Tabua and Minister for Immigration and Ethnic Affairs

[2001] AATA 158

CATCHWORDS – IMMIGRATION - VISA – application for Spouse (Provisional) Visa – whether applicant not of good character – reference to past criminal and general conduct – exercise of discretion - decision set aside.

Adoption of Children Act 1964 (Qld)
Migration Act 1958 – ss 31, 32, 499, 501
Migration Regulations 1994 – Schedule 2, Schedule 4

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Unreported, Spender, Drummond and Mansfield JJ, 14 September 1999)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; (1995) 128 ALR 353
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Deputy President McDonald, Decision No. 9822, 7 November, 1994)
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Deputy President Forrest, Decision No. 9753, 27 September, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Deputy President McDonald, Decision No. 10910, 2 May, 1996)

DECISION AND REASONS FOR DECISION [2001] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V1999/1507
GENERAL ADMINSITRATIVE DIVISION      )

Re:                 OLITA AGIE TABUA

Applicant

And:              MINISTER OF IMMIGATION AND ETHNIC AFFAIRS

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)

Date:  2 March, 2001

Place:  Melbourne

Decision:  The Tribunal:

1.sets aside the decision of a delegate of the Minister dated 26 October, 1999; and

2.substitutes a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.

(sgd. S A Forgie)
  S A FORGIE
  Deputy President

REASONS FOR DECISION

On 24 December, 1999, the applicant, Olita Agie Tabua, applied for review of a decision of a delegate of the respondent, the Minister of Immigration and Ethnic Affairs ("Minister") dated 6 February, 1999.  The time within which her application could be lodged had been extended by an order dated 3 March, 2000.  In his decision, the delegate had refused a visa application made by Mrs Tabua's husband, Mr Esava Tabua, for a Class UF Spouse (Provisional) Visa (Subclass 309) ("Spouse Provisional Visa") under the Migration Regulations ("Regulations"). 

1. At the hearing, Mrs Tabua was assisted by her sister in law and Mr Tabua's eldest sister, Mrs Ema Baravi. The Minister was represented by his solicitor, Ms Davis. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents" and "ST documents") were admitted in evidence.  Also admitted on behalf of Mrs Tabua were letters from Senior Pastor Nadredre dated 6 August, 2000, Bamaga Island Council dated 1 December, 2000 and Assistant Pastor Salabaka dated 20 November, 2000, a bundle of documents to which I will refer later, and letters from Mr Tabua to Mrs Tabua dated 21 February, 1999, 27 April, 2000, 29 May, 1999, 6 June, 1999, 22 May, 1999 and 22 March, 2000.  A letter dated 30 November, 2000 from Ms Smith of the South Australia Police to Ms Davis was admitted in evidence on behalf of the Minister.  Mrs Tabua gave evidence in support of her case together with her husband and sister in law.  No evidence was called on behalf of the Minister.

THE ISSUE

1. The issue in this case is whether Mr Tabua is a person who is not of good character within the meaning of s. 501 of the Migration Act 1958 ("Migration Act").  If he is not, he does not pass the character test but a further issue arises.  That is whether or not he should be refused a visa on the basis that he does not pass the good character test.

BACKGROUND

1. Some of the factual matters in this case were not in dispute between the parties.  In light of that and on the basis of the evidence, I will set out the facts that form the background to the application. 

1. Mr Tabua was born in Fiji on 1 April, 1960.  His education was spread over ten years and concluded in 1976 when he undertook the Junior Certificate in Fiji.  He has two sisters and three brothers.  Two of his brothers live in Fiji.  Both of his sisters live in Australia as does one of his brothers.  All three have permanent resident status or are Australian citizens. 

1. For the ten years from 1977 until 1987, Mr Tabua had a variety of positions.  They included a casual laundry assistant, casual labourer on the construction of a dam and with a pest control company and a part time assistant barman and porter.  For a short period at the end of 1979, Mr Tabua assisted his parents in subsistence farming at their village.  From 1985 until 1987, he assisted his elder brother on his farm.

1. Mr Tabua arrived in Australia on a Temporary Entry Permit on 27 June, 1987.  That permit was valid for a six month period until 31 December, 1987.  On 16 December, 1987, Mr Tabua applied for an extension of his temporary entry permit.  In doing so, he signed a statement that he would not attempt to settle in Australia by changing his visitor status, stay in Australia for longer than the visit period authorised by the Temporary Entry Permit, seek or undertake employment or commence any form of studies.  He also guaranteed that he would leave Australia on or before the expiry date of his Further Entry Permit (T documents, page 95).   Mr Tabua stated that he had made arrangements to leave Australia on 30 April, 1988.  His sister, Mrs Baravi, supported his application stating that she would be responsible for any expenses incurred during the period of the extension of her brother's permit.  She felt that he should remain in Australia for a couple of months to allow the situation in Fiji to settle down (T documents, page 103).   A decision was made by a delegate of the Minister to grant Mr Tabua a Temporary Entry Permit until 30 April, 1988 (T documents, page 91). 

1. On 31 March, 1988, the Footscray Rugby Club completed a form seeking to sponsor Mr Tabua to enter Australia as a temporary resident.  It lodged that form and sought a visa to enable him to remain in Australia for five months as a player (T documents, page 98 and see also page 133).  Mr Tabua's proposed employment in Australia was that of a bricklayer.  The club's sponsorship was supported by the Victorian Rugby Union in a letter dated 21 January, 1988.  It was also supported by a letter dated 11 December, 1987 from the Victorian Operative Bricklayers' Society stating that Mr Tabua was a member of the Society, had been employed as a bricklayer by Petma Pty Ltd and would resume his employment with that company on his return to Australia.  The club's application for sponsorship was later refused on 6 November, 1989 on several bases.  One of those bases was that he was in Australia as a visitor and so, in the absence of exceptional circumstances, was not eligible to change his status from a visitor to that of a temporary resident (T documents, pages 133-134).

1. In the meantime, an officer of the then named Department of Immigration and Ethnic Affairs ("Department") spoke to the mother of Ms Lisa Jayne Cobbin on 16 June, 1989.  Mr Tabua had met Ms Cobbin in Adelaide in April 1988 and begun to live with her on 18 April, 1988.   Her mother advised that her daughter had moved to Melbourne but said that she did not know the whereabouts of Mr Tabua.  The officer gave the details of the telephone call to the Department's compliance section in Melbourne and was told that the matter was "… not high priority case for them" (T documents, page 105).

1. On 19 June, 1989, Mr Tabua applied for Resident Status in Australia on the basis of his de facto relationship with Ms Cobbin (T documents, pages 106-131). 

1. On 22 October, 1989, Mr Tabua allegedly assaulted Ms Cobbin in Adelaide.  She advised the Department a few days later on 25 October, 1989 that she and Mr Tabua had lived together in Melbourne from March to August, 1989 and had then returned to Adelaide (T documents, page 135).  Ms Cobbin told the Department that she would send a letter to it withdrawing her support for Mr Tabua's application for resident status.  She did so on 4 December, 1989 (T documents, page 140).  Mr Tabua's file was found and arrangements made on 28 November, 1989 to send it to Adelaide.   

1. In a letter dated 8 November, 1989 advising Mr Tabua of the refusal of his application to become a temporary resident on the basis of a sponsorship by the Footscray Rugby Club, the Department (now named the Department of Immigration, Local Government and Ethnic Affairs) also advised him that he was a prohibited non-citizen and required to leave Australia within 28 days.  The letter was addressed to him at Mrs Baravi's address (T documents, page 134).

