FEDERAL COURT OF AUSTRALIA
Godley v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 774
MIGRATION – refusal of visa under s 501(1), Migration Act 1958 (Cth) – “character test” – failure to make finding that person not of good character
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 31, 65, 234(1)(b), 235(1), 501(1), 501(6), 501(6)(c), 501(G)(1)(e)
Acts Interpretation Act 1901 (Cth) s 25D
Evidence Act 1995 (Cth)
Migration Regulations 1994 (Cth) reg 1.15A(1), (2)(d), 2.01, 2.02
Income Tax Assessment Act 1939 (Cth)
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 cited
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 cited
Marcel Beller Ltd v Hayden [1978] 3 All ER 111 cited
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Powell v Administrative Appeals Tribunal (1998) 98 FCR 1 cited
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 cited
W157/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 55 cited
Shorter Oxford English Dictionary Vol 1, A-Markworthy
KARL WILLY NEVILLE GODLEY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W2 OF 2003
LEE J
18 JUNE 2004
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
W2 OF 2003 |
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BETWEEN: |
KARL WILLY NEVILLE GODLEY APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
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JUDGE: |
LEE |
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DATE OF ORDER: |
18 JUNE 2004 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. A writ of certiorari issue to quash the decision of the respondent made on 18 November 2002.
2. A writ of mandamus issue directing the respondent to consider and determine according to law the applicant’s application for the grant of a visa under the Migration Act 1958 (Cth).
3. The respondent pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
W2 OF 2003 |
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BETWEEN: |
KARL WILLY NEVILLE GODLEY APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
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JUDGE: |
LEE |
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DATE: |
18 JUNE 2004 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for prerogative relief in relation to a decision of the respondent (“the Minister”) made on 18 November 2002, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”), that the grant of a visa (“the visa”) to the applicant be refused.
2 The relevant facts may be stated as follows.
3 The applicant is 67 and, according to the material presented to the Minister, has dual citizenship of the United Kingdom and South Africa.
4 In about June or July 2001, the applicant, whilst residing in the United Kingdom, applied for the visa. The application form was headed “Application for immigration to Australia by a partner”. The form was prescribed under the Act and the Migration Regulations 1994 (Cth) (“the Regulations”) for dual applications for a Partner (Migrant) (Class BC) Subclass 100 Spouse visa (“the permanent visa”) and for a Partner (Provisional) (Class UF) Subclass 309 Spouse (Provisional) visa (“the provisional visa”) (See: s 31; Regs 2.01, 2.02; and Item 1129(1)(b), (4), Item 1220A(1), (4) of Schedule 1 and Subclass 100, 309 of Schedule 2 of the Regulations).
5 It appears that the intention of the Act and Regulations was that a determination be made first on the application for the provisional visa. Item 309.511 of Schedule 2 of the Regulations provided that the provisional visa was a temporary visa permitting the holder to travel to, enter and remain in Australia until the end of the day on which the holder is notified that the application for the permanent visa has been determined.
6 The criteria for the grant of the provisional visa included the requirements that the applicant be the spouse of, or intends to marry, an Australian citizen and that the spouse, or intended spouse, be the sponsor of the applicant. For the purposes of an application for the provisional visa a spouse includes a partner of a “de facto” relationship of 12 months duration. (See: reg 1.15A(1), (2)(d)).
7 In the application for the visa the applicant stated that the sponsor of his application was an Australian citizen and that he and the sponsor had commenced a de facto relationship in January 1999. The application stated that the applicant and the sponsor were to be married in December 2001. The applicant and the sponsor (Mrs Godley) were married in the Seychelles on 3 December 2001.
8 Three weeks after the marriage Mrs Godley returned to Australia to continue caring for her mother, then aged 85, and to await determination of the application for the visa.
9 The application for the visa also recorded that the applicant’s immediate family consisted of two daughters from a previous marriage and two brothers, all of whom lived in Australia. It appears that the applicant’s parents and his siblings migrated to Australia from South Africa in about 1966. The applicant and his wife and child also came to Australia in 1966 and remained here for 10 years. The material before the Minister suggested that the brothers and the applicant’s two daughters, one of whom was born in Australia, were Australian citizens. The brothers are now 68 and 57 and the daughters 39 and 37.
