Zefis and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS – IMMIGRATION – bridging visa – character test – pending criminal charges – illegal entry to Australia using false documentation – whether of good character - failure to pass character test – whether discretion should be exercised – rights of the unborn child – harm to and expectation of the Australian community – refusal to grant visa unlikely to deter others – decision set aside.

CATCHWORDS – PRACTICE AND PROCEDURE – procedural fairness – whether the Minister can lead oral or written evidence not disclosed prior to the hearing – whether procedural fairness breached by the applicant's being prohibited from responding to that evidence by virtue of s. 500 Migration Act 1958 - evidence not admitted.

CATCHWORDS – PRACTICE AND PROCEDURE – privilege against self-incrimination – whether adverse inferences can be derived from exercising privilege – no inference derived.

Migration Act 1958 ss. 5, 20, 31, 499, 500, 501, 501G, 506 and Schedule 4 criterion 4001
Migration Legislation Amendment (Procedural Fairness) Act 2002 ss. 51A, 118A and 357A
Administrative Appeals Tribunal Act 1975 ss. 21, 21A, 22, 25, 27, 28, 29, 32, 33, 35, 37, 40, 41, 42A, 42B, 42C and 43
Administrative Appeals Tribunal Regulations 1976
Universal Declaration of Human Rights 1948
Declaration of the Rights of the Child 1959
International Covenant on Civil and Political Rights 1966

V96/04085 (4 April, 1996)
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Dolan v Australian Overseas Telecommunications Commission (1993) 114 ALR 231
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 10910, 2 May, 1996)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Attorney-General's Reference No. 3 [1997] UKHL 31
R v Hutty [1953] VLR 338
Yunghanns v Candoora No. 19 Pty Ltd, (unreported, [1999] VSC 524, 15 December, 1999)
Watt v Rama [1972] VR 353

DECISION AND REASONS FOR DECISION [2002] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/197
GENERAL ADMINISTRATIVE DIVISION     )

ReMARIO ZEFIS
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  16 August, 2002
Place:  Adelaide

Decision:The Tribunal:

1.sets aside the decision of a delegate of the Minister dated 12 June, 2002; and
2.substitutes a decision that the applicant should not be refused a bridging visa on the basis of his not passing the character test pursuant to s. 501 of the Migration Act 1958.
(sgd. S A Forgie)
S A FORGIE
Deputy President

REASONS FOR DECISION

On 17 June, 2002, the applicant, Mr Marios Zefis, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") dated 12 June, 2002. The delegate's decision was to refuse Mr Zefis a Bridging Visa on the basis that he did not satisfy the character test set out in s. 501 of the Migration Act 1958 ("the Act").

At the hearing, Mr Zefis was represented by Ms McGrath and the Minister by Ms Zanker. The documents lodged pursuant to s. 501G of the Act ("G documents") and those served on Mr Zefis by the Minister were admitted in evidence together with statements by Mr Zefis, Ms Vjollce Marashi, Mr Pjeter Pllumbi, Mr Jani Pepaj, Ms Etleva Kolaj, Ms Rita Marashi, Mr Jane McGrath, Mr Daryl Wayne Mundy and Mr John Lawrence Braithwaite, a letter from Mr Jon Lister dated 19 July, 2002, letter to the Department of Immigration, Multicultural and Indigenous Affairs ("Department") dated 29 May, 2002 regarding Mr Zefis's application for a Protection Visa, certified copy of Mr Zefis's passport, a decision record relating to Ms Vjollce Marashi, the Code of Lek Dukagjini, copy of a report of the United States Department of State regarding Albania and a decision of the Refugee Review Tribunal ("RRT") in the matter of V96/04085 (4 April, 1996). Oral evidence was given by Mr Zefis, Mr Pjeter Pllumbi, Ms Vjollce Marshi, Mr Jani Pepaj, Ms Etleva Kolaj, Ms Rita Marashi, in support of the case presented on behalf of Mr Zefis. No oral evidence was given on behalf of the Minister.

THE ISSUES

There were two preliminary issues that required consideration before I considered the primary issues in this case. The first preliminary issue concerned whether or not certain evidence could be led at the hearing on behalf of the Minister when it had not been lodged in the Tribunal at an earlier time. The second preliminary issue concerned the weight that should be given to Mr Zefis's declining to answer certain questions on the ground, variously expressed, that the answers might incriminate him. The first of the primary issues is whether Mr Zefis passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.

BACKGROUND

Although Mr Zefis was challenged in cross-examination on a number of issues, he did not sway from his evidence. It was supported by the other witnesses who were called on his behalf. It was not contradicted by any of those witnesses or by the written material and, as I said, no oral evidence was called on behalf of the Minister to contradict it. In view of that, I have made a number of findings of fact that I will set out in the following paragraphs.

Before the communist government assumed power in Albania in 1945 or 1946, land was held in private ownership. The family of Mr Zefis owned land in or near the village of Gurez and had done so for the previous seven generations. Although the initial landholding had been large, the holdings owned by individual family members were ultimately quite small as the land was divided and subdivided amongst the family from generation to generation. The Zefis family lost ownership of its land to the government in 1945 or 1946 when a communist government assumed power in Albania.

Mr Zefis was born in Gurez in Albania on 1 January, 1970 and lived in that village with his parents and sister until 2001. There were approximately 300 houses in Gurez. His parents supported their family by working as farm labourers for the State owned and operated Farm Cooperative. Although religious worship was outlawed by the Communist government in Albania, the family regarded themselves as following the Roman Catholic faith and Mr Zefis's mother taught him about God and the Bible in the privacy of their own home. In 1979 or 1980, Mr Zefis's father was imprisoned for speaking against the Albanian government and the loss of freedom that he perceived it had brought to the Albanian people. His term was extended while he was in prison as he did not desist from his criticism. In all, he spent some ten years in prison. Mr Zefis and his family were permitted to visit his father but, as the prison was some distance from the village, they saw him only every six months or so.

