Narciso and Minister for Immigration and Multicultural Affairs - [2000] AATA 722

DECISION AND REASONS FOR DECISION [2000] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1997/403

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DOMENICO NARCISO
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President B.H Burns

Date18 August 2000
PlaceAdelaide

Decision      The decision under review is set aside and the matter is remitted to the respondent for further consideration of the concessional visa application.
  .………...(Signed).................
  Deputy President B H Burns
CATCHWORDS
MIGRATION – application for a subclass 105 concessional visa – Argentine court system in 1980's – drug related conviction in Argentina – applicant's son not found to be a person not of good character – decision set aside and remitted to the respondent
Migration Act 1958, ss500, 501
Migration Regulations, clause 4001 in Schedule 4
Migration Series Instruction No.164; "The Character Requirement"
General Direction – Visa Refusal s501 – No.5
Controlled Substances Act 1984 (SA)
Food and Drugs Regulations 1978 (SA)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

18 August 2000 Deputy President B.H. Burns

This is an application by Mr Domenico Narciso ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") dated 30 June 1997 refusing to grant his son, Mr Angelo Narciso, a subclass 105 concessional visa.
The decision was made pursuant to s501 of the Migration Act 1958 ("the Act") on the basis that Mr Angelo Narciso is a person who is not of good character and, as such, is unable to meet the public interest criterion outlined in clause 4001 prescribed in Schedule 4 of the Migration Regulations for the grant of a subclass 105 concessional visa.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with exhibits tendered by the parties. The exhibits included character references (Exhibits A1 and A5), Argentine police and court documents with English translation (Exhibit A6), photos of the applicant's house in Argentina (Exhbits A7 to A10) and a country report on human rights practices (Exhibit R4A). Both parties made oral and written submissions (Exhibits A11 and R7).
The applicant was represented by Mr Boylan of counsel, and the respondent was represented by Mr Hurley, departmental advocate.
legislation
The Tribunal has jurisdiction to review a decision of the respondent under s501 by virtue of s500(1)(b) of the Act.
Section 501 of the Act deals with the respondent's power to refuse to grant a visa to an applicant on the basis that the applicant is not of good character. Section 501 relevantly provides:
"Special power to refuse or to cancel visa or entry permit
501. (1) The Minister may refuse to grant a visa to a person, ... if:
subsection (2) applies to the person; …
...
(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; ...
..."
Part of the criteria which needs to be satisfied for a subclass 105 concessional visa is the public interest criteria set out in clause 4001 in Schedule 4 of the Migration Regulations. Clause 4001 prescribes that in order for a visa to be granted, the respondent must decide that
"4001(1) The applicant meets the requirements of subclause (2), (3) or (4).
4001(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.
4001(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal under section 501 of the Act, to grant the visa, the Minister has decided that the evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.
4001(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."
The General Direction – Visa Refusal s501 - No.5 issued by the respondent deals with the good character requirement. The direction relevantly provides:
"2. When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.

3. The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:
.     where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;
.     where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;
…
.    where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.
4. Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501.

5. Due regard must also be given to the nature, severity and frequency of any offences when considering a non-citizen visa applicant and the good character requirement under section 501. In relation to these offences, the Government considers that due regard should be given to:
. whether the offence would be classified as an offence in Australia;
. whether comparable sentences would be meted out in Australia for a similar offence.

If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:
. where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:
-whether , at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);
-if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and
-in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.

.whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act."

Policy guidelines have been issued to assist in determining whether an applicant is of good character pursuant to s501 of the Act and clause 4001 of the Regulations. (Migration Series Instruction number 164; Title "The Character Requirement"). The following parts are relevant:

9.5Past criminal conduct or general conduct:
sub-paragraph 501(2)(a)(i) and (ii)

9.5.1 Paragraph 501(1)(a) of the Act provides that the Minister may refuse to grant a visa if subsection (2) applies to the person. Subsection (2) applies if the Minister is satisfied that a person is not of good character having regard to:

The person's past criminal conduct; or
The person's general conduct.

9.5.2 Paragraph 501(2)(a) is concerned with a person's conduct, both 'general conduct', and conduct of a more particular kind, described as 'criminal conduct'. Paragraph 501(2)(a) is not concerned with whether the conduct has had some temporal result, such as incurring a conviction, but is concerned with the light the conduct throws on the person's character.
9.5.3 Paragraph 501(2)(a) has specified matters which the Minister must have regard to; ie, he or she must take them into account and give weight to them because they are fundamental elements in making the decision; but this does not mean that the decision is to be made by reference to these matters exclusively. Hence, in deciding whether a person is not of good character, regard should be had to recent good conduct, as well as to past criminal conduct. Recent good conduct would fall under the heading of general conduct.
9.5.4 Baker's Case [i.e. Minister for Immigration and Ethnic Affairs v. Baker (1997) 45 ALD 136] held that the intention of Parliament in making s501(2)(a) was:

…simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories.
…

9.5.7Even criminal conduct may not lead to the conclusion that a person is not of good character, eg because of the nature of the crime (some absolute offences need involve 'no moral obloquy', according to Baker's Case), or because of lapse of time since the offence, or the existence of positive evidence of reformation. On the other hand, a single instance of reprehensible conduct may suffice to show that a person is not of good character, depending on the gravity of the conduct and the other relevant circumstances.
9.5.8As the FFC stated in Baker's Case:

The words 'good character' in the section should…be understood as ' a reference to the enduring moral qualities of a person'. Conduct may make those qualities visible, but it should never be confused with them. In each case, having regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.

