Minister for Immigration and Multicultural and Indigenous Affairs v Godley

[2005] FCAFC 10

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Godley
[2005] FCAFC 10

MIGRATION – appeal from a single Judge – discretion to refuse to grant a visa – where Minister decided applicant ‘did not pass the “Character Test”’ by reference to supposed criminal and general conduct – whether finding required by Minister that a person was not ‘of good character’.

PRACTICE & PROCEDURE – appeal from a single Judge – where Minister concluded that applicant was guilty of criminal conduct without warning the applicant such a conclusion might be made – whether breach of procedural fairness.

Migration Act 1958 (Cth), s 501

Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 referred to
Irving v Minister for Immigration (1993) 44 FCR 540 referred
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 referred to
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 referred to

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V KARL WILLY NEVILLE GODLEY

W 158 of 2004

MADGWICK, LANDER AND CRENNAN JJ
18 FEBRUARY 2005
SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 158 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	KARL WILLY NEVILLE GODLEY RESPONDENT
JUDGES:	MADGWICK, LANDER AND CRENNAN JJ
DATE OF ORDER:	18 FEBRUARY 2005
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W158 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	KARL WILLY NEVILLE GODLEY RESPONDENT

JUDGES:	MADGWICK, LANDER AND CRENNAN JJ
DATE:	18 FEBRUARY 2005
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of a single judge of this Court. The single judge granted the respondent’s application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and mandamus in respect of a decision of the appellant made on 18 November 2004, to refuse the respondent’s application for a spouse visa under the provisions of s 501(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The respondent was born in Nairobi, Kenya and holds dual citizenship of the United Kingdom and South Africa. 

3. The respondent, who is now 67 years of age, first arrived in Australia in 1966 with his first wife and a daughter.  He remained in Australia for 10 years until 1976 during which time another daughter was born.  It appears that the respondent’s parents and two brothers also migrated to Australia in about 1966.  His two brothers are now Australian citizens.  His parents became Australian citizens and they are both buried in Australia.  His two daughters, now adults, are also Australian citizens.  The respondent’s marriage to his first wife was dissolved in September 1981.  From 1994 to 1997 he was married to his second wife, an Australian citizen.  The respondent is now married to a 62 year-old woman, his third wife, who is an Australian citizen.

4. Before considering the submissions made in respect of the grounds of appeal it is convenient to consider in some detail, the events which led to the making of the appellant’s decision.  In 1976, the respondent left Australia, for personal reasons, to return to South Africa.  He eventually applied to return to Australia in 1986 and was granted a three-year multiple re-entry visa on the ground that he needed time to liquidate his assets in South Africa.  In or about February 1988 the respondent sought, and was granted, a three-year extension to his re-entry permit on the ground that he required more time to liquidate his South African assets.  In December 1993, the respondent made an application for a Further Stay as a Visitor Visa, which was issued and valid until 16 September 1994.  This visa did not grant the respondent the right to work in Australia. 

5. In August 1994, the respondent married his second wife, an Australian citizen.  In November 1994, the respondent made an Application to Remain Permanently in Australia (Form 887) on spouse grounds and also applied for a Bridging ‘A’ Visa to enable him to continue working lawfully pending his application for permanent residence.  The respondent’s application for a Bridging Visa was re-submitted on 1 January 1995 because of a discrepancy in the financial information contained in the initial application.  The Department of Immigration and Ethnic Affairs (‘DIEA’) granted the respondent a Bridging ‘A’ Visa on 19 January 1995. 

6. On 16 February 1995, the respondent was charged with working in Australia between 4 March 1994 and 29 August 1994 whilst he was a non-citizen holding a temporary visa which did not grant him the right to work.  He was convicted on complaint on 11 April 1995. 

7. It appears that the respondent’s marriage deteriorated in this period and on 14 June 1995 his then wife withdrew her nomination in support of his application for permanent residency.  The wife also sought a restraining order against the respondent, however this was never indorsed.  The marriage was dissolved by decree nisi on 27 June 1997.

8. In October 1995, the respondent lodged a further Application to Remain Permanently in Australia on Family grounds with the support of his two brothers and concurrently applied for a Bridging Visa to retain his right to work.  The Bridging Visa was granted on 24 January 1996. 

9. The respondent appointed a migration agent to act on his behalf on 8 February 1996.  In February 1996, the applicant was advised by his migration agent to lodge an ‘offshore’ application for a ‘last remaining relative visa’.  The ‘offshore’ application was lodged in Pretoria in South Africa on 5 March 1996. 

10. On 11 March 1996, the DIEA wrote to the respondent care of his agent, informing him that his 1994 applications for a visa in the Extended Eligibility (Temporary) Class and for a permanent visa in the General (Residence) class lodged on spouse grounds had been refused.  In that letter, the DIEA informed the respondent: ‘As you do not hold a substantive visa, the bridging visa granted to you in connection with your application has come into effect to maintain your lawful status in Australia.  The bridging visa will be in effect for 35 calendar days from the date of this letter’.

