mr Manunivavalagi was born on 17 March 1936 and is aged 65. He first came to Australia in September 1976 and became an Australian citizen on 17 May 1983. Mr Manunivavalagi is of a family of Chiefs from a Fiji island approximately 60 miles from Suva. On 8 July 1982 and 2 October 1984, Mr Manunivavalagi lodged applications to sponsor the migration of his two sons, Joji and Soroveveli to Australia. Neither application was granted because Mr Manunivavalagi failed to provide additional information and documents requested by the Department of Immigration ("the Department").
Ratu Joji Tupow Vitukawalu, the Visa Applicant, was born on 15 May 1966 and is aged 35. Mr Vitukawalwu's younger brother, Soroveveli, died on 24 October 1986 at the age of 13 from acute lymphoblastic leukaemia. Mr Vitukawalu arrived in Australia on 24 April 1988 on a visitor's visa which was granted for 3 months from the date of entry, expiring on 22 July 1988 (T27).
On 19 August 1988, Dr James P Maguire, Consultant Psychiatrist, prepared a report on Mr Vitukawalu (T5). In this report, he records Mr Vitukawalu as having a younger brother and a younger sister. The younger sister is named as Vinaisi Vuiyale, who was born on 23 June 1967.
Mr Vitukawalu did not depart from Australia before the expiry of his visitor's visa. On 8 December 1988, he was detained by New South Wales Police when travelling in a stolen car. He was not charged with any offence, but was taken to the Villawood Detention Centre because he was in Australia unlawfully. A Visitor's Application Form for Villawood indicates that Ms Vuiyale visited Mr Vitukawalu there on 15 December 1988, stating her relationship to Mr Vitukawalu as "sister". On 19 December 1988, Mr Vitukawalu lodged an application for permanent residence status. This was refused on 25 January 1989 and Mr Vitukawalu's deportation was ordered. On 31 January 1989, he was deported from Australia to Fiji, following which he was subject to a 5 year embargo on returning to Australia.
On 12 August 1996, Mr Vitukawalu applied to migrate to Australia as a Preferential Relative. His migration was sponsored by his father, Mr Manunivavalagi. On 19 February 1997, a Senior Migration Officer at the Australian High Commission in Suva wrote to Mr Vitukawalu requesting further information with regard to all his brothers and sisters. When no response was received to this letter, the Migration Officer wrote once again on 21 April 1997 requesting this information. On 12 August 1997, information was provided to the High Commission nominating Ms Vuiyale as Mr Vitukawalu's sister. Then, by a letter dated 25 August 1997 from Mr Manunivavalagi, the Migration Officer was informed that Mr Manunivavalagi was not Ms Vuiyale's father.
On 3 February 1998, Mr Vitukawalu was interviewed by a Senior Migration Officer at the High Commission and was asked about his alleged half-sister. As a result of this interview, the Migration Officer was not satisfied that Mr Vitukawalu did not have any "overseas near relatives", a condition for the grant of a sub-class 104 (Preferential Relative) visa. Therefore, on 4 February 1998 the migration officer, acting as delegate of the Respondent, decided to refuse Mr Vitukawalu's application for a visa. Mr Manunivavalagi sought a review of this decision by the Migration Internal Review Office ("MIRO") and, on 14 July 1998, MIRO affirmed the original decision. Mr Manunivavalagi sought a further review by the Migration Review Tribunal ("MRT"). On 1 December 1999, the MRT concluded that it was satisfied that Mr Vitukawalu was the last remaining relative of Mr Manunivavalagi and remitted the matter to the Respondent for further assessment.
On 14 March 2000, a Senior Migration Officer at the Australian High Commission in Suva wrote to Mr Vitukawalu informing him she had determined that he was not a person who is of good character and inviting him to comment. On 25 April 2000, Mr Manunivavalagi responded to this invitation by fax. On 22 June 2000, a delegate of the Respondent decided to refuse the grant of a visa to Mr Vitukawalu on the basis that he did not pass the character test because of past and present general conduct, pursuant to s 501(6)(c)(ii) of the Migration Act 1958 ("the Act"). On 17 July 2000, Mr Manunivavalagi lodged an application with the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Under s 501(1) of the Act, 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 character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations sets out the criteria relevant for the grant of a sub-class 104 (Preferential Family) visa. Clause 104.223 requires that, at the time of the decision, the visa applicant satisfied public interest criteria 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(b)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.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Vitukawalu is not of good character having regard to his past and present general conduct so as to be precluded from the grant of a sub-class 104 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, he should be granted a visa.
