Torode and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2004] AATA 103

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/777

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRONWYN TORODE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President S P Estcourt QC.,

Date2 February 2004

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds. 

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration - refusal of visa on character grounds - past criminal conduct - false and misleading conduct in dealing with immigration authorities - decision to refuse set aside.

Migration Act 1958 – s501

Re Lachmaiya and Department of Immigration and Ethnic Affairs 1994) 19 AAR 148

Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277

REASONS FOR DECISION

2 February 2004 Deputy President S P Estcourt QC.,        

1.      This is an application by Bronwyn Torode, an Australian citizen, aged 27 years to review a decision of the respondent’s delegate to refuse to grant to Brian Tydeman, Ms Torode’s partner, a citizen of the United Kingdom, aged 31 years a Partner visa.

2. Mr Tydeman’s application for a sub-class 309 (provisional) visa was refused on the basis that the respondent was not satisfied that Mr Tydeman passed the character test posed by s501(1) of the Migration Act 1958 (“the Act”). 

3.      The respondent’s decision was based on the following grounds:

(a)the visa applicant had been convicted of 15 offences on 8 occasions in the United Kingdom and in New Zealand;

(b)the visa applicant made a false or misleading declaration on an incoming passenger card on 20 February 2001;

(c)the visa applicant made a false or misleading declaration on a long stay visitor visa application on 20 February 2002 and;

(d)the visa applicant made false and misleading statements to immigration officers on each of 1 December 2002 and 2 February 2003.

2.The visa applicant has the following record of Court appearances:

Date	Offence	Sentence
22/04/85	1.    Burglary and theft	2 yr supervision order and £50 costs
2.    Assault occasioning actual bodily harm	£50 fine
3.    Non-reportable offence	2 yr supervision order and forfeiture/confiscation
28/07/86	4.    Shoplifting	2 yr supervision order
5.    Driving whilst disqualified	£25 fine and driving licence endorsed
6.    Non-reportable offence	£50 fine and driving licence endorsed
7.    Non-reportable offence	£10 fine and £10 costs
06/04/87	8.    Theft of cycle	20 hrs attendance and £15 costs
23/11/89	9.    Burglary and theft	120 hrs community service, £16 compensation and £10 costs
02/10/90	10.  Theft of vehicle	120 hrs community service, £125 costs and driving licence endorsed
25/02/93	11.  Shoplifting	£40 fine and £35 costs
15/07/98	12.  Restrict or obstruct police	NZ$100 fine
(In New	13.  Possessing cannabis	NZ$100 fine
Zealand)	14.  Violent disorderly conduct	NZ$100 fine
02/09/99	15.  Driving a motor vehicle with excess alcohol	Driving licence endorsed, 12 mth licence disqualification and £120 fine

4. As the visa applicant was born on 11 August 1972, I find, on the applicant’s evidence that in the United Kingdom children are dealt with in the Juvenile Court until they are 18 years of age, that at least the first nine of the fifteen offences set out in the table above were matters dealt with in a children’s court, the first three of which having occurred when the visa applicant was only 12 years of age. Whilst I take these matters into account, I accord them less weight for the purposes of sub-clauses 1.8(a), (b), (c) of Ministerial Direction No. 21 which sets out the matters which must be considered in determining whether a person passes the character test posed by the Act, in relation to past criminal conduct.

5.      Since the visa applicant came of age, he has been dealt with, as can be seen from the table above, for six offences committed on three separate occasions, three of which, namely the offences which occurred in New Zealand of resisting or obstructing police, possessing cannabis and violent disorderly conduct, arose from the one incident.

6.      The respondent in its written statement of facts and contentions conceded that the majority of the visa applicant’s offences were minor in nature, and noted that there were no custodial sentences ordered.  The respondent pointed out however, that three offences involved violence and submitted that a conviction of “resist or obstruct police” should be treated as serious.

7.      The Tribunal takes account of the respondent’s submissions.  However, the fact remains that the first offence involving violence occurred when the visa applicant was 12 years old, and the charges of resisting and obstructing police and violent disorderly conduct which account for the remaining two offences for violence occurred out of the one incident, and in the Tribunal’s experience, amount to what are commonly regarded as street offences, usually dealt with, as in the present case by small fines.

8.      Having regard to the matters just enumerated, the Tribunal is not persuaded that the visa applicant does not pass the character test by virtue of his past criminal conduct.  In reaching that decision, the Tribunal has taken into account the nature, severity and frequency of the visa applicant’s offences, the fact that the first of them was committed 19 years ago, and the last some 4 years and 4 months ago, and the fact that the visa applicant’s record since the last offences were committed, points towards his rehabilitation as opposed to any suggestion of recidivism or continued blatant disregard or contempt for the law. 

9.      There remains for consideration however, the visa applicant’s past general conduct in relation to the information provided by him to immigration authorities in relation to his criminal record. 

10.     On 13 December 2001, when entering Australia, the visa applicant ticked the box on his incoming passenger card, which indicated he had no prior convictions.  Similarly on his long stay visa application made on 13 March 2001, the visa applicant ticked the box indicating that he had no convictions.