11. The respondent’s offshore application was not determined until 15 October 1999 when the grant of a visa was refused.  The respondent claims that he did not receive notification of this decision as all correspondence was directed to his migration agents who had ceased to act for him by then.  

12. It appears that the respondent continued working in Australia until about October 2000, when the DIEA apprehended that he was no longer the holder of a current visa.  In November 2000, the respondent left Australia and took up residence in London. 

13. During the period between November 1998 and 2000, the respondent had formed a relationship with Ms Lois Carroll who is an Australian citizen.  In about June or July 2001, Ms Carroll nominated the applicant, while he was resident in the United Kingdom, for a Spouse Visa (‘the visa’), the subject of the present proceedings.  It appears that when the applications were made the respondent was engaged to marry Ms Carroll.  The marriage took place in the Seychelles in December 2001 prior to the decision of the Minister refusing to grant the respondent’s application for the visa.

14. It is relevant, at this point, to note that in completing the application form for the visa the respondent admitted that he had previous criminal convictions in Australia but failed to provide any details as to the nature of those convictions. 

15. On 24 January 2002, a delegate of the Australian High Commission in London wrote to the respondent informing him that ‘the information you have supplied is not sufficient to make a decision about whether you are the spouse of an Australian citizen … .  Therefore, you are required to provide further information to substantiate your claims in this regard, bearing in mind how marital relationships are defined under current Australian migration legislation and policy’.  The government guidelines for defining marital relationships were also enclosed.  The respondent and his wife each provided a letter and obtained statutory declarations from friends attesting to the reality of their relationship.  However, on 4 April 2002 the High Commission replied that the information so provided was insufficient and accordingly requested an interview with the respondent. 

16. The High Commission also informed the respondent:

    ‘… If you have any criminal convictions, please provide… the following (if you have not done so already):

    ·a statement outlining the details of all offences you have committed, including any mitigating circumstances that influenced your behaviour at the time; and

    ·details of what steps you have taken to rehabilitate yourself since your most recent conviction.  In this regard, you may wish to include character references.’

17. The respondent replied to a letter from the High Commission of 27 April 2002 by return letter dated 14 June 2002; he requested that the Minister take into account the following:

    ‘In conclusion I would accept that I have illegally worked in Australia and that I should have declared the driving offences I would like you to take into consideration the following:

    ·My character is not blemished with any offences, which pose a threat to the Australian Community.

    ·I have not been involved in any crimes of a violent or threatening nature.

    ·My wife is in Australia and I need to be there to provide her with support.  This is a genuine relationship as evidenced by the continuous communications between us whilst my application for a temporary spouse visa is being decide[d]

    ·All my immediate family are residing in Australia.’

18. The respondent also included medical reports from a medical practitioner attending to his wife, then aged 60, which stated that she was suffering depression attributable to the stress caused over the delays in granting the visa.  The High Commission was also informed that, as Mrs Godley was undergoing continuing checks for breast cancer and was caring for her elderly mother, and as her sister had also been diagnosed with breast cancer, she was not in a position to leave Australia to live with the applicant overseas. 

19. On 5 August 2002, the High Commission wrote to the respondent informing him that the appellant would personally consider his application for the visa and that certain matters would be taken into account.  On 12 September 2002, the High Commission again wrote to the respondent informing him:

    ‘… that, in addition to the matters outlined in my correspondence of 27/04/02 and 05/08/02, the following matters will also be taken into account in considering whether or not to refuse your spouse visa application under s 501 of the Act:

    ·your failure to disclose your criminal conviction in South Africa when you lodged a Preferential Family (subclass 104) visa application in Pretoria on 24/11/93.  In this regard it is noted that you provided a South African police clearance certificate, dated 25/08/93, which indicated that you had no criminal convictions.  However, you did not disclose to the Department that on 07/09/93 you were convicted of several driving-related offences in South Africa; …

    ·on 13/06/95, a restraining order was issued by the Court of Petty Sessions Fremantle against you, following a complaint by your ex-wife in relation to your threatening and offensive behaviour towards her.’

20. The respondent replied by letter dated 23 September 2002. He informed the High Commission, among other things, that he had a driving conviction in Australia in 1967.  He had a traffic conviction from 1993 in South Africa relating to an incident of continuing to drive after clipping another vehicle and he had a driving conviction in Australia, dating back to 1994, which was for driving under the influence.  He also referred to a conviction for working in Australia whilst he had no legal permission to do so.  All convictions had resulted in fines. 

21. Section 501 of the Act deals with the refusal or cancellation of visas on ‘character’ grounds. The relevant provisions are set out below at par 33.