ORAL EVIDENCE
Soroveveli Manunivavalagi (the Applicant)
Mr Manunivavalagi confirmed that he is from a family of Chiefs in Fiji and therefore has special standing in his community. He acknowledged that his applications to sponsor the migration of his two sons to Australia in 1982 and 1984 did not proceed because he failed to provide the further information requested by the Department. He also acknowledged that when his son, Mr Vitukawalu, came to Australia on 24 April 1988, and was granted a visitor visa for a stay of 3 months, he did not return to Fiji on the expiry of that visa on 22 July 1988. At that time, Mr Manunivavalagi had sought the assistance of his solicitor, P K Simpson, who assisted Mr Manunivavalagi with his migration to Australia, to handle an application for his son's migration.
Mr Manunivavalagi was asked about a psychiatric report on Mr Vitukawalu prepared by Dr James Maguire, dated 19 August 1988. Mr Manunivavalagi said he was not interviewed by Dr Maguire and does not know why the report was prepared. He said he has not seen the report.
Mr Manunivavalagi agreed that if a man is of a family of Chiefs and has an illegitimate child, according to Fijian custom, he does not have to acknowledge that the child is his. However, Mr Manunivavalagi said that Ms Vuiyale is not his daughter. He knows Ms Vuiyale and her mother through their family in his village in Fiji. He knew Ms Vuiyale's mother, Lavenia Vuiyale, as a friend, but he denied ever having any sexual relationship with her. He said that when Ms Vuiyale came to Australia in 1988 and stayed with him for a month, this was because she was of a family from his village. Such hospitality is common in Fijian culture.
Mr Manunivavalagi said he did not know whether Ms Vuiyale had been to see his son when he was detained at Villawood Detention Centre. Mr Manunivavalagi was asked about a report of an interview with him on 12 January 1989 in relation to his son's deportation, when Mr Manunivavalagi is recorded as saying that he "may have illegitimate daughter". He was also recorded as saying that he had met Ms Vuiyale once before when she was 16. Mr Manunivavalagi told the Tribunal he did not now remember having met Ms Vuiyale before she came to Australia. He agreed he had signed the record of interview on 12 January 1989, but said he later found out that he was definitely not Ms Vuiyale's father when he saw her birth certificate which does not name him as her father. Mr Manunivavalagi said he did not know who her father was, but it was definitely not him.
Mr Manunivavalagi was asked about a letter dated 25 August 1997 which he apparently wrote to the Senior Migration Officer at the Australian High Commission in Suva. This letter concerned the lodging of a form at the High Commission on 12 August 1997 showing that Ms Vuiyale was a sister of Mr Vitukawalu. Mr Manunivavalagi said the insertion of Ms Vuiyale's name on this form was not made by him, and he had written the letter dated 25 August 1997 to explain this. Mr Manunivavalagi denied knowing that for his son's application to migrate to Australia to succeed, it was vital that his son not have any remaining relatives outside Australia.
Mr Manunivavalagi was unaware of the detention costs of approximately $1,000 in respect of his son's detention at Villawood in December 1988 and January 1989. Mr Manunivavalagi paid these in 1995 when he became aware of their existence, so that his son could make another migration application.
Mr Manunivavalagi was referred to a statutory declaration which he made on 24 April 2000 (T33). His statement in paragraph 9 of the Declaration that "My son returned to the village of Kadavu and has not been in employment" referred to the period when Mr Vitukawalu returned to their village in the Fiji islands on 31 January 1989. At that time, Mr Vitukawalu was not in employment. However, Mr Vitukawalu later found employment in Suva, first of all with Fiji Gas (May 1997 to May 1998) and for the last 3 years with Guardforce.