10 In 1976 the applicant returned to South Africa. The marriage to his then wife was dissolved in 1981.
11 In September 1993 the applicant returned to Australia. In August 1994 he married an Australian citizen. In November 1994 the applicant lodged an application for a “spouse visa” nominated by his then wife. In January 1995 the applicant was informed that he had been granted a “bridging visa” pending determination of the application for “spouse visa” and had been granted “full work rights”. The marriage foundered in May 1995 and was dissolved in June 1997. The application for a “spouse visa” was refused in March 1996 by reason of the breakdown of the marriage.
12 In April 1995 the applicant was convicted on a complaint lodged by an officer of the Minister’s Department of contravening s 235(1) of the Act by being engaged in employment between March and April 1994 contrary to the conditions prescribed for the visa he then held.
13 In January 1996 the applicant lodged an application for a “last remaining relative visa” nominated by a brother. On the same day he was granted a “bridging visa” to operate until the “last remaining relative visa” application was determined or withdrawn and “the same work rights” held at the time of application continued. In February 1996 the applicant withdrew the application on advice from a migration agent that the prescribed criteria for the visa could not be satisfied at that time.
14 In February 1996 the applicant was advised by a migration agent to lodge an “off-shore” application for a “last remaining relative visa” and concurrently to apply for a bridging visa which would retain the right of the applicant to work. The “off-shore” application was lodged in Pretoria in South Africa on 5 March 1996. An application for a bridging visa was signed by the applicant and given to the migration agent for lodgement with the Minister’s Department. It seems, however, that the application was not lodged and remained on the agent’s file. The applicant, however, had some ground for a belief that at the relevant time he had a bridging visa that would operate until he was advised of the outcome of the “off-shore” application. The operation of a bridging visa did not depend upon the formal issue of a document. The “off-shore” application was not determined until 15 October 1999 when the grant of a visa was refused. Notification of that refusal was not received personally by the applicant.
15 In November 2000 the applicant left Australia after he had been apprehended by an officer of the Minister’s Department as a person suspected of not being the holder of a current visa.
16 Mrs Godley travelled to London on two occasions in 2001 to stay with the applicant for a period of approximately three months during which time the application for the visa was completed and lodged at the Australian High Commission in London in late June or early July 2001.
17 In the part of the application form headed “Health and Character” the applicant ticked the boxes opposite the following questions set out in the form:
‘Have you, or any other person included in this application, ever:
. been convicted of a crime or offence in any
country including any conviction which is now
removed from official records)? No Yes 
. been charged with any offence that is currently
awaiting legal action? No Yes
. been acquitted of any criminal offence or any
other offence on the grounds of mental illness
insanity, or unsoundness of mind? No Yes
. been removed or deported from any country
(including Australia)? No Yes
. left any country to avoid being removed or
deported? No Yes
. been excluded from or asked to leave any
country (including Australia)? No Yes
. committed, or been involved in the commission
of war crimes or crimes against humanity or
human rights? No Yes
. been involved in any activities that would
represent a risk to Australian national security? No Yes
. had any outstanding debts to the Australian
Government or any public authority in Australia? No Yes ’
If you answered ‘Yes’ to any of the above
questions, you must state who it applies to
and give ALL relevant details. If the matter
relates to a criminal conviction, please
give the nature of the offence, full details
of sentence and dates of any period of
imprisonment or other detention.’
18 In respect of the question relating to conviction of “a crime or offence” to which the applicant had answered affirmatively, no further details of the crime or offence were set out by the applicant in the form.
19 By letter dated 4 April 2002 a Case Officer at the High Commission requested the applicant to provide a response to the following inquiry:
‘If you have any criminal convictions, please provide provide [sic] the following (if you have not done so already):
. a statement outlining the details of all offences you have committed, including any mitigating circumstances that influenced your behaviour at that time; and
. details of what steps you have taken to rehabilitate yourself since your most recent conviction. In this regard, you may wish to include character references.’
