Williamson and Minister for Immigration and Multicultural and Ind Igenous Affairs
[2003] AATA 760
•7 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 760
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/301
GENERAL ADMINISTRATIVE DIVISION ) Re
Carole Williamson
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date7 August 2003
PlaceCanberra
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Filipe Wate Loloma. ..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 (provisional) spouse visa and subclass 100 spouse (migrant) visa – refusal of visa because of the Visa Applicant’s past and present criminal conduct and past and present general conduct – examination of the Visa Applicant’s criminal record – examination of the Visa Applicant’s immigration misconduct - discretion that the Tribunal may apply where the Visa Applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the Applicant and Visa Applicant – held decision of the Respondent set aside – held that the discretion to not refuse the grant of a visa should be exercised in the case of the Visa Applicant.
Migration Act 1958 ss 501, 501(6)(c)(i)(ii)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608
REASONS FOR DECISION
7 August 2003 Mr RP Handley, Deputy President 1. This is an application by Carole Williamson (“the Applicant”) for a review of a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 19 June 2002 to refuse the grant of a subclass 309 spouse (provisional) visa and subclass 100 spouse (migrant) visa to the Applicant’s spouse, Filipe Wate Loloma (“the Visa Applicant”).
2. At the hearing in Canberra, the Applicant was self-represented and took part by conference telephone from Fiji, and the Respondent was represented by Jim Neely, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the parties at the hearing. The Applicant, the Visa Applicant, Pastor Natilai Vula, Neli Ligairi Wate, Ratu Tevita Bolabolo, Imoke Raiwalui, Faiyuni Ali and Filimoni Batinu all gave evidence by conference telephone.
Background
3. The Applicant, Carole Ann Williamson, was born in Young, New South Wales, on 30 August 1945 and is aged 57. On 28 February 1970, Ms Williamson married John Williamson. This marriage ended in divorce on 10 August 1994. There was one child born of this relationship, a daughter, Monique Louise Williamson, born on 26 December 1975, who is now aged 27. Since 28 January 1998, Ms Williamson has resided in New Zealand, where her daughter Monique was residing.
4. The Visa Applicant, Filipe Wate Loloma, was born in Suva, Fiji, on 1 August 1973 and is aged 29. In 1996, Mr Loloma had a brief relationship with Veena Joana Lagroop as a result of which Ms Lagroop bore a daughter, Neli Leima Wate, born 20 September 1996, who is now aged six. Neli has been in the care of her father, Mr Loloma, and her grandmother, Neli Ligairi Wate, since birth (T p79).
5. Mr Loloma is recorded as having been convicted of a number of criminal offences committed between July 1990 and February 2000. These include offences relating to the unlawful use of motor vehicles, larceny, damaging property, acting with intent to cause grievous harm, and stowaway, for which he is recorded as receiving fines, community work and, in one instance, nine months imprisonment suspended for three years (R2).
6. On 10 January 1993, Ms Williamson met Mr Loloma when visiting his parents’ at their home in Fiji. They commenced their relationship on 12 January 1993 and were married in Suva, Fiji on 17 December 1999 (T p67).
7. On 5 January 2000, Mr Loloma lodged an application for a subclass 309 spouse (provisional) visa and a subclass 100 (permanent) visa at the Australian High Commission in Suva (T p78). On 21 March 2000, he was interviewed by a Senior Migration Officer at the Australian Embassy in Suva (T p78). On 28 March 2000, Mr Loloma was informed that his application for a subclass 309 visa had been refused on the ground that the delegate was not satisfied that Mr Loloma and Ms Williamson had a genuine spousal relationship (T p85).
8. On 22 June 2000, Ms Williamson lodged an application for a review of the decision by the Migration Review Tribunal (“MRT”) (T1). On 28 June 2001, the MRT determined that the application by Mr Loloma should be remitted to the Respondent, with a direction that Mr Loloma and Ms Williamson have a genuine and continuing spousal relationship (T21).
9. On 19 June 2002, having reconsidered Mr Loloma’s application, a delegate of the Respondent decided to refuse the grant of a visa to Mr Loloma on the ground of his past and present criminal conduct and his past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T2 p4). On 1 August 2002, Mrs Williamson lodged an application for a review of this decision by the Tribunal.