9.6Past criminal conduct: sub-paragraph 501(2)(a)(i)

9.6.1 In deciding the question of character in relation to past criminal conduct, the onus of proof is on the Minister to show whether, at the time the application is being considered, the person is not of good character.
9.6.1.1 The starting point for such an inquiry is to ascertain what evidence exists at that particular time which could lead to a finding that, on the balance of probabilities, the person is not of good character.
9.6.1.2 Past criminal conduct does not only refer to conduct which was the subject of criminal conviction; reprehensible conduct for which there was no criminal conviction should also be taken into account as this will help to throw light on the person's character. Criminal conduct means conduct which is punishable by law, but which may not actually have been punished. It therefore includes conduct which has been punished by a conviction or convictions, and includes conduct for which there has been no conviction, but which is capable of conviction.
9.6.1.3 Consideration should also be given to recent good conduct (eg good works in the community) when deciding whether a person is not of good character. "Recent good conduct" includes conduct occurring after the criminal conduct.
9.6.1.4 A finding that a person is not of good character may be justified, in the absence of any mitigating factors, if the person:

Has at any time been convicted of a crime and sentenced to death, or to imprisonment for life or to a period of not less than 1 year;

...
9.6.2 Care must be taken, when considering the application, to balance such information against other relevant matters existing at that time such as:

·the nature, severity and frequency of the offence/s;
·how long ago the offence/s were committed;
·how old the applicant was when the offence/s were committed;
·the applicant's record since the offence/s were committed.
Relevant matters here would include:
any recidivism;
pattern of similar offences; and/or
pattern of continual or blatant disregard/contempt for the law.

...
9.6.7 Where an officer believes there are grounds for a finding that the applicant is not of good character on the basis of the applicant's past criminal conduct, the question of the exercise of ministerial discretion to grant a visa will arise, despite this negative finding. For guidance on policy in this regard see paragraphs 9.8.9 and 9.9.1 to 9.9.4.

9.7General conduct: paragraph 501(2)(a)(ii)

9.7.1 General conduct in this context means any past or current conduct which may establish that the person is currently not of good character and includes criminal conduct. Criminal conduct is a subset of general conduct, but is set out in s.501(2)(a) separately from general conduct as it is convenient for the purposes of categorisation and analysis when determining whether a person is not of good character.
9.7.1.1 In Baker's case, the FFC confirms that criminal conduct is a subset of general conduct when it states, at p 18 of the typescript:
... no importance can be attached to the fact that some of the conduct, which was actually "criminal conduct" within the meaning of subpara (i) [of paragraph 501(2)(a)], was considered on the basis that it was made relevant by subpara (ii).
9.7.1.2 Remember that criminal conduct means conduct which is punishable by law, but which may not actually have been punished. It therefore includes conduct which has been punished by a conviction or convictions, and includes conduct for which there has been no conviction, but which is capable of conviction. All other conduct, both good and bad, constitutes the remainder of general conduct.
9.7.1.3. General conduct could, for example, be a course of conduct which shows a blatant disregard of others/authority and a failure to undertake legal obligations as a responsible member of the community. The conduct would not be criminal in nature, but would serve to exemplify the character of the applicant (eg continual evasion or non-payment of debt, continual disregard as to payments of family maintenance, engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on the balance of probabilities, are disreputable).
9.7.1.4 General conduct also includes good, recent conduct. Good acts performed by the applicant after reprehensible conduct are indications that the applicant's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the applicant's character.

NOTE, in Baker's Case the court stated that general conduct does not just mean "prevalent" or "usual" conduct. The court considered that some instances of general conduct displayed only once or twice may be very good indications as to a person's character.

9.7.2 When making a decision in relation to character based on a person's general conduct, irrespective of whether that person has any criminal convictions, it must be stressed that the onus is on the Minister to be satisfied, on the balance of probabilities, that the person is currently not of good character because of that general conduct.
9.7.2.1 When considering an application on the basis of an applicant's general conduct, regard may be had, but should not be limited to, the following matters (but see paragraph 9.6.2):

…
·whether the person has, in connection with any application for or grant of a visa, provided a bogus document or made a statement that was false or misleading (ie immigration malpractice):
any misrepresentation in connection with an application for a visa might be taken into account, depending on the nature and intent of the misrepresentation;

·whether the person has ever made a false or misleading declaration on an approved form, as defined in section 5(1) of the Act, about his or her character or conduct or both.
·criminal conduct (this is considered in detail under the separate heading of "criminal conduct").

9.7.2.2 In relation to dot points two and three in 9.7.2.1 above, the benefit which was/would have been gained had the truth of the matter not been revealed/admitted is relevant to the assessment. If knowledge of the true state of affairs would have prevented the conferral of the benefit, this militates against a finding that the applicant is of good character.

...

9.7.3 The list of matters set out at paragraph 9.7.2 is not exhaustive of those matters which could reflect adversely on a person's character. There could well be other matters in the nature of general conduct which an officer considers are relevant to a finding that a person is not of good character.
...
9.9 Exercising the discretion to refuse/not refuse the grant after a
negative character finding
9.9.1 When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct... the discretion to refuse or not refuse a visa under section 501 is enlivened.

NOTE: In all cases following an adverse character finding, all mitigating factors must be balanced against the adverse character finding. ...