22. Relevantly, the ‘character test’ as defined by s 501(6) provides that a person does not pass the test if, among other things, having regard to the person’s past and present criminal conduct or the person’s past and present general conduct, the person is not of good character (ss 501(6)(c)(i) and (ii)).

    Minister’s decision to cancel visa

23. The Minister’s department prepared a document entitled ‘ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL UNDER SECTION 501(1) OF THE MIGRATION ACT 1958’ (‘the Issues Paper’) to assist the Minister’s consideration. The Issues Paper outlined the matters relevant to the appellant’s determination of whether to exercise his discretion under s 501(1) of the Act to refuse the visa. The Issues Paper also attached copies of a South African Police Clearance certificate and an Australian Federal Police Certificate concerning the respondent, and copies of the correspondence exchanged between the respondent and the High Commission between 27 April 2002 and 23 September 2002. The Issues Paper emphasised the appellant’s previous convictions as stated in the two Police Certificates as follows:

    ‘Mr Godley has 4 convictions for 10 offences committed in Australia and South Africa between 1967 and 1995.  The first 9 offences were driving related with the most recent offence being for working in Australia without a visa.  He was given a lesser penalty, i.e. a fine, for his 3 convictions in Australia.  However, for his conviction in South Africa he was sentenced to either a fine or a 3-month period of imprisonment, conditionally suspended for 5 years.’

24. The Issues Paper also attached importance to the respondent’s failure to fully disclose those convictions in his previous applications for a visa. It may be noted that s 234(1)(b) of the Act makes it an offence for a person to make a statement to an officer of the Minister’s department that, to that person’s knowledge, is false and misleading in a material particular. The maximum penalty for such an offence is ‘imprisonment for 10 years or 1,000 penalty units or both’.

25. The respondent was informed of the appellant’s decision to exercise his discretion to refuse the visa by letter dated 9 December 2002.  In that letter the Minister’s departmental officer said:

    ‘[The Minister] has decided to refuse the grant of visa to you pursuant to s 501(1) of the Act. The particular ground under which you do not pass the Character Test is s 501(6)(c) of the Act.

    …

    I enclose … a copy of the decision record that sets out the reasons for the decision…’.

26. However, the enclosed document was not ‘the reason for the decision’ but was a departmental document headed ‘Issues for Consideration for possible Visa Refusal under Section 501(1) of the Migration Act 1958’ (the ‘Issues Paper’). 

27. The document showed that the Minister’s decision was in these terms:

    ‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) …, (2) my Direction under s 499 … and [the respondent’s] comments and have decided that … I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he passes the Character Test and I have decided to exercise my discretion under subsection 501(1) of the Act to refuse the visa, so I hereby refuse the visa.’

28. However, reasons for the decision were not given to the applicant, notwithstanding s 501G(1)(e) of the Act and s 25D of the Acts Interpretation Act 1901.  The former provision required that a written notice setting out the reasons for the decision should be given, and the latter required that the findings on material questions of fact be set out and reference be made to the material on which those findings were based.

29. The respondent then made an application to this Court for review of the appellant’s decision and requested a statement of reasons for decision from the appellant. On 10 July 2003, the appellant produced a document entitled ‘STATEMENT OF REASONS – THE REFUSAL OF MR KARL GODLEY’S SPOUSE VISA PURSUANT TO S 501(1) OF THE MIGRATION ACT 1958’ in which the then Minister stated:

    ‘2.Mr Godley’s case is one of many visa refusals that I have personally considered.  This document sets out my best recollection of the reasons for my decision of 18 November 2002.

    Relevant provisions

    3.Sub-section 501(1) of the Act provides that:

    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.

    4.Sub-section 501(6)(c) of the Act provides that:

    For the purposes of this section, a person does not pass the character test if:

    (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;

    [The omission of the important concluding words of par 501(6), set out below, is in the original.]
    …

    Documents before me

    5.In making my decision I took into account the document titled “ISSUES FOR CONSIDERATION FOR POSSIBLE VISA REFUSAL VISA UNDER S 501(1) OF THE MIGRATION ACT 1958”(“the Issues Paper”) dated 14 November 2002, all matters referred to in that document, and all of the annexures to that document. …

    …

    Discretion

    8.… I gave primary consideration to the protection of the Australian community, taking into account the seriousness and nature of Mr Godley’s conduct, the likelihood that such conduct might be repeated and general deterrence.  I also gave primary consideration to the expectations of the Australian community.

    Primary Considerations

    Protection of Australian Community

    Seriousness and nature of conduct

    9.Mr Godley committed offences under Australian law by making false or misleading statements to DIMIA.  He had also been convicted of a number of offences between 1967 and 1995, specifically two driving-related offences and one working without a visa in Australia, and seven driving-related offences in South Africa.  For his conviction in South Africa he was sentenced to either a fine or a three-month period of imprisonment conditionally suspended for five years.  He incurred fines for his three convictions in Australia.