Relevant Law and Policy
10. Under s 501(1) of the Migration Act 1958 (“the Act”), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(I) The person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; …
11. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
13. The issue for the Tribunal to determine in this case is, therefore, whether Mr Loloma is not of good character having regard to his past and present criminal conduct or his past and present general conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not to refuse the grant of a visa to Mr Loloma.
Evidence
Carole Williamson (the Applicant)
14. Ms Williamson said she was born in Young, New South Wales. She has one daughter, Monique, who was working in New Zealand as a teacher. However, Monique is currently working overseas, returning to Australia on 19 December 2003, when it is likely she will return to Canberra where she was brought up. Ms Williamson said she and her family lived in Canberra for about 15 years. She went to visit her daughter in New Zealand and was herself offered a job in Auckland which she accepted and where she has continued to work despite her daughter going overseas. Her daughter has a partner but no children.. Ms Williamson said she sold her house when she left Canberra. When her daughter returns to Australia, Ms Williamson also hopes to return and if her daughter does not settle in Canberra, they may move to Queensland where Ms Williamson has been advised there may be more work for a person with her experience as a hearing adviser because of the older population. Ms Williamson said her brother still lives in Grenville near Young.
15. Ms Williamson said she has known Mr Loloma for a long time. She first met his parents because they came to live in Canberra for a while when he was an international soccer player. They met at the Italian Club and, thereafter, became friends.
16. In the early 1990s, Ms Williamson attended a business seminar in Sydney on running joint ventures. As a result, she started a secondhand clothing business in conjunction with a Fijian couple in Fiji. The business commenced in about 1992 and, in 1993, when she was in Fiji, Ms Williamson went to visit Mr Loloma’s family. At this time, she was constantly travelling back and forth between Australia and Fiji for her business. Ultimately, she had to close her business after about two years, in 1994, as a result of a large Australian company entering the market.
17. Shortly after meeting Mr Loloma again in 1993, they started an intimate relationship although, at this time, there was no commitment on either part. Ms Williamson was still married despite it not being a good marriage and Mr Loloma was not yet ready for marriage. However, in June 1999 they decided to marry and were married in Suva on 17 December 1999. She then asked Mr Loloma and his daughter Neli to accompany her to Australia to live. Ms Williamson said she had no idea of the difficulties ahead which have proved to be an “absolute hell”. She said the Australian Embassy in Suva have used stalling tactics from the first and have made things very difficult. As a result, it has taken a big toll on her health and, according to her doctor, she would no longer be able to live in Fiji because of the lack of medical facilities needed for her condition. She feels bitter, angry and very hurt by what has happened. Her daughter, Neli, “can’t understand why mummy has to keep going away”.
18. Ms Williamson said that she and her husband filled in the spouse visa application together. He had obtained a police certificate which initially showed him as having no adverse record. Both she and her husband understood the word “conviction” as meaning that a person had been imprisoned for an offence. Neither of them then understood that it meant being found to have committed an offence. She said they read the questions through carefully in order to avoid making mistakes, including the declaration at the end of the form. When they were filling in the form, her husband said that he had had some police matters in the past but that they had all been fixed up. Ms Williamson advised him that “convicted” meant going to prison and, thus, essentially it was her fault that he did not declare what they later understood to be his convictions. Having completed the visa application form, they both read the form through and she asked him if there was anything he could not understand.
19. Ms Williamson said she knew that in 1996 Mr Loloma had been involved in a fight with his cousin, but he did not tell her that he had been charged and had attended court in relation to this. However, Mr Loloma did not realise that he had been “convicted”.. She was also not aware that he had tried to stow away in order to get to New Zealand because he had not told her. She only found out when she saw the record. When she asked him about this, he said he did not know that he had been convicted of these offences.
20. Ms Williamson said she has a very close relationship with her husband’s daughter, Neli. She regards Neli as her daughter and supports her emotionally, financially and in all aspects of life. Neli does not understand why she cannot be there all the time. While to date, Neli has been brought up largely by her grandmother and her father, she regards Ms Williamson as her mother. Ms Williamson wants Neli to have a proper education and to live with her and Mr Loloma and Ms Williamson’s family in Australia. Neli is currently in her first year of school.
