Tricklebank and Minister for Immigration and Multicultural and Indigenous Affairs

DECISION AND REASONS FOR DECISION [2002] AATA 825

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/452

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HEATHER TRICKLEBANK
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date20 September 2002
PlaceBrisbane

Decision      The decision under review is affirmed.
   (Sgd Hon C R Wright QC)
  Deputy President
CATCHWORDS
Immigration – Sub-class 676 visitor (short-stay) visa - visa applicant refused visa on the basis he was not of good character – substantial criminal record in New Zealand – false passport – disregard for Australia's immigration laws.
Migration Act 1958 – s501(1)
Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Beale and Minister for Immigration, Multicultural and Indigenous Affairs (2002) AATA 714

REASONS FOR DECISION

20 September 2002 The Hon C R Wright QC., (Deputy President)

On 3 May 2002 the respondent's delegate refused to grant a Sub-Class 676 Visitor (Short-stay) Visa to Gordon Peter Tricklebank ("the visa applicant") pursuant to s501(1) of the Migration Act 1958 ("the Act"). Heather Tricklebank ("the review applicant"), the mother of Gordon Peter Tricklebank, now seeks a review of the decision.
The visa applicant, a 45-year-old male, was born in New Zealand on 23 March 1957. His parents, who are now Australian citizens, settled in Australia several years ago and currently reside in Gympie in Queensland.
In April 1996 the visa applicant was granted a visa to visit his parents. He travelled to Australia on 3 April 1996 and returned to New Zealand on 10 April 1996. Subsequently, he applied for, and was refused visas both in June 1997 and again in October 1998. On 30 April 1999, the visa applicant applied for a short-stay visa to visit Australia. On 25 May 1999 the Australian Consulate-General in Auckland refused to grant the visa sought, on the basis that the visa applicant was not of good character.
On 3 June 1999, the visa applicant, accompanied by his defacto partner, Diane Earl, and son John, arrived in Australia on a flight from New Zealand. He was detained at the Brisbane airport and was refused immigration clearance by immigration inspectors on the grounds that he was travelling on a false New Zealand passport under the name of John Francis McKenna and further, that he had answered "No" to questions relating to whether or not he had any criminal convictions on his migration clearance document.
Section 32 of the Act enables the grant of a Special Category Visa to a New Zealand citizen who presents a valid New Zealand passport to an officer and who is neither a "behaviour concern non-citizen", nor a "health concern non-citizen".
A person found to meet the definition of a behaviour concern non-citizen is not eligible for the grant of a special category visa, and must therefore apply for and be granted a valid visa of another kind in order to enter this country.
Upon inspection of the visa applicant's baggage, the immigration inspectors noted that the amount of baggage "did not indicate a short stay", and contained amongst other things, two weigh-bills showing that crates with a capacity of approximately two cubic metres were being shipped by the visa applicant to Brisbane. In the immigration inspector's report it is stated that, at interview, the visa applicant claimed that he wanted to "start a new life in Australia" with his aged parents. It was also reported that the visa applicant said he would like to find work in Australia and stay here permanently.
The visa applicant was refused a Special Category Visa under s32 of the Act by an authorised officer at the Brisbane airport. As he held no other valid visa for Australia he was refused immigration clearance and was detained under s189 of the Act and was placed on an airline flight to return to New Zealand.
By letter dated 11 June 1999, the review applicant applied to the Administrative Appeals Tribunal to review the decision of the respondent's delegate at the Australian Consulate in Auckland dated 25 May 1999, by which the visa applicant's short-stay visa application of 30 April 1999 had been refused.
On 15 September 1999, the review applicant withdrew her application and by order of Deputy President Forgie the application was dismissed.
On 25 February 2002, the visa applicant once again applied for a short-stay visitor visa to visit Australia. On 3 May 2002 that application was refused by the Australian Consulate-General in Auckland on the basis that the visa applicant still failed the character test pursuant to s501 of the Act. The decision to refuse the application was based on the following grounds:
the visa applicant had a substantial criminal record as defined in s501(7)(c) of the Act; and
the frequency and recency of the visa applicant's offences tended to indicate he was likely to re-offend.
It is clear that the visa applicant has a substantial criminal record as defined.
In New Zealand on 17 May 1988 he was sentenced to imprisonment for a period of 18 months in respect of 110 charges of "using a document", a description which is quite clearly a shorthand way of alleging a fraud offence of obtaining goods by false pretences by using a bogus document.
