Olujic and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 325

DECISION AND REASONS FOR DECISION [2002] AATA 325

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/258

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Susana Olujic
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley

Date8 May 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Nedeljko Pozder passes the character test pursuant to section 501(6) of the Migration Act 1958.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – visa application – subclass 105 skilled Australian linked visa – character test – failure to pass the character test on the basis of past and present general conduct – discretion that the Tribunal may exercise – discretion to be exercised in favour of the visa applicant.
Migration Act 1958 ss 499, 499(1)(2)(2A), 501, 501(1) (6)
Migration Regulations
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

8 May 2002 Mr R P Handley

This is an application by Susana Olujic ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 18 January 2001 to refuse the grant of a subclass 105 (skilled Australian linked) visa to the Applicant's brother, Nedeljko Pozder ("the Visa Applicant"). At the hearing, the Applicant was represented by Richard Killalea, of Counsel, and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Djuor Pozder, and in person by the Applicant and Sanya Pozder.

BACKGROUND

The Visa Applicant, Nedeljko Pozder, was born in Croatia on 7 March 1971 and is aged 31. Mr Pozder and his wife Blazenka have one child, Elvis, who is aged four. Mr Pozder is an auto mechanic and they live in Belgrade, although, at the time of the hearing, Mr Pozder was working in Germany. Ms Olujic, who is Mr Pozder's sister, was born on 26 October 1968 in Perth where her parents were living at the time. Ms Olujic went to Croatia with her parents in about January 1969 and did not return to Australia until 22 August 1994. Ms Olujic lives with her family in Sydney.
On 27 September 1995, Mr Pozder applied for a subclass 209 (humanitarian) visa which was refused on 30 September 1997. On 30 January 1998, he applied for a subclass 105 (skilled Australian linked) visa, sponsored by Ms Olujic. On 12 September 2000, Mr Pozder was interviewed at the Australian Embassy in Belgrade. On 18 January 2001, a delegate of the Respondent at the Embassy decided to refuse Mr Pozder's application on the ground that he did not pass the character test because of his past and present general conduct. On 26 February 2001, Ms Olujic lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW

Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6) provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 105 visa. Clause 105.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
Either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Pozder is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 105 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

EVIDENCE
Susana Olujic (the Applicant)