20 It was not apparent on the papers provided to the Court whether that letter was received, or responded to, by the applicant, but by letter dated 27 April 2002 another officer at the High Commission gave the applicant the opportunity to comment on the following matters that, it was said, would be taken into account by the Minister in deciding whether to refuse the application for the visa under s 501(1) of the Act:
‘. your South African Police Clearance Certificate, dated 26/09/01, which indicates that you received 1 conviction on 07/09/93 for 7 offences (see attached);
. your Australian Federal Police Certificate, dated 14/09/01, which indicates that you have 3 convictions for 3 offences. This includes working in Australia without permission on a visitor visa between 04/03/94 and 29/08/94 (see attached for details);
. a declaration made by you when you applied for general residence on a spouse ground in Australian [sic] on 29/11/94 that you had not been convicted of any offences in any country;
. your failure to fully disclose your criminal convictions when you applied for a subclass 806 – Last Remaining Relative visa in Australia on 24/01/96. In answer to Question 40 on application Form 887, you indicated that you had been convicted of a crime or offence in a country. In response to the direction on the form to give “ALL relevant details” if you answered “Yes” to this question, you wrote “Fined for working without permission April 95”;
. your failure to fully disclose your criminal convictions when you were interviewed by a Departmental officer in Australia on 20/10/00. In answer to the question “Have you committed any offences against the laws of Australia or another country before or after your arrival in Australia?”, you responded “I was fined for working illegally in Aust. in 1994”;
. your failure to disclose your relationship with your current spouse, Ms Lois Elaine Carroll, when you were interviewed by a Departmental officer in Australia on 20/10/00. In response to a question about your marital status, you indicated that you were divorced. However, in a recent interview in connection with your current visa application, you indicated that you and Ms Carroll had agreed to get married some time in 2000 before you last departed Australia. Similarly, you did not mention your fiancée when asked whether you had any family in Australia. Finally, in response to the question ‘Do you think that you should be allowed to stay in Australia, and if so why?”, you responded ‘Yes – I am an asset to Australia. I pay taxes, all my family is here and I am the sole surviving family”. You signed and dated every page of this interview record to indicate that the information you had provided was correct, adding any further comments on the record you thought necessary;
. your failure to fully disclose your criminal convictions when you lodged an application at this office for a Spouse (Provisional) visa class (Class UF) on 19/07/01. In answer to Question 70 on application Form 47SP, you indicated that you had been convicted of a crime or offence in a country. In response to the direction on the form to give “ALL relevant details” if you answered “Yes” to this question, you wrote nothing; and
. your previous immigration history, which indicates that you were unlawfully in Australia from 08/03/96 until the time of your departure from Australia on a Bridging visa E on 01/11/00.’
21 By letter dated 14 June 2002 the applicant responded as follows:
‘When I applied for a visitor visa in September 1993, I informed the Australian High Commission in Pretoria that I had received a road traffic conviction and I was advised that as this was a traffic offence and as I had not received a custodial sentence of 12 months or more this would not present a problem in being granted a visa. The offence in question was a minor accident in which no one was injured and the vehicle not damages. Due to the location of the incident I felt that it would not be safe to stop although I should have reported the matter to the police as required by law.
I did, however, forget to disclose a previous fine in Australia for dangerous driving in 1967 as I had completely forgotten about the incident particularly as I had never considered the matter to be a Criminal Conviction until now.
I was aware that my visitor visa did not allow work while I was in Australia, and can only claim a bit of naivety and ignorance on my part in not realising that it was a serious offence. I had what you might regard as an arrogant attitude in as much that as someone who was living there and paying taxes I had taken for granted my temporary status and had become impatient to await the proper processes that would eventually lead to my getting full work permission. With family resident in Australia and with me being in a serious relationship with an Australian citizen I had become absorbed into the lifestyle without thinking ahead of the consequences of my illegal status. I should add that I was a previous resident of Australia and all my family were in Australia (except my eldest daughter whom I was not in contact with – I was not sure if she was still in South Africa at the time).
I therefore accept that I should have waited until permission was granted for me to work and acknowledge that I was in breach of the lawful requirements of my visa.
When I applied for my spouse visa in November 1994, I do not remember ticking yes or no to that question. If I did tick no, the only possible offence in my head would have been the recent traffic accident in South Africa. I was under the impression that this was a traffic offence and not a criminal offence especially as I had been granted my visitor visa in Pretoria. I also had a more recent offence of DUI in Australia – again I thought a traffic offence – I had no idea that traffic offences were considered as criminal offences. Whatever I put in my answer to the question at that time, I can assure you that there was no deliberate attempt on my part to mislead the Department of Immigration. In particular, I was aware of the need to produce a police clearance as part of the decision making process and therefore I hope that you will understand that there could have been no intent on my part.