9.9.2 In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including:

the circumstances of the person at the time of the application. These include but are not limited to:
-    genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;
-    the best interests of any child associated with the visa applicant/s;
-    the strength of family, social, business and other ties to the Australian community;
-    periods of previous lawful residence;
-    the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);
-    family disposition, both in Australia and overseas; and for protection visa applicants, whether refusal will lead to a breach of International obligations under the Refugee Convention (see section 8).
whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and
whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.
The above list of matters is not exhaustive.

9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa."
facts

The Tribunal makes the following findings of fact which are not in dispute:
1)   Mr Angelo Narciso was born in Italy on 11 November 1956 (T7/92). He moved with his family to Argentina around 1964-65 (Exhibit A11).
2)   On 2 August 1976 the Narciso family applied for permanent residence in Australia. In December 1977 Domenico and Ida Narciso arrived in Australia with their two youngest sons John and Carlos. Angelo Narciso did not join them as he was completing his national service in Italy, and his sister Josephine stayed in Argentina after her marriage. Josephine migrated to Australia some years later (Exhibit A11).
3)   In February 1978 Angelo Narciso completed his national service in Italy (Exhibit A11).
4)   On 3 May 1978 Angelo Narciso applied for permanent residence in Australia with Domenico Narciso as sponsor (T11/104). On 16 February 1979 this application was rejected (T12/118).
5)   In January 1980 Angelo Narciso was arrested in Argentina for the sale of narcotics. On 7 May 1982 he was convicted and sentenced to three years and six months imprisonment and fined 200,000 pesos. He served the full sentence back-dated to the time of his arrest, and was released in July 1983 (Exhibit A6 and T17/131).
6)   The narcotics involved were diethylpropion hydrochlorate and mefenorex hydrochlorate (Exhibit A11).
7)   In August 1983, after his release from prison, Angelo Narciso travelled to Italy, and then on 31 December 1983 he arrived in Australia for the first time on a tourist visa (Exhibit A11)
8)   On 6 April 1984, while in Australia, Angelo Narciso lodged an application for resident status on the basis that he would help care for his mother who had been seriously injured in a car accident in 1978 (T24 and T26/152).
9)   In answer to question 28 on the application form, Angelo Narciso ticked the "no" box stating he had never been convicted of a criminal offence (T24/144)).
10) The application for residency was rejected on 26 September 1984 (T29/161). On 19 October 1984 Angelo Narciso applied for review of the decision to reject the residence application (T35/171). In the review application, details of his conviction in Argentina were disclosed and described as a drug trafficking charge (T36/176). The application for review was also rejected sometime in 1985. (No reasons for the rejection are given in the T documents aside from preliminary discussion of the application at T31/181.)
11) Angelo Narciso was granted two extensions to his Temporary Entry Permit to Australia, and eventually departed Australia on 25 December 1984 (T38 and Exhibit R3).
12) Angelo Narciso then travelled to Italy and eventually returned to Argentina where he has continually resided.
13) Thirteen years later, on 30 April 1997, Angelo Narciso applied for a concessional family visa (T7). In answer to question 70, he ticked the "yes" box indicating that he had been convicted of an offence, and described it as a conviction for "possession" (T7/86).
14) The visa application was rejected on 30 June 1997 on the grounds that Angelo Narciso was a person who was not of good character (T8/94).
15) Domenico Narciso applied to this Tribunal on 8 December 1997 for review of the decision of the delegate of the Minister to refuse Angelo Narciso a subclass 105 concessional visa (T1/2).