Ms Olujic said she was born in Perth and is an Australian citizen. She returned to Yugoslavia at the age of two months with her parents and lived in Kasici and then in Islam Grchki, both places near Zadar in Croatia. In 1993, she fled with her family from Islam Grchki to Benkovac where she lived until coming to Australia, arriving on 22 August 1994. Her brother, Nedeljko, had previously lived in Kasici before moving with her family to Benkovac. He did not stay with them long in Benkovac but moved after a short while to Belgrade.
Ms Olujic was asked about the application for migration which her brother lodged in Belgrade on 27 September 1995 (T p50). In about 1995, Ms Olujic said she spoke to her brother who asked if anything could be done to assist him to migrate to Australia. She therefore went to the Cabramatta Community Centre to seek immigration advice and was advised by a woman there who spoke Serbian that her brother should lodge a visa application. The woman then assisted her in completing the application form, asking Ms Olujic questions and inserting her answers in the form. Ms Olujic said she only met with this person once and did not pay for her advice.
Ms Olujic said she knew her brother's residential address because she was in contact with him in Belgrade. She noted that in answer to Question 13 "When did you start to live at your current residential address?", the answer inserted was 12 August 1995. Ms Olujic said she could not remember when her brother started living at that address but it was his first address in Belgrade when he moved there in 1993. Thus, the answer is obviously incorrect. In answer to Question 14, the name of a person is given who might receive her brother's correspondence. Ms Olujic said this person was the owner of the house in which her brother lived. Mr Olujic was also asked where she obtained her brother's refugee card identification number, but she said she could not remember.
With regard to the additional information provided in answer to Question 45, Ms Olujic said she did not write this because she could not read English at that time: it was written by the person at the Cabramatta Community Centre to whom she gave the information. Even though the additional answer states that her brother had not been able to find a job, she knew this to be incorrect and only gave this answer because she thought it would help him. She did not discuss this with her brother before answering in this way. In fact, her brother was working at this time for Savic, a company trading in the import and export and maintenance of automobiles.
Ms Olujic was asked about the penultimate paragraph of the additional answer to Question 45 where it states "we have finally reached Yugoslavia on 12 August 1995". Ms Olujic said she did not tell the person assisting her to write that and could not explain why that date was there since it is not true. However on further questioning, she said her sister, Sanya, who had also lived with her family in Benkovac, had left Benkovac with their mother in early August 1995, travelling for about 15 days to reach Belgrade where they stayed with her brother. Since Ms Olujic also sought assistance at Cabramatta Community Centre with a visa application for Sanya at much the same time in 1995, the person who assisted Ms Olujic with her brother's application form may have also assisted with the completion of her sister's application form, although Ms Olujic could not be sure. Her sister arrived in Australia in 1999.
Ms Olujic said after her brother's visa application form had been completed, she posted it to him in Belgrade and he later told her that he had signed the application and taken it to the Australian Embassy. The woman who had assisted Ms Olujic at the Cabramatta Community Centre had marked the application form with a pencil cross to indicate where her brother was to sign. Prior to her sending the application form to Belgrade, Ms Olujic spoke to her brother on the phone and told him to sign where marked. She said she did not talk to him about the additional answer given to Question 45 before he lodged the application form at the Embassy.
Ms Olujic said her parents now live in Belgrade where her father cannot find a job. Her brother lives with his wife and child in Belgrade. Ms Olujic said she had not met her brother's wife. Currently, however, her brother is working in Germany while his family remain in Belgrade.
Sanya Pozder
Ms Pozder is Ms Olujic's sister. She said she is a permanent resident of Australia, having arrived on 9 September 1999 as a result of her third application for a visa made in 1998 having been successful. Ms Pozder said she started thinking about migrating to Australia in 1994 after her sister left. At that time, Ms Pozder was living in Benkovac where she had moved with her parents on 22 January 1993.
