Taateo and Minister for Immigration and Multicultural Affairs - [2001] AATA 551

DECISION AND REASONS FOR DECISION [2001] AATA 551

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/470

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SEFO JUNIOR TAATEO
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis, Q.C.

Date19 June 2001
PlaceSydney

Decision The decision under review is affirmed.

[sgd R N J Purvis, Q. C
` Deputy President
CATCHWORDS
IMMIGRATION –visa refusal re permanent residency – US citizen marriage to New Zealand passport holder – whether of good character – direction 17 – primary and other considerations – arrested in US, pleaded guilty and remanded for sentencing – non-appearance at court due to departure to Australia – aided and abetted by father and wife – visitor visa to Australia and remained after expiry - false answers in visa application – convicted of drink driving offence in Australia
Migration Act 1958
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277

REASONS FOR DECISION

The Hon R N J Purvis, Q.C.

the application

This is an application made by Sefo Junior Taateo ("the Applicant") on 10 April 2001 seeking review of a visa refusal decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") on 27 March 2001. The Applicant on 6 June 2000 had lodged an application for a permanent residence visa (subclass 801 spouse) on the basis of his marriage to Mrs Margaret Eti Taateo in the United States of America on 24 April 1998. Mrs Taateo is the holder of a New Zealand passport.
The statement of reasons of the Respondent supporting the above mentioned adverse decision states:
"…
I assess that cumulatively the Applicant is not of good character having regard to his past and present criminal and general conduct. I find that he does not pass the character test.
…
As already indicated violence against persons is considered by the Government to be very serious…and so is making a false statement in connection with stay in Australia.
…
But even if there have been no instances of violent behaviour in Australia, there is an outstanding warrant to which the Applicant has not attended and while this remains the case it is not a matter of whether his unsatisfactory conduct is likely to be repeated but whether it is likely to continue. There is every indication that it is likely to continue; Mr Taateo has given no indication that if granted permanent residence in Australia he will surrender himself to the outstanding warrant. Quite the contrary.
…
Electronic travel authority (ETA) visas are intended to facilitate the entry into Australia of genuine visitors. In this case an ETA has been used to flee justice. Refusing a visa to Mr Taateo may deter other persons in his situation from using an ETA for a similar purpose.
…It is reasonable to assume that the Australian community would not expect that a person with a record of violence who has abused an ETA and made a false statement to the Department about his criminal record would in the end be granted a visa.
…
Mr Taateo has indicated that he fears that if sent back to the USA he might "never get to see my kids grow up and my wife"…I appreciate that there is a real possibility that Mr Taateo may incur a custodial sentence for the 1999 offence, but I do not consider that there is any need for him to fear permanent separation from his wife and children. His children are the children of a U.S. citizen and one is U.S. born. His wife is of course the wife of a U.S. citizen and she herself spent at least 10 years there...There is nothing to indicate that they could not be granted permission to remain there.
…
Mr Taateo has been in Australia for only some 18 months. He has no business ties here….His parents and sisters are in Australia, but none are permanent residents. His father and one of his sisters are awaiting the outcome of a permanent residence application on Remaining Relative grounds. His mother is on a visitor's visa…his second sister is also on a visitor's visa…
…
Mr Taateo is in a genuine marriage to a New Zealand citizen. The criteria for grant of the visa Mr Taateo applied for indicate that the applicant must be the spouse of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
…
Her [the Applicant's wife] claims in this regard were subsequently strengthened by the fact that she has become the mother of an Australian-citizen child. Nonetheless she still has been in Australia for only some fifteen months at this time; and she came to Australia only to join her husband, who had arrived here three months earlier as a fugitive from U S justice.
…
Mr Taateo has no immediate birth family members who are permanent residents in Australia. No reasons have been advanced to indicate that his wife and children would be unable to join him in his country of citizenship, the USA. Mrs Taateo herself grew up in the USA…
…
As already indicated, Mr Taateo has no immediate birth family members who are permanent residents in Australia. Mrs Taateo has no siblings and her parents both live in the USA...
…
Mr Taateo has used and is using his stay in Australia to evade an outstanding legal matter in the USA
… this legal matter is a serious one, an offence involving use of a firearm and violence against a person.
…as already indicated, evidence of rehabilitation and recent good conduct does not outweigh the applicant's continuing disregard for the law.
…Mr Taateo's application is for permanent residence, and therefore must be subjected to most careful consideration.
…I assess that a relocation of his children pursuant to a refusal of this application would not involve transferring them to an environment qualitatively different from Australia as regards the level of personal security available to them."