With respect to my application for a Remaining Relative application lodged in January 1996 I only declared the working without permission conviction as again, I was under the impression that was my only criminal offence at the time. As previously stated I had forgotten about the traffic conviction recorded in 1967 and regarded driving convictions as not being criminal offences.
When I was questioned by Immigration in late October 2000 it was quite a shock and I found the process extremely stressful. Lois did not realise there was any visa problem and neither did I. The interview I went through was very quick with pre-printed questions and the interviewer quickly filling out the blanks. My marital status at the time was Divorced. Although Lois could have been referred to as my fiancée we were not engaged and had not set any date for a wedding. At my age it is difficult for me to consider myself as somebody’s fiancée, the word had never entered my head and was not mentioned at the interview. By that I mean I was not asked if I had a fiancée.
I was asked what family I had in Australia and I considered my family as my brothers, parents and children all of which were resident in Australia and therefore I believed that I would be eligible to apply for a Remaining Relative visa. Lois was my girlfriend and at the time was not regarded as my family and would not be considered to be one’s family according to the dictionary. But again, whatever the definition of family is, the point is that I did not perceive her to be family, and was not trying to mislead anyone. I had no intention to involve Lois into the Immigration discussion as I was under the impression that I qualified for a visa in my own right as a Remaining Relative and would not have to involve her into the process needlessly. It was only later on that we decided to set a date for the marriage when we decided that a Remaining relative visa could take a while and we could be separated for a year or more.
It is important to stress that at the time of interview, Lois and I were not residing together and no wedding date had been scheduled. I considered therefore that any reference to my family was directed at my parents, siblings and children and not at Lois.
My recent application for a spouse visa, was ticked yes for convictions as I was aware of the need to declare working without permission in Australia. I had also assumed that police report from Australia would reveal the traffic offences but again considered these offences not to be of a criminal nature.
I’m not sure if this paragraph applies to me as I have applied for a provisional temporary visa as in the Spouse (Provisional) visa Class UF. On departure from Australia I was advised that I could not apply for a visitor visa for three years but in view of my relationship with Lois and my intention to marry that I would be in a position to apply for a spouse temporary visa at an overseas office.
In conclusion whilst I would accept that I have illegally worked in Australia and that I should have declared the driving offences I would like you to take into consideration the following:
. My character is not blemished with any offences, which pose a threat to the Australian community.
. I have not been involved in any crimes of a violent or threatening nature
. My wife is in Australia and I need to be there to provide her with support. This is a genuine relationship as evidenced by the continuous communications between us whilst my application for a temporary spouse visa is being decide [sic]
. All my immediate family are residing in Australia’
22 By letter to the applicant dated 5 August 2002 the High Commission sought the following information:
‘Before your file is referred to Australia for [the Minister’s] decision, could you please indicate in writing whether you worked at any time while you were unlawfully in Australia from 08/03/96 and 01/11/00. In this regard, it is noted that when you were interviewed by a Departmental officer on 20/10/00, you advised that your payment of taxes was one of the reasons as to why you should be allowed to stay in Australia at that time. This infers that you may have been working illegally in Australia after you were fined for working without a Work Visa on 11/04/95.’
23 On 15 August 2002 the applicant responded:
‘After my conviction for working without permission, I applied for permission to work, this was granted in the form of Bridging visa letter, but was never placed in my passport.
I[n] February of 1996 I was referred to Coates & O’Rourke, Migration Agent, and was advised that my spouse visa would eventually be refused.
The migration agent advised me to apply for permanent residence through the High Commission in Pretoria and another Bridging visa could be issued which would allow me to continue working. So having be[en] assured by my migration agent that the “Status Quo” would be maintained for a matter of years i.e. my lawful status and permission to work, I therefore got on with my life and continued working and putting the whole matter in the back of my mind which is why I had no further contact with the migration agent.
I cannot remember signing any form but from the Coates letter I obviously did, but unbeknownst to me these documents were never lodged.
When immigration called me in October 2000 I was completely oblivious to my unlawful status as I am sure there [sic] file would support.
Should my visa be refused my wife would be effected and due to her mothers age (86 yo) and ill health, my wife could not be expected to come and live in the UK.
This would further effect [sic] my immediate family who are all living in Australia.
I therefore ask you to reconsider your decision on my application for a spouse visa very compassionately and make a decision in London, as if the file is sent to Australia, considerable delays would be obvious and thereby causing great amount of stress on my family.