21. Ms Williamson said she was speaking from Mr Loloma’s parents’ house where they live with Mr Loloma and Neli and Mr Loloma’s two sisters. The house is in the village of Lambarti, about five miles outside Suva in a country area. To travel to Suva, one has to go through the bush to the main road and then catch a bus. Medical facilities in the area are very poor and, for example, about two weeks ago, Mr Loloma’s mother, who is not a qualified nurse, was called to a nearby house where a young man aged 26 suffered a heart attack and died. Ms Williamson said she would be unable to live there because of the lack of medical facilities and, even if she could live there, she would be unable to obtain work. She said the last few years have been very difficult for her financially.
22. Ms Williamson said there is very little employment in Fiji and wages are very poor. Average wages are about Aus$1.50 per hour while prices for food are much the same as in Australia. Her husband is a farmer and works on the land in the morning; then in the afternoon, he also works as a painter, often coming home late. He works six days a week. Ms Williamson said there are no jobs for children leaving school and many families have no money to buy food.
23. Ms Williamson said her husband is a good person: a good family man, a good father and husband and a good member of the community. Because he and his family live in a village community, it is the tradition that those who have work help those who are not working. Thus it is impossible to save. People in the community are God-orientated. Families are very important and money is not an important factor.
24. Ms Williamson said when boys are young in Fiji, they have to learn to survive and a lot of them leave school early. Unlike in Australia, in Fiji problems with the law, even traffic charges, involve the whole family and the police get involved in much greater depth than in Australia. She said her husband learns very quickly and would like to undertake some further education; for example to study for a trade such as plumbing or building in which he is skilled. He built his family’s home in Lambarti.
25. Ms Williamson said that after 1993, she and Mr Loloma spoke on the phone about once a week, exchanged letters and, when her business was operating, she would visit Fiji on a regular basis. At that time, she sometimes stayed in Fiji for two or three months on a visit. This is not something she could do now because of her poor health.
26. Ms Williamson was asked about her husband’s younger brother who is an Australian citizen and has lived in Australia since about 1996/1997. Ms Williamson said she understands he works on a farm near Griffith but they have not heard from him for a long time.
Filipe Wate Loloma (the Visa Applicant)
27. Mr Loloma said he was brought up in a poor family and, as a result of financial problems, his parents could not afford to support his further education. On leaving school, he found it very hard to get jobs and would undertake any gardening, farming or similar work in order to help support his family. He left school at 16 and started playing football, representing Fiji and visiting Australia in 1988. He had also lived in Canberra for a time when he was young and went to primary school at Narrabundah. He has always dreamed of living in Australia.
28. Mr Loloma said he is very sorry that he has a criminal record. When he was young, he messed around with the wrong kids. In about 1990, he had a friend whom he asked to teach him to drive. They were caught by the police and charged. He acknowledged that in 1992 he stole a packet of drill bits from a hardware store in respect of which he was charged. He said he was immature at the time. With regard to the offences appearing on his criminal record in Lautoka in 1993, Mr Loloma said he is not guilty of these offences. At that time, he was in Labasa. He went there with a friend for Christmas 1992 and stayed for approximately one and a half years, living and socialising with his friend’s family and also helping out with sugarcane cutting, fishing and in their village. He did not return to Suva until about June 1994 and could not have committed the offences recorded against him in Lautoka in January 1993.
29. However, he admitted to the charge of “damaging property” on 8 February 1993 in Labasa. He had been drinking and became impatient with a taxi driver whom he had asked to drive him to his friend’s village. He showed the taxi driver that he had money and offered to pay him in advance but the driver still refused to take him. Mr Loloma became impatient and pulled the taxi sign off the car causing some damage.
30. With regard to the charge of “act with intent to cause grievous harm” dated 17 October 1996 Mr Loloma said this was as a result of a dispute with his cousin. His cousin became involved with a part Samoan woman. She swore at Mr Loloma and “kicked him out of the office”.. He told her that she should not treat him in this way. His cousin later asked him for a drink and, after giving him kava, his cousin and his cousin’s friends tried to beat him up. At the time, Mr Loloma’s left arm was broken and in plaster. He managed to get into another room and found a stick with which to defend himself. He hit out with the stick and injured his cousin on the head. His cousin’s mother thought that he was seriously injured and insisted that the matter should go to court. However, by the time of the hearing, he and his cousin had reconciled and, as a result, Mr Loloma did not think that he had been convicted of the offence when he was bound over to keep the peace. He was subsequently his cousin’s best man at his wedding.