In 1991, a democratically elected government began to restore the land to private ownership but disputes have arisen. On the basis of the Country - Report on Human Rights Practices – 2000 prepared by the United States Department of State in respect of Albania, it is clear that many questions relating to property ownership claims continue to be unresolved (Exhibit A, page 83). Both Mr Zefis's father and members of the Hoxha family claimed the same land. The government accepted that Mr Zefis's father, who produced papers to support his title, owned some five hectares of land. Despite the government's acceptance, the Hoxha family continued to dispute his ownership of the land. Members of that family would approach government officials in Gurez from time to time to assert their rights and Mr Zefis's father would re-state his claim. The Hoxha family wanted part of the land to build a mosque. Despite his claim's having been accepted, Mr Zefis and his father feared that he would lose the land to them because the local officials followed the Moslem faith and the Zefis family followed the Roman Catholic faith.

There were constant arguments between the two families. There were fights between members of the two families. Mr Zefis was involved in them. At times, he was beaten by members of the Hoxha family when he tried to defend himself or the land but was not beaten so badly that he needed to be hospitalised. During one altercation at which Mr Zefis was present, his father's leg was broken. The Hoxha family had started to build a fence on the land but Mr Zefis's father told them to go away and then pulled the fence down. Both the head of the Hoxha family (Mr Maxhun Hoxha) and two of his five sons (Bajram, Sokol, Jakop, Pjetri and Shpend Hoxha) were present as was Mr Zefis. When his leg was broken, Mr Zefis helped his father to get home. His father told him that he would take care of matters but Mr Zefis did not believe that his father would kill any member of the Hoxha family. He thought that his father would be able to have the matter resolved through negotiation with the help of other members of the village. His father did not want him to take up arms against the Hoxha family. On 1 October, 2000, Mr Zefis's father found Mr Hoxha and Bajram Hoxha on the land. He asked them to leave but they refused. Mr Zefis then shot and killed them both.

Mr Zefis's father travelled immediately to the city of Lhez. A person whom Mr Zefis described as his cousin but who is more distantly related to him heard of the shooting and went immediately to find Mr Zefis. He found Mr Zefis in a shop and took him to Lhez where he met his father and both stayed with his uncle. They left Gurez for both the Zefis family and the Hoxha family abide by the Kanun of Lek Dukagjini ("the Kanun"). There was oral evidence as to the Kanun and it was supported by newspaper articles (Exhibit C). On the basis of that evidence, I find that, the Kanun was laid down in the medieval ages by the war lord Lek Dukagjini. In broad terms, the principles of honour, hospitality and vengeance are its three cornerstones. Honour requires that wrongs be avenged and vengeance often requires that blood not only be spilt but that a person be killed. It is not necessary to spill the blood of the person who committed the wrong or to kill that person. Honour is satisfied by killing a male member of the family. An "eye for an eye", as it were, is not an end of the matter for a killing in satisfaction of honour then requires a further killing until all male members of one of the feuding families has died. "Un-avenged blood" is a shame for the whole of the family.

During the years of the communist government, the Kanun was suppressed but, with the return of democratic government, it has revived and particularly so in the northern regions of Albania. In 1997 members of the community broke into arms depots and stole the weapons and ammunition stored there. Since then, the level of violence has escalated and police are unable to maintain law and order. With the revival of the Kanun, old feuds have been revived and new subtleties have been introduced. Whereas, for example, women and children could not be killed to satisfy honour, they are no longer safe. Killings could not occur in front of women under the traditional implementation of the Kanun but now they do. Local government has established a Blood Feuds Reconciliation Committee in an attempt to resolve grievances between people in ways other than through honour killings but, with so many blood-feuds, they have little success.

With this knowledge, Mr Zefis and his father both fled Gurez in an attempt to avoid being killed in revenge for the two killings. As well as Mr Zefis's mother, they had other relatives living in Gurez but they were safe from being killed according to the Kanun because they were only distantly related. His father moved from house to house to avoid both members of the Hoxha family and the police. Mr Zefis stayed with his uncle in Lhez and then the family raised money to pay smugglers to take Mr Zefis across the mountains to Greece. Until that time, he had never thought of permanently leaving Gurez and the farm and had thought that he would stay to farm it. His father's action changed that as its consequence was that his own life was now in danger. Mr Zefis saw his circumstances as resulting from the consequences of the application of the Kanun and from his family's following the Roman Catholic faith and the Hoxha family's being Moslem. Mr Zefis travelled by foot across the mountains and arrived in Greece in October, 2000 after crossing the border at Kapshtic. There was no challenge at the border and he then took a taxi to the home of one of his cousins, who lived in Athens.

Mr Zefis's cousin arranged a Greek passport for him and paid $US10,000 on his behalf to purchase it. His family later raised that money to repay his cousin and did so by selling part of their land at Gerza. The passport was issued in the name of George Zakakis. As well as a passport, the $US10,000 purchased an escort for Mr Zefis. That escort travelled with Mr Zefis and was to return the sum of $US2,000 when they arrived safely in Australia. In return, Mr Zefis was to give him the Greek passport.

Mr Zefis travelled from Greece to Turkey and showed his own Albanian passport when he left Athens. That passport had been issued to him on 24 November, 1999. He had applied for it when he and his family had planned to travel to Yugoslavia for Christmas. On arrival in Istanbul, he showed his Greek passport. Again using his Greek passport, he travelled to Singapore where he stayed for two nights before travelling to Australia. On arrival in Adelaide, Mr Zefis lost sight of his escort and did not retrieve his money or return the passport.

On arrival in Australia, Mr Zefis was met by an Albanian man at the airport. He stayed with him for two days and then moved to the house of another Albanian man. Mr Zefis said that he did not know how the man came to meet him at the airport and speculated that there may have been an arrangement between the man who accompanied him to Australia and the Albanian man. Mr Zefis said that he stayed in the home of the second Albanian man for three, four or five months. He was not afraid of the two men and did not fear that they had connections with the Hoxha family because the two men were of the Roman Catholic faith. His evidence was not challenged and, for the purposes of this hearing, I accept it and find that he stayed with the two Albanian men as he described.