    10.Mr Godley’s provisions of false or misleading statements to DIMIA constituted offences that I consider serious under subparagraphs 2.6(c):

    “It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:

    (c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia; …”

    11.I found that the repetitive nature of Mr Godley’s false and misleading statements to DIMIA constituted a serious disregard of the law.  I therefore considered this conduct to be of a serious nature when viewed in totality.

    …

    21.In reaching my decision I considered the repetitive nature and seriousness of Mr Godley’s offences placing most weight on the expectations of the Australian community and the protection of the Australian Community from those who make false or misleading statements in connection with entry or stay in Australia.’

    The judgment at first instance and the statutory provisions

1. In his reasons for judgment, Lee J noted:

   ‘It appears to be conceded that the Minister had not complied with the statutory duties imposed by s 501G(1)(e) of the Act and s 25D of the Acts Interpretation Act. However, a document prepared according to the best recollection of the Minister six months after the decision to represent the reasoning relied upon in making the decision cannot stand as compliance with the requirements of s 501G(1)(e).’

2. Accordingly, his Honour found that the document prepared in July 2003 ‘cannot be relied upon by the Minister to counter any defect in the decision-making process that may otherwise be established by the applicant on the material before the Court and its admissibility must be limited to the extent to which it presents an admission against interest.’ 

3. The primary issue on appeal was whether the Minister had correctly construed s 501(1) and s 501(6) of the Act. The proper construction of these provisions had constituted a ground of review before Lee J.

4. Those provisions are as follows:

   ‘Decision of Minister or delegate – natural justice applies

   (1)  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.

   Note:  Character test is defined by subsection (6).

   …

   (6)      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 Australia community or to a segment of the 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.’

5. His Honour’s consideration of the matter was, in our respectful opinion, correct and constitutes a valuable guide for decision-makers.  It bears repetition at length here.  The learned primary Judge said:

   ‘Subsection 501(6) acknowledges that it is a limited discretion in that it provides that a person “passes the character test” unless paragraph 501(6)(a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to “satisfy” the Minister that he or she “passes the character test” it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1). [Emphasis added]

   …

   The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.

   Unless such a finding of fact is made by the Minister the visa applicant “passes the character test” and thereby satisfies the Minister under s 501(1).  If the Minister finds that the visa applicant is “not of good character” that person “does not pass the character test” and accordingly does not satisfy the Minister under s 501(1).  It is a finding of fact in which the meaning of the words “not of good character” is all important.

   The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens.  It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle.  A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.  (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

   A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

   The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions.  (See: 4 Bl. Com. 5; Shorter Oxford English Dictionary at 456 – “crime”, “criminal”). 

   …

   For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).

   Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality.  Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

   The foregoing is not a mechanical exercise and although expressed in different terms from those considered in Irving and Baker the task to be performed differs very little from that under the Act and regulations as they stood before amendment.’

6. His Honour continued:

   ‘The next ground relied upon by counsel for the applicant was that the Minister restricted himself to consideration of past conduct of the applicant in purporting to determine whether the applicant was now a person not of good character.  Counsel relied upon the recollected reasons of the Minister to support that submission.

   …

   The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character.  In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.

   With regard to the criminal conduct considered, the whole of that conduct was past.  There was no recent criminal conduct evidenced by a recorded conviction to which the Minister could give regard.  In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available.   (See: Baker at 194).

   In having regard to the criminal conduct of the applicant the Minister had to assess the extent to which the particular offences showed moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attachable to past offences as indicators of moral worth.

   …

   Other matters identified under the heading “Character Test” in the recollected reasons that may be said to be elements of past and present general conduct, were matters that may have provided some information as to the existence of enduring moral qualities but a determination that the applicant was a person not of good character required more than mere reference to those events.  The Minister had to look at the totality of the applicant’s circumstances and assess whether the events relating to visa applications he had made, illuminated the true character of the applicant.  (See:  Powell v Administrative Appeals Tribunal (1998) 98 FCR 1 per French J at [15]). The defaults required closer analysis than the Minister appeared to give them if a finding of fact was to be made that the applicant was a person not of good character.

   …

   The applicant is now of advancing years – as noted at the commencement of these reasons, he is now 67.  It may be assumed that he has practiced [sic] as a professional person, a qualified accountant, for most of his working life.  Obviously there will be much to be put into the balance to determine whether at this time in his life there is to be a statement to the world that he is not a person of good character.  More than a snapshot of the applicant’s activities would be required to ground that determination.

   A provision such as 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person.  (See:  Powell per French J at [14]-[15]).