31. With regard to the two stowaway offences on which he was charged, Mr Loloma said that in March 1997 he was caught on the wharf at Suva trying to get onto a ship going to Australia. He was thinking of Ms Williamson and wanted to see her. He tried to stow away again in February 2000 when he lost hope after his visa application was rejected. He did not tell Ms Williamson about this because he feared she would become angry with him.
32. The final charge shown on his record “assault occasioning actual bodily harm” on 1 June 2000, arose when he was wrongly blamed for something he did not do. Some Fijian boys put chilli on the cheeks of an Indian boy and the boy’s family complained to the police. Because the boy knew Mr Loloma’s name, he was blamed although, as the Indian boy later acknowledged, he was not responsible. When the matter came to court, the judge accepted his story and he was discharged without being fined. All involved in this dispute have now been reconciled.
33. In cross-examination, Mr Loloma acknowledged that he committed all the offences on his record with the exception of the Lautoka offences. He did not realise that he had a record with the police, believing all matters have been resolved and thinking that he had not been “convicted” because he had not been imprisoned in respect of any of the offences. Mr Loloma was referred to question 68 of the spouse visa application form. He said having discussed this with Ms Williamson, he believed the word “conviction” meant imprisonment and, therefore, it was correct to answer that he had not been convicted of a crime or offence. Mr Loloma was asked why he had not paid the fines ordered by the courts within the required period. He said he thought that he did not have to pay the fines until he received a warrant. In respect of the “stowaway offences”, he was waiting for a warrant but paid the fines earlier on the morning of the hearing when told by the court that he had to do so. He was asked about the fine paid in respect of the October 1996 offence of “act with intent to cause grievous harm”. He was unable to recall why he paid this on 11 January 2000.
34. Mr Loloma said the Fijian language is used in court and he thought the word “charge” was the description generally referred to in respect of an offence and that the word “convict” was only used in relation to imprisonment. When he asked his wife for advice, she also advised that conviction meant imprisonment and asked him whether he had ever been to gaol. This took place when they completed the spouse visa application on 5 January 2000.
35. Mr Loloma said his parents knew Ms Williamson from the time they spent in Australia. Mr Loloma first came to know her when she came to Fiji in connection with her clothing business and visited his parents. She used to spend several months at a time in Fiji on business and they commenced a relationship. He did not, however, tell her of the problems he had had with the police. At that time, he was not ready to get married and they did not decide to marry until about June 1999 and then married in December 1999. When Ms Williamson was in Australia, they kept in contact by phone and letter.
36. Mr Loloma said he believes he is a bright person and wishes to study to qualify for a trade and obtain the necessary certificate. His daughter, Neli, was the result of his having had a one night stand, which he regrets, but he now wants to be able to give her his full support. He was brought up in a poor family and has had a hard life. His father could not afford to pay school fees. Mr Loloma wants his daughter to make use of her brightness and he wants her to have a good education and a good future. In cross-examination, Mr Loloma was asked whether this was the reason for his marrying Ms Williamson. He denied this and said that the most important thing in marriage is that one should love the other person.
37. Mr Loloma said he currently does farming work in the morning to help his father and then does private painting jobs in the afternoons when he can find such work. He also built his parent’s house including undertaking the plumbing.
Neli Ligairi Wate
38. Mrs Wate is Mr Loloma’s mother. She said that she is very sad at the separation of her son and his daughter Neli from Ms Williamson. Her son is a good husband, their separation is heartbreaking and she hopes they will be able to live together as a family.
Ratu Tevita Bolabolo
39. Ratu Bolabolo, the chief of Mr Loloma’s community, said he has known Mr Loloma and his family since Mr Loloma was a young boy. He watched him grow up and was aware of his getting into the wrong company. However, Ratu Bolabolo believes Mr Loloma has now changed and has developed into a mature and respectful young man.
40. Ratu Bolabolo spoke of the trouble between Mr Loloma and his cousin in October 1996. This was a family dispute – “a storm in a teacup” – which ended up in court although it was later realised that this was not the appropriate way to resolve the problem. The parties therefore approached him and Ratu Bolabolo called a meeting between the two families at which they resolved the dispute. When the matter came to court, the judge accepted that a reconciliation had occurred between the two parties.