It was on the basis of the above mentioned findings that the visa application was refused. It is for the Tribunal to consider all of the relevant factors and determine whether the above mentioned decision was the correct and/or preferable one, and if not to itself make the appropriate decision.
the issues
Thus the issues that arise for decision in this application relate to:
· The character of the Applicant within the meaning of section 501 of the Migration Act 1958; and
· In the event of the Applicant not passing the character test, whether the available discretion should be exercised in his favour, having regard to matters concerning:
·the need to protect the Australian community;
·the expectations of the Australian community;
·the best interest of the Applicant's two children; and
·other relevant factors.

the hearing

At the hearing of this application the Applicant was represented by Mr O Sikahele of Australian Immigration Law Services, and the Respondent by Mr G Peck, solicitor with the Australian Government Solicitor.
The documents lodged by the Respondent and marked G1 to G23 were introduced into evidence. Written material was tendered by the parties, admitted into evidence and marked accordingly:
Exhibit No                 Description           Date
R1      Statement of reasons of the delegate of the Minister    27 March 2001
R2      Application for review         10 April 2001
R3      Letter E Haley
R4      Application for migration to Australia by partner 24 May 2000
A        Statement Rev S Taefy      Undated
B        Letter Susan Donevski      4 May 2001
C        Letter Pacific Installation & Maintenance 1 June 2001
D        Letter Uniting Church, M Siganisucu      15 May 2001
E        Report of Yvonne Tuaimau Evans          7 June 2001
F         Report St Mary's Psychological Services 29 April 2001
G        Statement Mrs Margaret Eti Taateo – spouse    Undated
H        Evidence outline of the Applicant
J         Statement Sale Sefo Taateo
K        Handwritten letter signed Margaret Taateo and photocopy of passport of Applicant's wife

Oral evidence was given by the Applicant, his wife Mrs Margaret Taateo and the Applicant's father, Mr Sale Sefo Taateo, upon they were each cross-examined.
statutory provision and direction
The relevant statutory provision is section 501(6)(c) of the Migration Act 1958, which significantly provides:
"Section 501 Character Test
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
          (i) the persons past and present criminal conduct;
          (ii) the persons past and present general conduct;
          the person is not of good character;
…"