1. On 4 December, 1989, Mr Tabua was interviewed by the South Australian Police regarding the events between him and Ms Cobbin on 22 October, 1989.  He later appeared in the Magistrates Court on a charge of sexual intercourse with a person without consent.  Mr Tabua was granted bail after a surety of $2,500.00 was given and he had paid $250.00.  He was remanded to appear again on 8 January, 1990 and required to report to the police each week.  A decision was made by the Department on 8 December, 1989 that Mr Tabua would not be arrested on his release on bail, but it asked the police to tell Mr Tabua to report to its Adelaide office on the day of his release.  Mr Tabua did so and signed an acknowledgment that he had no authority to reside in Australia as he had remained here illegally.  He undertook to report at the Adelaide office of the Department each week until he was released from his undertaking (T documents, page 157).

1. Mr Tabua appeared at the Magistrates Court on 8 January, 1990.  On 12 March, 1990, a delegate of the Minister decided to refuse Mr Tabua's application for Resident Status (T documents, page 165).  A letter dated 26 March, 1990 was sent to Mr Tabua at his Adelaide address but he failed to appear at a further hearing of the charge on 16 March, 1990 (T documents, pages 162-163).  A warrant was issued on that day for failure to comply with a term or condition of a bail agreement (T documents, page 291).

1. On 29 June, 1992, a delegate of the Minister decided to order Mr Tabua's deportation on the basis that he was an illegal immigrant as he was no longer the holder of a valid entry permit or visa (T documents, page 175).  Notice of that decision was sent to him at Mrs Baravi's address (T documents, page 174).

1. In the Christmas holidays at the end of 1994, Mr Tabua met his wife, Olita Agie Tabua.  Mrs Tabua had gone to Brisbane for the holidays.  She met Mr Tabua and he returned to Bamaga with her.  They started to live together and, apart from a two month period in 1994 when he worked on a prawn trawler, remained together until he left Australia in 1997. 

1. Mrs Tabua was born on 21 April, 1959 on Thursday Island.  She lives at Bamaga, which is a remote community on the tip of Cape York Peninsula.  Since 1976, Mrs Tabua has worked as a community teacher with Queensland's Department of Education.  She is based at the Injinoo Campus of the Bamaga State School.  Many years ago, she adopted her sister's child, a daughter, Latoya, who was born on 28 February, 1984.  That adoption was not effected under the Adoption of Children Act 1964 (Qld) but was effected according to traditional laws in her community.  She and Mr Tabua were married according to the rites of the Assemblies of God Church in Australia in Brisbane on 20 January, 1996.  Mr Tabua regards Latoya as his daughter.  Their second daughter, Litiana, was born on 5 July, 1997.

1. On 2 May, 1997, the Department asked the Queensland Police at Bamaga to hold Mr Tabua in immigration detention on the basis that he was known, or reasonably suspected to be, an unlawful non-citizen (T documents, page 186).  He was detained at Cairns from 2 May, 1997 until 13 May, 1997.  During this period, he lodged, on 6 May, 1997, an application for a Bridging Visa (T documents, pages 187-201).  Mr Tabua left Australia voluntarily on 13 May, 1997 (T documents, page 215).

1. On 17 June, 1997, Mrs Tabua lodged a form sponsoring her husband's migration to Australia (T documents, pages 220-236). 

THE EVIDENCE

Previous convictions in Fiji

Records

1. Interpol in Suva, Fiji, prepared a list of Mr Tabua's convictions:

DATE     COURT OFFENCE         SENTENCE       
06/12/1973          Labasa     Larceny   Placed On Probation For The Period Of 12 Months          
19/08/1974          Labasa     Larceny   Place On Probation For The Period Of 12 Months
20/03/1975          Nabouwalu          Larceny   Committed To Nasinu Approved School In The Care Of Director Of Social Welfare Until He Attains The Age Of 18 Yrs   
17/05/1976          Nabouwalu          Injuring Animal    Committed to Nasinu Approved School In The Care Of Director Of Social Welfare Until He Attains The Age Of 17 Yrs    
20/10/1976          Nadi     Burglary  Placed In The Care And Control Of The Director Of Social Welfare   
20/10/1976          Nadi     House Breaking Entering and Larceny 2nd Count  Place In The Care And Control Of Director Welfare         
22/11/1976          Nausori   Shop Breaking Entering and Larceny     Sentenced To 18 Months Imp. (sentenced To Be Concurrent With Sentence Passed On)          
17/12/1976          Suva     Escaping from Lawful Custody 2nd Count         Sentenced To 9 Months Imp  
17/12/1976          Suva     Burglary  Sentenced To 15 Months Imp
17/12/1976          Sigatoka  School Breaking Entering and Larceny 3rd Count  Sentenced To 15 Months Imp
08/05/1978          Suva     Defilement of a Girl Bet. 13 & 16 Yrs of Age     Fined $50 Or I/d 2 Month Imp           
22/06/1979          Labasa     Larceny   Sentenced To 18 Months Imp
  (ST documents, page 71)

Mrs Baravi

1. Mrs Baravi said that she was very much aware of the trouble her brother got into in Fiji. 

Mr Tabua

1. During his young years in Fiji, he was in trouble.  He did not have a precise memory of all of the offences for which he had been convicted.  He thought that the first offence on 6 December, 1973 involved his stealing 3 or 4 cigarettes.  The offence of injuring an animal had been committed by another.  His cousin had taken a horse that belonged to Mr Tabua's uncle.  The horse's leg had been injured and Mr Tabua took the blame.  The conviction for defilement of a girl related to his lover.  She was then 14 years of age and he had been 16 or 17.  They had run away together and her parents took the matter to the police.  He was fined $50.00.  In relation to the larceny charge on 22 June, 1979, he had taken $250.00 to buy food for his friends after they had all been drinking in a hotel.  The burglary charge had been laid on 20 October, 1976 after he and two other boys had run away from an approved school.  They were very hungry and broke into the house of a Catholic priest to look for food and cash.  They had helped themselves.  In cross-examination, Mr Tabua said that he had not been represented by a lawyer.  He pleaded guilty to each charge. 

1. Mr Tabua said that he had got into trouble in Fiji because he was troubled.  He had wanted to be in everything and that was why he got into trouble.  Mr Tabua said that he did what other people wanted and kept bad company.  He did not get into bad company now as he had reached a mature age in his life.  He was a born again Christian and the Bible has been teaching him a lot about behaviour and about all the things that he needs to do to be good.

Convictions in Australia

Records

1. The only conviction recorded against Mr Tabua in Australia is for giving a false name and address.  He was convicted on 28 August, 1996 at Bamaga and fined $120.00. 

Mrs Baravi

1. Mrs Baravi said that she knew about Mr Tabua's drink driving conviction in Queensland in 1996.  He had told her about it and had said that he was quite stupid.  She told him to face up to it.

Mr Tabua

1. Mr Tabua said that he had been convicted of drink driving in 1996 although there is no written record of that.  He had not told his wife about the drink driving conviction just as he had not told her about the rape charge.  He had not done so, he said, as he was mending his ways.  For the same reasons, he had not told her about the trouble he had got himself into in Fiji.

The charge of sexual intercourse without consent and the circumstances surrounding it

The charge

1. On 4 December, 1989, Mr Tabua was charged with having had sexual intercourse without consent (T documents, page 286).  A note from an officer of the Department dated 20 March, 1990 recorded that the charge would probably be withdrawn were Mr Tabua to be deported or to leave Australia voluntarily (T documents, page 166). 

