SCRAP ACRYLICS PTY LTD And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
[2004] AATA 1
•5 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/405
GENERAL ADMINISTRATIVE DIVISION )
Re SCRAP ACRYLICS PTY LTD Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date5 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) The Hon CR Wright QC
Deputy President
CATCHWORDS
IMMIGRATION – character test – visa applicant sentenced to imprisonment for 1 year wholly suspended for 5 years – failure to disclose sentence on immigration documents – visa refused
Migration Act 1958 s 499 and s 501
Goldie v Minister for Immigration and Multicultural Affairs [1991] FCA 1277
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Jupp and MIMIA [2002] AATA 458REASONS FOR DECISION
5 January 2004 The Hon C R Wright QC (Deputy President) The Application to Review
1. This is an application to review the decision of the respondent’s delegate to refuse the grant of a sub-class 457 Business (Long Stay) Visa to the visa applicant Dirk Peters Ras Coetzee on 17 March 2003.
2. The delegate’s refusal was based upon an assessment that the visa applicant did not satisfy the character test provided for in sections 501(6)(a) and 501(6)(c)(ii) of the Migration Act 1958 (the Act). The delegate also elected not to exercise the residual discretion to grant a visa in accordance with the principles and directions contained in the Minister’s Direction No 21 dated 23 August 2001 issued pursuant to section 499 of the Act.
3. The application to review was lodged on 6 May 2003 and was heard in Brisbane, on Monday 8 December 2003. Oral evidence was taken from André Coetzee, son of the visa applicant, who attended in person. The visa applicant gave evidence by telephone from South Africa. The review applicant was represented by Mr Raymond Johnson and the respondent was represented by Mr Steele. Seven documentary exhibits were taken into evidence, including the section 37 (T) documents (Exhibit 1) and the supplementary section 37(T) documents (Exhibit 2).
Background
4. Scrap Acrylics Pty Ltd (the review applicant) was incorporated in Australia in 1997. Its three original and continuing directors are the visa applicant and his two sons. André (the managing director) aged 28 and Jacques aged 30. Andrew and Jacques are both Australian citizens.
5. The review applicant has appointed the visa applicant its Technical Director. It is claimed that his presence in Australia to guide the development of the company is required to ensure the ongoing success and profitability of the company.
6. On 22 August 2002 the review applicant was issued an approval for a Standard Business Sponsorship by the respondent. Pursuant thereto the review applicant nominated the visa applicant to migrate to Australia.
7. Prior to this, on 4 January 2002, the visa applicant had already lodged an application for a sub class 457 Business (Long Stay) Visa.
8. On 10 January 2003 the respondent advised the visa applicant of the Department’s intention to refuse his application whereupon the visa applicant made written submissions to the respondent and was interviewed by Departmental officers in South Africa.
9. On 17 March 2003 the visa applicant’s application was refused, essentially upon two bases, viz:
(a)the visa applicant’s substantial criminal record; and
(b)the visa applicant’s repeated false statements and declarations on Australian immigration documents including incoming passenger cards and previous visa applications to the effect that he had no criminal on other convictions.
10. The visa applicant’s substantial criminal record consisted of a single conviction for fraud in connection with an insurance claim in the Durban Magistrate’s Court on 4 February 1987. The visa applicant pleaded guilty to this charge and was sentenced to 12 months imprisonment, such sentence to be suspended for a period of five years.
11. Pending the hearing of the present application to review, the visa applicant sought a presidential pardon in respect of this conviction. Such a pardon was granted on 7 October 2003.
12. It is common ground that section 501(1) of the Act applies in these circumstances. Accordingly, for the purpose of applying the character test to the visa applicant in these proceedings the sentence imposed on him in 1987 “is to be disregarded”..
13. The respondent maintains, however, that pursuant to section 501(6)(c)(ii), the visa applicant’s past and present general conduct disentitles him to a determination that he passes the character test, by reason of his false and misleading declarations referred to in paragraph 9(b) above.
Discussion
14. The following chronology, taken from paragraph 3 of the respondent’s Statement of Facts and Contentions, sets forth the relevant sequence of events.
CHRONOLOGY
Date Offence 4 February 1987
Applicant convicted of fraud in Durban. Sentenced to 12 months imprisonment, suspended for 5 years.
1993
Applicant makes sub-class 674 Visa Application (records subsequently destroyed).
22 April 1993
Applicant entered Australia
1995
Applicant applied for a Sub-Class 673 Visa (records subsequently destroyed).
2 March 1995
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
15 March 1995
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
22 June 1995
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
9 July 1995
Applicant entered Australia but failed to declare previous conviction.
11 August 1995
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
1996
Applicant applied for a sub-class 456 visa which was granted (IRIS records show that this visa was granted, but the file has subsequently been destroyed).
24 June 1996
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
6 March 1997
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
15 March 1997
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
23 December 1997
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
28 July 1998
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
14 July 2000
South African Police clearance certificate issued to Applicant. Certificate discloses 1987 conviction.