On 4 August 1995, Ms Pozder left Benkovac as a refugee travelling for 10 days before she reached Belgrade on 14 August 1985. On arrival in Belgrade, she went to live with her brother, who was then working for Savic. She continued to live with him in Belgrade until migrating to Australia in September 1999. Ms Pozder was shown a copy of the Refugees Registration Book for members of her household as at 14 February 1995 (A pp226 - 227). She said although the Registration Book shows both her and her brother living with her parents in Benkovac at that time, her brother never returned to Benkovac after he left for Belgrade in early 1993. Ms Pozder recalled that her sister had sent her brother a visa application form from Australia but she did not know when. She was shown a copy of his application form lodged on 27 September 1995 but said she had not seen this before. She said her sister had also sent her a Form 202 (humanitarian class) visa application.
Nedeljko Pozder (the Visa Applicant)
Mr Pozder was referred to statements made by him on 19 March 2001 (A p138) and 19 June 2001 (A p168) which he confirmed as being true and correct subject to correcting a mistake in paragraph 3 of the latter statement. Mr Pozder said he requested a document from the Republican Pension Fund on 6 June 2001 and not 19 June 2001 as stated. He obtained this document personally on presenting his identification at the Fund's offices and asking for the document. It only took a few minutes to obtain. This is a document he provided for the Australian Embassy when requested. Mr Pozder was also asked about a Red Cross identification card (A pp185 – 186) issued on 29 November 1993. He said he has the original of this document which shows him living at Brigada Street, Belgrade, at that time. Mr Pozder was referred to a certificate issued by the Telecom Service on 25 June 2001 (A pp187 – 188). Mr Pozder said he obtained this certificate from Telecom in Belgrade. It certifies that during the period 1993 – 1995, he was receiving telephone calls on the telephone number 011 592 833, the telephone number stated by Mr Pozder for his address at Brigada Street, Belgrade. Mr Pozder said he obtained the certificate dated 2 July 2001 (A pp189 – 190) from Savic, his former employer. This certificate shows that Mr Pozder was employed by the company Savic from 5 October 1993 to 31 January 1999 as an auto mechanic.
Mr Pozder was referred to the visa application lodged by him at the Australian Embassy in Belgrade on 27 September 1995 (T p50). He recognised this document as being the one he lodged. He said he received this document from his sister in Australia already completed, and he had to sign where indicated. With regard to the additional answer to Question 45 (T p63), Mr Pozder said he did not then ask any one to read this to him in Serbian. He did not have time. He just signed the page where marked. He was not then aware that the page said that he had not been able to find a job in Belgrade. He only discovered this when he went for his interview at the Australian Embassy on 12 September 2000. Mr Pozder was referred to a record of the interview (T p122) in which he is recorded as answering to the question "I have a statement signed by you in 1995 in which you say that, at the time you say that you are not working, and have not been working since 1993 as you are unable to find a job? Why did you make this statement?" Mr Pozder's answer is recorded as being "I though [sic] it was an easy way to get a visa". Mr Pozder denied having given this answer. He said the additional answer to Question 45 was written in English and he had no idea what was said there.
Mr Pozder said he arrived in Belgrade in September 1993 having worked in Croatia from May 1992 to January 1993. He never went back to Benkovac in 1995 and was therefore unable to explain the Refugees Registration Book entry (A pp226 – 227) showing him being a member of his parents' household in Benkovac at 14 February 1995. He said this Registration Book was issued by the Red Cross. Mr Pozder said he worked for Savic from 1993 to 1999 and obtained the certificate from the Republican Fund for Pensions and Invalid Insurance for the Employed in Belgrade on 6 June 2001 (A pp204 – 207).
Djuor Pozder
Mr Djuor Pozder is Nedeljko Pozder's father. Mr Djuor Pozder said that in August 1995 he made an application for him and his wife to migrate to Australia. The application form was sent to him by his daughter in Australia but filled out at an agency in Belgrade. He said his son Nedeljko had lived with him in Benkovac from January 1993 until he left to go to Belgrade in July 1993.