   As noted above the recollected reasons [of the Minister] are limited in their worth in respect of the reliance that may be placed upon them. But the reasons as constructed do not show that the Minister applied his mind to the threshold question required to be determined under s 501(6)(c), namely, whether he could find as a fact that the applicant was a person not of good character. The absence of any reasoning process relating to that determination and of the identification of any findings of fact in that regard, show that the Minister misunderstood what the Act required. It should be accepted that the recollected reasons confirm that when the decision was made by the Minister in November 2002 it was equally affected by that misunderstanding of the law.

   That conclusion is further confirmed by the terms of the decision made by the Minister by his endorsement of the Issues Paper.  The Minister’s decision was expressed as follows:

   ‘I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he has passed the Character Test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) TO REFUSE THE VISA so I hereby refuse the visa.’

   Plainly the terms of that recorded decision were inconsistent with the requirement of s 501(6)(c) that the Minister make a finding of fact that the applicant was a person not of good character and for that reason, did not pass the character test and, therefore, failed to satisfy the Minister that he passed the character test.  If the Minister had followed the requirements of subs 501(6)(c) the terms of the decision could not have been expressed as they were.’

7. His Honour continued:

   ‘…The remainder of the recollected reasons suggest that, as in Powell, the finding of the jurisdictional fact and the exercise of the jurisdiction were intertwined and not separated. (See:  Powell at [15]).

   A further ground relied upon by counsel for the applicant was that the Minister wrongly treated conduct of the applicant that involved no conviction of an offence, as an “offence” or as criminal conduct and, further that the Minister did not provide the applicant with an opportunity to make submissions on a proposition so prejudicial to the applicant’s interests. 

   It may be noted that s 234(1)(b) of the Act makes it an offence for a person to make a statement to an officer of the Minister’s Department, that, to that person’s knowledge, is false or misleading in a material particular. It was by no means patent that it could be shown beyond reasonable doubt that the applicant had engaged in criminal conduct in respect of the matters described by the Minister and the Minister’s treatment of the material in that manner departed from the requirements of the Act and denied procedural fairness to the applicant. (See: Dagli [v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298] at [24]; Baker at [194]).

   It is unnecessary to deal with other grounds raised by the applicant that derive from the grounds already discussed or are of lesser substance.’

8. Thus, the primary judge found that s 501(6) acknowledges that the Minister’s discretion to refuse a visa on ‘character’ grounds under s 501(1) is limited in that it provides that a person ‘passes the character test’ unless ss 501(6)(a), (b), (c) or (d) apply to that person. His Honour further found that, insofar as s 501(1) requires a visa applicant to ‘satisfy’ the Minister that he or she ‘passes the character test’, it imposes no ‘separate onus’ on that person, given that s 501(6) as his Honour put it, ‘governs’ the operation of s 501(1). Lee J further found that s 501(6)(c) requires the Minister to have regard to the matters identified in subpar 501(6)(c)(i) and subpar 501(6)(c)(ii) and then determine, as a fact, whether the person is ‘not of good character’.

9. Following that construction of s 501, his Honour found the appellant’s reasons for decision do not show that [the appellant] applied his mind to the threshold question under s 501(6)(c), namely whether he could find as a fact that the applicant was a person not of good character. The primary judge also made a finding in respect of a further ground for review. His Honour found that the appellant departed from the requirements of the Act and denied procedural fairness to the respondent in respect of claims that the respondent had committed offences under s 234(1)(b) of the Act.

   Grounds of appeal

10. The appellant asserted the following grounds (commencing with par 2):

    ‘2.The learned trial judge erred in law in the construction of s501 of the Migration Act 1958 in holding that:

    2.1.the section did not require the respondent to satisfy the appellant that he passed the character test;

    2.2.the section required the appellant to determine as the threshold question whether he could find as a fact that the respondent was a person not of good character;

    2.3.the discretion to refuse an application for a visa is only provided to the appellant when it is demonstrated that the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to a person.

    3.The learned trial judge erred in the restrictions he placed on the use of the appellant’s statement of reasons dated 10 July 2003, when that statement had been received without objection and without hearing submissions as to its use.

    4.The learned primary judge erred in law in holding that the appellant departed from the requirements of the Migration Act 1958 and denied procedural fairness to the respondent by treating conduct that did not involve a conviction as an offence when it could not be shown beyond reasonable doubt that the respondent had engaged in criminal conduct.’

    Conclusions on the appeal

    Construction issue – ground 2

11. On the primary issue, namely that the judge erred as a matter of law in his construction of s 501(6), the main submission on behalf of the appellant was that, by reference to the express terms of s 501(1) and s 501(6) and to the legislative history of s 501, s 501(1) and s 501(6) read together required an applicant for a visa to satisfy the Minister that the Minister should not find that the applicant was not of good character. Thus, it was argued that, in the event the Minister is not so satisfied, the Minister had a discretion to refuse the visa, even if the Minister could not find as a fact that the applicant was ‘not of good character’. It was submitted on behalf of the respondent that, in order that the respondent might be taken not to have passed the character test, under the express terms of s 501(1) and s 501(6) read as a whole, the Minister was obliged to make such a finding.