In evidence before the Tribunal on 3 September 2002 the visa applicant explained that the charges arose while he was working as in insurance agent and was "ghost writing" insurance policies. As a result he obtained payment of commissions to which he was not entitled, totalling about $73,000. He says that he has repaid approximately $42,000 of this sum.
In addition the visa applicant has been convicted as follows:
Drives recklessly/dangerously (no injury) Fined $75
Wilful trespass Supervision 6 months
Breach non-molestation order Supervision 6 months
Possess offensive weapon Supervision 6 months
Breach domestic Act Fined $1000
Possession of false passport Fined $1,500
The visa applicant also has several traffic convictions between 1978 and 1999. These were not detailed, but apparently resulted in disqualification and fines.
The visa applicant explained why he had pleaded guilty to the offences in 1995 which all arose from one incident at or near the home of his former partner. It is of course impermissible for the Tribunal to impugn a conviction in respect of which a finding of a "substantial criminal record" may be made (See Minister for Immigration and Multicultural Affairs v SRT 56 ALD 349, Federal Court of Australia), but I do not understand the visa applicant to be challenging the correctness of any of the convictions; he has rather sought to minimise the gravity of the events leading up to those convictions. He also explained that the 1999 conviction for possession of a false passport was a conviction imposed by a New Zealand court on his return to that country.
The presentation of a false or forged document, or making a false or misleading statement in connection with entry to or stay in Australia may amount to an offence in breach of s234 of the Act. Upon conviction for such an offence in this country the visa applicant could be punished by up to 10 years imprisonment or a fine of up to 1,000 penalty units.
Any evaluation of good character pursuant to s501 of the Act involves a two stage process. First, a determination must be made as to whether or not the applicant passes the character test. The onus in this respect being upon the visa applicant. Second, if the applicant does not pass the character test, consideration must then be given to whether a discretion should none the less be exercised in his favour, taking into account personal and other considerations.
Pursuant to powers vested in him under the Migration Act, the Minister has issued a Direction under s499(2) relating to visa refusal and cancellation under s501 of the Act. This Direction was issued on 23 August 2001. The Direction is a fairly lengthy document and is set forth in detail in Exhibit T3 at pages 14 to 29. The Direction, which is binding upon the Tribunal, sets forth policies and principles which are to be taken into account in determining whether or not an applicant passes the character test, and whether or not a discretion should be exercised in favour of an applicant who does not pass the test.
In the respondent's Statement of Fact and Contentions the substance of many of the issues raised by the Minister's Direction in relation to the present review application have been usefully discussed. In Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277, the Full Court of the Federal Court endorsed the view that the concept of good character in s501 is concerned with whether or not "the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry". In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted that:
"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."
It is plain from the content of the Minister's Direction and statements of principle by many learned Judges and Tribunal Members, including those mentioned above, that the presentation of false or forged document for the purpose of gaining entry to this country is regarded as a very serious matter, and it is plain to me that the visa applicant having deliberately procured and then used the false passport which resulted in his deportation in June 1999, was committing a very grave offence clearly indicative of his lack of good character, particularly when taken into account with his substantial criminal record arising from imprisonment for fraud offences in May 1988.
As already mentioned, the visa applicant gave evidence during the course of the Tribunal hearing on 3 September 2002. He was asked as to the allegations made by the immigration officers at the Brisbane airport in their report of 3 June 1999. He denied that he had told them he wanted to live permanently in Australia. He also said that he had only arranged for the shipment of one crate from New Zealand and that it contained only tools for his father. He said that the shipping crate was not returned to him in New Zealand, and as far as he knew, it would have been delivered to his father.
The review applicant who appeared for her son at the review hearing said that the visa applicant, to whom she had spoken at the Brisbane airport, asked her to phone Wellington airport to ensure that the crate (I think she said crates (plural)) were stopped from being sent to Australia. She said she made the phone call and stopped the crate (or crates) in transit; she said it (or they) were never delivered to Gympie. It seems to me that her evidence was basically inconsistent with that of her son on this issue.