Pursuant to the provisions of section 499 of the Migration Act 1958 the Minister has issued directions, direction 17 being relevant to this application. The direction contains primary and other considerations, each of which is to be taken into account in arriving at an appropriate decision, this in the exercise of the statutory discretion conferred upon the decision maker in the event of an adverse finding as to character being reached.
The decision maker is to have due regard to the importance placed by the government on the primary considerations, but is also to adopt a balancing process which takes into account all relevant considerations. The direction in paragraph 2.2 states that the Government is mindful of the need to balance a number of important factors in reaching decisions whether or not to grant or refuse a visa. The primary considerations of protection and expectations of the Australian community, the best interest of a child or children, and the other considerations are all to be judged for the significance that they have in the particular matter. The matters set forth in the direction are a guide that must be considered in the exercise by the decision-maker of the discretion vested by the statute. This, as has been said, will entail a balancing exercise, which will take into account all of the relevant considerations. The direction is a statement of applicable policy. It is appropriate for the Tribunal to have regard to the policy and derive assistance from it.
relevant factual situation
The Applicant is a citizen of the United States of America, having been born in American Samoa on 9 July 1976. When about 11 years of age he was taken to the United States, where he lived with relatives until he was joined by his mother and brother. He attended high school, graduating in 1994 and thereafter began working with his father in Salt Lake City, Utah. The Applicant married his present wife in April 1998, his son being born on 2 April 1999.
In the years that followed his leaving high school, the Applicant spent time with his peers, young people, male and female, drinking to excess and coming to the notice of police authorities. He committed the offences detailed in his criminal history as set forth later in these reasons, the most recent of which was that committed on 25 May 1999. On his arrest he was placed in custody, where he remained until his release in August 1999 following a plea of guilty to the charges laid against him. He was remanded for sentence until 3 September 1999.
Discussions took place between the Applicant, his wife and his father, both of whom were in Salt Lake City, and an uncle living in Australia. With the assistance of funds provided by his relatives, the Applicant left the United States for Australia on 2 September 1999. The Applicant's father and his wife knew that the Applicant was due in court on 3 September 1999. In his evidence before the Tribunal, the Applicant said that he decided to leave the United States as if jailed he would be separated from his family. He thought it was the right thing to be with his family. His wife, he said, thought it would be good idea. He felt by leaving the United States, he would not have to go to jail. The father and wife, as well as relatives, aided and abetted the Applicant's non-appearance at court on 3 September 1999. They were all involved in the scheme to effect the Applicant avoiding sentence and his travelling to Australia.
The Applicant had obtained a visitor visa to Australia on 3 August 1999 valid to the 4 December 1999. On expiration of the visa he decided to stay in Australia without it. He knew that he was then in Australia illegally. His wife, he said also knew of his situation. Mrs Taateo and the son remained in the United States until 14 December 1999, when they also travelled to Australia.
On 6 June 2000 the Applicant lodged the present application seeking residence status in Australia. The application form was completed in the hand of the Applicant's aunt in the presence of his wife and signed by him as being correct. In the form, when asked whether he had been convicted of a crime or offence in any country, he caused the "no" to be marked and when asked whether he had been charged with any offence currently awaiting legal action, he also caused "no" to be marked. Both the aunt and the wife were aware at the time the application was being completed of the "trouble" experienced by the Applicant in the United States. They were all aware of the falsity of the answers. The wife said that she knew her husband was not being truthful when he did not reveal the convictions in his application. She did not want her husband "to go back" so they "filled in the wrong information". Indeed the Applicant says, "I filled in the wrong information in my application form because I was afraid of being separated from my family" (exhibit H). The Applicant well realised that he was seeking to mislead the Migration Authorities. He knew, he said, that if the authorities became aware of his convictions, he might not have been allowed to stay in Australia.
The Applicant maintained his use of alcohol after he arrived in Australia and until recently consumed alcohol on a regular basis. In Australia, and whilst still on "L" plates, he drove a motor vehicle with his unlicensed wife as a passenger, otherwise unsupervised, with an alcohol reading above the prescribed limit. He was convicted of this offence, fined an amount in excess of $2000 and disqualified from obtaining a licence.
On 11 October 2000 Mrs Taateo gave birth to a daughter.
The Applicant had a younger brother with whom he engaged in some of his unlawful activities whilst in the United States. The brother had been sentenced to a term of imprisonment and was released from jail in October 1999. On 15 December 1999 the brother was shot by police and died from his injuries. The deat of the brother, even be it at the hand of a law enforcement officer, is said by the Parish Priest of the Holy Family Parish at Mount Druitt, Sydney to have had "a very sobering and devastating effect" on the Applicant (G11/13).
chronology
A chronology of events relevant to this application is as follows:
9 July 1976 Birth of Applicant in American Samoa.
25 October 1981 Birth of Margaret Eti Taateo.
Applicant migrates to California, USA.
Applicant returns to Western Samoa.
Applicant and his family migrate to California.
Applicant and family move to Salt Lake City, Utah.
Applicant enrolled at high school with his brother.
Applicant graduates from high school.
Applicant commences work with his father in Salt Lake City.