The warrant

1. In a letter dated 30 November, 2000, the South Australia Police confirmed that Mr Tabua has an outstanding active South Australian warrant of apprehension for breaching bail conditions in relation to a charge of rape (Exhibit 3).  That warrant was issued on 20 March, 1990 after he failed to comply with the conditions of his bail by failing to appear in the Magistrates Court on 16 March, 1990 (T documents, pages 286 and 291).

1. The South Australia Police have not attempted to extradite Mr Tabua to face the outstanding charges in South Australia.  The reasons for its not having done so are set out in a memorandum from Sergeant Galkowski, the Acting Officer in Charge of the Offender History Unit, dated 15 March, 2000:

"The decision to extradite a person from another State to appear before the Court in our State to answer the charge is dependant on a number of factors.

To be considered is the seriousness of the offence, would the costs involved (airfare & accommodation for police officer & offender) warrant the expenditure, are the witnesses in this matter (now 10 years old) able to be located and any costs involved (e.g. now resident interstate and costs of airfares and accommodation during period of the trial) and given the warrant subjects past offender history, what penalty is the court likely to impose.

His extradition is not sought at this time and the warrant will lay on file until such time as it is withdrawn by Police Prosecution Section according to their destruction guidelines. The warrant would only be executed if the subject person happened to travel to South Australia and was apprehended." (T documents, page 292)

Ms Cobbin

1. There appears in the notes an unsigned and undated note of a conversation between an officer of the Department and Ms Cobbin on 6 December, 1989.  It reads, in part:

"She told me that he is usually only violent when drunk and that after the violence in Feb 89 she went to Melbourne after her father's death and made contact with his sister.  She was in need of company because the death was a particularly sad event to cope with.  He was not drinking and seemed to have changed. 

On the basis of his better approach she supported a GORS application in Melbourne.  On return to SA they were living together." (T documents, page 142)

Mrs Baravi

1. Mrs Baravi said that she could not understand the charge of rape.  At the time, Ms Cobbin and her brother were living together in a de facto relationship.  On one occasion, Ms Cobbin had gone to see her and told her that she was worried about Mr Tabua as he had not gone home.  Mrs Baravi knew that Ms Cobbin alleged that Mr Tabua hit her.  She told her that it was not right that he did so but that it was normal with Fijian boys.  He hit her when he had drunk alcohol and would become aggressive.  Otherwise, he was "so good".  It was best to keep away from Fijian boys, she told her, but Ms Cobbin said that she was so much in love.

1. Mrs Baravi said that she told her brother that he had to attend the Adelaide Magistrates Court but he did not listen to her.  She had been his surety for him when he obtained bail.  After he ran away from the charges, it was about a year before he contacted her again.  He was then in Queensland.  She knew that the police wanted him and told him that he cannot do wrong and then run away.  He said that he would go back.  Although he had done wrong, he did not seem to realise it.  She has spoken to him about it when she has seen him in Queensland or he and his wife have visited in Melbourne.

Mr Tabua

1. In an interview between Mr Lynton Heddle, an officer of the Department, and Mr Tabua on 7 December, 1989, Mr Tabua was asked about his marital status.  He said that his de facto spouse, Ms Cobbin, was living at the same address (T documents, page 145).   Later in the interview he said that he really loved her and only wanted to have another chance to show her how much he loved her and would look after her (T documents, page 152). 

1. Mr Tabua agreed that he had assaulted Ms Cobbin in February, 1989.  His explanation was noted:

"We had a few drinks & I get jealous of her because she was leaning against another man." (T documents, page 153)

1. In an interview dated 30 June, 1998, Mr Tabua said that he had been with Ms Cobbin for 18 months and that it was a genuine relationship.  He denied assaulting her and the notes of the interview record that he said of the events surrounding a charge of assault:

"We had been fighting all the time, came from nightclub, started arguing, she jumped on me on bed, I couldn't get her off, so I slapped her on the face.  She went and charged me with the police.  Put in remand centre for 2 weeks, also charged with attempted rape – not true.  … Went to court 3-4 times, were not allowed to go & see her, my friend went & saw her asked if I could come back & stay with her.  She said 'no'.  Last time, failed to appear in court.  Matter may still be outstanding.  Went to Melb in 89 for 2 weeks then went to Sydney.  Possible there is a warrant on foot. …" (T documents, page 272)

He denied assaulting Ms Cobbin on 22 October, 1989.

1. In giving evidence, Mr Tabua said that he and Ms Cobbin had been to a nightclub.  They had been having a bad time and had a big fight that ended up on the bed.  She got up and reported him to the police.  He was drunk and woke up the next morning to find two policemen standing there.  He was charged.  Mr Tabua thought that he and his girlfriend were happy together at the time.  He had been drinking.  In cross-examination, Mr Tabua said that he had asked Ms Cobbin to sleep with him and she had refused.  He started forcing her.  She was on top of him and would not let go so he smacked her on the face.  He possibly bruised her a little.  It could have been possible that she had been hospitalised but he did not know.  Although he knew that she had told the Department that, he also knew that she liked to lie a lot.  He had told the Department that he had been charged with attempted rape as he had not had sex with her even though he was forcing her to do so. 

1. Mr Tabua said that he had slapped Ms Cobbin on a couple of previous occasions.  She was quite a different woman from his wife.  Ms Cobbin was very hot tempered and a very jealous woman.  He had to do that to make her let go of him.  She lied a lot.  Even his sister had told him that he should not stay with her.  He agreed that he was also a jealous person.

2. In oral evidence, Mr Tabua said that he could not stay in Adelaide.  He was not allowed to work and his ex-girlfriend would not have him back.  In cross-examination, Mr Tabua said that he lived with Ms Cobbin for two weeks after he was released from the remand centre.  That was as long as she would have him.  He asked her if she could withdraw the charges and she told him that she would think about it.  She did not withdraw them.  He was staying with someone he knew in Adelaide but decided to return to Melbourne.  Leaving, he knew, was a breach of the conditions of his bail.  Mr Tabua felt that, had he stayed in Adelaide, the court would probably have sent him back to Fiji.  If that happened, he would not see Ms Cobbin again.  At the time, he was still very hurt over his relationship with her and had been hoping to re-establish a future with her.  He wanted to stay in Australia where he thought that he had a better future and where he thought he could get in touch with her again.  He has never seen Ms Cobbin since he left Adelaide and went to Melbourne.

1. Mrs Baravi told him to go back to Adelaide and to contact the Department but he went to Queensland instead.  He went first to Mildura where he picked grapes and met a girl.  They travelled to Queensland together but parted once there. 

Working in Australia

Mr Tabua

1. In the interview on 7 December, 1989, Mr Tabua said that he had worked in Australia since March, 1988.  He had undertaken both factory work and work as a builders' labourer.  While he lived in Bamaga, Mr Tabua was employed for a year in 1996 as a community policeman.  He also worked in Bamaga as a cleaner at the pre-school.  In cross-examination, Mr Tabua said that he knew that he was not permitted to work in Australia.

Dealings with the Department

Mrs Baravi

1. Mrs Baravi said that she knew that her brother had been an illegal immigrant in Australia.  She had asked him to call the Department but, while he listened to her, he did not hear her.  He told her that he would but did not.  Officers of the Department came to her home to collect him in 1992 but he had left the night before.  When he telephoned her, she told him that the officers had been.

1. Mrs Baravi said that she also knew that her brother was working while in Australia.  He moved from place to place and was a very hard working person.  She advised him to get in touch with the Department to change the conditions on which he could be in Australia but he feared getting in touch. 