Ratu Joji Tupow Vitukawalu (Visa Applicant)
Mr Vitukawalu confirmed that he arrived in Australia on 24 April 1988 on a visitor visa which entitled him to stay for a period of approximately 3 months. Mr Vitukawalu acknolwedged that he had overstayed his visa, but said he had acted on his father's advice, his father having instructed his solicitor to prepare the necessary papers for a migration application by Mr Vitukawalu. Mr Vitukawalu said that while he was in Australia, he lived with his father in Marrickville. He could not recall why he went to see a psychiatrist, Dr Maguire, on 18 August 1988 (T5). He said his father accompanied him when he saw Dr Maguire, but he does not remember whether his father actually spoke to Dr Maguire.
Mr Vitukawalu said he does not have a sister. After his parents separated and his father came to Australia and his mother went to Tahiti, he went to live with his Aunty Litia. The first time that anybody referred to his having a sister was when he was in Australia in 1988 and his Aunty Philu introduced him to Ms Vuiyale who she said was his step-sister. Mr Vitukawalu said he thought this occurred before he saw Dr Maguire, and he could not remember where Ms Vuiyale was staying at the time. He also did not recall her having stayed with his father at Marrickville.
Mr Vitukawalu acknowledged that he was arrested on 8 December 1988 by New South Wales Police and taken to the Villawood Detention Centre. He said he was walking past a Kings Cross Hotel when a Fiji man came by and told him to get into a car. He had no idea that the car was stolen, nor to whom it belonged. Mr Vitukawalu said when he was interviewed by a Department of Immigration Officer on 12 December 1988 (T9), he told the Officer that he wanted to stay with his father and lodge an application for migration. At the hearing, Mr Vitukawalu was asked whether Ms Vuiyale had visited him on 15 December 1988 (T6). Mr Vitukawalu said he did not remember whether she had visited him. He acknowledged that when he made an application for migration on 12 August 1996, he was aware that for his application to succeed, he had to be classified as the last remaining relative of his father. However, he was not aware that if he had a brother or sister, his visa application would not succeed. He said he wants to be with his parents because he is their only son and they are getting old.
Mr Vitukawalu was asked about his migration application form which he signed on 27 October 1995. He said that he could not remember who filled in the form but noted that the only brother or sister which the form records him having is his deceased brother Soroveveli. Mr Vitukawalu did not remember the letters sent by the Australian High Commission in Suva in February 1997 (T14) and April 1997 (T15) asking for further information about his brothers and sisters. He did not know who had completed the additional page lodged with the High Commission on 12 August 1997 (T16) which showed his having a sister, Ms Vuiyale. Mr Vitukawalu remembered going for an interview at the High Commission on 3 February 1998 (T 19) but denied he had told the Officer that he had a half-sister and they used to live together. He could not recall what he told the Officer about Ms Vuiyale's age.
Mr Vitukawalu said that when he was deported to Fiji on 31 January 1989, he returned to his village and, initially, did not work. He agreed that he used to go fishing a lot. The first employment he obtained after returning to Fiji was that with Fiji Gas in May 1997. For the last 3 years, he has worked for Guardforce, a security company, where he is a security guard.
SUBMISSIONS
The Applicant
Mr Churchill, for the Applicant, said when Mr Vitukawalu was in Australia in 1988 on a visitor visa, he placed the matter of his making a migration application in the hands of his father, who in turn went to see his solicitor, P K Simpson, for assistance. Mr Simpson had previously assisted Mr Manunivavalagi with his own migration application. Mr Vitukawalu relied on the solicitor doing what was necessary and was not aware that he was in Australia unlawfully beyond 22 July 1988.
Mr Churchill said Mr Vitukawalu's evidence was that he was first told about his half-sister by his Aunty Philu. This would have led to some confusion for Mr Vitukawalu as a result of the cultural considerations surrounding the treatment of illegitimate children of members of a Chief's family. However, Mr Manunivavalagi had denied having any relationship with Ms Vuiyale's mother and Ms Vuiyale's birth certificate did not record Mr Manunivavalagi as the father.
Mr Churchill acknowledged that there were some minor discrepancies between Mr Manunivavalagi's and Mr Vitukawalu's evidence. Mr Churchill noted that Mr Manunivavalagi is now 65 years of age and does not have a good recollection of events, especially of those 13 years ago.