The evidence as to when Mr Zefis met Ms Vjollce Marashi is a little confused. Mr Zefis said in paragraph 40 of his statement that they met in February, 2001 but also that they met at a christening in January, 2001. In his oral evidence, he said that he met her at a Christmas party in December, 2000 as did Ms Vjollce Marashi. I do not consider the discrepancy of consequence for it is clear from the evidence that the christening was an important event when other family members met her. Ms Marashi, who was born on 26 June, 1978 in Albania, had come to Australia on 13 September, 2000. Ms Marashi had left Albania after she broke an engagement with a man whom she and her family had come to believe was involved in the management of prostitutes in Italy. They had formed that belief after her family had approved of the engagement. Under the Kanun, a broken engagement may be avenged by killing a member of the family of the person who broke the engagement. The father of Ms Marashi's former fiancee stated that someone in her family would die. There were negotiations between the families in order to settle the matter but they were unsuccessful. Her family has left Albania and false passports were obtained for Ms Marashi, her brother and sister-in-law. Ms Marashi had used a passport that had been issued in the name of Aulona Matlija and was endorsed with a resident visa. When she first lived in Australia, Ms Marashi lived in Adelaide with her brother, Mr Fran Marashi, but, has since lived either with him and his family or with her sister, Ms Rita Marashi, and her husband, Mr Jani Peraj and their two children aged three and five years. Both her brother and her sister are Australian citizens.

Before they married, Ms Marashi and Mr Zefis were "very proper" and in accordance with Albanian tradition. When they decided that they like each other, her family made enquiries about his family. Her brother, Mr Fran Marashi, made enquiries when he returned to Albania in the middle of 2001. Mr Fran Marashi also consulted Mr Pllumbi, who is related to Mr Zefis through his mother's family and who is regarded as a respected elder in the Albanian community. Mr Zefis and Ms Vjollce Marashi married in a traditional ceremony in September, 2001.

Mr Zefis and Ms Marashi were arrested on 3 April, 2000. Ms Marashi was initially refused bail and was held in custody for a week. It was at that time that she discovered that she was expecting a child. The baby is due on approximately 11 November, 2002. Charges against her were subsequently withdrawn. Charges were also laid against Mr Zefis and they have not been withdrawn. They are possessing a controlled substance (being cannabis with a value of $100,000) for sale, driving in a reckless or dangerous manner and driving a vehicle without licence.

Ms Rita Marashi and Mr Pepaj have worked very hard since coming to Australia and have developed a business of some substance. They have always opened their home to Ms Marashi and to Mr Zefis. Mr Zefis has always been free to sleep and eat in their home. They were both quite clear in their evidence that Mr Zefis has never worked for them. I accept their evidence for both impressed me as hardworking and generous people as well as anxious to abide by the rules of their new country.

CONSIDERATION

The preliminary issues

The legislative framework

Section 501G sets out the procedures that the Minister must follow if he makes a decision under, among others, s. 501(1) as he has done in this case. He must give the person whose visa he has refused or cancelled a written notice setting out the decision, specifying the provision under which the decision is made and setting out the reasons (other than non-disclosable information) for the decision (ss. 501G(1)(a) to (e)). Non-disclosable information means information that, in the Minister's opinion, would be contrary to the national interest for one of the reasons specified in s. 5(1). There is no such information in this case. The Minister is also required to advise the person of his or her right to have the decision reviewed by the Tribunal and, where the person is in the migration zone, to advise of the effect of ss. 500(6A) to (6L) of the Act. As Mr Zefis is in the migration zone, the notice that the Minister gives must also:

"… be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate's possession or under the delegate's control; and
(e)was relevant to the making of the decision; and
(f)does not contain non-disclosable information." (s. 501G(2))

There is no question that the Minister complied with the requirements of s. 501G in relation to the decision he made cancelling Mr Zefis's bridging visa.

Section 25 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") provides that an enactment may provide that an application may be made to the Tribunal for review of, among others, a decision made in the exercise of powers conferred under that enactment (s. 25(1)(b)). The Tribunal has power to review any decision in respect of which an enactment may be made to it under any enactment (s. 25(4)). The AAT Act goes on to impose certain obligations on the decision-maker and, within defined limits, to give the Tribunal powers to enable it to review a decision in respect of which an application is made to it. So, for example, s. 28 provides for a person affected by a decision to request the decision-maker to provide reasons and s. 29 provides the time within which an application must be lodged in the Tribunal. Section 37 provides for the decision-maker to lodge:

"(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person's possession or under the person's control and is considered by the person to be relevant to the review of the decision by the Tribunal." (AAT Act, s. 37(1)(b))

Section 25(3)(c) provides, however, that the enactment providing for review of a decision may specify conditions subject to which applications may be made. It may also include provisions adding to, excluding or modifying the operation of ss. 21, 21A, 22, 27, 29, 32, 33, 35, 41(1), 43(1) and 43(2) of the AAT Act (s. 25(6)(b)). Of interest in this case is s. 29, which provides for the time limits within which an application must be made to the Tribunal and s. 33, which provides in general terms that the Tribunal's procedures are, subject to the AAT Act and any other enactment, within the discretion of the Tribunal.

Section 500(1)(b) of the Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s. 501. As he is in the migration zone, the Act modifies the operation of the AAT Act and places certain procedural restrictions on Mr Zefis. It does so in s. 500 by purporting to provide, for example, that the provisions of the AAT Act relating to reasons for decision and time limits within which to lodge an application do not apply to decisions made under s. 501 of the Act in relation to a person within the migration zone (ss. 500(6A) and (6B)). Section 500(6D) purports to provide that s. 37 of the AAT Act does not apply. Instead, it substitutes provisions relating to such matters.

There must be a question as to whether some of these provisions are consistent with the power to modify found in s. 25(6)(b) of the AAT Act for neither is specified. Section 500(6B), which provides that a person within the migration zone must lodge his or her application within nine days after the day on which he or she was notified of the decision in accordance with s. 501G(1), would seem to come within the general modification power in s. 25(3)(b) of the AAT Act. The time limit for lodgement would seem to be one of the "conditions subject to which applications may be made" (AAT Act, s. 25(3)(c)).