Mr Tabua

1. In the interview on 7 December, 1989, Mr Tabua said that he had approached the Department in the following circumstances:

"… for my extension & then they gave me 4 months more.  I lodged another form about March this year about my defacto relationship.  I haven't got an answer yet." (T documents, page 148)

1. In giving evidence, Mr Tabua said that he had stayed in Australia because he thought it offered him a better life, even though he knew that he could not remain.  His wife knew that he was an illegal immigrant.

1. In cross-examination, Mr Tabua said that he had not disclosed his convictions in Fiji when applying for a visa to visit Australia.  His sister had prepared the application and he had signed it.  Mrs Baravi said that she had sponsored him.  He agreed with Ms Davis that he knew that he needed a visa to remain in Australia.  In fact, he had approached the Department in December, 1997 to extend his visa. 

1. On a form requiring supplementary information to be given in relation to his application for permanent residence, Mr Tabua stated that he had not worked in Australia as he was not legally allowed to do so (T documents, pages 106-131).  In cross-examination, he said that he had been lying when he stated that.  He knew that it was not true at the time.  Similarly, he had lied earlier in the form in stating that he had not worked in Australia (T documents, page 114).  His statement that he did not have previous convictions was also a lie (T documents, page 115).  He agreed with Ms Davis that he thought that he would be more successful if he did not reveal his history. 

1. At the time, though, he had not lied about his intention to marry Ms Cobbin.  He had intended to and then everything went wrong.  Apart from his wife, she was the only person with whom he contemplated marriage.  Mr Tabua also agreed that, at the interview on 7 December, 1989, it had been incorrect to tell the Department that he was in a de facto relationship with Ms Cobbin.  In his mind, however, the relationship was still happening and they would get back together.  In the same interview, Mr Tabua stated that he had no relatives in Fiji (T documents, page 145) but acknowledged during cross-examination that this was incorrect.  In his application for a Spouse (Provisional) Visa signed on 14 March, 1998, Mr Tabua marked the box indicating that he had never previously been married or in a de facto relationship (T documents, page 240).  That was a mistake, he said, but he was married to his wife by the time he completed his application.  He had not referred to his having lived in Adelaide at all and he should have.  Mr Tabua said that he was "sorry … really sorry".  He had thought that some of those matters were not really important but he now realises how important they are.

1. In an interview between an officer of the Department and Mr Tabua on 6 May, 1997, he had said that he had remained in Australia unlawfully because the coup had just happened.  The reason why he was still there in 1997 was because of his wife and children (T documents, page 191).  In cross-examination, Ms Davis suggested to him that it made no mention of Ms Cobbin. 

1. Mr Tabua acknowledged that he had received a notice dated 13 May, 1997 in respect of detention costs and removal costs totalling $1,037.00 (T documents, pages 216-217).  In the interview on 30 June, 1998, Mr Tabua had said that he knew that there were costs but did not know how much they were (T documents, page 278).

Life with his family and effect of his absence on them

Mrs Tabua

1. In her letter dated 11 June, 1998, Mrs Tabua wrote that she had to live as a single parent in the remote community of Bamaga without the financial and personal support of her husband.  She said that she has the responsibility of bringing up their two daughters.  Their daughters were then aged 14 years and 11 months.  It was, and continues to be, a worry for her to find a reliable baby sitter in her community as she has returned to work in order to support the family.  Mrs Tabua said that she is under further strain because of financial difficulties caused by the high cost of living in Bamaga.  Food alone, she wrote, is nearly 200% higher in Bamaga than in other major coastal centres. 

1. In her oral evidence, Mrs Tabua described her husband as a kind husband.  When he was in Bamaga, her husband played sports such as rugby and volley ball.  Her daughter, Latoya, was their daughter.  When they lived together as a family, both Mr and Mrs Tabua worked and supported the family.  Now that they are not together, Mrs Tabua is the sole supporter.

1. Since Mr Tabua returned to Fiji, Mrs Tabua said that they wrote to each other.  She would receive a letter every month or so.  He would telephone her every three weeks but she did not telephone him.

1. In giving evidence, Mrs Tabu said that she first met her husband in 1994 and they quickly became involved in a serious relationship.  They went to Bamaga and started to live together three weeks later.  Just after they met, he told her that he was an illegal immigrant and she told him to go to Thursday Island and see the authorities there.  He never went to them.  Her husband had not told her about his convictions in Fiji or of the drink driving charge in 1996.

1. Mrs Tabua said that she knew her husband to drink but not to drink a lot.  He did not go out with his friends to drink.  He had never hit her or sworn at her although he might raise his voice in an argument.

Mr Tabua

1. Mr Tabua said that he first spoke to his wife on the telephone.  They talked for about a year and then decided to meet in Cairns.  He did not think that they met in Brisbane.  He could not recall when he told her that he was an illegal immigrant.  He had realised that their relationship was serious after about six months and thought that he had told her after they were living together but before they married.

1. Mr Tabua said that he kept in touch with his wife and usually did so by telephoning her.  She used to telephone him when he stayed at another house but does not do so now as he does not have a telephone.

1. Mr Tabua described his wife as a very beautiful woman who is very humble and very honest.  She believed in him and it is very hard for him to lose her.  "I really love her", he said.  He had not talked to her about moving to Fiji.  Moving her there would not be the best thing to do when she has been in Australia all these years.  There is no employment for her. 

1. Mr Tabua said that he started to give up drinking 4 or 5 years ago and that was about a year before he left Australia.  He had not been drinking as he wanted to build a better family and not to follow his former way of life.  His biggest problem with drinking is that he cannot stop himself.  Mr Tabua gave up beer and wine totally when he left Australia.  Occasionally, he has kava in Fiji.  He has not considered going to a professional body for assistance as he has his church.  His relationship with God has helped him.

1. When asked if he had ever hit his wife, Mr Tabua said "not that I know; never."  He could recall one occasion some seven years ago when they had been driving in a truck.  He was drunk and he had put his hand on her neck and told her to get out of the truck.  Mr Tabua said that he told her never to raise her voice to him again.  Her older sister came in on the argument to take her sister's side and he told her to keep out of it.  It was nothing serious and that was the only time.  Sometimes they argue but that is just like a normal husband and wife.  He has never laid a hand on her to slap her.

1. In answer to his sister during the hearing, Mr Tabua said that the best thing that he could have done in his young days, if he could go back to them, would be to have become a born again Christian.  In answer to his wife, Mr Tabua said that the most important things in his life are his family i.e. his wife and his girls.  That is the most important thing, he said, and it is very important to him that she understands that.  He could not express how he felt at not being able to see his baby daughter when she was born.

1. Mrs Tabua told him that he was a good father and husband to their daughters and to her.  She realised that he had done some horrible things in the past and asked him whether he would change in the future.  Mr Tabua responded by referring to the years that they had been together.  He had never slapped her.  That shows how much he loves her because his previous relationships with women were different.  They have different ways of living and culture.  Sometimes he loses his temper very quickly but his wife had never seen that.  He had seen her get angry at times and he had sworn at her and for that he apologised to her.  His past life is gone and he does not want to live that life any more.  He just wanted to be with his wife and girls and to have a happy life.  Latoya's education is very important to him.  He wanted to bring up the girls with an understanding of God and with an education.  God put him with his family and God's purpose is that he look after his wife and children.  He really loved them.  Had he not done so, he could have found another girl in Fiji where there are many pretty women.  They do not matter to him.  His wife is the only one for him.  She is the one he married.