5 October 1997       Applicant charged for assaulting a police officer, contributing to the delinquency of a minor, fleeing on foot and littering.
21 November 1997 Applicant charged with second degree robbery, fleeing from police for which he was sentenced for 180 days detention (170 days, which were suspended), fined $300, ordered to pay restitution and placed on probation. His brother was sentenced to a term of imprisonment.
24 April 1998           Marriage to Margaret Eti Taateo.
23 August 1998       Applicant charged for disorderly conduct. Applicant released without further proceedings.
2 April 1999              A son, Jumar Scot Taateo was born to Mrs Taateo.
29 May 1999Applicant charged with attempted homicide, felony and imprisoned.
15 July 1999            Charges against Applicant reduced from first degree to third degree felony, discharging a firearm from a vehicle.
August 1999            Applicant pleads guilty to charges and is released from jail pending sentence.
31 August 1999       Applicant granted visa for Australia.
2 September 1999   Applicant leaves USA for Australia.
3 September 1999   Return date of sentence hearing, no appearance of Applicant; warrant issued for his arrest.
4 September 1999 Applicant arrives in Australia in visitor's class 976 visa.
4 December 1999 Applicant's visa expires.
14 December 1999 Mrs Taateo and son arrive from USA on class 444 special category visa.
15 December 1999 Applicant's brother shot by police and dies.
April 2000Applicant's family travels to Australia.
30 May 2000            Applicant obtains bridging visa.
6 June 2000             Applicant lodges application for permanent residence.
16 June 2000           Applicant granted permission to work.
11 October 2000     Birth to Applicant's wife of a daughter.
29 January 2001     Respondent sends notice of consideration.
27 March 2001        Respondent's adverse decision.

criminal record

The conduct of the Applicant whilst in the United States of a criminal nature is summarised as follows:
Federal Bureau of Investigation, Criminal Justice Information Services Division, Clarksburg, WV 26306
Arrested or received 1997/10/05
Agency – Sheriff's Office Salt Lake City
Charge 1 – assault
Charge 2 – contributing del Minor
Charge 3 – fleeing on Foot
Charge 4 - littering Disposition: No Record

Arrested or received 1997/11/21
Agency – Sheriff's Office Salt Lake City
Charge 1 – robbery 2nd deg
Charge 2 – fleeing from police

Charge 3 - robbery Disposition: sentenced to 180 days of which 170 were suspended, fined $300, placed on 12 months probation, and ordered to pay restitution in the amount of $205
Arrested or received 1998/08/23
Agency – Sheriff's Office Salt Lake City
Charge – disorderly conduct Disposition: see attached for arrests 3 and 4
Arrested or received 1999/05/29
Agency – Sheriff's Office Salt Lake City
Charge – attempted homicide (2nd)

8/23/98 – Arrested by the Salt Lake City Police Department for Disorderly Conduct. According to the police report there was an outstanding warrant on subject at this time, so the officers served the warrant on Taatro [Taateo] and released him. No other information was given in the report and court records were negative regarding this arrest.
5/29/99 – Arrested by the Salt Lake County Sheriff's Office for attempted homicide, Felony. On 7/15/99, charges were reduced from 1st degree felony to felony 3rd degree, discharging a Firearm from a Vehicle. He pled guilty, mental. Subject did not appear for his sentencing and on 9/3/99, a warrant was issued for his arrest. As of this date there is still an outstanding warrant on subject.

In relation to the offences above detailed the Applicant says, that:

As to 5 October 1997, he was in company with his brother, three other friends and some girls and they were drinking beer at a park. The police arrived to arrest them. The Applicant pushed a police officer and the rest of the group ran away. The Applicant was imprisoned for a few hours and then released;
As to 21 November 1997 in company with his brother and some friends the Applicant went to a park to drink beer. They drank two cases of beer. The Applicant and his brother decided to steal beer. They were caught by a security guard who pulled a gun on them. The Applicant's brother knocked the security guard and the two ran back to the park without the beer. The Applicant, his brother and friends were later arrested;
As to 23 August 1998 he was mistakenly arrested by police and charged with disorderly conduct, it being alleged that there was a warrant outstanding against him. The Applicant was taken to a police station where shortly after he was released; and

As to 29 May 1999 that he, his wife and friends were at a club, a fight broke out, his sister-in-law was injured, the other people involved in the fight left the club, the Applicant and some of his friends sought to pursue the others in a motor vehicle, one of the friends had a gun and started shooting. The Applicant and those in the car with him were subsequently arrested and charged.