Evidence
Angelo narciso

Angelo Narciso gave evidence that he was born in Italy on 11 November 1956 and moved with his family to Argentina around 1964-65. He went to primary school in Argentina, then left school and started working when he was 12 or 13 years of age.
Mr. Narciso testified that his main field of employment has been in the building industry, where he has worked in various capacities including that of bricklaying, tiling, and electrical work. He has also done some motor mechanic work, and he has been employed by Coca-Cola.
In February 1977 Mr Narciso went to Italy to complete his national service in the Italian Army. He gave evidence that he returned to Argentina approximately 14 months later, by which time his parents and brothers had moved permanently to Australia. On his return he went back to his job as a motor mechanic and lived in his parents' house where he still resides today.
Angelo Narciso gave evidence in cross-examination that in 1978-79 he was very depressed and was a drug addict, and that he took illicit drugs with a group of friends. He could not recall the substances he took, but said that on one occasion he flushed 50-60 grams of drugs down the toilet because he realised that taking drugs was not the right thing to do.
Mr Narciso testified that he was arrested in 1980 for drug related offences, and that he was convicted of an offence and was in prison until midway through 1983. He gave evidence that the police did not find any drugs on him at the time he was arrested.
When questioned about the circumstances surrounding the offence, he gave evidence that he had never sold drugs, and was not a runner or trafficker of drugs. He admitted that he had bought drugs for his own personal use and shared them with friends. In particular, he shared drugs with a person by the name of Rubio, and bought drugs from a person called Salomon.
Under cross-examination Mr Narciso was asked why the Argentinian police and court said that he had admitted to selling drugs, and he gave evidence that "under torture a person can say that one killed their own mother" (transcript p34, 22 February 2000). When the allegation of torture was further examined, he testified that when he was arrested a Magnum 44 gun was pressed against his temple. When he was initially detained he was in a "dungeon" for the first two months with only the bare minimum of food and water. He received threats of torture, including electric torture, although the threats were never actually carried out. He testified that he made the confessions because he thought that if he said what the authorities wanted to hear, then he could be released.
When asked why the Tribunal should take Mr Narciso's word over that of the Argentine police, court and co-accused who asserted that he sold drugs, Mr Narciso replied that "I cannot ask anybody to believe me but my conscience is clear" (transcript p.86).
Angelo Narciso gave evidence that he was in prison until approximately August 1983. Around 15 days after he was released he went to Italy. He testified that he was not deported to Italy and that he left Argentina of his own free will. He spent approximately 6 months in Italy, then arrived in Australia on a tourist visa for one year.
Mr Narciso testified that he made application for residency in 1984 while in Australia. When cross-examined about the residency application, he said that a friend of his mother's helped him to fill out the form as he cannot read or write English. On the form he stated that he had never been convicted of any criminal offence. He gave evidence that an Italian lawyer had given him advice that the conviction was no longer recorded. While he admitted doubting the truth of this statement, he said it was "my last resort to gain residency" (transcript p.101).
When Mr Narciso lodged an application for review of the refusal to grant him residency, he stated in the application form that he had been convicted on a "drug trafficking" charge. When cross-examined on why he changed his mind on disclosing the conviction only months later, he gave evidence that he felt it would help his cause. To his knowledge, the Australian immigration authorities did not know about his conviction until he revealed it on the form. However, he also gave evidence that the words "drug trafficking" were a mistake, and reiterated his view that he never sold drugs. When asked why he did not mention the threats of torture on the application form, he testified that he did not want to go down that road.
When his review application was rejected, Mr Narciso left Australia on 25 December 1984. He went back to Italy for 6-7 months, and then travelled around Europe before returning permanently to Argentina in 1986.
Eleven years later he lodged another application for residency in Australia. He gave evidence under cross-examination that this time he described his conviction in Argentina as that of "possession" rather than sale because he was only a "user" of drugs, rather than a seller or runner of drugs. He also gave evidence that he only disclosed the conviction on the advice of his brother Carlos Narciso.
When questioned about his current lifestyle in Argentina, Mr Narciso gave evidence that he gets what work he can in the building industry. The amount of work he receives is spasmodic, but he works on average three to four days a week. He does not pay income tax as his earnings are below the taxable threshold. As to recreational activities, he gave evidence that he likes to read books particularly on religion and history, although he does not go to church. He does not have enough money to belong to any societies or groups, and spends a lot of his free time at home. When he does get out the house, he sees some friends or rides his bike.
As to the issue of whether he had stopped using drugs, Mr Narciso gave evidence that he did not use drugs in the 1980's after he was released from prison. He did admit, however, that he used drugs approximately five times in the 1990s because he was depressed and he said that they were very cheap and easy to obtain off the streets. He could not recall the names of the drugs he used, but said they were crushed tablets which had the greatest effect when used in combination with alcohol. He gave further evidence that he had not used drugs at all for the past two years. He was now opposed to the use of drugs – to use his own words "… now I repudiate the things, I can't stand them" (transcript p.111).
Mr Narciso gave evidence that he wants to come to live in Australia so that he can be reunited with his family and have a better future. He has no family in Argentina, and he is not close to his relations in Italy. He gave evidence that he would utilise his qualifications as a tradesman, bricklayer and tiler in employment in Australia and would do his best to help his family if they were in need of financial assistance.
Mr Jose Lameiro
Mr Lameiro is 37 years of age, and is an Argentine solicitor. He gave evidence that he began studying law in 1989, and now belongs to the Professional College of Solicitors in the city of Moron, and the Professional College of Solicitors or Lawyers in the city of Buenos Aires. He has the right of appearance before the Federal and Provisional Courts, and is primarily a criminal defence lawyer working in private practice.
He gave evidence that he has knowledge of the Argentinian legal system in 1980 through his legal studies, and says that the legal system in 1980 under the military dictatorship is comparatively very different to the legal system after 1985 when democracy was reinstated.
Mr Lameiro testified that in 1980 the Constitution was suspended because the military dictatorship was in charge, and that criminal trials proceeded by way of written statements. The police were in charge of the prosecution in 1980, whereas now prosecutors are in charge.
Under cross-examination Mr Lameiro was asked if he understood the content of law 20771. He gave evidence that the law related to the selling, trafficking and use of drugs. Mr Lameiro was then read a passage from Exhibit A6/114 and agreed that on the basis of that passage, in isolation it would appear that Mr Angelo Narciso was sentenced for trafficking.
Mr Carlos Narciso