12. It is convenient to set out the legislative history. 

13. Before 1992, the legislative scheme was as described in Irving v Minister for Immigration (1993) 44 FCR 540, 546 – 547. A visa applicant had to ‘satisfy’ prescribed criteria before being entitled to a visa. Those criteria included that the applicant ‘is of good character’. ‘Good character’ was defined in reg. 4 of the Migration Regulations 1989 (Cth) as follows:

    ‘(1)     For the purposes of these Regulations, a person is to be taken not to be of good character if:

    (a)in the case of an applicant for a visa or an entry permit of any class:

    (i)the applicant has been assessed by the competent Australian authorities to be a risk, directly or indirectly, to Australian national security;  or

    (ii)the applicant:

    (A)has at any time been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment of a period of not less than one year or;

    (B)has at any time been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling not less than one year; or

    (C)has at any time been charged with a crime and either found guilty of having committed the crime while of unsound mind or acquitted on the ground that the crime was committed while the person was of unsound mind;  or

    (D)has been deported from another country; or

    (E)has been excluded from another country in the circumstances prescribed for the purposes of subparagraph 20(1)(d)(vi) of the Act; or

    (iii)the applicant has, in the reasonable belief of the Minister, been involved in activities indicating contempt, or disregard, for the law or for human rights;

    …’

14. Regulation 143 of those same Regulations allowed the Minister to waive the requirement that an applicant be of good character if failure to satisfy that requirement was the only impediment preventing the applicant from meeting the public interest criteria.  Regulation 143 relevantly provided as follows:

    ‘Notwithstanding any other provision of these Regulations, the Minister may grant a visa or an entry permit to an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character, if:

    (a)the Minister is satisfied that:

    (i)in the case of the circumstance referred to in subparagraph 4(a)(i) (sic) – the circumstance no longer obtains; or

    (ii)in the case of conduct referred to in subparagraph 4(a)(ii) (sic) or (iii) (sic) – the applicant has shown by subsequent conduct that he or she is reformed; and

    (b)the Minister is satisfied that undue harm would be unlikely to result to the Australian community if the visa or entry permit was granted;

    …’

1. From 1992 and until amendment by Act No. 114 of 1998, s 501 read:

   ‘(1)The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

   (a)subsection (2) applies to the person; or

   (b)the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

   (i)be likely to engage in criminal conduct in Australia; or

   (ii)vilify a segment of the Australian community; or

   (iii)incite discord in the Australian community or in a segment of that community; or

   (iv)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 violence threatening harm to, that community or segment, or in any other way.

   (2)This subsection applies to a person if the Minister:

   (a)having regard to:

   (i)the person’s past criminal conduct; or

   (ii)the person’s general conduct;

   is satisfied that the person is not of good character; or

   (b)is satisfied that the person is not of good character because of the person’s association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.

   (3)The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.’

2. In its present form, s 501 of the Act empowers the Minister to refuse to grant a visa to a person or cancel a visa that has already been granted to a person. Section 65 of the Act requires the Minister to grant or refuse to grant a visa depending upon whether the Minister is satisfied (or not) that the criteria referred to in s 65(1)(a) of the Act have been made out. The power to refuse to grant a visa under s 501(1) of the Act would, at least in general, be logically exercised only where the applicant for the visa had otherwise made out the criteria for grant of a visa.

3. In some circumstances, the power may be exercised by the Minister’s delegate (s 501(1) and s 501(2)), but in other circumstances only by the Minister personally (s 501(3)).

4. Whether and how the Minister exercises the discretion in s 501(1) depends upon whether the applicant for the visa or the visa holder passes the ‘character test’ and s 501(6) provides a regime whereby a person either does or does not pass the character test.

5. It is clear that a person does not pass the character test if any one or more of the conditions set out in paras (a), (b), (c) and (d) of s 501(6) are fulfilled. For example, if a person has a substantial criminal record, as defined by s 501(7), the person thereby does not pass the character test. Whether or not a person has such a substantial criminal record can only be determined by means of an objective finding by the Minister. Such a finding is therefore implicitly required. If the Minister makes such a determination then, clearly, the person referred to in s 501(1) could not satisfy the Minister that the person passes the character test. In those circumstances, the Minister would then have to exercise his or her discretion as to whether to refuse to grant a visa to the applicant.

6. Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of par (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.

7. If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.

8. If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection ‘Otherwise, the person passes the character test’. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.

9. In those circumstances, the requirement of s 501(1) that the person satisfy the Minister that he or she passes the character test can require no more than the person passing the character test by reason of the terms of the section itself. Whether the applicant for the visa does or does not pass the character test is something to be determined by the Minister by reference to paras (a), (b), (c) and (d) of s 501(6).