25 August 2000
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
13 September 2000
Applicant applied for a sub class 457 Long Stay Business Visa. The Applicant signed a declaration that he had never been convicted of a crime or offence. This Visa was granted on 8 March 2001.
7 March 2001
Applicant entered Australia but failed to declare previous conviction on incoming passenger card.
8 March 2001
Sub-class 457 Business Visa (Long Stay) (applied for on 13 September 2000) granted to Applicant.
4 January 2002
The Applicant applies for an employer sponsored migration to Australia (subject to this review).
6 January 2002
Applicant departed Australia.
8 January 2002
A delegate of the Minister notifies the Applicant of his intention to cancel the Applicant’s previous visa (granted on 8 March 2001) because of the Applicant’s failure to declare his previous conviction on his application.
28 February 2002
The Applicant’s visa (granted on 8 March 2001) cancelled.
22 August 2002
Review Applicant issued approval for Standard Business Sponsorship (SBS).
10 January 2003
Letter from DIMIA to Visa Applicant informing him of Intention to Refuse Visa.
17 March 2003
Minister’s Delegate refused Visa to Visa Applicant.
10 April 2003
Review Applicant received notice of decision of Minister’s Delegate on 17 March 2003.
6 May 2003
Review Applicant applies for review of decision on 17 March 2003 to refuse Visa to Visa Applicant.
7 October 2003
President of South Africa pardons Visa Applicant for fraud conviction on 4 February 1987.
15. On each and every occasion upon which the visa applicant entered Australia after 1993:
(a)Between 1995-1997
He was asked on the incoming passenger cards.
“Have you any criminal convictions for which sentence(s) (whether served or not) totalled 12 months imprisonment or more?”
On each occasion he answered “No”.
(b) Between 1997 and the present
He was asked on the incoming passenger cards.
“Do you have any criminal convictions?”
On each occasion he answered “No”.
(c)On each occasion he also signed a declaration that he had answered all questions on the relevant card truthfully and completely.
16. As noted in the above chronology the visa applicant was issued with a Police clearance certificate by South African authorities on 14 July 2000 which disclosed details of his 1987 fraud conviction; yet on 13 September 2000 he declared in an application for a subclass 457 visa that he had never been convicted of a crime or offence (see Exhibit 1, T19, page 133, para 31). The respondent submits that this fact is of particular significance in demonstrating the visa applicant’s claim to have thought his criminal record ceased to exist 5 years after his conviction, to be untrue. In a letter to the Department on 22 January 2002 (see Exhibit 1 T38 p 199), the visa applicant said:
“…my application dated 13 September 2000 was submitted through a migration agent. At that time I was in Australia and did not know that the offence that happened 13 years ago would still reflect on my police records, so I inadvertently signed the declaration. This has been a very bad mistake on my behalf. On my return to South Africa my police clearance certificate still reflected my record.
I pointed out this offence on my permanent residence application…”
The visa applicant returned to South Africa from Australia on 11 October 2000, which, on the face of it may lend some credence to his written explanation for the false statement in the application of 13 September 2000 (even though the Police clearance certificate was issued in July 2000) but it does not explain a subsequent failure to disclose the conviction in his incoming passenger card of 7 March 2001 (Exhibit 1, T5, page 69).
17. The visa applicant maintained that he believed at all relevant times that his criminal history had ceased to exist but was unable to advance any persuasive reason why he had entertained such an idea. It was apparent however that he regarded the conviction as a “trifling” one, or so he claimed. It was also apparent that he regarded the conviction and sentence as somewhat unjust as he claimed he had unknowingly made a claim in respect of a company vehicle without being aware that the company insurance policy had lapsed. Having regard to the interview in which he participated in January 2003 and the somewhat different terms in which he described to me the circumstances leading up to the insurance claim, I have no confidence that I have heard an accurate account of what happened.
18. However the central issue so far as the applicant’s character is concerned is whether he made deliberately false declarations regarding his prior criminal history on 14 occasions since 1995 in connection with immigration matters, or whether he genuinely believed his answers in the relevant documents in respect of his conviction for fraud were true.
19. I entertain no reasonable doubt that the visa applicant’s attempts to explain his erroneous answers are untrue.
20. I find that the visa applicant knew that he was required to disclose his conviction on each occasion that he failed to do so. I find that his motive was to avoid any problem which might otherwise arise to prevent his entry into Australia. I am also persuaded that the reason he eventually disclosed his conviction in his application for employer sponsored migration to Australia on 2 January 2002 (see Exhibit 1, T29, page 176) was an awareness that he would be required to produce a Police Clearance certificate for that application to be processed by the Department.
21. No doubt the visa applicant was encouraged to believe that he had “got away with it” each time that he provided the false information to the Department as his falsehoods resulted in no immediate impediments to his entry into Australia, but this does not lessen the accumulative seriousness of his conduct in my opinion.