With regard to the exercise of discretion under s 501(1) and Direction No. 21, Mr Churchill doubted the general deterrent effect of a refusal of a visa to Mr Vitukawalu because Mr Manunivavalagi and Mr Vitukawalu were trying to do the right thing in 1988 and had instructed their solicitor to lodge a migration application for Mr Vitukawalu. In any event, the 5 year embargo on Mr Vitukawalu reapplying to migrate to Australia after he had been deported, has now passed.
With regard to the expectations of the Australian community, Mr Churchill submitted that there had clearly not been a deliberate breach of Mr Vitukawalu's visa. Mr Vitukawalu had relied on his father, who had in turn relied on his solicitor with respect to lodging a migration application for Mr Vitukawalu. The solicitor seems also to have sought the professional assistance of the psychiatrist, Dr Maguire, in relation to some aspect of this. The final page of Dr Maguire's report of 19 August 1988 (T5), indicates that his opinion was being sought on the psychiatric consequences to Mr Vitukawalu of his being forced to return to Fiji. Mr Churchill said it should be noted, when considering Mr Vitukawalu's reliance on others, that he had only 2 years high school education. Mr Churchill said Mr Vitukawalu's having been in Australia unlawfully, was purely a consequence of his solicitor not following instructions.
With regard to other relevant considerations, Mr Churchill noted that the objective of Mr Vitukawalu's migration application is to permit him to be reunited with his father, who is an elderly Australian citizen living in Sydney. It was unfair to punish both the father and son for their having trusted and relied on a solicitor to provide professional assistance.
The Respondent

Mr Chami, for the Respondent, drew the Tribunal's attention to Criterion 104.211 of Schedule 2 of the Migration Regulations in effect at the time of the decision, which required that for a sub-class 104 (Preferential Family) visa application to succeed, the Applicant had to be a "remaining relative" of a person who is an Australian citizen, or a permanent resident, or an eligible New Zealand citizen. The term "remaining relative" was defined in regulation 1.15 as including a "step-sister".
Mr Chami contended that Ms Vuiyale is the daughter of Mr Manunivavalagi and the step-sister of Mr Vitukawalu. Mr Chami noted that on 12 January 1989, Mr Manunivavalagi signed a report of an interview in which he stated (T8, p76):
…may have illegitimate daughter of age but didn't meet her until she was 16 years of age. I was in Australia at that time.

Mr Manunivavalagi named the daughter as Vinaisi Vuiyale. There was an inconsistency between that statement and Mr Manunivavalagi's evidence to the Tribunal that he had never had sexual relations with Lavinia Vuiyale, Vinaisi Vuiyale's mother. Mr Chami noted that in Dr Maguire's report of 19 August 1988 (T5), he records that Mr Vitukawalu had told him about a younger sister. Dr Maguire also states that he spoke with Mr Manunivavalagi who verified the early family history given to Dr Maguire by Mr Vitukawalu. Mr Chami noted that when Ms Vuiyale went to visit Mr Vitukawalu at Villawood Detention Centre she described herself on the Visitor's Application Form as a sister of Mr Vitukawalu (T6). Mr Chami also referred the Tribunal to a letter from P K Simpson, Mr Vitukawalu's solicitor, dated 21 December 1988 (T7), referring to the relationship between Ms Vuiyale and Mr Manunivavalagi. Mr Simpson stated in the letter that "Mr Manunivavalagi may well be the father, but he has doubts". There is also a Departmental File Note dated 21 December 1988 (S3) in which the Departmental Officer records a conversation with Mr Simpson when Mr Simpson told the Officer that the sister was illegitimate.

Mr Chami said the birth certificate was the main determinant of Mr Manunivavalagi's view that he was not the father, but consideration should be given to the cultural tradition in Fiji that a man of a family of Chiefs is not expected to acknowledge the fathering of an illegitimate child.