10. It was contended on behalf of the Minister, that no onus lies on the Minister to make any decision under s 501(6). It was argued that, in circumstances where the Minister was unsure whether a person is or is not of good character, the Minister could refuse to decide, for the purposes of s 501(6)(c), whether the applicant for the visa is or is not of good character and, in the event of such a refusal, then the applicant would not have satisfied the Minister that the applicant passes the character test, so that, in those circumstances, the Minister could, in his or her discretion, refuse to grant a visa.

11. That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is par (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test.

12. It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test. 

13. This is so notwithstanding the requirements in s 501(1) that the person concerned ‘satisfy’ the Minister that he or she passes the character test. An applicant must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies. In effect, s 501(6) provides a complete statement of how the person may satisfy the Minister. The effect of that statement is that, unless a placitum in s 501(6) applies, the person is to be taken as having satisfied the Minister. A placitum in s 501(6) only applies if the Minister determines positively that it does so.

14. In the end result, the power to refuse to grant a visa in the exercise of the Minister’s discretion only arises if the Minister is satisfied of one of the matters in paras (a), (b), (c) or (d) of s 501(6). In this case, the Minister did not make a determination that the respondent was not of good character within the meaning of para (c) or any other of those paragraphs.

15. Section 499 of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act (such as a Minister’s delegates or the Administrative Appeals Tribunal) about the performance of those functions or the exercise of those powers. The Minister is not empowered to give directions that are inconsistent with the Act or the regulations made under the Act: s 499(2). Subsection 499(2A) requires the person or body to whom the directions are given to comply with those directions.

16. Directions made by the Minister pursuant to s 499 are entirely consistent with the construction we and the primary judge have given s 501(6).

17. Paragraph 1.7 of Direction No. 21(1), which applied as at 1 November 2002, is in the following terms:

    ‘Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct (9)

    1.7Under 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.’

18. A later direction, which has effect from 1 July 2003, is in the same terms.

19. The Minister’s own directions, therefore, to the Minister’s delegates and the Administrative Appeals Tribunal, are to the effect that decision-makers must decide whether a non-citizen is not of good character. That is quite contrary to the argument advanced on behalf of the Minister on this appeal and which, for the reasons given, this Court has rejected on this appeal. If the Minister’s argument were accepted, it would lead to the rather odd result of invalidating the Minister’s own directions. Of itself this is not a consideration of much, if any, legal significance. However, if there had been some mischief of a kind calling for remedy by enactment of a s 501(1) provision having the meaning argued for on behalf of the Minister, one would expect to see that meaning and the consequent change in practice, clearly spelled out in such a direction. That it was not is an indication that such a mischief did not exist.

20. It was conceded in this case that the Minister did not make a determination or reach a decision that the applicant was not of good character.  Such a concession was rightly made.

21. It follows that ground 2 fails.

    Use of the Minister’s statement of reasons on review – ground 3

22. The primary judge’s treatment of the Minister’s reasons was the subject of a ground of appeal to this Court.

23. In the Minister’s statement of reasons and in relation to the character test, the Minister wrote:

    ‘6.Between 1993 and 2001 Mr Godley provided false or misleading information to DIMIA in relation to a number of visa applications, specifically:

    ·On 24 November 1993 Mr Godley failed to disclose his seven convictions (traffic related) incurred whilst residing in South Africa when he lodged a subclass 104 (Preferential Family) visa application.

    ·On 13 December 1993 Mr Godley failed to disclose his convictions when applying for a further stay visa.

    ·On 29 November 1994 Mr Godley failed to disclose his convictions when applying for general residence on Spouse grounds.

    ·On 29 November 1994 when applying for a Bridging A visa Mr Godley declared financial hardship (he had only $2,000 in savings available).  However, it was later revealed he had withdrawn over $10,000 the day before.

    ·In December 1994, when interviewed for his onshore spouse visa application he declared that he had not worked in Australia since arriving on a visitor visa.  Mr Godley worked illegally, between 4 March 1994 and 29 August 1994, as an accountant whilst on a visitor visa and falsely stated that he was an Australian resident for taxation purposes.

    ·On 24 January 1996 Mr Godley failed to disclose his convictions when applying for a subclass 806 (Last Remaining Relative) visa.

    ·On 20 January 2000 Mr Godley failed to disclose his convictions when being interviewed by a DIMIA officer.

    ·On 20 October 2000 Mr Godley failed to disclose his relationship with his current spouse when being interviewed by a DIMIA officer.

    ·On 19 July 2001 Mr Godley failed to disclose fully his convictions when he lodged his provisional spouse visa.

    7.For the above reasons and for the convictions committed in both South Africa and Australia Mr Godley was unable to satisfy me that he passed the character test.’

24. The primary judge said that the Minister’s reasons should be treated with great caution because the reasons had not been prepared in accordance with s 501G(1)(e) of the Act. In the end, his Honour concluded that the reasons should only be admitted for the purpose of establishing an admission by the Minister against interest.