11.     It is important in the Tribunal’s view to consider the visa applicant’s conduct on these two occasions prior to dealing with his interviews with immigration officers on 1 December 2002 and 2 February 2003.  The reason being, that the visa applicant’s application for his present Partner visa was made on 25 October 2002, and in that application, he had ticked the box indicating that he did have prior convictions and had attached a full record of his prior court appearances.  His dealings with immigration officers must therefore be judged against that background, whereas his statements on the incoming passenger card, and the long stay visa application on 13 December 2001 and 13 March 2002 respectively, do not have the same context. 

12.     The visa applicant gave evidence before the Tribunal that he completed his incoming passenger card and his long stay visa application by answering that he did not have prior convictions, because he thought that being “convicted” meant receiving a jail sentence.  He said that when he started travelling he thought convictions meant prison, and that he ticked the box with “no” to convey that he hadn’t been to prison. 

13.     The visa applicant’s evidence regarding this was unshaken by cross-examination and uncontradicted by any other material.  Moreover, it was consistent with his own unchallenged evidence that when he had first travelled to New Zealand, the incoming passenger card for that country asked the question “Have you been to prison in the last 12 months”, thus shoring up the applicant’s belief that the question was concerned with whether a person had been to prison, and not to whether a person had been dealt with in a court of law.

14.     The Tribunal does not accept therefore, that the visa applicant fails to pass the character test by virtue of the statements made by him on his incoming passenger card of 13 December 2001 and his long stay visa application of 13 March 2002.

15.     In relation to the interviews with immigration officers on 1 December 2002 and 2 February 2002, the visa applicant, having disclosed that he had criminal convictions on his incoming passenger cards, failed when interviewed by immigration officers, to disclose all of his convictions. 

16.     On 1 December 2002, the visa applicant only disclosed that he had “a driving offence, which resulted in a fine, a shoplifting offence that resulted in community service and possessing cannabis in New Zealand where he received a warning”.

17.     On 2 February 2003, the visa applicant only disclosed “a drink driving offence in 1997/1998 which resulted in a fine of £120 and loss of licence, but no imprisonment and possessing cannabis in New Zealand in 1998, which resulted in a warning but no imprisonment”.

18.     He explained that he only disclosed these offences and had not told immigration officers that he had other convictions on the basis that he was confused, embarrassed by the fact that the interview was occurring in public and that he couldn’t communicate with the officers.  He said, “I wasn’t trying to gain anything or deceive anyone, I just couldn’t get it out”.

19.     The visa applicant gave evidence that he obtained, for the first time in his life, a record of his prior offences prior to lodging his application for his Partner visa..   That was the first time he had ever seen his convictions all set out on a piece of paper.  He did not, however, have that piece of paper with him when immigration officials interviewed him.

20.     The visa applicant’s evidence in explanation of his conduct on these two occasions was unshaken in cross-examination, and uncontradicted by other evidence and the Tribunal accepts it.

21. Frequently, the making of a false and misleading statement to a immigration official will cause a person to fail the character test posed by s501 of the Act, as explained by Ministerial Direction No. 21, on the basis that such a statement is prima facie a breach of s234 of the Act, and is regarded by the Australian Government as serious. As Deputy President McMahon said in Re Lachmaiya and Department Immigration and Ethnic Affairs (1994) 19 AAR 148:

“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 …”.

22.     The Tribunal is not persuaded however, in view of the visa applicant’s evidence, that his conduct causes him to fail the character test on this occasion.

23.     As the Full Court of the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8]:

“Section 501 does not charge the decision maker with the task of making a judgment, general in nature, about the character of a person, i.e., 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 for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entrie’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.”

24.     Given the visa applicant’s explanation in evidence to the Tribunal, and against the background of his disclosure on his Partner visa application of a full record of his previous court appearances only months before speaking with migration officials, and given his disclosure of the fact that he had convictions on his incoming passenger cards, the Tribunal’s judgment is that his character, in the sense of his enduring moral qualities is not so deficient as to show that it is for the public good to refuse him entry into Australia.

25. Section 501 of the Act, by requiring a person to satisfy the Minister that the person passes the character test, imposes an onus of proof on persons in the position of the visa applicant in these proceedings. There is no suggestion however, that the visa applicant’s character is affected by any matters other than those contended for by the respondent in the appeal before the Tribunal and having dealt with those matters, the Tribunal is accordingly satisfied that the visa applicant passes the character test.

26.     It is also relevant to note in passing that Ministerial Direction No. 21, in dealing with the application of the character test provides by clause 1.1, that general conduct also includes recent good conduct and it is plain in the case of the visa applicant that he has committed no offence for almost 4½ years, giving the Tribunal confidence that the complete picture of his character is that he has reformed.

27.     It follows from all that is set out in these reasons, that the decision of the Tribunal is that the decision under review be set aside. The matter is remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt QC.,

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  18 December 2003
Date of Decision  2 February 2004
Counsel for the Applicant         Applicant appeared on own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Mr Bryan Wee
Solicitor for the Respondent     Australian Government Solicitor