On the other hand, neither ss. 28 or 37 would appear to deal with matters coming within that description. They are both concerned with matters arising separate from the lodgement of the application and s. 25(6)(b) of the AAT Act does not specifically permit their modification. Section 28 of the AAT Act provides that a person is entitled to a statement of reasons. Section 28(4)(b) of the AAT Act may operate to ensure that an applicant is not so entitled if the statement provided to an applicant under s. 501G(1) sets out the detail required by s. 28(1). That, though, is a different matter from providing, as does s. 500(6B), that s. 28 of the AAT Act does not apply to the decision.

A similar comment may be made in relation to s. 37 of the AAT Act. There is nothing in s. 25 of the AAT Act that permits its modification or within the section itself and yet s. 500(6D) of the Act provides that s. 37 does not apply in relation to the decision made under s. 501 when the decision relates to a person in the migration zone. Instead, an applicant is required to lodge in the Tribunal one of the sets of documents given to him or her under s. 501G(2) (s. 500(6C)(b)). That includes, among other matters, the reasons for decision. The Minister is then required to lodge with the Tribunal within 14 days after the day on which he was notified that the application had been made:

"…every document, or part of a document, that:
(i)is in the Minister's possession or under the Minister's control; and
(ii)was relevant to the making of the decision; and
(iii)contains non-disclosable material." (s. 500(6F)(c))

There is a subtle difference between s. 500(6F)(c) and s. 37 of the AAT Act. Both would encompass documents that are relevant to the making of the decision but not considered probative by the Minister but s. 500(6F)(c) is confined to those relevant to the making of the decision. Section 37 extends to those that are relevant to the review and so would encompass any documents that have come into the Minister's possession or control after the making of the decision. It may be that the provisions of s. 500(6K) may be used to obtain any documents that would ordinarily come within the scope of s. 37 (see paragraph 27 below).

Returning to the procedure set out in the Act, the Tribunal may not hold a hearing until at least 14 days after the date on which the Minister was notified of the application's having been made (s. 500(6G)). This ensures that the Minister has had time to lodge the documents under s. 500(6F)(c). If the applicant wishes the Tribunal to have regard to any other documents, he or she must give the Minister a copy at least two business days before the Tribunal holds a hearing (s. 500(6J)). A "business day" is a day that is not a Saturday, Sunday or a public holiday (s. 500(8)). If he or she wants the Tribunal to have regard to any oral evidence, he or she must give the Minister a written statement setting out that evidence at least two business days before the Tribunal holds a hearing (s. 500(6H)). If the Tribunal considers that particular documents, or documents in a particular class, may be relevant to the decision under review, it may require the Minister to lodge two copies of each of those documents that is in his possession or control. The notice requiring the Minister to do that must state that the Tribunal is of the opinion that the documents may be relevant to the decision under review (s. 500(6K)).

If the Tribunal has not made a decision under ss. 42A, 42B, 42C or 43 of the AAT Act within 84 days of the day on which the applicant was notified of the decision in accordance with s. 501G(1) of the Act, it is taken to have affirmed the decision (s. 500(6L)).

Should the Minister be permitted to lead oral or written evidence not disclosed prior to the hearing?

At a directions hearing held on 26 June, 2002, the Tribunal directed that each party file in the Tribunal and serve on the other his statement of facts, issues and contentions and an outline of the evidence of all witnesses, reports, records and any other documents on which he relies. The Minister was to do so by 4 July, 2002 and Mr Zefis by 24 July, 2002. The direction was framed in this way so that Mr Zefis would be able to answer any additional matters raised on behalf of the Minister while meeting his obligation to advise the Minister two business days before the hearing of any evidence he intended to give at the hearing. Ms Zanker issued a summons to the Commissioner of the South Australian Police ("SAPOL") and it was returnable on 12 July, 2002. Material was lodged with the Tribunal in response but SAPOL failed to comply with the summons fully. Further summonses were issued to SAPOL for return on 25 July, 2002 but no documents were produced on that day or subsequently. At the hearing, Ms Zanker indicated that she wished to call witnesses or produce further documents at the hearing. That course was opposed by Ms McGrath. It transpired that Ms McGrath had agreed that Ms Zanker could comply with my direction at a later time but there was confusion between them. Ms McGrath had understood that Ms Zanker would only be filing a statement of facts, issues and contentions at that later time. At a directions hearing held on 29 July, 2002, I decided that documents could not be tendered or witnesses called on behalf where copies had not already been filed or statements produced to the Tribunal.

At the time that I made the direction and wrote the following paragraphs in these reasons, I was unaware of a judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 (Gray, RD Nicholson and Stone JJ). A facsimile message was sent to the Tribunal by the Minister's solicitors shortly before I was to hand down my decision. Having quickly read the judgement, it would seem to be binding authority against the direction that I made in this matter. Although its reasons are more fully expressed, the essence of the Full Court's judgement is found in paragraph 29:

"29 Parliament has chosen to place an express restriction on the entitlement of an applicant for review to rely on documents at a hearing in the Tribunal. That restriction is found in s 500(6J). It would have been a simple matter to include an express restriction on the Minister's entitlement to rely on documents. No such express restriction is to be found. Nor is there the implication of such a restriction arising from the limited categories of documents with which the section deals."

Although I recognise that the judgement is binding upon me, I have decided that I am bound by my decision at the hearing and am obliged to give my reasons for that decision. They remain the reasons for my direction be they contrary to authority or not.

Traditionally, the role of the Tribunal is to review a decision on its merits in order to reach the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589, per Bowen CJ and Deane J). In order to do that, the AAT Act requires the decision-maker to lodge material pursuant to s. 37 of the AAT Act and it may require either or both parties to produce further evidence. Furthermore, it may summons other persons to produce other documents that may be relevant to the review of the decision (AAT Act, s. 40). As the Tribunal's procedure is, subject to the AAT Act, the Administrative Appeals Tribunal Regulations 1976 and any other enactment, within its own discretion, the Tribunal may formulate its directions regarding the production of further evidence to suit the needs of the decision under review. That is the effect of s. 33(1) of the AAT Act and it has not been explicitly modified by any provision of the Act. It has, however, been implicitly modified by the Act's providing that an applicant within the migration zone must file documents or statements of evidence within two business days of the hearing. Presumably, that requirement meets the Minister's need to consider evidence to be produced to the Tribunal and to have sufficient time within which to meet it should he wish to do so.