25. It was submitted before this Court on behalf of the Minister that the respondent had not objected to the admissibility of the reasons and that the first the Minister knew that the reasons might be rejected was on reading his Honour’s reasons for judgment.

26. In the end result, nothing turns on this ground because the respondent, on the appeal, also relied upon the Minister’s reasons for establishing that the Minister had not concluded that the respondent was not of good character under s 501(6)(c) and, in our opinion, the reasons do establish, as the respondent contended, that the Minister did not reach a decision under s 501(6)(c). In any case, it was rightly conceded that the important matters identified by the trial judge as the rationale for requiring written reasons provided sufficient ground for his Honour to accord the reasons little weight except insofar as they operated against the appellant’s interest.

27. Moreover, the reasons establish that the Minister addressed the wrong question. The question that the Minister addressed was whether, in the circumstances identified in paragraph 6 of the recollected reasons mentioned above, the respondent was able to satisfy the Minister that he passed the character test. The question under s 501(6)(c) is whether having regard to either or both of the matters referred to in ss 501(6)(c)(i) or (ii), the applicant is to be regarded now as a person who ‘is not of good character’.

28. As we have indicated, in general it is unhelpful for a decision-maker to refer to the shorthand phrase in s 501(1), ‘passes the character test’ because that obscures the precise questions posed by the enumerated paragraphs in s 501(6), the necessity for all relevant facts and matters to be considered in relation to each relevant paragraph and the requirement that a determination be made one way or the other. The appellant’s own directions, referred to above, are consistent with this view.

29. Because the Minister did not conclude that the respondent was not of good character, it then followed that the respondent passed the character test. That being so, he is to be taken to have satisfied the Minister that he passed the character test, within the meaning of s 501(1). In those circumstances, the Minister had no discretion to refuse to grant him a visa pursuant to s 501(1).

    Procedural Fairness – ground 4

30. The last matter addressed on this appeal was the primary judge’s criticism of the Minister’s treatment of the respondent’s conduct during the visa applications.  The Minister stated in paragraph 9 of his reasons that the respondent had committed offences under Australian law by making false or misleading statements to his department.

31. The primary judge said at [81] – [82]:

    ‘          A further ground relied upon by counsel for the applicant was that the Minister wrongly treated conduct of the applicant that involved no conviction of an offence, as an “offence” or as criminal conduct and, further that the Minister did not provide the applicant with an opportunity to make submissions on a proposition so prejudicial to the applicant’s interests.

    It may be noted that s 234(1)(b) of the Act makes it an offence for a person to make a statement to an officer of the Minister’s Department, that, to that person’s knowledge, is false or misleading in a material particular. It was by no means patent that it could be shown beyond reasonable doubt that the applicant had engaged in criminal conduct in respect of the matters described by the Minister and the Minister’s treatment of the material in that manner departed from the requirements of the Act and denied procedural fairness to the applicant. (See: Dagli at [24]; Baker at [194]).’

32. If the Minister had the prima facie view that some aspect of the respondent’s conduct might constitute a criminal offence, in circumstances where the respondent had not been convicted of that offence, the Minister was, in our opinion, under an obligation to warn the respondent of that fact to enable the respondent to address that issue unless, as his Honour indicated, it was ‘patent’ from the material of which the respondent had been given notice that crimes had been committed.

33. In this case, it was not so patent, yet the Minister concluded that the respondent was guilty of criminal conduct without ever warning the respondent that he might do so.  Had the respondent been made aware that actual crimes were being alleged against him, he would have been on notice that legal questions concerning criminal liability might be involved.  He might have expressly drawn attention to the fact that his account of relevant matters, not denied by other material, was inconsistent with the requirement of the existence of a ‘guilty mind’ (mens rea).  It is one thing to be put on notice of allegedly misleading a government department; it is another to be accused of an outright crime which involved actual knowledge of the falsity of one’s statements. 

34. The course adopted by the Minister was procedurally unfair and amounted to a breach of natural justice.

35. Whether the Minister had to be satisfied beyond reasonable doubt that the conduct was criminal does not arise.  We do not understand the primary judge to have held thus.  It may for present purposes be assumed that it did not.  The jurisdictional error lay in the Minister’s failure to warn the respondent that the Minister might find that the conduct which was particularised amounted to criminal conduct.

36. As the appellant has not succeeded on any grounds of appeal it is unnecessary to deal with the respondent’s notice of contention. 

    Disposition

37. The appeal should be dismissed with costs.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Madgwick, Lander and Crennan.

Associate:

Dated:             18 February 2005

Counsel for the Appellant:	Mr J Allanson
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr A Karstaedt
Solicitor for the Respondent:	M Rothstein & Co
Date of Hearing:	9 November 2004
Date of Judgment:	18 February 2005