Letters

1. Latoya has written to Mr Tabua as her father.  She speaks of missing him and shows her love for him.  Her letter also speaks of his hopes, and those of her mother, for her and of her feelings about fulfilling those hopes.  Latoya also writes to him of everyday matters, such as the parties she has attended and her activities in the Church (T documents, page 280).

Mr Tabua's earlier years and present life

Mrs Baravi

1. Mrs Baravi said that their parents had died when Mr Tabua was still quite young.  She has been like a mother to the whole family.  He had been a very disturbed child.  Her brother would be good at home and then do something totally naughty.  To know him was to know a wonderful person on the inside but then, at times, he would embarrass the family.  He was brought up to have morals and none of the rest of the family was like him.  While everything that was said about him was true, the other side had to be seen.  That side was that he could not fight back and could not defend himself.  Her brother could fight for people but could not defend himself when things go wrong.  As a child, Mr Tabua lived with his mother but would be sent to live with his brothers and sisters who lived in various places.  He would slip between the cracks from one to another and was then almost like a street child.  He would be there and then disappear.  As a consequence, he was in and out of school.

1. Mrs Baravi said that she might speak to her brother two or three times in a week or once each two or three weeks.  She said that she had returned to Fiji in September, 2000 and had spent time with her brother.  Together they travelled around Fiji for two weeks.  She said that he is part of the community of his church, the Assemblies of God Church, and works for other members of the community.  That work might be to assist a family to build a house or to farm their land.  He is paid by the families whom he helps.  Her brother also spends a lot of time with the Pastor and is developing his pastoral skills.  The Assistant Pastor at the church had spoken to her about her brother.  He had told her that her brother was always there for the community.  Mrs Baravi said that she had heard the same thing from a family who had stopped at the church.  Her brother had become a completely different man.  Mrs Baravi said that she had really seen a change in him.  The church now wants him to be a member of the board.  That would never have happened if he were still the person he had been before.

1. She had spoken to other people about him and had not heard that he had any problems with alcohol.  In the past, Mr Tabua has drunk alcohol but he is not an alcoholic.  Fijian people find it hard to control alcohol and can become uncontrollable when they drink.  When Fijians drink, they "swim in it", she said.  Mrs Baravi had talked to her brother for many years about his getting into trouble.  Since he met Mrs Tabua, she has not seen him drinking.  His life has greatly changed since he met her.  The most important things in his life are his wife and his two daughters.  When he is at home, he does everything.  Mr Tabua has not been in trouble since he returned to Fiji in 1997.  Mrs Tabua said that she had not known her husband to drink too much since she had known him.

1. The family has cultural land in Fiji but it is located in the inland and takes a day of walking and swimming across rivers to reach it.

Mr Tabua

1. Mt Tabua said that he had lived with his auntie until he was about 12 years old.  He then lived with his mother. 

1. Mr Tabua said that he had been living next to the church since the middle of 1999.  He looks after the church grounds and buildings for two or three hours each day and had done so for the previous four months.  When he had first returned to Fiji in 1997 he had been unemployed and living with one of his brothers.  After six months, he returned to his village where he did farming work for three months.  Mr Tabua said that he only remained for three months as he could not contact his wife and sister from there as there was no telephone in the village.  In 1998, he helped his brother on his farm that was ¾ acre in size.  In about June, 1999, he became a member of the church and then became one of its senior members early in 2000. 

1. Mr Tabua earns approximately $50.00 each week.  His rent is $60 each month and his food $20-30.00 each week.  He has not been able to send any money to his wife since he has been in Fiji.

Personal references regarding Mr Tabua

Mr Michael O'Brien

1. Mr Michael O'Brien and his wife were, in 1988, in partnership with Mrs Baravi in a business known as "Manna Lodge" at Ascot Vale.  That business provided special accommodation for the elderly and frail.  Mr O'Brien met Mr Tabua after he first arrived in Australia and stayed with his sister and helped her in running Manna Lodge.  In a letter dated 17 July, 2000, he described Mr Tabua as being always cheerful and his presence as being "certainly beneficial to the well being of the residents" (Exhibit D).   Mr O'Brien said that he had kept in touch with Mr Tabua since he left Victoria and was aware of his present family situation.  Mr Tabua, he continued, is an energetic and willing worker and is a dedicated husband and father.  His application for permanent residence in Australia, he concluded, has his full support.

Senior Pastor Sanimo Nadredre

1. Senior Pastor Sanimo Nadredre is a member of the Bamaga Assembly of God Church.  In a letter dated 6 August, 2000, he wrote that he was concerned about the Tabua family who are members of his Church.  He wrote:

"I have known Mr Tabua since his arrival in 1990 and he was a faithful member to the church and also to his own family.  My great concern is the loneliness of the wife and daughters separation..  With all the family's expectation of Mr Tabua's return.,  I would like to kindly plea for his return.  We would like to see an Australian family with all happiness as they write again." (Exhibit A)

Assistant Pastor Inosi Salababa

1. Assistant Pastor Inosi Salababa is a member of the Family Fellowship of God Church and based in Shepparton.   He is one of Mr Tabua's brothers.  In a letter dated 20 November, 2000, he wrote:

"This letter is to confirm that I, Assistant Pastor Inosi Salababa … will vouch for the good character of my brother Esava Tabua.  Since he has become a Christian he has been found to be of sound character and understanding. He is a devoted father and family man. His family is already residing in Australia, and the separation has place (sic) a great deal of stress and strain on the family unit.
My sisters (Emma & Litiana) have committed to undertake to support and encourage Esava in any way we can to assist him and his family in their transition to the Australian way of life. This includes physical, financial and spiritual support." (Exhibit C)

References in support of application

1. Father Stanley Waigana, an Anglican Minister based at Cairns, Mr Francis Soki, the C.S.O. Supervisor with the Queensland Corrective Services Commission at Bamaga and Mrs Tabua's relatives, Alf and Mary Wapau at Cairns, wrote in support of Mr and Mrs Tabua's application.

Personal references regarding Mrs Tabua

Mr Robert Poipoi

1. Mr Robert Poipoi is the Deputy Chairman of the Bamaga Island Council.  In a letter dated 1 December, 2000, he wrote:

"The Bamaga Island Council knows Olita Tabua professionally and personally for over a number of years.

As a devoted community member, she currently is a recognised community teacher with the Department of Education as she is employed at the local Pre-school.

Olita also is an active and dedicated member of the Assemblies of God Church, Bamaga, thus she is a non-drinker and non-smoker.

As a respected tenant, Olita currently rents a house from the Bamaga Island Council located at … and has lived for over 25 years.

Personally, I have known Olita to be an honest, reliable and trustworthy person, and have known the family for over twenty years. I have no hesitation in recommending her in an interest that she wishes to pursue now and in the future.

…" (Exhibit B)

FRAMEWORK OF THE ACT

1. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both.  There are classes of visa (ss. 31(1) and (2)). Some are specified in the Act itself and some are prescribed in the Regulations (ss. 31(4) and (5) and s. 5(1)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 of the Regulations. Among the primary criteria that must be satisfied for a Subclass 309 Spouse (Provisional) Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cl. 309.225 of Part 309 of Schedule 2 of the Regulations. Schedule 4 sets out the public interest criteria. 

1. Criterion 4001 provides that:

"(1)     The applicant meets the requirements of subclause (2), (3) or (4).

(2)An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.

(3)An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.

(4)An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."