Mr Chami submitted that Mr Vitukawalu was elusive or forgetful and his evidence was not credible. He had signed his migration application on 27 October 1995 failing to mention Ms Vuiyale as his sister. The Immigration Section of the High Commission in Suva wrote to him on 2 occasions asking for further information about his brothers and sisters but he had not responded. Mr Chami noted that in the interview with the Senior Migration Officer on 3 February 1998 (T19), Mr Vitukawalu is recorded having confirmed that his half-sister had visited Australia. Mr Chami also referred to a file note dated 5 January 1989 (S5), which records that a Departmental Officer, J R Williams, spoke with Mr Vitukawalu about the relationship with "his sister". The note records that Mr Vitukawalu said:
She is his step sister [sic]. He said he first knew of her when his uncle said that he had a step sister [sic]. This was when he was about 16.
Mr Chami said all the recent evidence about Ms Vuiyale not being Mr Vitukawalu's step-sister, appeared to be a cover up to ensure the grant of a visa to Mr Vitukawalu. With regard to Mr Vitukawalu's being in Australia unlawfully after 22 July 1988, Mr Chami said the Respondent accepts that instructions had been given to the family's solicitor. Nevertheless, it was still a fact that Mr Vitukawalu had overstayed his visa. Mr Chami said that Mr Vitukawalu having been detained by New South Wales Police for riding in a stolen vehicle, should also be considered a blemish on his character.
FINDINGS
There is no dispute that Mr Vitukawalu overstayed his visa and was in Australia illegally after 22 July 1988 until he was deported on 31 January 1989. However, as to the reason for his overstaying his visa, the Tribunal finds that the Applicant relied on his father, Mr Manunivavalagi, to make arrangements for him to remain in Australia after the expiry of his visa. Mr Manunivavalagi, in turn, gave instructions to his solicitor, P K Simpson, and it appears P K Simpson failed to act diligently in accordance with his instructions. The Tribunal had regard to a Departmental Summary dated 23 January 1989 (T9), in which the Case Officer notes that when Mr Vitukawalu lodged an application for residence on 19 December 1988, the application:
was accompanied by a letter from his solicitor stating that the application was dated 12 July 1988 and that the solicitor had inadvertently omitted to forward it to the department.
The Tribunal also relied on oral evidence from Mr Vitukawalu and Mr Manunivavalagi as to their reliance on Mr Simpson in obtaining a visa for Mr Vitukawalu so that he could remain in Australia legally after 22 July 1988. The Tribunal therefore finds that Mr Vitukawalu sought to comply with Australian immigration requirements and, even if there is some culpability on his part, notes that he was subject to a 5 year embargo on his reapplying for a visa from the time that he was deported from Australia on 31 January 1989. In the Tribunal's view, he has paid his penance.
With regard to the question of whether Mr Vitukawalu has a step-sister, namely Vinaisi Vuiyale, the Tribunal notes the finding of the MRT dated 1 December 1999 (T26):
16. There is insufficient evidence to suggest that Vinaisi Vuiyale is the daughter of the review applicant. Whilst I note that Vinaisi Vuiyale is known to the review applicant and has stayed with him and has called herself the sister of the visa applicant when visiting Villawood, without some further evidence from Vinaisi Vuiyale, I am unable to be satisfied that this information can be relied upon. To rely on this information would be mere speculation or suspicion.
17. The review applicant strongly denies his paternity. Vinaisi Vuiyale's birth certificate does not indicate that her father is the review applicant. The birth certificate and the evidence of the review applicant given under oath to the Tribunal are relied upon by me to come to my decision.
In evidence to the Tribunal in the current proceedings, Mr Manunivavalagi also strongly denied that he is the father of Ms Vuiyale. He said he had not had a sexual relationship with Ms Vuiyale's mother, and suggested that the statements made by him in 1988/1989 were made before he had seen Ms Vuiyale's birth certificate which established conclusively in his mind that he was not the father of Ms Vuiyale.
The Tribunal notes the Fijian cultural tradition, whereby men of a Chief's family do not recognise their paternity of illegitimate children. The Tribunal also notes Mr Vitukawalu's various statements in 1988/1989, and to a Senior Migration Officer at the Australian High Commission in Suva on 3 February 1998, concerning his alleged half-sister. On the basis of this evidence and Mr Vitukawalu's oral evidence to the Tribunal, the Tribunal finds that Mr Vitukawalu has experienced confusion over whether or not he has a half-sister. The Tribunal finds that Mr Vitukawalu's statements cannot be considered sufficiently reliable to found a conclusion that he has a half-sister when Mr Manunivavalagi's evidence and Ms Vuiyale's birth certificate support the opposite conclusion. Nor, in the Tribunal's view, is Mr Vitukawalu's apparent confusion sufficient to establish that he made a false and misleading statement in connection with his migration application. Mr Vitukawalu was faced, on the one hand, by a statement from his Aunty Philu in Australia that this was his half-sister and by his father's initial uncertainty and, on the other hand, by the birth certificate and his father's later strong denial that he was the father of Ms Vuiyale.