Mr Tricklebank senior who was present in court, chose not to give evidence. This fact is, in the circumstances, neutral as it was not pointed out to Mr Tricklebank that his absence from the witness box may lead to an adverse inference against his son.
However I found the visa applicant's evidence, particularly unimpressive, not only in respect of this matter, but also in respect of the means whereby he obtained a birth certificate and made application for the false passport in New Zealand in 1999. I am of the opinion that he told several lies during the course of his evidence. In my assessment the visa applicant quite obviously fails the character test.
I therefore turn my attention to the question whether or not a discretion should be exercised in his favour to enable a visa to issue notwithstanding his deficient character.
Two of the primary considerations specified in the Minister's Direction relate to the protection of the Australian community and the expectations of that community. I take the view as already stated, that the visa applicant's conduct in obtaining and using the false passport in 1999 was conduct of considerable gravity. The visa applicant plainly has a propensity to use bogus documents to achieve an advantageous outcome. I think there is a real risk of recidivism which cannot be overlooked. I am also of the opinion that refusing a visa to the visa applicant is likely to send a plain message to other would-be entrants to Australia who may be minded to make false statements or use false documents as a means of gaining entry to this country (See Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA 935.
I am conscious of course that the visa applicant did not use a false document to support his short stay visa, which is the subject matter of the present application to review. Had he done so, the case for rejecting his visa application would be overwhelming, but his conduct in obtaining the false passport and using it as he did in June 1999 is nonetheless of considerable significance(See Beale and Minister for Immigration, Multicultural and Indigenous Affairs (2002) AATA 714 @ paragraph 33).
It is difficult to see how a refusal of the visa sought by the applicant will inflict significant hardship upon the visa applicant or his family. He and his present partner live in New Zealand. His three children also live in New Zealand. His son John lives with his former partner and he appears to enjoy fair and reasonable access to John. I have no doubt that John would like to meet his grandparents and they would like to meet him. I also have no doubt that the visa applicant would like to meet and spend some quality time with his parents.
However I am not persuaded that alternative arrangements cannot be made to accommodate these wishes.
The review applicant tendered in evidence a letter from her general practitioner, Dr John Burns, as Exhibit A1. This report dated 31 May 2002 says:
"This is to confirm that Heather Tricklebank has been a patient at this practice since December 1992. During that time, there has not been one visit to this practice caused by respiratory symptoms or problems. This is marked contrast to the history of respiratory problems she experienced while living in New Zealand.
As a result, she becomes distressed when considering the possibility of returning to New Zealand, due to the potential morbidity she feels will accompany this travel."
That report does not explore the possibility of modern medication being available to overcome respiratory problems which Mrs Tricklebank may experience if she returns to New Zealand. It appears from her evidence that the only medication she took when she lived in New Zealand was cough mixture from time to time. She said: "the use of a puffer is abhorrent". The exact nature of her bronchial condition was not explained. It may be attributable to physiological, climatic, or environmental factors. There is certainly no reason to suppose that any recurrence of the bronchial condition should she return to New Zealand for a short stay would result in a serious health risk.
I am not persuaded that the review applicant's bronchial problems pose an insuperable difficulty for her to return to New Zealand for a short time to be with her son and his family. It has not been claimed that there is any impediment other than this to the review applicant and her husband returning to New Zealand. It may be that they could all enjoy a holiday together in Vanuatu, Fiji, Cook Islands or some other place of mutual convenience. In any event I am not persuaded that the hardship factors which have just been mentioned in any way outweigh the considerations which I see as being adverse to the exercise of discretion in the visa applicant's favour. I therefore decline to exercise my discretion in the visa applicant's favour.
The decision under review is affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed:     …………………………….
(Administrative Assistant)
Date/s of Hearing  3 September 2002
Date of Decision  20 September 2002
Counsel for the Applicant        Applicant appeared in person.
Solicitor for the Applicant
Counsel for the Respondent    Mr Domenic Gallo
Solicitor for the Respondent    Blake Dawson Waldron

[2002] AATA 825

20 September 2002

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Immigration Status

Character Test

Good Character