Carlos Narciso is Angelo Narciso's youngest brother. Carlos gave evidence that their parents were born in Italy, and are now both in their 60s. Josephine and Angelo were both born in Italy, and the family left Italy in approximately 1963 and went to live in Argentina. John and Carlos were both born in Argentina. Josephine was 44 years of age at the time of the hearing, John was 37 and Carlos was 30.
Carlos Narciso gave evidence that the whole family, Angelo aside, now lives in Australia. His parents do not live together, but live in close proximity to each other. Carlos Narciso testified that his mother is semi-confined to a wheelchair since her car accident over 20 years ago and is now an invalid pensioner. His father has Parkinson's Disease and is now retired.
Carlos Narciso gave evidence that he completed the 1997 residency application form for his brother Angelo Narciso. Angelo was in Argentina and Carlos posted the completed forms to him and asked him to sign it. In relation to the criminal convictions section of the form, Carlos disclosed that Angelo had been convicted for possession. Under cross-examination Carlos Narciso said that he had discussed the criminal conviction issue with his parents and his understanding was that the offence was for possession. When asked if had spoken to Angelo about the conviction, Carlos Narciso gave evidence that he did not speak to his brother about the conviction before he filled the forms out. Furthermore, he did not ask Angelo questions about his time in jail because they were fifteen years apart in age and thus not close in that sense.
When cross-examined about Angelo's potential assets being listed as $4000, Carlos Narciso gave evidence that he spoke to his parents about that issue, and they determined that amount was what would be left over after the house was sold and expenses such as airline tickets paid for.
On the issue of family relations, Carlos Narciso gave evidence that "we argue amongst each other a fair bit but we stick up for each other if anyone else attacks from the outside" (transcript p.134). His parents have visited Angelo in Argentina. Carlos testified that his personal feeling is that his mother may go back to Argentina to live if Angelo is not granted residency, although his mother has not expressly said this to him.
Carlos Narciso gave evidence that on a personal level he would like to get to know his brother better. On a practical level he recognises that Argentina is a difficult place to live in and that his family would like to be able to get his brother out of the situation he is currently in.
In cross-examination Carlos Narciso gave evidence that he had no recollection of allegations which were the subject of a file note dated 17 October 1984 in relation to Mr Narciso's application in 1984 for resident status. The note refers to an incident where Mr Narciso allegedly "rampaged" through his parent's house in Adelaide, the consequence of which was an allegation that his family no longer wanted him around and his mother was apparently frightened of him. (T38/167). Carlos Narciso testified that his mother was not frightened of Angelo, that the whole family was pooling funds in order to pay the legal fees spent on Angelo's residency application and that the family has always had a good relationship with him. The Tribunal notes that adjoining the above note is a testimonial from Mr Boffa, a Justice of the Peace, regarding Mr Narciso. Mr Boffa gave his opinion as at 1984 that Mr Narciso was a good, reliable and honest person who would be a good Australian citizen if allowed to remain in Australia.
respondent's submissions
Counsel for the respondent, Mr Hurley, made both oral and written submissions setting out why the Tribunal should make a finding that Angelo Narciso is a person who is not of good character, and why the Tribunal should not use its discretion to grant him a sub-class 105 visa.
The respondent submitted that Mr Narciso is not of good character because of his criminal conduct, which includes illicit drug use, drug supply and drug trafficking. The respondent further submitted that Angelo Narciso is not of good character because of his general conduct, which includes being dishonest to both the respondent and to the Tribunal.
In relation to Angelo Narciso's drug use, Mr Hurley submitted that Angelo Narciso was a drug addict in 1979-1980, and used drugs in the 1990s. By Angelo Narciso's own admission, he only stopped using drugs two years ago, and his attitude to drugs is 'why not if not harming others'. Mr Hurley submitted that this attitude poses an unacceptable risk to the Australian community.
Regarding the issue of supply and sale of drugs, Mr Hurley referred to the Argentine Court documents which show that Angelo Narciso admitted to supplying drugs, and that this admission is corroborated by his confession to the police and by statements of the co-accused. Mr Hurley submitted that supply of drugs, irrespective of profits made, shows that a person is not of good character. While Mr Hurley conceded that Angelo Narciso denied ever selling drugs, he submitted that it is open for the Tribunal to make a finding to the contrary.
Moving to the topic of general conduct, Mr Hurley referred to the fact that Angelo Narciso did not disclose his criminal conviction in his application for resident status made in April 1984. He submitted that Angelo Narciso again lied in another application for residency made in April 1997 by only declaring his conviction as being for possession rather than sale, and Mr Hurley referred the Tribunal to the case of Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 to emphasise the importance which is placed on applicants telling the truth to migration officials. Mr Hurley says Angelo Narciso's lack of honesty is further borne out in the evasive evidence he gave to the Tribunal, particularly in relation to the "torture" incident.
Mr Hurley drew the Tribunal's attention to the section 499 direction which applies in Angelo Narciso's case as he committed a crime for which he was sentenced to a single period of more than 12 months, and the offence related to prohibited drugs. The section 499 direction requires the Tribunal to have due regard to community concern in deciding whether Angelo Narciso meets the good character requirement.
In relation to the conviction, Mr Hurley submitted that the Tribunal should be very careful in undermining the findings of the Argentine court, as there was nothing inherently illogical in the judgment. However, he conceded that the Tribunal was at liberty to examine the Argentine court's decision to decide the weight to give to the conviction.
Mr Hurley also brought to the Tribunal's attention various pieces of New South Wales legislation relating to the drugs said to be sold by Angelo Narciso. The legislation was used to compare the Argentine offence and sentence with its counterpart in Australia in 1980 and beyond.
Mr Hurley finally brought to the Tribunal's attention the exercise of its discretion to grant a visa following an adverse finding as to character. He submitted that the discretion should not be exercised in Angelo Narciso's favour as he is not married, has no children and has limited emotional ties to Australia. Mr Hurley further submitted that Angelo's family has not demonstrated that they would suffer a significant degree of hardship if Angelo were denied a visa.
Mr Hurley submitted that the character requirements for a concessional visa should be much higher than that of a humanitarian visa, and that Angelo Narciso shows a risk of re-offending in Australia.
applicant's submissions
Counsel for the applicant, Mr Boylan, submitted that the delegate of the Minister for Immigration and Multicultural Affairs erred in assessing that Angelo Narciso is a person who is not of good character, as there was insufficient evidence to support such a finding.
Mr Boylan in particular submitted that the Tribunal is entitled to impugn the conviction. He submitted that the evidence on which Angelo Narciso was convicted would have been inadmissible in Australia. In particular, evidence given by the co-accused was problematical, and no drugs were ever found on Angelo Narciso or in his house. Similarly, Mr Boylan submitted that the alleged confession would not have been admitted in an Australian court, by reason of the fact that it was involuntary and made as the result of a threat. Moreover, no caution was given at the time of arrest, as required by Australian law at the time.