41. Ratu Bolabolo said he felt pity for Mr Loloma and Ms Williamson because of their separation. He said they want to make a better future for their daughter Neli and deserve better treatment from Australia.
Inoke Raiwalui
42. Mr Raiwalui is a friend of Mr Loloma. He said that he invited Mr Loloma to his village near Labasa for Christmas 1992. Mr Loloma liked it there and stayed for approximately one and a half years. While there, they cut sugarcane together and went fishing. Mr Raiwalui said it takes about twelve hours to travel from Suva to his village near Labasa including three hours by ferry.
Faiyum Ali
43. Mr Ali said he is the Indian boy whose family made a complaint when his cheeks were daubed with chilli. Because he knew Mr Loloma’s name, he named him even though he was not actually involved. Mr Ali subsequently told the Court what had happened and that the parties to the dispute had been reconciled.
Filimani Batinu
44. Mr Batinu said he is Mr Loloma’s cousin with whom he had had a family problem in October 1996. Mr Batinu acknowledged that he had asked some friends to help “bash up” Mr Loloma after they had drunk kava. Mr Loloma had a broken arm at the time, ran to the kitchen and took a stick to defend himself. He hit Mr Batinu on the forehead near his ear causing some bleeding although he was not seriously injured. Mr Batinu said his mother, believing the injury to be serious, reported the matter to the police with the result that it ended up in court. Mr Batinu said he was taken to hospital and treated for the injury but sent home immediately afterwards. At the court hearing, they told the judge that they had been reconciled according to Fijian custom.
Pastor Natalai Vula
45. Pastor Vula said he has been the pastor of the Seventh Day Adventist Church for the district in which Mr Loloma lives since 1991. Pastor Vula recalled that at that time Mr Loloma used to attend church with his mother and sisters. Pastor Vula acknowledged that Mr Loloma had done some things against the rules of the church but said that he has changed his lifestyle. Pastor Vula noted that the change had occurred about two years ago when Mr Loloma recognised his family responsibilities, reformed and now follows the truth of the bible. He has undertaken responsibility for looking after his family. Mr Loloma attends church, supports church activities including their outreach work which involves him visiting people in their homes and identifying their needs about once a month.
Submissions
Respondent
46. Mr Neely, for the Respondent, noted that Mr Loloma has a criminal record involving a number of convictions in the Fiji Magistrates Court over a considerable period. While some of these convictions are in respect of minor offences, the Respondent contends that some are of a more serious nature. He submitted that the Tribunal is bound by the fact of the convictions and cannot make findings inconsistent with them. The Respondent contends that Mr Loloma’s convictions of 8 February 1993 “damaging property”, 17 October 1996 “act with intent to cause grievous harm” and the two stowaway offences are of a more serious nature.
47. Mr Neely referred the Tribunal to paragraph 1.8 of Direction 21 with respect to what constitutes past and present criminal conduct under s 501(6)(c)(i) of the Act. He noted that a number of Mr Loloma’s offences are serious, some of them were committed fairly recently and that his record since the commission of the offences and any mitigating circumstances are relevant matters. The Respondent contends that Mr Loloma does not pass the character test by reason of his past criminal conduct.
48. With regard to s 501(6)(c)(ii) and Mr Loloma’s past and present general conduct, the Respondent contends that Mr Loloma committed a serious breach of Australia’s immigration law by not revealing his convictions when completing his spouse visa application. Mr Neely said Mr Loloma’s claim that he did not know that he had “convictions” is not credible given that Ms Williamson assisted him in completing the form. Mr Loloma had previously been before a court on a number of occasions and the courts had taken into account his prior record in sentencing him. Mr Neely noted that if Mr Loloma deliberately ticked “no” to question 68 of the visa application, he also made a false declaration when signing the form. Mr Neely noted the seriousness with which the giving of false or misleading information in relation to migration matters is treated by the Tribunal. He said the Respondent contends that having regard to the requirements of paragraph 1.9 of Direction No 21, Mr Loloma is also not of good character by reason of his general conduct, and therefore does not pass the character test.