22. Section 501(6)(c)(ii) provides that a person does not pass the character test if having regard to the person’s past and present general conduct, the person is not of good character. In Goldie v Minister for Immigration and Multicultural Affairs [1991] FCA 1277 at paragraph 8, Justices Spender, Drummond and Mansfield considered the concept of good character in section 501 as being concerned with the issue of 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”. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications … Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld”.
23. On 23 August 2001 the respondent issued a two-part direction dealing both with the question of character and the exercise of discretion. The AAT is bound by such directions, see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. I have had regard to the Minister’s direction in performing the present review.
24. In my opinion the visa applicant fails the character test.
25. I turn therefore to consider whether, as a matter of discretion, the visa applicant’s failure to pass the character test should not constitute a basis for refusing the visa sought.
26. The Minister’s Direction No 21 is also relevant to this issue and has been taken into account by me accordingly.
27. I have already commented upon the seriousness of the visa applicant’s conduct and I regard it as appropriate to repeat this in dealing with the Minister’s primary consideration viz the protection of the Australian community. I also consider that there is a not inconsiderable risk of recidivism in that there has been a long term and consistent deception practised by the visa applicant suggesting a propensity to lie in official documents in order to achieve benefit for himself. The visa applicant seeks entry to Australia to play a leading role in the review applicant company and I think his past behaviour reviewed in these reasons reflects badly upon his ethical standards. To refuse a visa to a person of this character would in my opinion send a deterrent message to others who may be minded to conceal past reprehensible conduct.
28. The visa applicant and his son André claim that his presence in Australia is essential to the long term viability of the review applicant. The essence of André’s evidence is to be found in Exhibit 3. The visa applicant’s evidence is in Exhibit 4.
29. André Coetzee at paragraph 2 of his statement says:
“Mr Coetzee is also a founding member of Scrap Acrylics PTY LTD and is currently holding the position of Director in the company. He has substantial interests in the company with over $300,000 been owed to his South African company. Lately the services and expertise of Mr DPR Coetzee was a major factor in setting up the Egypt operations, which dramatically increased Scrap Acrylics turnover by over 40% in 2001. Since Mr Coetzee’s visa cancellation the company has been put under extreme pressure, which has directly contributed towards our operations diminishing considerable, where turnover has decreased by more than 35% in the last financial year and is continuing to dramatically fall this financial year. For the company to survive and grow in the near future it is imperative that we have the support and expertise of Mr DPR Coetzee in Australia immediately to full fill his position of Technical Director.”
30. The visa applicant at paragraph 2.6 of his statement says:
“Scrap Acrylics is entirely dependent on my expertise and experience in the perspex and related plastic’s market and requires my expertise, input and involvement to source and appoint contractors and in so doing continue to expand its business in other major centres in Australia and Tazmania (sic) in order to make the business of Scrap Acrylics more viable.”
31. In my opinion there is considerable hyperbole in the claims being made. André is the managing director of the review applicant. He is 28 years of age and has recently completed his study for a Master of Business Administration degree. He is well spoken and intelligent. He said in his oral evidence “we basically all three do the same thing” (referring to the activities within the company of his father, brother and himself).
32. I accept that there may have been a down turn in profitability of the review applicant of late but it seems to me that this is more likely to be due to increased competition than the absence of the visa applicant from Australia. With modern communication methods it is difficult to see why the visa applicant and his sons cannot deal effectively and expeditiously with relevant company matters.
33. All in all, although the review applicant may benefit in some ways from the visa applicant’s presence in this country, I am unpersuaded that there will be significant hardship if he is forbidden entry. There is nothing to prevent his sons visiting the visa applicant in South Africa and I must say I do not accept the suggestions made by both witnesses that in practical terms this presents great difficulty. The visa applicant also apparently has access to other countries than Australia in which favourable developmental prospects for the company exist, for example Egypt. The visa applicant’s sons each migrated separately and independently of their father and live permanently in Australia.
34. There are no infant children of the visa applicant whose best interests must be taken into consideration.
35. In my view the Australian community would expect refusal of a visa in this case. In this context I take the same approach as Deputy President Block in Re Jupp and MIMIA [2002] AATA 458. That is, “the Australian community” means “the middle of the road reasonable members of the community who do not hold extreme views one way or the other” who may be assumed also to have knowledge of the evidence in the case and, I would add, the relevant findings made.
36. The visa applicant has provided a number of references from business and other acquaintances which I have taken into account both in assessing his character and whether or not I should exercise my residual discretion. Having regard to the length of time over which the visa applicant practised his deceptive conduct when seeking entry to Australia, I do not find such references of much weight.
37. I my opinion I should not exercise my discretion in the visa applicant’s favour. Consequently I determine that the decision under review be affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC, Deputy President
Signed: ..................................................................
AssociateDate of Hearing 8 December 2003
Date of Decision 5 January 2004
Solicitor for the Applicant Mr Johnson, Johnsons Solicitors and Attorneys
Solicitor for the Respondent Mr Steele, Blake Dawson Waldron
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