When comparing the Argentine offence with similar Australian offences in 1980, Mr Boylan submitted that the equivalent offence in Australia is that of selling a Schedule IV poison without a prescription. In 1978 under Regulation 109 of the Food and Drugs Regulations 1978 (SA) the penalty for selling a Schedule 4 poison was a fine of not more than $400. Section 18 of the Controlled Substances Act 1984 (SA) now deals with the offence of selling a Schedule IV drug, the maximum penalty being a fine of $10,000 or two years' imprisonment.
In regard to the false statements on the visa application forms, Mr Boylan submitted that only the April 1984 form contained a false statement when Angelo Narciso declared that he had never been convicted of an offence. That statement was made on the advice of a lawyer in Italy who told Angelo that he had no conviction, and while Angelo doubted the advice it was his "last resort to gain residency" (transcript p. 101). Mr Boylan submitted that the second statement describing the offence as that of "drug trafficking" accords generally with the Argentine court's description of the offence, and that the statement does not contradict Angelo's belief that he was only ever guilty of possession. Likewise, Mr Boylan submitted that the 1997 statement of "possession" is also an assertion of Angelo's belief, and that there is nothing to suggest that the belief is not reasonably and honestly held.

In relation to Angelo Narciso's drug use, Mr Boylan submitted that Angelo frankly admitted using drugs on five occasions since 1990, but had not used them in the 1980's. He used drugs in the 1990's when he felt depressed, and the drugs were similar to tranquillisers and stimulants. Mr Boylan submitted that Angelo had stopped using drugs in 1998.