1. In so far as it is relevant, at the time of the delegate's decision, s. 501 of the Migration Act provided that:

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

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

(b)…        

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

(a)having regard to:

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

(ii)the person's general conduct;

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

(b)…

(3)…"

Section 501 has since been amended by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 but the effect of s. 32 of that legislation is that s. 501, in its form prior to 1 June, 1999, applies to decisions made prior to that date.

1. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the Regulations made under it. On 25 November, 1997, the Minister made General Direction No. 5 under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act. That was entitled "General Direction Under Section 499 – Visa Refusal Under Section 501(1)" ("General Direction"). (ST documents, pages 59-62)

1. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble that the General Direction:

"… gives further guidance to decision makers as to the matters which the Government expects to be taken into account when assessing the good character requirement and deciding whether to refuse a visa if satisfied that the applicant does not meet that requirement.  The Government expects that all relevant factors are to be considered in making such decisions, but the matters set out in this General Direction are regarded by the Government as of primary importance." (ST documents, pages 59-60)

1. By way of a general direction as to the manner in which the issue of good character is to be considered, and any discretion exercised, under s. 501, the Minister said that:

"… the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour." (ST documents, page 60, clause 2)

1. The Minister then set out specific matters considered by the Government to reflect significant concerns in the community about the character of non-citizens.  Of relevance in this case are those relating to offences:

"3.       The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens.  Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501.  These matters are:

where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;

where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

where there is a membership of, or close association with, any group or organisation however small, which is involved in criminal activity;

where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.

4.Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501.

5.Due regard must also be given to the nature, severity and frequency of any offences when considering a non-citizen visa applicant and the good character requirement under section 501.  In relation to these offences, the Government considers that due regard should be given to:

whether the offence would be classified as an offence in Australia;

whether comparable sentences would be meted out in Australia for a similar offence."  (ST documents, pages 60-61)

1. If it should be decided that a person does not meet the good character requirement under s. 501, the Minister goes on in the General Direction to set out the matters:

"… also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:

where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:

-whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);

-if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and

-in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.

whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act."  (ST documents, pages 61-62)

CONSIDERATION

1. As I must consider whether Mr Tabua is, or is not, a person who is not of good character, the focus is upon his past criminal conduct and upon his general conduct as set out in s. 501(2)(a) rather than upon the other criteria in s. 501.  That requires a consideration of what is meant by the expression "good character".  It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

"`Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)

1. After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

"These are overall requirements important in the administration of immigration procedures. 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 when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)

1. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 10910, 2 May, 1996).  In Prasad, Deputy President McDonald added:

"A decision about whether a person is of good character requires a consideration of an aggregate of qualities.  It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)

1. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:

"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community.  The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …

…

Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance.  Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)

1. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Unreported, Spender, Drummond and Mansfield JJ, 14 September 1999). Speaking generally of s. 501, the Full Court said that it:

"… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance.  The concept of 'good character' in s 501 is not concerned with whether an applicant 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis.  However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (paragraphs 8 and 24)

1. That brings me back to Mr Tabua's case.  In so far as it is relevant in this case, there are three main categories into which his conduct falls.  The first relates to his criminal conduct and in that I include his convictions in Fiji, his conviction in Australia for drink driving and the circumstances surrounding the charge of sexual intercourse without consent.  The second relates to his dealings with the Department and the third to his dealings with people, whether part of his family or not.  His life also falls into three main periods.  The first relates to his younger life in Fiji, the second to his time in Australia before he met his wife and the third to his time both in Australia and in Fiji after he met his wife. 

1. Apart from his conviction for drink driving, the first category of Mr Tabua's conduct relates to the first and second periods of his life i.e. to the periods before he met his wife.  I find that he was convicted of twelve offences in the six year period between 1973 and 1979 when he ranged in age from 13 to 19 years.  Some of the sentences, such as a $50.00 fine for defilement of a girl, aged 14 years, were very lenient and can be taken as reflecting the degree of seriousness attached by the court to the offence.  Mr Tabua described the girl as his lover.  At the time of the offence he would have been approximately 16 or 17 years of age.  There is nothing to suggest that the act or acts of defilement were not consensual.  Other sentences imposed on Mr Tabua were much heavier and they were given in relation to property offences, for which he showed a propensity at the time.  His last sentence was for an 18 month period which would have meant his release from gaol some time in 1980.  Although he remained in Fiji until June, 1987 when he travelled to Australia, there is no record of his having been convicted of any further offences in Fiji.

1. Mr Tabua has said of this period in his life that he kept bad company.  Far from seeking to place the blame onto others, I find that he accepted responsibility for his having chosen to keep bad company.  He readily acknowledged what he had done in so far as he remembered the details of the offences and did not shirk from doing so when he thought that he had been responsible.  Only in relation to one offence (that of injuring an animal) did he say that he had not committed the offence.  He did so not in the sense of trying to avoid blame but in the sense of saying that he had chosen to take the blame for another and he accepted that a conviction had followed as a consequence.

1. I find that Mr Tabua did not come to the notice of the police in the sense that he was not charged with, or convicted of, any offence in either Fiji or Australia until 1989.  Having had a history of being charged on at least one occasion (and on seven in one year) for six out of seven years between 1973 and 1979, he was able to stay away from the attention of the police for just over ten years until 1989.  It was then that I find he was charged with having had sexual intercourse without consent. 

1. A charge of sexual intercourse without consent is a serious charge.  It is, however, one thing to be charged with a serious offence, and another to be guilty of it.  There is no statement from Ms Cobbin in the material as to the circumstances in which the alleged offence took place.  The statements made by Ms Cobbin and Mr Tabua to the South Australia Police are not available.  Mr Tabua does not deny that he tried to force Ms Cobbin to have sexual intercourse with him.  He does not deny that he had slapped her on a couple of other occasions.  He does deny that he had sexual intercourse either with or without her consent on that occasion.  Over the years, he has been consistent in his denials. 

1. Having regard both to his evidence and to that of Mrs Baravi, who has met Ms Cobbin, I am satisfied that the relationship between Ms Cobbin and Mr Tabua could be described as somewhat tumultuous.  I am satisfied that they had lived together, with one break, for an eighteen month period since 18 April, 1988.  After their break they took up with each other again when she sought him out in Melbourne when she was lonely after the death of her father.  Each was jealous of the other and somewhat obsessive of the other.  That does not excuse Mr Tabua's conduct but it places it in its context.  On the evidence that I have, his conduct may have amounted to an attempt to have sexual intercourse without Ms Cobbin's consent but it did not amount to his having had sexual intercourse without her consent or of his being guilty of the offence as charged.

1. Mr Tabua has admitted that he breached the conditions of his bail when he did not attend the Adelaide Magistrates Court to face the charge against him.  That is also conduct that is not acceptable to the Australian community.  Whether or not it is conduct that "… is itself an instance where Mr Tabua's character 'is laid bare very tellingly'" (Minister's Statement of Facts and Contentions, paragraph 16) is another matter.  Mr Tabua's explanation is that he feared that he would be sent back to Fiji.  He had left Fiji at a troubled time in its history and his reluctance to return in those circumstances is understandable but does not excuse his behaviour.  His behaviour must also be considered together with his failure to meet his commitment to the Department in 1989 to report to it weekly and his continuing failure to report to them over the years.  I will return to these matters later.