49. With regard to the exercise of the Minister’s discretion in s 501(1), Mr Neely reiterated that although some of the offences committed by Mr Loloma were minor, some were of a more serious nature. He noted that the fact of the second stowaway offence, having been committed after the lodging of Mr Loloma’s visa application, indicates contempt for the law. He contended there is a likelihood of Mr Loloma repeating such misconduct and that, in the circumstances, visa refusal would be a deterrent to others contemplating similar misconduct. Moreover, the Australian community would expect, in view of the nature and seriousness of the offences, including the period of time over which they had been committed, that Mr Loloma would not be granted a visa.
50. With regard to the best interests of the child, Mr Neely said the Respondent acknowledges the interest of Mr Loloma’s daughter Neli in being with Ms Williamson. Nevertheless, Neli has been brought up in Fiji in a family household including her grandparents and she would remain with her father and his family if a visa for Mr Loloma were refused.
51. Finally, with regard to other considerations, Mr Neely said there appeared to be no legal impediment to Ms Williamson travelling to Fiji to visit or reside with Mr Loloma. He noted that it was reasonable to expect that Ms Williamson would have been aware of Mr Loloma’s criminal record prior to their marriage. Mr Neely also noted that Mr Loloma’s last conviction for the offence of stowaway having been on 25 February 2000, indicates there is no evidence on which it could be found that Mr Loloma has been rehabilitated.
Applicant
52. Ms Williamson said that both she and her husband come from Christian families and are hurt by the suggestion that they would deliberately make a false statement in Mr Loloma’s visa application. She said they were very careful about how they completed the application and tried to be truthful and honest as they have been in all the forms they have completed and all the information they have provided. She said they are completely innocent of the charge of making a false statement. It was their misunderstanding of the word “conviction” which lead them not to declare Mr Loloma’s criminal record.
53. Ms Williamson noted that her former solicitor in New Zealand, Radhe Nand, has provided an affidavit (A4) in which he states that he had not at any stage spoken to Inspector Veitamani, the officer in charge of the criminal records office in Suva, as alleged by Mr Neely.
54. Ms Williamson said she and her husband want to be together with Neli and Ms Williamson’s family in Australia. Her husband is a hard worker and good to his family and will be an asset to Australia. Things are very different in Fiji from Australia and even minor family disputes are reported to the police.
55. Ms Williamson said contesting the Delegate’s decision has affected her very badly. Mr Loloma spoke on behalf of his wife saying that her health prevents her from living permanently in Fiji. He wants to look after her and his daughter because they are the two most important people in his life. He is very sorry for what he did. He made a mistake and asks for forgiveness.
Consideration of the Law and Findings
56. The Criminal Records Office in Suva have provided the following record of convictions for Mr Loloma:
· 3 July 1990 - Nauson – convicted of two separate offences of “unlawful use of a motor vehicle” and in respect of each of those incidents additional convictions for “Driving motor vehicle without a Driving Licence” and “Driving Motor Vehicle in contravention of Third Party Policy Risk”. Mr Loloma was bound over in the sum of $500 for 2 years.
· 6 February 1992 – Suva - convicted of “larceny” and conditionally discharged for 12 months. Further ordered to do 5 weeks community work.
· 8 June 1992 – Suva – convicted of “larceny” and conditionally discharged for 12 months.
· 11 January 1993 – Lautoka – convicted of 4 offences: 2 counts of unlawful use of a motor vehicle; assault occasioning actual bodily harm; and driving a motor vehicle without any driver’s licence. Fines were imposed and the person was disqualified from driving or obtaining a driver’s licence for 12 months.
· 8 February 1993 – Labasa – convicted of damaging property: Mr Loloma was bound over in the sum of $100 for 1 year, fined $60 and [it appears] ordered to pay $50 compensation.
· 17 October 1996 - Suva - convicted of “act with intent to cause grievous harm”. Mr Loloma was sentenced to 9 months imprisonment suspended for 3 years and fined $50.
· 27 March 1997 - Suva - convicted of the offence of “stowaway” and fined $250.
· 25 February 2000 - Suva - convicted of “stowaway” and fined $300.
· 1 June 2000 - Suva - charged with the offence of assault occasioning actual bodily harm [but apparently not convicted]. The record states: “both parties reconciled and proceedings stayed for 12 months”.