Mr Boylan made submissions regarding the delegate's opinion that Mr Narciso would have difficulty resettling in Australia, thus increasing the likelihood of him engaging in criminal conduct. Mr Boylan submitted that the delegate had linked the alleged difficulties of resettlement to his finding that Mr Narciso was not of good character, thus applying s501(1)(b)(i) to the exercise of the discretion. Mr Boylan pointed to the fact that s501(1)(b)(i) is not the subsection upon which the delegate purported to base his decision that Mr Narciso was not of good character, thus the delegate had erred in applying s501(1)(b)(i) to the exercise of the Tribunal's discretion. In fairness to the delegate, the Tribunal would point out that the delegate clearly stated in his reasons that he had considered Mr Narciso's application in the context of s501(2)(a)(i) and (ii) and after finding Mr Narciso to not be of good character, had then used a finding that he was likely to engage in criminal conduct in Australia as a factor in considering the exercise of the discretion in s501 (R2). Whilst it is true that such a finding can of itself be a ground upon which one would then entertain the discretion to refuse to grant a visa or not (ie s501(1)(b)(ii)), the delegate was using the ground as a factor to be weighed in the exercise of the discretion after already having found Mr Narciso to not be of good character under s501(2)(a)(i) and (ii). The Tribunal would also point out that the delegate was entitled to utilize the finding in that fashion as would the Tribunal, should it also be of the same view. The exercise of the discretion in s501 is not limited to having due regard to only those matters contained in the Minister's directions pursuant to s499 and the policy guidelines – all relevant factors must be considered and a finding that a person is likely to engage in criminal conduct in Australia is highly relevant as indicated in the policy guidelines at para 9.9.2.
In summary, Mr Boylan submitted that the subject offence occurred over 20 years ago, and is the only offence recorded against Angelo Narciso. He submitted that it is highly unlikely that Mr Narciso would have gone to prison had the offence occurred in Australia in 1980, and a more likely scenario would have been a fine or suspended sentence. In relation to the concerns of re-offending in Australia, Mr Boylan submitted that if Mr Narciso were to suffer depression he can, in Australia, go to a doctor and obtain legally prescribed drugs which may well help his depression.
THE TRIBUNAL'S FINDINGS, REASONS AND DECISION
The Tribunal is mindful in considering the question as to whether or not it is satisfied that Mr Narciso is not of good character, that regard shall be had to his enduring moral qualities in the light of his past criminal conduct and/or general conduct (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84). In this regard, conduct which is favourable and that which is not will be relevant.
The Tribunal is also mindful that the Minister's policy guidelines are applicable in the course of the Tribunal making its determination.
The Tribunal had the advantage which the Minister's delegate did not have of listening to Mr Narciso give evidence and reflecting upon his evidence in the light of the whole of the material before the Tribunal and the submissions of the parties.
The Tribunal found Mr Narciso to be an impressive witness. The Tribunal gained the distinct impression that he was at all times open and honest in the giving of his testimony. He did his best to accurately relate to the Tribunal all of the events in question. The Tribunal accepts his evidence. The remaining witnesses, namely Mr Lameiro and Mr Narciso's brother Carlos, were also impressive witnesses. The Tribunal gained the impression that they were honest in the giving of their testimony. They also did their best to accurately portray the matters upon which they were questioned. The Tribunal accepts their evidence.
It goes without saying that a great deal of the evidence before the Tribunal revolves around and relates to the applicant's 1982 drug conviction in Argentina. The Tribunal is indebted to Mr Boylan and Mr Hurley for the assistance they rendered to the Tribunal in the gathering together of that and the other evidence. The Tribunal is also grateful for the submissions they have made. The thorough submissions made by Mr Boylan and Mr Hurley have been of great assistance to the Tribunal in the consideration of the correct or preferable decision in this matter.
At the outset, the Tribunal would indicate it is mindful that s501(2) of the Act is focussed upon the conduct of the person in question. The relevant conduct is criminal and/or general conduct with regard being had as to the person's enduring moral qualities in the light of the person's past criminal and/or general conduct.
The Tribunal has carefully considered the whole of the material before it which might be said to be relevant in determining what was the conduct of Mr Narciso which brought about his arrest in late January 1980 and led to his conviction in 1982. As indicated, the Tribunal has had the benefit of the thorough submissions of both parties. Part of that material has of course been the evidence given by Mr Narciso. As indicated earlier in these reasons, the Tribunal had the advantage of listening carefully to that evidence which also included the thorough cross-examination of Mr Narciso by Mr Hurley. The Tribunal also had the advantage of questioning Mr Narciso. The Tribunal found Mr Narciso to be an impressive witness and gained the distinct impression that his testimony was an open and honest account of the events in question. In accepting his evidence, the Tribunal would indicate that it weighed it as against the contrary relevant evidentiary material placed before the Tribunal in the light of the parties' submissions.
The Tribunal makes the following findings of fact with respect to Mr Narciso's conduct leading up to and at or about the time of his arrest in 1980.
1.In about 1978-79 Mr Narciso started using drugs from time to time because he felt depressed. He did not know the nature of these drugs which he described as being like tranquillizers and drugs which excited him. In his own words "… they didn't let me think." (transcript p.75)
2.In about 1979-80 Mr Narciso was taking drugs daily and considered himself to be a drug addict. The drugs were readily available in the streets and afforded by the high wages he was earning at the time by his employment with a soft drink company. The drugs were shared with friends. Mr Narciso described this period in his life as a "rotten world" (transcript p.81) which is now behind him.
3.In late January 1980 Mr Narciso was arrested in Buenos Aires with others in relation to drug offences. He remained in custody prior to his conviction by a Federal Judge on 7 May 1982 for the offence of selling narcotics. Mr Narciso was sentenced to 3 years and 6 months imprisonment and fined 200,000 pesos. The sentence was backdated to the time of his arrest. Mr Narciso served his sentence and was released in July 1983.
The accepted evidence of Mr Narciso, the persuasive submissions of Mr Boylan, the evidence of Mr Lameiro, both oral and written and the documentary evidence before the Tribunal as to the state of affairs in existence in Argentina at the relevant time, has led the Tribunal to have grave misgivings about the reliability of Mr Narciso's conviction. The Tribunal would indicate that such a conviction would not have occurred in Australia, and in this regard the Tribunal accepts the submissions of Mr Boylan. Amongst matters of concern are the violence utilized at the time of Mr Narciso's arrest and the threats of torture made during the period of over 2 years he was held in custody before his conviction in 1982. The conviction came to be after what can only be described as a "trial upon the papers" ie where there was no oral evidence before the judge and no testing of it. It was, in short, a most unsatisfactory process and one which would not be countenanced in this country. In impugning the Argentinian conviction, the Tribunal is in agreement with the submissions of Mr Hurley that this is not to be done lightly. A great deal of caution must be taken and respect accorded to the criminal justice system of another country. The overwhelming evidence on the view which the Tribunal takes of it, dictates, however, a non-acceptance of Mr Narciso's conviction.