1. A warrant has been issued for Mr Tabua's apprehension but no attempt has been made to execute it or to extradite him to South Australia.  In light of the material that I have from the South Australia Police, I am satisfied that it does not regard either the breach of bail charge, or even the charge itself, as having any great seriousness.  Even shortly after the charge had been laid, the South Australia Police advised the Department that the charge would probably be withdrawn if Mr Tabua were to leave Australia, whether voluntarily or involuntarily.  Such an attitude is consistent with the South Australia Police's treating the charge as not being at the more serious end of the scale of charges.  That conclusion can also be drawn from its decision not to extradite Mr Tabua to face the charge and not to take any action in relation to Mr Tabua unless he were in South Australia and were apprehended.   As is apparent from the memorandum of Sergeant Galkowski of 15 March, 2000, seriousness is one of the bases for that decision.  Seriousness is weighed together with costs, availability of witnesses in view of the ten year passage of time, previous history of the offender, likely penalty and costs of executing the warrant.

1. Even though there is no record of it in the material, Mr Tabua admitted at the interview on 30 June, 1998 that he had been drink driving in 1996.  He did not attempt to explain the offence away.  There are no details of the circumstances in which it occurred and no details of the penalty it attracted.  Mr Tabua was not questioned about his conviction for having given a false name that, on his evidence, would have happened at or about the same time.  It is open to speculate whether he has confused the two events but I have accepted his evidence that he was convicted of drink driving.  Although drinking while driving is not acceptable conduct in the community, there is no evidence on which I am able to assess how serious the offence was.  It did occur in the third period into which I have divided Mr Tabua's life (i.e. after he met his wife) but I am satisfied that it is the only offence in that period.  It came at about the time that I find that he decided to reduce, and later to give up, drinking beer and wine.  

1. Mr Tabua's dealings with the Department have extended over all three periods of his life.  He readily admits that he was an illegal immigrant in Australia from 1 May, 1988 after the expiration of the extension of his visa.  After he breached the conditions of his bail and stopped reporting to the Department in Adelaide on or about 16 March, 1990, I find that Mr Tabua made no attempt to contact the Department or to leave the country.  I find that he told his wife about his status at some stage and I accept that she told him that he should approach the authorities on Thursday Island.  I also find that his sister, Mrs Baravi, told him that he should go to the Department and not run away from his responsibilities.  It was in his mind to do so, I find, but I also find that, prior to his being detained on 2 May, 1997, he had not put his thoughts into action.

1. I also find that Mr Tabua was in breach of the conditions of the visa issued in 1987 and 1988 in that he worked in Australia.  Mr Tabua then worked illegally when his visa expired.  He worked almost from his first day in Australia and, on the basis of his evidence and that of his sister, I am also satisfied that he has been a hard worker who has been able to find labouring and handyman work quite readily.  I am also satisfied that Mr Tabua has not paid the amount of $1,037.00 to repay the costs claimed by the Commonwealth in relation to his detention and removal.

1. I find that there have been occasions on which Mr Tabua has given incorrect information to the Department in response to its questions.  On the basis of the material I had at the hearing, I find that it started with his declaration on 16 December, 1987 that he would not work in Australia.  It continued on 19 June, 1989 in his application for permanent residence with his denial of ever having served a prison sentence or having been convicted of an offence in another country.  In that same form, he correctly answered that he had not been given permission to work in Australia.  In the same form, however, he falsely stated that he had not worked in Australia and stated the same thing in his earlier application to extend his visitor's visa.

1. On the basis of his evidence, I find that, apart from a short break, Mr Tabua and Ms Cobbin were in a de facto relationship from April, 1988 until October, 1989.  It has been submitted on behalf of the Minister that Mr Tabua lied in the interview on 7 December, 1989 by stating that he was still in that de facto relationship.  Mr Tabua did not deny at the hearing that it had ended by that time but it is one thing to know that with hindsight and another to say that he was lying about it at the interview on 7 December, 1989.  The interview took place less than two months after the night that led to his being charged.  When asked "What is your present marital status?", he had replied that he was in a de facto relationship and that he had never married.  He had given his residential address as that of Ms Cobbin.  In the same interview, he said that he just wanted another chance with Ms Cobbin.  Mr Tabua said that, in his own mind, the relationship was still continuing at that stage.  Given the tumultuous nature of the relationship and their previous break, I consider that it is going too far to say that he was lying about his relationship at the time of the interview.  That may have been the case to the objective observer but Mr Tabua was not in the position of an objective observer.  He was a participant in the breakdown of a relationship with all the subjectivity and lack of objective assessment that a person may have in that position.  I accept that, in his mind, he thought that the relationship was continuing.

1. Of greater concern is his statement in his application for a Spouse (Provisional) Visa signed on 14 March, 1998 indicating that he had never previously been married or in a de facto relationship.  He had not referred to his having lived in Adelaide at all.  Mr Tabua acknowledged that this was a mistake.  He had thought that some of those matters were not really important but he now realises how important they are.  It was clear from Mrs Tabua's reactions during his evidence that she had not known of the depth of the feelings he had previously held for Ms Cobbin.  This gives some insight into his explanation that he had not mentioned Ms Cobbin because he was now married.  Although some people tell their husbands and wives about their previous relationships, others do not.  In normal circumstances, that is a matter for the individuals involved and their partners.  That does not excuse his not revealing the relationship to the Department.  Revelation would have revealed it to his wife also but better that he do so when he has some control over the circumstances in which he does rather than leave it to be revealed to her first in the T documents and later in the hearing.  Revelation would have been a clear demonstration of his wish to be completely honest with the Department.

1. In that same application, Mr Tabua indicated that he had never been convicted of a crime in any country, never been charged with any criminal offence currently awaiting legal action, never been removed or deported from any country and never been asked to leave any country.  He also said that he did not have any outstanding debts to the Australian Government.  In each instance, Mr Tabua gave the Department false information.  In relation to the debt to the Australian Government, it is possible that he overlooked the sum of $1,037.00 with respect to his detention and removal costs for he was given notice of them on 13 May, 1997, which is the day he left.  It is not possible to say that he overlooked his having been convicted in the past.  The sentences for the property offences indicate that they were regarded by the court as serious.  The charge of having sexual intercourse without consent was serious even if Mr Tabua did not consider himself to be guilty of it.  He had clearly been removed from Australia and had been asked to leave even though Mrs Tabua paid his fare to return to Fiji.

1. Mr Tabua gave the Department false information about matters that had largely occurred in the first two periods of his life.  To a large extent, the past could be explained.  The offences he committed in the first period were committed as a troubled child and young person.  Although he entered Australia without revealing his criminal history and worked when he was not entitled to, he did not build on his previous history of dishonesty in so far as his activities in the community were concerned.  Instead, he showed himself to be a person who worked and was able to work.  Apart from the one occasion in Adelaide, a night in Mildura for being drunk, and one or possibly two occasions in Queensland, he did not come to police attention.  This was quite a remarkable turnaround for someone who had previously come under close and regular police attention. 

1. Apart from giving false information in the applications he lodged in 1987 and 1988, I also find that Mr Tabua did try to do the "right thing" as he understood it to be.  He applied on 16 December, 1987 for an extension of his visa before its expiration at the end of that month.  An application made by the Footscray Rugby Club Incorporated was lodged on 31 March, 1988, and so before Mr Tabua's extended visa expired, but there was no decision on its application until 6 November, 1989.  It was clear from the material supporting that application that Mr Tabua was working.  There is nothing to show that the Department followed that up at the time or that it suggested to him that he should apply for a bridging visa while the application was being considered.  I find that Mr Tabua also attempted to do the "right thing" when he lodged an application for Resident Status in Australia on the basis of his relationship with Ms Cobbin.  A decision was made on 12 March, 1990 in relation to his application lodged on 19 July, 1989.  Again, no mention was made to him of the need to have a bridging visa when he lodged the application. 