SUBMISSIONS
Applicant
Mr Killalea, for the Applicant, contended that Mr Pozder was employed by Savic from 5 October 1993 until 31 January 1999 as stated in the certificate issued by Savic, dated 14 September 2000 (A1 p197). This is supported by the certificate issued by the Republican Fund for Pensions dated 6 June 2001 (A1 p206). Mr Killalea said the later certificate provided by the Republican Fund dated 9 October 2000 (A1 p202) showing Mr Pozder having been employed by Savic from 10 September 1997 to 30 January 1999, is an incomplete record of his employment. A certificate from Savic dated 4 September 1997 (A1 p213) also provides evidence that Mr Pozder was employed by Savic from 5 October 1993 and that he was still in Savic's employment at the date of the issue of the certificate.
With regard to Mr Pozder's residential address, Mr Killalea said Mr Pozder's identification card issued by the Red Cross on 29 November 1993 shows his address as being Brigada Street, Belgrade. A certificate issued by the local co-operative, Miljakovac, on 13 September 2000 (A1 p217), shows Mr Pozder as having been resident at Brigada Street since 23 July 1993. A certificate from the Serbian Telecom Service dated 25 June 2001, certifies that Mr Pozder was receiving telephone calls on the same telephone number at Brigada Street between 1993 and 1995. Finally, a certificate/character reference issued by Savic, dated 2 July 2001, confirms that Mr Pozder was employed by the firm Savic between 5 October 1993 and 31 January 1999. A declaration by Mr Pozder dated 19 March 2001 (A1 p139) states that he worked for Savic from 5 October 1993 to 31 January 1999 and that he resided at Brigada Street continuously from 23 July 1993 until 13 September 2000.
With regard to Mr Pozder's Military Book (A pp222 – 223), which shows Mr Pozder as being resident in Benkovac, Mr Pozder authorised Damir Sankovic to obtain a duplicate of this, which was issued on 15 February 1994, and Mr Sankovic gave this to a bus driver travelling to Belgrade from whom Mr Pozder collected the Book on arrival in Belgrade (A p191, translated at A4). With regard to the Certificate of the Committee for Refugees recording the registration of Mr Pozder's parents, his sister, Sanya and himself as being resident in Benkovac on 14 February 1995 (A1 pp226-227), Mr Pozder said "this certificate was issued on the application of his parents and he was not actually resident at that time himself".
With regard to the record of interview with Mr Pozder at the Australian Embassy in Belgrade on 12 September 2000 (T pp122-123), the question asked by the interviewer relating to Mr Pozder's 1995 visa application stating that he had left Croatia in 1995, is not correct. The application form (T p56), states that Mr Pozder left Croatia on 22 January 1993. The difficulty which Mr Pozder had with this question is that there was no way in which he could check whether the information being put to him was correct since he could not read English and therefore did not know what had been stated in the visa application form completed for him in Australia. With regard to the additional answer to Question 45 (A p63), the Applicant's evidence is that he did not compose this answer, and the statement that he finally reached Yugoslavia on 12 August 1995 is incorrect, as is the statement that he did not then have a job.
Mr Killalea submitted that if it is accepted that the Applicant did not submit any bogus documents and the documents submitted are authenticated, then this supports all the claims made by the Applicant. The Applicant also denied that he made any false statements which leaves only the record of interview in contention. Mr Killalea noted that, in giving evidence, Mr Pozder had difficulty in following the page numbers to which he was referred in the documents. This and Mr Pozder's evidence suggest that little weight should be accorded to the record of interview.
Mr Killalea noted Ms Olujic's evidence that she was responsible for including a statement in the visa application that her brother did not reach Belgrade until 1995 and that she did not make her brother aware that she had stated this in the application. With regard to the additional answer to Question 45 and the assertion that "we have finally reached Yugoslavia on 12 August 1995", Mr Killalea suggested that this could be explained by the fact that the person who assisted Ms Olujic with the completion of visa application forms at the Cabramatta Community Centre may also have assisted in completing an application for Mr Pozder's sister, Sanya. The relevant information concerning Ms Pozder's mother is that she did indeed reach Belgrade on 12 August 1995.