Whilst the offences committed by the Applicant in the United States may not be of the most serious kind, they are indicative of the character of the Applicant. The Applicant, as already mentioned, did not present himself for sentencing with regard to the May 1999, offence in respect of which he anticipated he might receive a jail sentence from one to five years, thus causing a warrant to issue. His conduct in relation to this aspect of the matter also bears on his character.
matters adverse to the applicant
The Respondent relies on the following as being factors adverse to the Applicant in a consideration of his past and present criminal conduct and his general conduct:

the behaviour that resulted in the convictions earlier noted;
the fact of the convictions;
the way of life in which the Applicant engaged with his brother and peers whilst living in Salt Lake City;
leaving the United States prior to being dealt with by the court in respect of the offence, for which he pleaded guilty;
involving amongst others his wife, father and uncle in his failure to appear for sentencing;
having an outstanding warrant issued against him for his arrest;
overstaying his visa in Australia;
failing to disclose his criminal history in his residence application, this to the knowledge inter alia of his wife and aunt;
making false representations in his residence application, this to the knowledge inter alia of his wife and aunt;
driving a motor vehicle when on "L" permit without supervision;
driving a motor vehicle with an alcohol reading above the prescribed limit; and
being convicted of driving a motor vehicle whilst having an alcohol reading above the prescribed limit.