In terms of criminality, what can be said to flow from Mr Narciso's drug related behaviour in 1980 is that he may well have been guilty, in so far as the Argentinian criminal justice system is concerned, of the offence of possession of narcotics. Two others who were convicted of possession of narcotics at the same time as Mr Narciso were each sentenced to one year's imprisonment suspended, together with a fine of 5,000 pesos and expenses. That may well have been the Argentinian punishment which Mr Narciso would have received. From the perspective of the Australian criminal justice system at the same time, it is problematical as to what the result may have been. The conclusion which the Tribunal has arrived at in assessing the criminality of the applicant's behaviour in 1980 and at the date of his current application for a visa is based upon the factual situation admitted by the applicant and contained in Exhibit A11. The Tribunal is grateful to the parties for the material gathered with respect to the legislation which might be said to be relevant on the question of applicable Australian penalties. The difficulty which confronts the Tribunal is, and understandably so having regard to the passage of time, the absence of sufficient and reliable material to enable a reasonably accurate assessment to be given of likely penalties for Mr Narciso's behaviour, assuming it to be of an offending nature if it occurred in an Australian setting. The best the Tribunal can do is to say that Mr Narciso's drug related behaviour which led to his arrest in 1980 would have attracted at best then, or at any time since, a penalty by way of a moderate fine or at worse a suspended term of imprisonment towards the lower end of the scale in terms of seriousness. The Tribunal is mindful that Mr Narciso's overall drug related behaviour reflects adversely upon Mr Narciso at this point in time.
The Tribunal would indicate that it has given consideration to the fact that Mr Narciso has also been involved in taking drugs on about five occasions since 1990 but was not involved in drug taking in the 1980's. The Tribunal is also mindful that he has not taken drugs since 1998 and that the reason he took drugs was because he felt depressed. The drugs in question were similar to tranquillizers and stimulants and in Mr Narciso's words were taken "not to find pleasure or to experience pleasure but just to forget about things". (transcript p.111) The drugs were taken in crushed tablet form, were not very expensive and were readily available in slum areas. The Tribunal accepts that the applicant's attitude now and for the last 2 years towards drug taking is one of repudiation – in the words of Mr Narciso "I can't stand them" (transcript p.111). The very occasional drug taking, together with the absence of such, and his resolve, throw further light upon Mr Narciso's moral qualities.
The Tribunal now moves to a consideration of the truthfulness or otherwise of statements made in relation to visa applications concerning Mr Narciso's drug conviction in 1982. The first statement relates to his application dated 6 April 1984 for resident status in which he stated that he had never been convicted of a criminal offence. The Tribunal is of the view, from the evidence given by Mr Narciso, that whilst Mr Narciso had been told by a lawyer in Italy that he no longer had any conviction, he was of the opinion that he still had the conviction and did not disclose the true situation because he considered that he would be in trouble in terms of gaining residency if he declared that to be so. The Tribunal accordingly finds that the statement was false in the above sense and constitutes a breach of the immigration laws. Due regard must be given to a breach of this nature.
The next statement relates to Mr Narciso's application for review of the refusal to grant him resident status in 1985 in which he stated that he had spent some time in jail in Argentina on a drug trafficking charge. Mr. Narciso acknowledged in his evidence that in so describing the offence he may have made a mistake. The Tribunal does not draw any adverse inference from Mr Narciso's description of the offence. The offence was described by the sentencing judge as sale of narcotics which is not in one sense dissimilar, and the Tribunal is mindful that at all times before this Tribunal he has steadfastly maintained and denied that he was involved in selling or trafficking in drugs. The Tribunal has already indicated that it accepts Mr Narciso's evidence generally and in that regard.
The third statement made by Mr Narciso relates to his application for migration to Australia in 1997. In this application Mr Narciso correctly stated that he had been convicted of a crime or offence. He then stated the nature of the offence to be "Possession" (T7/86) and gave details of the sentence as follows "imprisonment from 2/80 to 8/83" (T7/86). The Tribunal takes the view and accepts Mr Narciso's evidence that in so describing the offence, he was doing no more than stating his situation, namely, that at no time was he "a seller or runner" (transcript p. 108). There was no intention on the part of Mr Narciso to disguise the nature of what occurred in Argentina and the Tribunal so finds. The disclosure of the term of his imprisonment clearly supports such a finding.
The Tribunal has also taken into consideration the various character references placed before the Tribunal. They attest to Mr Narciso's standing in the community in which he has lived for many years. The Tribunal accepts the content of the references and the opinions expressed as to Mr Narciso's character by those who have known him in his working and social environment.
The Tribunal also takes note of Mr Narciso's interests in bike-riding, fishing, reading and his interest in religion.
The Tribunal now turns to a consideration of the character of Mr Narciso in light of the evidence accepted by the Tribunal and the parties' submissions. The Tribunal does so having regard to Mr Narciso's past criminal conduct and general conduct.
The picture which emerges in the Tribunal's opinion is as follows.
As a young man Mr Narciso had a propensity for drug taking in a peer group atmosphere and when depressed. This propensity came to an end in the 1980's. In the 1990's there were five occasions when he again used drugs and drugs have not been used since 1998. The Tribunal has formed the view that as Mr Narciso has matured with the passage of time, so has his attitude with respect to drug taking to the point where for some time now he has an aversion to drug taking. He finds it quite repugnant. The Tribunal is satisfied that Mr Narciso's rehabilitation is complete with respect to drug taking and that stands to his credit. Mr Narciso's increased maturity can also be seen in relation to the three visa related statements and the reasons for them as outlined earlier in these reasons. The open and honest manner in which he gave his evidence before the Tribunal also stands him in good stead. Those who know Mr Narciso in Argentina speak well of him in both a work and social context. At the end of the day, the picture which emerges is one of a person who has learned from his experiences in life and who has the necessary strengths not to repeat his mistakes. Mr Narciso also has the advantage of having acquired a number of skills in the building industry such that he has been able to financially maintain himself throughout the years through his own endeavours. Apart from his early history, Mr Narciso has consistently shown attributes of a useful citizen. The Tribunal has formed the view, should he permanently reside in Australia, that there is no risk to the Australian community of Mr Narciso involving himself in criminal behaviour involving drugs or otherwise. Mr Narciso has the necessary maturity and attributes, together with his work skills, to make a positive contribution to the Australian community. His presence in Australia will bring the whole of the Narciso family together and provide him with the initial support that he may need in settling in a new country.

For the above reasons the Tribunal is not satisfied having regard to Mr Narciso's past criminal conduct and general conduct that he is not of good character. Accordingly, the decision under review is set aside and the matter is remitted to the respondent for further consideration of the concessional visa application.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H Burns
Signed:         ...................(Signed)..................
  Catherine Hutchins (Associate)
Date/s of Hearing  25-26 May 1999
  22-24 February 2000
  17 March 2000
Date of Decision  18 August 2000
Counsel for the Applicant        Mr M Boylan
Solicitor for the Applicant         McDonald & Co
Counsel for the Respondent    Mr D Hurley
  Departmental advocate