57. Mr Loloma admitted to the offences listed above except those for which convictions are recorded on 11 January 1993 at Lautoka Court. Mr Loloma’s evidence is that he was in Labasa at the time staying with his friend Inoke Raiwalui. Mr Raiwalui gave evidence confirming this. The Applicant submitted a copy of a letter from the Magistrates Court in Lautoka dated 24 June 2003 (A4 attachment A) stating that all court records for the period prior to early January 1994 were destroyed by fire and the Court was, therefore, unable to verify or confirm anything about Mr Loloma. Since the Tribunal found Mr Loloma to be honest and forthright in giving evidence, in the light of his evidence of being in Labasa at the relevant time, which was confirmed by his friend, the Tribunal is not satisfied that the offences recorded in Lautoka were committed by Mr Loloma and considers that there may have been a mistake as to the identity of the person convicted.
58. The first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Loloma passes the “character test” having regard to his past and present criminal and general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev Minister for Immigration and Multiculatural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 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 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
59. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Loloma does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion. First, in relation to s 506(6)(c)(i), the person’s past and present criminal conduct, paragraph 1.8 states:
1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen’s record since the offence/s were committed, including:
·any evidence of recidivism or continuing association with criminals;
·a pattern of similar offences; and/or
·pattern of continued or blatant disregard/contempt for the law; and
(d) any mitigating circumstances such as may be evident from judges’ commer parole reports and similar documents.
60. Having regard to these matters, it would seem from the penalties imposed on Mr Loloma and the nature of the offences, that the offences he committed were of a less serious nature. The motor vehicle offences took place when Mr Loloma was aged 16. The first “larceny” conviction in 1992, about which some information was provided to the Tribunal, was essentially the shoplifting of some drill bits. Mr Loloma gave evidence that the conviction for “damaging property” on 8 February 1993 concerned his having damaged a taxi sign in an angry response to the driver refusing to drive him to his friend’s village in Labasa. The “act with intent to cause grievous harm” conviction on 17 October 1996 was, the Tribunal accepts, in relation to a fight with his cousin over a family matter in respect of which the parties were later reconciled. The Tribunal also accepts that the two “stowaway” convictions arose out of Mr Loloma trying to get to see Ms Williamson, and notes the charge of “assault” heard on 1 June 2000 did not result in a conviction.
61. The offences were committed over a period of 10 years when Mr Loloma was aged between 16 and 26. The Tribunal does not discern any particular pattern of offences despite several offences being committed twice, nor does there appear to be any evidence of disregard or contempt for the law although Mr Loloma’s evidence about his paying fines suggests at best a misunderstanding of the obligation to pay the fines imposed. The Tribunal notes that it now is over three years since the most recent conviction and there is evidence indicating recent good conduct and rehabilitation. However, in the Tribunal’s view, given the number of offences over a significant period, this is sufficient to warrant a determination that Mr Loloma does not pass the character test by reason of his past and present criminal conduct.
62. Secondly, in relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Part I of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9 (a), 1.9 (b) and 1.9 (c), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9 (a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9) (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9 (c)).
63. The Tribunal does not accept that the evidence indicates Mr Loloma has a contempt or disregard for the law. The evidence of the chief of his community, Ratu Tevita Bolabolo, and the pastor of his church, Pastor Natilai Vula, clearly evidences otherwise. Their evidence, and indeed the evidence of other witnesses, is to the effect that Mr Lolomo has matured after a period when, it seems, he was probably young and foolish.
64. The Tribunal finds that Mr Loloma did not knowingly make a false or misleading statement or declaration in answering “no” to question 68 of his spouse visa application which, inter alia, asked about convictions. The Tribunal accepts his and Ms Williamson’s evidence that they discussed how to answer this question and equated the word “conviction” with imprisonment. This was in line with the initial Fijian Police Clearance Certificate which stated that Mr Loloma had “no adverse record” (T14).
65. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed. As stated above, there is evidence of Mr Loloma’s recent good conduct, rehabilitation and greater maturity. Leaving aside Mr Loloma’s criminal convictions, the Tribunal does not consider Mr Loloma would otherwise fail the character test by reason of his past and present general conduct.
66. Having decided that Mr Loloma does not pass the character test by reason of his past and present criminal conduct pursuant to s 501(6)(c)(i) of the Act, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Loloma. In so doing, the Tribunal must have regard to Direction No 21 as a guide to the exercise of its discretion.
67. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
68. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include in subparagraph (c), serious crimes against the Act. Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
69. Turning to the first of the primary considerations, the protection of the Australian community, there is no dispute that Mr Loloma committed a number of offences in the period 1990 to 2000. However, given the Tribunal’s findings above that Mr Loloma’s record is of less serious offences and that he did not knowingly make a false or misleading statement or declaration, the Tribunal does not consider that his offences fall into the “very serious” category. The Tribunal thinks it unlikely that Mr Loloma will commit further offences given evidence of his recent good conduct and maturing. He would not, in the Tribunal’s opinion, be a risk to the Australian community. With regard to deterrence, although the Tribunal recognises that this may be an important consideration, in Mr Loloma’s case, given the less serious offences of which he was convicted and the Tribunal’s finding that he did not knowingly make a false or misleading statement or declaration, the Tribunal does not consider it a conclusive factor.
70. The second primary consideration is the expectations of the Australian community. In the Tribunal’s opinion, the community would take a humane view of Mr Loloma’s situation and would not consider this an appropriate case for the refusal of a visa.
71. The third primary consideration is the best interests of the child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
72. The Tribunal notes that Mr Loloma has a daughter, Neli Leima Wate, aged six, who resides with her father, grandparents and other family members in Fiji. Her grandmother has obviously been an important influence in her upbringing to date. The Tribunal finds that Neli has a good relationship with Ms Williamson to whom she refers as her mother. Mr Loloma expressed his wish that his daughter have the opportunity of a better education to that currently available to her and better prospects of future employment than are possible in Fiji. Both Mr Loloma and Ms Williamson want Neli to live with them in Australia. The Tribunal accepts that the educational and employment opportunities may be better in Australia than in Fiji but notes that for her to move to Australia would probably disrupt the ties with Mr Loloma’s family in Fiji although she may establish new relationships with Ms Williamson’s family in Australia.
73. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances in which the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
74. There is no dispute that Mr Loloma and Ms Williamson have a genuine marital relationship. It is now over three and a half years since they were married and Mr Loloma lodged his application for a subclass 309 visa. The Tribunal accepts that at the time the application was lodged and before, Ms Williamson was not aware that problems might arise with her husband’s application. She was aware that there had been incidents with the police, but knowing that he had never been imprisonment, she believed that he had not been “convicted”. The Tribunal finds Ms Williamson to have been frank and honest throughout and even though her understanding of the meaning of “conviction” might seem implausible to those who work in the legal system, nevertheless, the Tribunal found her explanation credible.
75. Mr Loloma’s family are in Fiji; Ms Williamson’s are in Australia, or at least will be when her daughter, Monique returns from overseas in December 2003. Ms Williamson is currently working in New Zealand but intends to return to Australia later this year where she plans to continue her work as a hearing adviser. She does not think she could obtain employment in Fiji. The medical evidence is that she is suffering from a number of medical conditions requiring careful supervision of medication and regular tests. The medical reports state it is unlikely that the necessary quality of medical care would be available to her in Fiji. Two of the three medical reports refer to the stress arising from her husband’s immigration problems affecting her detrimentally. Ms Williamson said the matter had affected her “very badly”.
76. The Tribunal has already referred to evidence of Mr Loloma’s recent good conduct and of his maturing. It accepts his evidence and that of his family and other community members that he is hardworking and community conscious. The Tribunal notes that according to his Pastor, he attends church regularly and contributes to the Church’s outreach activities. The Applicant has provided references as to his good character from two local police officers, the Mayor of Nausori and others, in addition to the supportive character evidence provided at the hearing.
77. Weighing up the primary and other considerations, in the Tribunal’s opinion Mr Loloma presents no threat to the Australian community. Indeed, the Tribunal was impressed by the sincerity with which he spoke and by the amount of evidence supportive of his good character despite the misconduct of his younger days and certain foolish mistakes. As stated above, the Tribunal considers that the Australian community would take a humane view of Mr Loloma’s and Ms Williamson’s situation and, in the light of the other considerations, would consider that a visa should not be refused. It is difficult to determine where the best interests of Mr Loloma’s daughter, Neli, lie but, on balance, her interests would probably be better served by being with two parents in Australia.
78. This is an appropriate case for the exercise of the discretion in s 501(1) of the Act and the Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction to that effect.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 17 July 2003
Date of Decision 7 August 2003
Representative for the Applicant Self-represented
Representative for the Respondent Mr J Neely
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