psychological assessment

At the request of Mr Sikahele, the Applicant's representative, the Applicant was the subject of a report by Mr Harry Mayr, clinical psychologist. After reciting the relevant case history, including the Applicant's criminal history (in brief form), and the results of psychological assessments and findings, Mr Mayr said:
"…
As Mr Taateo's results stand for the present, he can be considered an individual who thinks in concrete terms, finding abstract, creative thinking difficult. He is at best a follower not a leader. With alcohol he could easily become the peer member who "is always at the wrong place at the wrong time". It appears that he could be easily manipulated and influenced, as his mind would not anticipate potential dangerous (or criminal) situations simply.
Impulsivity and belonging to a group could easily become the major priorities of Mr Taateo's life for the above reasons. His ability to effectively problem solve, anticipate, take responsibility for his actions are limited. Combined with a dysfunctional upbringing, unresolved psychological issues, low self-esteem and alcohol…Mr Taateo's past criminal record is easily understood in this context (not necessarily justified or pardoned). He is prone by the above results to form co-dependent relationships with people who will provide his life with structure and routine… and to some degree will think for him.
He believes that the presence of his family, especially his cousins, his children and his local church are the major reasons why he has kept out of trouble in Australia…and he is forming a productive lifestyle.
…
His verbal responses indicated that his coping strategies depend on the presenting problem, but usually take the form of escaping from it, or keeping it to himself.
…
Mr Taateo gave a fairly extensive history of his drug/alcohol involvement over the years. His main drug of choice has consistently been alcohol – with other substances not being significantly used.
The period of time he identifies as his worst re his alcohol use is that around his 20th birthday. He admits it was a habit then, integral to his peer group, and a means of coping with problems. He sees himself as having cut down re his usage to the point of regular 3-4 drinks at home now – which help make him relaxed, and give a "little buzz". He says drinking alcohol motivates and energizes him.
…
These results further confirm the significant influence of Mr Taateo's environment ie peer group, alcohol…and his life style…he presents as a proud father, his lifestyle has changed for the better due to his increased parental and family responsibilities…Mr Taateo may have a tendency to feel overwhelmed by pressure and stress in his life very easily. He will tend therefore to seek options which will alleviate these situations immediately e.g. belonging to a group, using alcohol, listening to music…rather than keep these issues inside, and / or resolve them over time…his cognitive abilities may indeed be somewhat impaired. There did not seem to be a deliberate attempt to falsify answers or "con the therapist" during the sessions. The implications of these observations once again being that the criminal activities that Mr Taateo has been involved in have been the result of reactive situations influenced by alcohol and peers – rather than intent…Mr Taateo is a simple man who has had (and may still have) substantial alcohol problems. His cognitive abilities are limited. The results of the psychometric testing undertaken suggest that further cognitive testing is warranted – especially of a neuropsychological nature. These tests would give further insight into whether there is a degree of alcohol related brain damage already present, and / or the full extent of his cognitive functioning…
In relation to his application to reside in Australia and his falsification of information to date I make the following comments:
·Mr Taateo genuinely wants to reside here for the benefits, opportunities and support Australia can provide him. An integral factor here is his extended family, his wife and children.
·Mr Taateo has already built community here with the above support structures as well as church and employment supports…The Australian structure is the positive alternative to the environment he had around him in America i.e. alcohol and drug using peers, gangs.
·Mr Taatoe acknowledges that he still has psychological (and alcohol) issues, which he needs to address. Counselling would benefit him a lot.
·In committing his crimes, Mr Taateo has seemingly done so from a base of low self-image and esteem, impulsivity, alcohol, peer influence and restricted cognitive ability – not primarily intent.
·In judging whether Mr Taateo should remain in Australia, the issue of whether he is a criminal or an alcoholic is an important one. In my opinion, Mr Taateo has significant psychological issues, which include restricted cognition, being easily led and potential alcoholism. I do not believe he poses a threat as an intentional criminal. However, he will be a risk of becoming an accidental criminal if he does not identify and resolve the psychological issues previously mentioned.
·Mr Taateo would have falsified his information because of his desire to remain in Australia – and he would not have thought about it as a crime. He would have believed that his intent to remain in abeyance of the law, and his developing new lifestyle were the main factors which mattered…and then filled out the forms accordingly…"
Whilst the psychologist expressed his conclusion in summary form as above indicated, it is clearly apparent from such conclusions that the Applicant had and may still have significant alcohol problems, that further cognitive testing is warranted, that he still has unresolved psychological issues, which he needs to address, that he has a low self image and esteem, reacts impulsively, has been addicted to alcohol, reacts to peer influence and has restricted cognitive ability. The fact that he wants to reside in Australia and that he falsified the information on this account does not seem to the Tribunal to be a defence to his improper conduct. The above mentioned outstanding and unresolved problems and psychological issues are relevant in the context of his past and present conduct.
references as to the applicant
The character test is to be applied to a person in the position of the Applicant having in mind and considering the whole of the material placed before the decision-maker. Not only is past and present criminal conduct relevant, but so also is past and present general conduct as it may reflect upon and may reveal the intrinsic moral qualities of a person. As stated in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277:
"The concept of "good character" in section 501 is not concerned with wether 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 test is an objective one.
A number of references have been tendered before the Tribunal bearing witness to the referees assessment of the character of the Applicant as the referee sees him. It is a subjective assessment by each referee, they including a parish priest, a minister of the Congregational Christian Church of Samoa, his wife, his father, relatives, friends, a pacific islander youth specialist and members of his church. They speak well of the Applicant, his attention to his wife and children and his involvement in local community activities and sports. Whilst making general reference to "problems" experienced by the Applicant, the referees (other than for his wife and father) do not generally reveal an awareness of the way of life of the Applicant in the United States, of his waywardness, of his migration conduct or his driving offence.
other relevant factors
There is no issue as to the bonding between the Applicant and his wife. It is relevant to note however, that Mrs Taateo knew her husband was evading the sentencing procedure by leaving the United States and knew of the false representations in the residence application. She came to Australia with her son at a time when the Applicant's visa had expired and he was illegally in this country. She is a New Zealand citizen, who had been living in the United States for a number of years, be it without an identity card. Her New Zealand passport had then expired. Her intention when coming to Australia was to "reside here for our kids sake and also for our marriage" (G13/17), even be it that the Applicant's status was deficient. She speaks of the Applicant being a "changed man" in Australia, of his obtaining work and supporting her and the children. Mrs Taateo does not have any other members of her family in Australia.