But what of an applicant's need to have an opportunity to meet the evidence relied on by the Minister? What of the Tribunal's traditional role of reaching the correct or preferable decision on all available material and not merely on that available to the decision-maker at the time the decision was made or responsive to that material? An opportunity to respond is required by the rules of procedural fairness. Those rules are inherent in the AAT Act and have not been nullified by the Act. Indeed, the procedures set out in s. 500 of the Act seem to underline that an applicant should have an opportunity to meet the evidence relied on by the Minister. The Minister has 14 days after he receives notice of the applicant's application for review to lodge documents relevant to the making of the decision. The applicant has from the date on which the Minister lodges his documents until two business days prior to the hearing in which to respond.

While the procedures set out in s. 500 of the Act do not exclude the power of the Tribunal to require or to permit the Minister to lodge material which may be relevant to the review of the decision and is not encompassed within that which was relevant to the making of the decision, they are not conducive to its exercising that power. They are not conducive because of the overall 84 day time limit imposed by the Act. If the applicant is to have sufficient time within which to respond to the material and to do so before two business days prior to the hearing, the Minister must lodge any additional material at an early time in the Tribunal's proceedings.

In the case of Mr Zefis, I had attempted to balance the competing needs of the Tribunal's traditional role and those of the rules of procedural fairness while giving each party the opportunity to present all material they considered relevant to the review. When the material was not lodged on behalf of the Minister in accordance with the direction and ss. 500(6H) and 500(6J) prohibited Mr Zefis's lodging any evidentiary material or giving any oral evidence in response, it seemed to me that I should not permit that material to be lodged.

For all practical purposes, the Minister or his delegate has had as long as he cared to take to require Mr Zefis to produce further material, to make further enquires and to assemble the evidence on which the delegate made the decision. He has had the opportunity to consider the material submitted to him by Mr Zefis and, in addition, has had an opportunity to ask him for further information. In addition the delegate had as long as he cared to take to consider the material and to make the decision. He was not subject to time restraints. Time restraints only came into operation when the delegate had made his decision and it had been given to Mr Zefis. On its face the framework of the Act, before it is clothed with notions of procedural fairness or the interlocking operation of the AAT Act, would seem to be that the Minister presents the material upon which he wishes to rely and an applicant produces his written material and written statements of oral evidence he or she wishes to lead. Its bare framework appears to contemplate that each party has "one bite at the cherry" as it were. There is nothing to suggest that the Minister is entitled to lead fresh evidentiary material after an applicant is no longer entitled to do so. There is nothing in the Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, that was passed and introduced ss. 500(6A) to (6L) in the Act that suggests that the Minister should be so entitled. Indeed, the emphasis of the Explanatory Memorandum is upon the expedition of the review process, ensuring that the Tribunal has relevant information and ensuring that the review process is not used as a mechanism to prolong a person's stay in Australia. The introductory paragraphs to the amendments read:

"37. This item inserts new subsections 500(6A) to (6L). These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character.
38. These amendments are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled as a consequence of:
them being unable to satisfy a delegate of the Minister that they pass the character test; and

there being insufficient mitigating factors for the delegate to exercise the discretion not to refuse a visa application or not to cancel a visa." (Explanatory Memorandum)

There is nothing in the Act that suggests that its framework should not be clothed with notions of procedural fairness or the interlocking operation of the AAT Act. Parliament has been quite specific in other areas of the Act in removing the applicability of notions of procedural fairness in the Act. In the Migration Legislation Amendment (Procedural Fairness) Act 2002, for example, Parliament has specifically stated that the provisions set out in particular Subdivisions of the Act are taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with" (e.g. ss. 51A, 118A and 357A). No such provision has been enacted in relation to the procedures set out in ss. 500(6A) to (6L).

I have already noted above the specific changes that the Act has made to the operation of the AAT Act. There is no specific reference to s. 33 of the AAT Act although clearly there have been variations by, for example, the requirement of the time by which an applicant must lodge evidentiary material. There is nothing to suggest that the Tribunal's discretion to direct its own procedures is affected provided its exercise is consistent with the provisions of the Act and, in particular, ss. 500(6A) to (6L).

Ms Zanker obtained additional evidence in support of the Minister's case that she wished to produce. From the point of view of a legal practitioner acting for her client, she acted quite properly in seeking to present his strongest case. Had I permitted her to produce that evidence, no doubt it would have been relevant to the review. The Tribunal would not, however, have been in any position to have been given a balanced view of all material relevant to the review of the decision. That follows from the fact that Mr Zefis would have been prevented from producing any answering evidence he may have by the operation of ss. 500(6H) and 500(6J). He cannot be expected to put in the answering material before he is prevented from doing so for he cannot be expected to anticipate every aspect of the Minister's case. It follows that the very operation of ss. 500(6H) and 500(6J) would operate to deny Mr Zefis an opportunity to respond to all material put to the Tribunal. That would be a breach of the rules of procedural fairness.

Claim to privilege against self-incrimination

In response to questions relating to the matters upon which he has been charged with criminal offences, Mr Zefis refused to answer them. He did so in various ways: that his solicitor had advised him not to answer such questions or that the answers might incriminate him. In view of his difficulties with the English language, he was given a warning on most occasions on which a question relating to those matters was asked. What, if anything, should I make of his claiming privilege?