APPLICATION OF THE LAW
The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry.

Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test.

If the Tribunal decides that, in its view, the Visa Applicant, Mr Vitukawalu does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Firstly, as to whether Mr Vitukawalu passes the character test, the Tribunal had regard to Part 1 of Direction No 21, in particular to paragraph 1.9 which directs decision-makers to consider certain matters and, where relevant, whether those factors would, in the absence of any countervailing factors, constitute a failure to pass the character test. Matters that decision-makers should consider include whether the non-citizen has been involved in activities which indicate a contempt or disregard for the law, whether the non-citizen has provided a bogus document or made a false or misleading statement in connection with any application for the grant of a visa or any kind of Government benefit, and whether the non-citizen has been removed/deported from Australia.
In the Tribunal's view, Mr Vitukawalu has not been involved in conduct which indicates a disregard for Australian law. In 1988, Mr Vitukawalu's father gave instructions to their solicitor to make a migration application for Mr Vitukawalu so that he could remain in Australia legally. The evidence is, therefore, of an attempt at compliance with the law. With regard to Mr Vitukawalu's detention by the police on 8 December 1988, the Tribunal accepts Mr Vitukawalu's evidence that he was not aware that he was being asked to get into a stolen vehicle. The Tribunal is also not satisfied that Mr Vitukawalu has provided a bogus document or made a false or misleading statement in connection with his applications for the grant of a visa. To the extent that his statements have been confusing, this appears to reflect his own confusion when faced with conflicting statements by his aunt and his father as to whether or not Ms Vuiyale was his sister.
While Mr Vitukawalu was deported from Australia on 31 January 1989, that deportation must be considered in the context of Mr Vitukawalu's reliance on the family's solicitor who had received instructions in relation to Mr Vitukawalu's application for a further visa, so that he could remain in Australia lawfully. In the Tribunal's view, there is no evidence that Mr Vitukawalu intended to violate Australia's migration laws, even though, ultimately, he must accept responsibility for his illegal presence.
The Tribunal therefore concludes, pursuant to s 501(6)(c) of the Act, that Mr Vitukawalu's past and present general conduct do not establish that he is not of good character. There is also other evidence before the Tribunal which attests to Mr Vitukawalu's good character:

A statement from Aminiasi Katonivualiku, Resident Magistrate, Suva, dated 29 August 200 (A1), as to his not being convicted in any court in Suva since 1988 and of Mr Vitukawalu having given help in organising fundraising for a village development.
A statement by Mrs Litia Uluikavoro, his aunt, dated 28 August 2000 (A2), that Mr Vitukawalu is "a very sincere and obedient young man who respects his elders and is considerate of his cousins and all family members".
A statement by Napolean Vitukawalu, his uncle, dated 28 August 2000 (A3), as to his maturity of character, employment and regular attendance at village meetings and functions as well as church services.
A reference by the Sales and Marketing Manager of the Fiji Gas Company, Amos Traill, dated 15 December 2000 (A4), as to Mr Vitukawalu's good qualities.
A reference by the Assistant Operations Manager – Security, for Guardforce, Fiji, Mr Vitukawalu's current employer, faxed on 18 October 2000, stating that Mr Vitukawalu is a "loyal, respectful and hard working person".

Applying the standard set out by the Federal Court in Goldie (supra), the Tribunal is satisfied that Mr Vitukawalu passes the character test referred to in s 501(1) of the Act. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that Mr Vitukawalu passes the "character test" referred to in s 501(1) of the Act.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   26 September 2001
Date of Decision   31 October 2001
Solicitor for the Applicant          Mr M Churchill
Solicitor for the Respondent    Mr Z Chami, Clayton Utz Lawyers