The Applicant's parents and two sisters travelled to Australia in April 2000. They have applied for resident status on the basis of Remaining Relative. They disposed of their property in the United States before leaving with the intent of moving to Australia "in hope to settle the family" (G16/22). In the course of his cross-examination, the Applicant's father said that he came to Australia on a visitor's visa with "the intention of staying for good". He remained in Australia after his visa expired and only then made an application for permanent residency. For a period of time he was in the country illegally.
The Applicant as afore said, was accustomed to consuming alcohol to excess whilst in the United States and in Australia. Mrs Taateo says, that family members have "been trying to help him keep out of alcohol". He now only drinks on weekends. Some weekends it was said, he does not drink at all. In the USA he drank all the time (exhibt G). The Applicant said in his oral evidence that he stopped drinking "a few weeks ago".
The Tribunal is mindful of the conclusions reached by the psychologist, and the propensity of the Applicant to use alcohol in the manner and for the purposes identified by him.
character
It was submitted on behalf of the Respondent, that the Applicant's past and present criminal conduct is serious, recent and extensive. He fled to Australia when he was due to face the court for sentencing in respect of the 1999 offence, and there is an outstanding warrant for his arrest in relation to this. His failure to appear for sentencing, it was submitted, constitutes an additional criminal offence in the United States. It is noted that even though he was married and then had a young son that the 1999 offences were nevertheless committed by him.
The submissions so made on behalf of the Respondent have merit. Not only did the Applicant engage in the criminal conduct earlier indicated whilst in the United States, but since his arrival in Australia he has made false representations in relation to his residence application and has been sentenced in respect of the driving offence. It is apparent from the evidence of the psychologist, that the Applicant continues to suffer an alcohol abuse problem and exhibits the other defects in character identified by him.
The Applicant sought to escape just punishment by leaving the United States and coming to Australia purportedly as a visitor. His true intention was to reside in this country. He involved his wife, father, uncle and possibly other relatives in this stratagem. He made false representations in his residence application form, involving his aunt and wife, if not others in this deceptive conduct..
It was submitted on behalf of the Applicant, that his adverse features as earlier identified, arose by reason of a limited intellectual ability and inability to think of future contingencies, his alcohol intake and a difficulty he experiences in thinking clearly and rationally. It was said on his behalf, that he is a caring father figure to his children and a caring husband. But it is noted that the 1999 offence, his migration falsity and his driving offence were conduct engaged in by him at a time when he was a husband and father. The Applicant is still in need of alcohol counselling, but it was submitted his alcohol dependency problem is in remittance. Apart from the evidence of the psychologist there was little material directed to this issue. It is true that he has engaged in employment and has attended church services whilst in Australia.
The Tribunal cannot disregard the criminal conduct of the Applicant as earlier detailed. It cannot disregard the general conduct of the Applicant in association with his criminal activities. It cannot disregard the evidenced propensity on his part to act in breach of the law or in disregard for it. His conduct in Australia has not exhibited a pattern of reform on his part. In all the circumstances of this matter, the Tribunal is satisfied that the Applicant is not of good character.
exercise of discretion
The Tribunal being satisfied that the Applicant does not pass the character test, that he is not a person of good character, the Application is to be refused unless the discretion vested in the Tribunal pursuant to the Migration Act 1958 and the Minister's direction can be exercised in the Applicant's favour. In this regard, as already mentioned in these reasons, the Tribunal is to assess the weight appropriate to be given to the primary considerations and the other considerations.
The power to refuse a visa because a person does not pass the character test is discretionary. The Tribunal is to consider whether there are circumstances which justify its exercise.
protection of the australian community
As submitted by the Respondent, violence involving firearms is a serious offence with the potential to cause harm to members of a community. This is said to be particularly so when alcohol is involved. The Applicant was advised, that in respect of the 1999 offence and subsequent plea, he could be sentenced to between one and five years imprisonment in the United States.
The Applicant acted in breach of the Migration Act 1958 in knowingly making a false or misleading statement in his residence application. Section 234(1)(b) provides for imprisonment and/or a fine if convicted of such an offence.
The report of the psychologist does not evidence the Applicant as having reformed or being not likely to re-offend. As earlier indicated he engaged in criminal conduct in connection with his application to remain in Australia and committed a driving offence. Of significance to this application is the fact that the Applicant acted with the support and encouragement of members of his family in leaving the United States and making false representations. It is submitted that the granting of a visa to the Applicant would be an invitation to others to not answer for criminal conduct and endeavour to relocate in Australia by falsifying information.
On behalf of the Applicant it was suggested, that the misrepresentations of the Applicant in his residence application were a mistake. The evidence is clearly to the contrary. It was a deliberate falsity. It was further submitted that the Applicant is not a liar and that he told the truth "honestly and simply". The Tribunal does not accept that this was or is so and finds that the Applicant, his aunt and his wife in concert thought to mislead the migration authorities. It was sought to say that the conduct of the Applicant should be considered in the context of his alcohol-related problems, and he being under the influence of his peers. This may be so, but it does not reduce the potential risk to the community.
The Tribunal is not convinced that the Applicant will not re-offend, or engage in improper behaviour. It would not be in the interest of the Australian community for it to be at risk of the Applicant.
Expectations of the australian community
On behalf of the Respondent it was submitted that the Australian community would be appalled if a fugitive from justice in relation to a crime of violence were permitted to get away with the scheme the Applicant has engaged in as an "endeavour to secure residency in Australia". The Applicant's representative on the other hand submitted, that the Applicant "has not engaged in any activity that is abhorrent to the Australian community since he has been here". The latter belies the reality of the false representations by the Applicant, his involving his aunt and wife in his falsity and his drink driving offence.
In the view of the Tribunal, the Australian community would expect such a person not to be granted a residence visa.
best interests of children
The Applicant and his wife have two young children, one born in the United States, the other some ten months after the Applicant's wife arrived in Australia. Both children would appear to have residency rights in the United States and New Zealand as well as Australia. There is no evidence that they would be any worse off were they to live in New Zealand or the United States. There is no disparity in the social structures and standards of living in New Zealand or the United States to that in Australia. It is true, that if the Applicant should return to the United States he will be at risk of serving a period of imprisonment. This may be so, but it may well be in the interest of the children for their father to have born punishment for his offence than he be "a fugitive from justice" as submitted on behalf of the Respondent. There is no evidence sufficient to show, that Mrs Taateo would not be able to return to the United States. She is the wife of a United States citizen and herself resided in that country for a number of years.
The children are only present in Australia as a result of the Applicant's decision to escape the sentencing procedure in the United States and pursuant to an application for residency in Australia made by way of false representations.