This was a question considered by Spender J in Dolan v Australian Overseas Telecommunications Commission (1993) 114 ALR 231 where he examined the history of, and principles behind, the privilege. He observed that no adverse inference can be derived from a claim to legal professional privilege and continued:

" In my opinion, since the privilege is able to be relied on if the answer might tend to incriminate, it is impermissible to draw any adverse inference, because the drawing of an adverse inference necessarily assumes that the answer would incriminate. The reason for the existence of a rule is quite a different matter from the permissible consequences of the exercise of a rule. I acknowledge that the rationale for legal professional privilege is not the same as the rationale for the privilege against self-incrimination. While the reasons for the respective privileges might be different, I can see no logical reason why an adverse inference can not be drawn from the exercise of legal professional privilege yet such an inference can be drawn where the privilege exercised is that against self-incrimination.
In either case, it seems to me that a person could legitimately ask 'why claim the privilege, if there is nothing to hide?' If, as seems clearly to be the case, it is wrong to draw an adverse inference from the exercise of legal professional privilege, it is also wrong to permit an adverse inference from the exercise of the privilege against self-incrimination. If to permit an adverse interest would undermine the very existence of legal professional privilege, the same applies to the privilege against self-incrimination. It would, in truth, be a 'snare' or 'delusion'. A refusal to answer, based on privilege, would for all evidentiary purposes be the equal to an unqualified admission of the truth of the question." (pages 241-242)

Primary issues

Framework of Act

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 visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). 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 to the Regulations. Among the primary criteria that must be satisfied for any bridging visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test." (Schedule 4 regulations)

Section 501(1) of the Act provides that:

"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:

"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c) 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; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

The Direction

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 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.

In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:

"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

The Direction – good character

The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:

"1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."

Sections 501(6)(b) and 501(6)(c)(ii) are relevant in this case. In relation to s. 506(b), the Minister directed:

"1.5 The meaning of 'association' for the purposes of the Character Test encompasses a very wide range of relationships including having an 'alliance' or a 'link' or 'connection' with a person, a group or an organised body that is involved in criminal activities. 'Association' does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b)the duration of the association; and
(c)the nature of the association."

In relation to s. 501(6)(c)(ii), the Minister directed that:

"1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
.engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
.continual evasion or non-payment of debt;
.continual disregard as to payments of family maintenance;
.involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
.involvement in war crimes or crimes against humanity.

(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
·whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or

·the seriousness of the offence with which the applicant has been charged; or

(b)resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."

The authorities – good character

In this case, part of the focus is upon Mr Zefis's past and present general conduct as set out in s. 501(6)(c)(ii). 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 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)

After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in sub-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)

A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (AAT 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 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)

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 good character 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 to 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)

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) 56 ALD 321. 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 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 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, pages 324 and 327)

Does Mr Zefis satisfy the character test?

There is no question that Mr Zefi arrived in Australia relying on a passport and a visa that was not issued to him and that he remained unlawfully here until he was apprehended by the police on 3 April, 2002. He did so having entered Greece without a visa and without having sought refuge in Greece. He understood that he could not obtain refuge in Greece and that he would be turned away and returned to Albania if he approached the authorities in Greece. At one level, Mr Zefis's actions may reveal a person who is prepared to put himself ahead of the laws of the countries in which he finds himself. Before an adverse conclusion of that sort can be drawn, though, his actions must be seen in their context. The context is that of the blood feud and of Mr Zefis's fear for his life. Assuming that it is so that he could have claimed refuge in Greece, I accept his evidence that he feared to do so because Greece would have returned him to Albania within 24 hours. If he returned, he feared, and his family feared, that he would be killed. His father had already been killed in March, 2001 but I accept his evidence, supported as it was by Mr Pllumbi, that a second life was required to satisfy the Hoxha family honour. Mr Zefis saw Australia or Canada as being as far away from Albania as he could get. Taking Mr Zefis's illegal entry with his reasons for doing so reveals a person who breached the laws of Australia and Greece but who has done so because he felt that he had no other choice.

Another aspect that I must consider is Mr Zefis's continuing to breach Australia's laws once he arrived here illegally. He did not claim refuge. He did not approach the Department and reveal his situation to it. Mr Zefis said that he talked to Ms Marashi and to her brother and sister, as well as to other members of the family, about his situation of being unlawfully in Australia. He said that he did not want to go to the Department until he had his Albanian passport and other relevant documents including his birth certificate, a certificate that there were no adverse reports against him in Albania and a death certificate for his father. It was his understanding, he said, that it was easier to obtain a bridging visa if a person could establish his or her identity. Mr Zefis said that he wrote to his cousin in Greece to obtain these documents and did so before his wedding. His cousin had travelled to Albania to obtain them. He had not gone to the Department at an earlier time as he feared that he would be detained and then sent back to Albania and as he feared that the Hoxha family had connections in Australia and would harm him.

This is a more worrying aspect of Mr Zefis's behaviour in Australia. He feared being found by members of the Hoxha family because he had been told by his family in Albania that they were present in Australia. At the same time, he entrusted himself to a man whom he first met at the airport for three days and then to another man for several months. He said that they were both Roman Catholic but there is a question as to how he could identify a man's religion on the initial meeting at the airport. Perhaps he had a little more opportunity to identify the religion of the second man. Accepting as I do that he had asked his cousin to obtain the documents he needed before his arrest, there is still an eighteen month period between his arrival in Australia and the night of his arrest. Some of that time was taken up with his cousin's having to travel from Greece to Albania to obtain the papers which I am satisfied arrived in Australia in mid April, 2002. They were seized on entry and have not been made available to Mr Zefis. Perhaps the other part of the eighteen month period is explicable by his being fearful that he was not safe in Australia from members of the Hoxha family.

That brings me to the offences with which he is charged. At the same time, those charges have been laid and are outstanding. The Direction states that, in the absence of countervailing factors, a person is not of good character if his or her conduct has resulted in "offences that are the subject of charges but are not resolved pending a hearing or trial" (paragraph 1.10(a)). It would seem that this passage of the Direction does not require me to take into account the fact that Mr Zefis has been charged per se but whether or not his conduct has resulted in, first, offences and, if so, offences that are the subject of charges. It then goes on to set out some of the "matters to be considered when deciding the weight to be given to unresolved charges …". The emphasis of paragraph 1.10(a) has moved from the offences to the charges but it then returns to the offences when the Direction states that one of the matters to be taken into account is "the seriousness of the offence with which the applicant has been charged".