Mr Killalea submitted that Mr Pozder passes the character test. Even though he does not resile from responsibility for having signed the visa application form, nevertheless, the particular circumstances in which this occurred should be taken into account and the seriousness of the conduct is not such as to warrant a determination that Mr Pozder does not pass the character test. With regard to paragraph 1.9(a)(b) of Direction No. 21, Mr Killalea said the Applicant denies having lodged a bogus document and his evidence, which is supported by that of his sister, is that he was not aware that his visa application contained a false or misleading statement. Indeed, the Tribunal should make a finding that the visa application was lodged by Mr Pozder at the Australian Embassy in Belgrade in good faith.
Respondent
After the hearing, Mr Cureton, for the Respondent, took steps to check the authenticity of the certificate issued by the Republican Fund for Pensions dated 6 June 2001 (A1 pp204 - 205). In a fax dated 12 April 2002, Mr Cureton stated "The Respondent accepts that the document provided by the applicant from the Government Pension Fund (at page 204 of the applicant's volume of documents) is genuine". Mr Cureton reiterated his submission made in the hearing that Mr Pozder, nevertheless, fails the character test as a result of making false claims in his 1995 visa application. In that application, Mr Pozder said he arrived in Belgrade in August 1995 and that he had not been able to find work except from time to time on the black market. Mr Cureton noted the admission made by Mr Pozder during the interview at the Australian Embassy on 12 September 2000 when he is recorded as having said that the reason he made a statement in 1995 that he was not working and had not worked since 1993 was because "I thought it was an easy way to get a visa". Mr Cureton noted Mr Pozder's evidence that he did not give this answer at the interview. However, Mr Cureton said that Mr Pozder should be taken to have understood most of the questions asked of him at the interview given the complex answers to the questions which he was recorded as giving.
With regard to the exercise of the Minister's discretion under s 501(1) and the guidance provided by Direction No. 21, Mr Cureton submitted that the first primary consideration, the Protection of the Australian Community, is of paramount importance in this matter. Mr Pozder's misconduct was of a serious nature and the Australian community would expect that a person who engaged in such misconduct should not be permitted to enter and remain in Australia. Since the best interests of any children is not a relevant consideration in this case, the Tribunal must weigh up the primary considerations of the protection of and expectations of the Australian community with the Other Considerations referred to in paragraph 2.17 of Direction No. 21. Mr Cureton said the hardship to Mr Pozder and his sponsor Ms Olujic is only of an emotional nature. However, in the case of Ms Olujic, her hardship should be discounted by reason of her admission that the false statement in the 1995 visa application was made when she completed the application for her brother in Australia. In Mr Pozder's case, even if he was not aware of this false statement at the time, he should, nevertheless, take responsibility for it.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Pozder passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Pozder does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9 (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9 (c)).
The Tribunal finds that Mr Pozder moved from Benkovac to Belgrade in 1993. He commenced working for Savic, a motor vehicle dealer and repairer, on 5 October 1993. These findings are supported by the oral evidence of both the Applicant and the Visa Applicant and by documentation provided by Savic, by the Republican Pension Fund (A2) and a certificate issued by the local co-operative Miljakovic in Belgrade on 13 September 2000 (A1 p161). The Tribunal finds that Mr Pozder worked for Savic until 31 January 1999. This is confirmed in a certificate from Savic dated 2 July 2001 (A1 p221) and by the Statement from the Republican Pension Fund dated 6 June 2000 (A2).
Mr Pozder applied for a subclass 209 (humanitarian) visa on 27 September 1995. Relying on the evidence of Ms Olujic and Mr Pozder, the Tribunal finds that this application form was completed by Ms Olujic with the assistance of a community worker at the Cabramatta Community Centre. The community worker completed the form in English on the basis of the information provided to her by Ms Olujic. Ms Olujic then sent the form to her brother in Belgrade and asked him to sign the form where indicated. The Tribunal accepts Mr Pozder's evidence that because he was unable to read English, he did not know what the contents of the application were.
The Tribunal finds that the application contained a false and misleading statement in the additional answer to Question 45. Ms Olujic gave evidence that she asked the Cabramatta community worker to include with the application a statement that Mr Pozder had not been able to find a job except from time to time on the black market. This was false because, at that time in 1995, Mr Pozder was employed by Savic. The Tribunal accepts that Mr Pozder knew nothing of this statement. The visa application contains another false statement when it states in answer to Question 42 and in the additional answer to Question 45 that Mr Pozder arrived in Yugoslavia on 12 August 1995. The Tribunal accepts that Mr Pozder was unaware of this false statement and Ms Olujic could not explain it except to suppose that the community worker may also have assisted in completing the visa application form for Ms Olujic's sister where it probably would have been stated that she arrived in Belgrade on 12 August 1995, which was true.
The decision under review is in relation to Mr Pozder's application for a subclass 105 (skilled Australian linked) visa lodged on 30 January 1998. Initially, the Respondent claimed that this visa application contained false and misleading statements and that, in respect of this application, Mr Pozder lodged a bogus document. The Respondent now accepts that the Republican Pension Fund Statement provided by Mr Pozder is genuine. It follows from this that he did not provide the Respondent with a bogus document and, because the Respondent thereby accepts that Mr Pozder worked for Savic in Belgrade from 5 October 1993 to 31 January 1999, the Respondent's allegation that Mr Pozder made a false and misleading statement in his 1998 visa application can no longer be sustained.
The remaining factual matter which is disputed is an answer given by Mr Pozder during the interview at the Australian Embassy on 12 September 2000. The record of interview (T p123) states that in answer to a question put to Mr Pozder as to why he made a statement in 1995 saying that he was not working and had not worked since 1993 as he was unable to find a job, he said that he thought it was "an easy way to get a visa". In evidence, Mr Pozder said he did not know what the answer given in the 1995 visa application form said and, in any event, he denied giving the answer recorded.
The Tribunal concludes that the only substantial allegations of misconduct against Mr Pozder are in relation to the inclusion in the 1995 visa application of false statements about his not working and about the date of his arriving in Belgrade. While Mr Pozder must accept responsibility for having signed and lodged the applications containing this false information, nevertheless, the Tribunal accepts his evidence that he was not aware that the application contained these false statements. Reflecting on the meaning of "good character" described by the Full Federal Court in Goldie (supra) above, the Tribunal is not persuaded that this past misconduct of Mr Pozder's is sufficient to establish that he does not pass the character test in accordance to s 501(6)(c)(ii) of the Act. In accordance with s 501(6), he therefore passes the character test and the decision under review should be set aside.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 February 2002
Date of Decision  8 May 2002
Representative for the Applicant              Mr R Killalea, Barrister
Representative for the Respondent        Mr N Cureton, Solicitor