On behalf of the Applicant it was submitted, that should he return to the United States the "family will be fractured and along with it the lives of two innocent children". The Tribunal does not accept this submission as being in accord with the evidence. The Applicant and his wife chose their course of conduct, the same not reflecting favourably on either of them. They involved their children in their conduct. The Tribunal does not consider that the interests of the children would be significantly affected in an adverse sense by the refusal of a visa.
other considerations
As has already been mentioned, the Tribunal is satisfied that the relationship between the Applicant and his wife is genuine. It is true that the Applicant's parents and two sisters are now in Australia, but they do not have residency rights and their applications for residency are pending. Whilst relatives and friends have spoken well of the Applicant, the Tribunal is satisfied that objectively his conduct does not warrant the confidence the referees display in him.
decision
As already stated in these reasons the Tribunal is satisfied that the Applicant is not of good character. The matters to be considered in the exercise of its discretion have earlier been detailed and the Tribunal is satisfied, that they are not such as to warrant such discretion being favourably exercised towards the Applicant. The Australian community is entitled to protection, the Applicant posing a risk to it. The Australian community would expect that a visa not be granted to the Applicant in the circumstances detailed in these reasons. The children of the Applicant are the unfortunate bearers of their parents decision, misrepresentations and conduct. However, if their father and mother are to leave Australia the countries in which they may then live are not such as to adversely affect their interests. Other considerations are not overly significant in this matter.
For the reasons herein before set forth, the Tribunal affirms the decision under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Q.C., Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  8 and 14 June 2001
Date of Decision  19 June 2001
Counsel for the Applicant        O Sikahele
Solicitor for the Respondent    G J Peek