There seems to me to be a tension between this aspect of the Direction and the common law. At common law, a person is deemed to be innocent until proven guilty and, as Spender J said in Dolan, an adverse inference cannot be drawn from a person's claiming privilege in relation to questions relating to the offences with which he has been charged. In so far as the Direction seems to suggest that I should ascertain whether Mr Zefis's conduct has resulted in offences, it seems to trespass upon the proper role of the criminal courts. It may also trespass upon the views expressed by the Full Court of the Federal Court in Goldie. Although concerned with whether a person's failure to return to his country of birth to face outstanding charges could be relevant in determining whether a person is not of good character, what the court said may have some relevance where charges have been laid but not determined. It said that:

"… in the absence of the tribunal making a finding as to his possible guilt or as to his reason for not returning, the bare fact that he had not gone back to Scotland to face the fraud charges was wholly neutral with respect to the character issue." (paragraph 48, page 332)

In this case, there is evidence from officers of SAPOL that they had received information to approach a certain house. As they approached, they saw a motor vehicle reverse from its driveway. They followed that vehicle for a time and then attempted to stop it by activating the siren and blue light on the police vehicle. Instead of stopping, the vehicle accelerated away and reached a speed of 70km in suburban streets. When the vehicle stopped, the male driver got out and ran away leaving two passengers in the car. The police officers found Mr Zefis hiding under a bush. On returning to the car, they smelt cannabis from its boot. On opening it, they found three large green garbage bags full of cannabis leaves, heads and stalks.

In the absence of Mr Zefis's refusing, as he is entitled to do, to answer questions about this matter, I am left with the uncontradicted evidence of the police officers. I cannot, however, give that any weight for to do so would be to render nugatory Mr Zefis's right to claim privilege in these proceedings and to be presumed innocent until proven guilty. All that I can find is that he has been charged with a serious offence given that the cannabis alleged to have been in his possession is said to be worth $100,000. I am unable to go further and come to a view as to whether he may be guilty of the offences with which he is charged. In the circumstances, the fact that he has been charged with the offences must be seen as neutral with respect to whether or not he passes the character test.

It may be that people such as Ms Rita Marashi, Mr Pepaj and Ms Vjollce Marashi have committed an offence in that they have cared for Mr Zefis when they knew that he had entered Australia illegally. Ms Zanker submitted that Mr Zefis had, therefore, associated with people who have been involved in criminal conduct. It seems to me that this is somewhat of a circular argument. His own conduct in seeking shelter with those people is then reflected back upon him but magnified, as it were, by their actions. If he were going to remain in Australia illegally, it was inevitable that people would be drawn into assisting him in providing him with food and shelter and other comforts of life. I am satisfied that none of the people who have done so has condoned his behaviour. Each has encouraged him to go to the Department to report his situation. It seems to me that Mr Zefis's actions must be assessed by reference to his own behaviour in the circumstances and not by the actions of those who have been drawn into his circumstances.

All of the witnesses spoke highly of Mr Zefis's good character. Mr Pllumbi thought him to be a good man. Mr Pepaj thought of him as a very decent and nice man. He said that this was the view held of him in the community and that he is also regarded as a gentle man and good tempered. Ms Rita Marashi described him as loving and gentle to her sister and said that her own children were constantly asking for him. He and her sister are devoted to each other, she said. Ms Kolaj has known Mr Zefis since they were children in Albania and he was her brother's friend. Everyone likes Mr Zefis, she said, and he impressed her as an open, honest and trustworthy man. Although she lives in Sydney, she has seen him both in Sydney on one occasion and at least twice in Adelaide. Ms Vjollce Marashi described her husband as a good husband.

Having regard to all of the evidence, I am satisfied that Mr Zefis has been a loyal friend and a person devoted to his wife and his family. He is kind to those whom he knows and good natured. In relation to his entry and stay in Australia, however, he has revealed a disposition to place his personal interests above his wider duty to the Australian community to abide by the law. That is a disposition which is not reflected in his day to day relationships but is clearly reflected when regard is had to the wider community.

As I said in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339 in relation to a person who also entered Australia using a passport issued in a name other than her own and endorsed with a visa:

"54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows as a loyal and caring wife to her husband and as a respectful and gentle person to her friends. Consequently, I find that, for the purposes of the Act, she is not of good character. I repeat what I said earlier and that is that this finding does not mean that she is of bad character."

I make the same findings in relation to Mr Zefis. Fairness and equity are of such importance that it seems to me that I must conclude that the traits Mr Zefis has shown in seeking to avoid their application to him outweigh the good traits he shows as a loyal and caring husband to his wife and as a kind, decent and gentle person to his friends and family. Consequently, I find that, for the purposes of the Act, he is not of good character. This finding does not mean that he is of bad character.

The Direction – the discretion

Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"… note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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 2.2)

69. The three primary considerations are:

"(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 relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Zefis's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mr Zefis's conduct, I must have regard to:

"(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people;
·the Government views non-citizens who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both as a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk, be viewed as completely unacceptable to the community; and
·offences involving illicit drugs of dependency or addiction, such as heroin, are also of particular concern to the Government and the community." (paragraph 2.6)

"(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia." (paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Mr Zefis as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.

Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …" (paragraph 2.12)

In relation to the third primary consideration, the Minister stated that, in general terms, a child's best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:

"(a) the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen's prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (paragraph 2.16)

In looking at the best interests of the child, regard must also be had to the High Court's judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, 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. Articles of that Convention with particular relevance in this case state:

"Article 3
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. …
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…"

The majority in Teoh 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. The majority 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, (See 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 365)

The child of Mr Zefis and Ms Vjollce Marashi has been conceived but not yet born. In Ly, I considered whether the Convention applied to a child who has not yet been born. In that case, I decided that whether or not the Convention applies to an unborn child depends upon whether that unborn child is a "human being". I reviewed other international instruments including the Universal Declaration of Human Rights 1948 ("UDHR"), the Declaration of the Rights of the Child 1959 ("DRC") and the International Covenant on Civil and Political Rights 1966 ("ICCPR"). I also considered authorities including Attorney-General's Reference No. 3 [1997] UKHL 31 (24 July, 1997, Lord Goff of Chieveley), R v Hutty [1953] VLR 338 (Barry J), Yunghanns v Candoora No. 19 Pty Ltd, (unreported, [1999] VSC 524, 15 December, 1999, Gillard J) and Watt v Rama [1972] VR 353 (Winneke CJ, Pape and Gillard JJ). I then concluded:

"73. That brings me back to the Convention and to whether an unborn child can be a human being within its context. It seems to me that an unborn child cannot be regarded as a human being in that context. That is not to say that an unborn child does not receive acknowledgment in the Preamble to the Convention and specific recognition that it requires special safeguards and care, including appropriate legal protection, before as well as after birth. Equally, the unborn child receives specific recognition in the DRC and implied recognition in the ICCPR's prohibition of capital punishment upon pregnant women. But it is specifically because the international instruments need to give specific or implied recognition to unborn children in specific circumstances that adds weight to the conclusion that its general provisions relate to a child who is separate from its mother and so has become a human being as it has been understood at common law. Apart from the specific and implicit references to the unborn child in the Convention, the remainder are to the child who has been born and is leading an existence separated from his or her mother's body."

I reached the same conclusion in relation to the Direction:

"74. Paragraphs 2.13-2.16 of the Minister's direction refer to a "child [who] is or would be less than 18 years of age at the time when the decision is intended to come into effect" (paragraph 2.13). As the direction was drafted after the High Court's judgement in Teoh and in view of the reference to the age of a child, I have concluded that the Minister was referring to a "child" in the sense in which the word was used in the Convention. …"

I have not changed my view of the effect of the application of the Convention or of the Direction in this case.

The Direction then goes on to deal with other considerations and I will return to them later. For the moment I observe that each of those other considerations is given less weight than is given to the primary considerations. Although Mr Zefis's actions in entering Australia 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. His doing so is regarded as a serious breach of Australia's migration laws but it is not conduct of the sort that he is likely to repeat given that his presence and circumstances are now known to the Department.

Whether his being refused a visa will prevent or discourage similar conduct is a matter of some speculation. Given that there appears from the evidence that there are lines of communication between people Mr Zefis knows in Australia and people in Albania, it could be expected that some people in Albania would be likely to become aware of any visa refusal. Would that deter them or others from attempting to breach Australia's migration laws? That depends in large measure upon their circumstances and the consequences they face in remaining in Albania. All of the witnesses spoke, in effect, of its being a land of violence and lawlessness. It is a land where a significant number of people must live a cloistered existence for fear of being killed according to the Kanun and where a broken engagement means that a member of the family must die. Whether Mr Zefis's being refused a visa is likely to discourage others from leaving such a land and attempting to find safety by subverting Australia's immigration laws must, as I have said, remain in the realm of speculation.

Although I have not made any finding as to whether Mr Zefis may have committed an offence according to Australia's criminal laws, I have taken into account that he was found in circumstances in which he drove a car in which there was found a considerable amount of cannabis, that he did not appear to stop when requested by police to do so and that he ran away from them when he did stop. Having listened to Mr Zefis and heard from him and the other witnesses about the effect that the events have had upon him and his wife, I am satisfied that this is not conduct in which he is likely to re-engage, at least in the short term. In reaching that finding, I am mindful that it may be that I am not in possession of all of the evidence relating to the events surrounding the cannabis. His wife's family have stated that they will support both him and his wife. Although they have a young family, I accept that they are in a position to do that. In the short term, at least, I do not consider that Mr Zefis would betray their trust by placing himself in circumstances such as those in which he found himself on 3 April, 2002.

That brings me to the expectations of the Australian community. While the Australian community expects that those who live here will obey its laws, it also expects that those who live here will be given a fair opportunity to have their cases heard. Such an opportunity cannot be afforded to Mr Zefis. In making the decision to refuse him a bridging visa before the charges against him have been heard and determined Mr Zefis has not been able to present his case and to put all of the circumstances. It may be said that he could have done so had he not chosen to claim privilege. In doing so, he has merely claimed that which is the right of any other person, citizen or non-citizen, in Australia. That cannot, and should not, count against him. The expectation of the Australian community would be that Mr Zefis's circumstances should be assessed when all of the information can be brought forward and weighed.

That brings me to the other considerations to which weight must be given according to the Direction but less so than the primary considerations. Mr Zefis does not have any business ties to the Australian community although he does have them to his wife's family who are Australian citizens. They are strong family links. His links to the broader community are fewer and are represented by those to Mr Pllumbi who is part of the Australian community with Albanian heritage. Ms Vjollce Marashi is not an Australian citizen. His links with Albania are his mother who still lives there and his land. They are tenuous for I accept that his life will be threatened should he return to Albania.

Having regard to the fact that Mr Zefis seeks only a bridging visa, and so a temporary visa, at this stage, I have decided that the discretion should be exercised in his favour at this stage. I am satisfied that doing so will not place the Australian community at risk in the short term. At the same time, it will meet the community's expectation that he be given an opportunity to explain himself. It may be that the question of Mr Zefis's character will need to be revisited after the conclusion of the criminal charges (whether to clear it entirely or otherwise) but, for the moment and having taken all of the matters into account, I consider that the balance in exercising the discretion under s. 501 lies in favour of finding that Mr Zefis's bridging visa should not be refused on the basis of his not passing the character test.

For the reasons I have given, I:
1.set aside the decision of a delegate of the Minister dated 12 June, 2002; and
2.substitute a decision that the applicant should not be refused a bridging visa on the basis of his not passing the character test pursuant to s. 501.
I certify that the eighty five preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),
(sgd Paul Paczkowski)
Signed:          …………………………………..
  Paul Paczkowski      Associate
Dates of Hearing  29, 30 and 31 July, 2002
Date of Decision  16 August, 2002
For the Applicant  Ms McGrath, advocate
Solicitor for the Applicant           McDonald Steed Lawyers
For the Respondent  Ms Zanker, advocate
Solicitor for the Respondent        Sparke Helmore

[2002] AATA 700

16 August 2002