1. Mr Tabua's failure to disclose his previous history in his most recent application does not diminish the good work he has done in the second and third periods to change his life around but it does indicate that, in 1998 and so in the latter part of the third period of his life, he had yet to come to face the need for complete honesty with the Department and so with the Australian community.  That is not to say that Mr Tabua did not display honesty at the hearing well over 2½ years after he completed the application form, for I am satisfied that he did.  His conduct at the hearing was consistent with the changes that have been occurring in the third period of his life.  His evidence of those changes is supported by the evidence of Mrs Baravi.  The changes relate to his having found comfort and a sense of belonging not only with his wife and family but also in the community.  Having regard to the evidence of both Mr and Mrs Tabua, I am satisfied that they have a very close bond and great regard for each other.  Their relationship is not one of violence.  Mrs Tabua is a very gentle person but, at the same time, a person of great moral strength and fortitude.  Mr Tabua is very caring of her and of his daughters.  I accept that he reduced his intake of alcohol four or five years ago because he felt that he needed to care for his family.  His care for people goes beyond his immediate family as is shown by the evidence of his referees.  It was not until he found his place in the Assemblies of God Church in Fiji, however, that he extended his caring beyond those in his immediate circle.  I accept Mrs Baravi's evidence that he is a changed person since he has joined the Church. 

1. Although in this case, the law to be applied is that in force at the time the decision was made, the decision must be the correct or preferable decision on the material before the Tribunal (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, per Bowen CJ and Deane J at page 589). The time at which good character is to be assessed is not limited to the time at which the delegate made his decision but can also be assessed at the time when I make my decision (Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939-45).

1. Having regard to the whole of the evidence, I am satisfied that Mr Tabua has, in the past, been a person who is not of good character.  People do change and good character once lost can be redeemed.  In the process of redemption, it can be very difficult to determine when a bad character has become a good character.  Mr Tabua was a person of bad character in his earlier years but, despite his lapses, and because of his having met his wife, having recognised his need to reduce his intake of alcohol substantially, if not completely, and his association with his wife and daughters, he has changed.  It is now almost three years since Mr Tabua gave the false answers on his application for permanent residence.  In that time, he has consolidated on the strength and insights he has gained through having a family and has added to them through his experiences with his church.  His conduct in these last years has not been conduct that would cause the Australian community concern. 

1. Taken overall, however, I am not of the view that Mr Tabua's conduct of the last few years is sufficient to persuade me that he has yet reached the stage where he can be said not to be a person who is not of good character.  That time may well come (and it may well come soon), but, having regard to his past criminal conduct and to his general conduct, it has not yet come. 

1. That means that I must consider whether Mr Tabua should be refused a visa on the basis that he is a person who is not of good character, ie. whether the discretion should be exercised in his favour.  In this matter, I have had regard to the General Direction and also to the best interests of the children of the marriage as required by the High Court's judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child ("the Convention") in making administrative decisions under the Act. The majority of the Court accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. Mason CJ and Deane J continued:

"No persuasive reason was offered to support this far-reaching proposition.  The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law.  Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it." (page 291)

1. Although Mr Tabua's actions in failing to disclose his previous history to the Department as recently as 1998 and his working illegally were not consistent with the public good in so far as the administration of its migration laws are concerned, it does not follow that refusing him a visa is necessary for the protection of the Australian community.  Apart from one, and possibly two occasions, on which he has been convicted of an offence, and apart from being charged with a serious offence in circumstances in which I am not satisfied that he would necessarily be convicted, I find that he has not engaged in activities that are detrimental to either the personal security of members of the community or endanger its property.  His consumption of alcohol was behind his drink driving conviction and I find that he has recognised that he cannot control his drinking if he starts and so has reduced it markedly.  He no longer drinks beer or wine and, on his return to Fiji, has only drunk kava occasionally.  Since he met his wife, he has mellowed and become a calmer person in keeping with living with a person with her apparent serenity.  He has gained a deeper insight into the importance of doing the "right thing" not only by his family but by the wider community.  He understands the need to be honest and open in his dealings and has shown that he has gained that understanding in his new life in Fiji.

1. Should Mr Tabua not be permitted to enter and reside in Australia, Mrs Tabua and her daughters would have to continue to live without the benefit of his presence.  Having regard to both his evidence ant that of his wife and to the letters he has written to his family, I find that he has kept in touch with his family and what they are doing.  He is regarded by Latoya as her father and he regards her as his daughter.  Both he and Mrs Tabua are concerned for her education and well-being.  Litiana is now three years old and has yet to meet her father as she was born after he left in May, 1997.  Having heard the evidence of Mrs Tabua, I am satisfied that both she and the girls would benefit not only from the love, care and guidance he could give as a husband and as a father in their family unit but from his presence in their family unit in their community at Bamaga.  Despite her fortitude, it is apparent from her letters and from what little that she says that the years since her husband left have not been easy for Mrs Tabua.  She alone carries the responsibility for caring for and guiding her daughters in a remote community.  Both she and her husband want the best for them as any parents would but her burden is increased by the geographical isolation and, because of the absence of her husband, the emotional isolation in which she finds herself.  I am satisfied that, in the circumstances of this case, it is in the best interests of both Latoya and of Litiana that their father is able to take part in their upbringing. 

1. It might be said that Mrs Tabua brought this situation on herself when she chose to enter a relationship with, and then to marry, an illegal immigrant.  On her own evidence, I find that he told her that he was an illegal immigrant soon after they met.  She also said that their relationship became serious very quickly.  Whether or not he told her before or after it became serious is not clear to me.  Given the speed of events, it seems to me more likely than not that the seriousness of the relationship and the telling of the tale came together.  It is not a case in which Mrs Tabua allowed the relationship to develop from a more casual acquaintanceship, which she could have ended, to a serious relationship in the knowledge that he was an illegal immigrant.  Mrs Tabua certainly knew that he was an illegal immigrant by the time that she married him in 1996 but that was simply a further step in what was already a serious relationship. 

1. Taking into account all of these circumstances, I am satisfied that Mr Tabua is not a person from whom the Australian community requires protection.  He is not a person who is likely to re-offend against its laws.  Mr Tabua can make a contribution to Australian society by, initially at least, maintaining a stable home for his wife and their children.  If he were refused a visa, their children will be deprived of the physical presence of their father.  Although the submission was made that Mrs Tabua could move to Fiji with her daughters, there is no evidence to support a conclusion that she would be permitted to reside in Fiji.  Even if she were, I do not consider that uprooting the children from Australia and from their cultural background would be in their best interests.

1. Taking into account all of the circumstances, I am satisfied that the harm which would be done to Mr Tabua, his wife and their daughters were he to be refused a visa outweighs any need to protect the Australian community from him or from his actions.  It follows that the balance in exercising the discretion under s. 501 lies in favour of finding that Mr Tabua's visa should not be refused on the basis of his character.

1. For the reasons I have given, I:

1.set aside the decision of a delegate of the Minister dated 26 October, 1999; and

2.substitute a decision that the applicant should not be refused a visa on character grounds pursuant to s. 501.

I certify that the one hundred and fifteen preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed:          .................………….............................
  D De Andrade       Personal Assistant

Dates of Hearing  5 and 6 December, 2000
Date of Decision  2 March, 2001
Representatives for Applicant      Mrs E Baravi
Solicitor for the Respondent        Ms J Davis