I would also put on record that if Coates & O’Rourke were not so incompetent I would never be in this stressful situation.
Enclose[d] is a letter from Mr A Coates which is self-explanatory.’
24 The enclosed letter from Mr Coates, referred to above was a letter dated 13 August 2002 addressed to the High Commission and it read as follows:
‘I used to be a registered migration agent operating in Australia from January 1996 until relocating to Ireland in April 2001. My Registration ceased over a year ago on 08th August 2001. I still give migration advice in Ireland and represent clients in their dealing with DIMIA.
Mr Godley contacted me recently about the background to his permission to work while in Australia as my old defunct partnership, Coates & O’Rourke, had represented him previously.
I have the old file on his case and am attempting to piece together the facts from these papers and my memory, not withstanding that this was 6 and a half years ago.
Mr Godley came to us in early February 1996 on the advice of his then Migration Agent, Ian Curlewis. Mr Curlewis, I believed, felt he could not help anymore and had just lodged an application as a last remaining relative that could not be approved on technical grounds as Mr Godley had not been the holder of a substantive visa for more than 12 months. Mr Godley had a current 820/821 application before the Department but his relationship with his wife had broken down.
As I remembered the case from when I worked in DIMA and was involved with the case at the time Mr Godley was being prosecuted for working without permission, it was considered my case under the partnership of Coates & O’Rourke and Robert O’Rourke had nothing to do with the handling of the case.
I advised Mr Godley in February 1996, that the spouse visa had to be refused in the near future and also it was better to withdraw the doomed remaining relative visa – which he did. I advised Mr Godley that he could qualify for a family sponsored visa as he was an accountant but success would depend on him getting his qualifications assessed. I also advised him that he could apply in Pretoria for this permanent visa and then apply for a Bridging Visa, on the basis of his off-shore application. As he had work-rights on his current bridging visa, the work-rights would continue on the new bridging visa associated with the off-shore application. A back-up position was that if the Pretoria application floundered on the recognition of his Accountancy qualifications, by that time, his second daughter would be a resident of Australia and he would unquestionably be the last remaining relative. The processing times for visas in Pretoria was taking years at this time
So that was the strategy agreed on. Mr Godley’s application was lodged with Pretoria but unfortunately, it looks like Mr Godley’s file was not further actioned much after that. The Partnership of Coates and O’Rourke split up at the end of May 1998. Mr Godley’s file was retrieved from archived files in October 2000 after DIMA in Perth contacted me after arresting Mr Godley as an unlawful citizen. The file has on it the original refusal letter for the 820/801 application dated 11th March 1996. I can only assume that the case was considered finalised by our secretary and archived back in 1996. Also on file is an 02/95 form 1005 signed by Mr Godley which was to be lodged to obtain him the bridging visa in relation to the Off-shore application. [From memory, in November 1996, the legislation was changed to prevent any grant of bridging visas on the basis of offshore applications].
So I can confirm that Mr Godley was advised that his current work rights in February 1996, would be extended by lodgement of a permanent visa in Pretoria and related Bridging visa application in Perth. The permanent visa being lodged, but the Bridging visa application, although signed by Mr Godley, was never lodged. With the 820/801 refusal letter on file, never having been delivered to Mr Godley, and the signed Form 1005, I am certain that Mr Godley did not know of his subsequent unlawful status and he would have believed he had permission to work all this time.
It is unfortunate that Mr Godley never contacted Coates & O’Rourke before the partnership was dissolved at the end of May 1998, to enquire about his application as the error would have come to light much sooner and could possibly have been rectified – but he was told that the Pretoria application would take years not months. I explained this to DIMA over the phone in October 2000 and they advised that the Pretoria application was refused in October 1999 but the refusal went to the old Coates & O’Rourke address – I presume the letter was returned to Pretoria as it was never forwarded to us.
Should you require any further clarification, please contact me.
25 On 12 September 2002 the High Commission wrote to the applicant informing him that additional matters would be taken into account in the determination to be made under s 501(1) of the Act. These matters were expressed as:
‘. your failure to disclose your criminal conviction in South Africa when you lodged a Preferential Family (subclass 104) visa application in Pretoria on 24/11/93. In this regard, it is noted that you provided a South African police clearance certificate, dated 25/08/93, which indicated that you had no criminal convictions. However, you did not disclose to the Department that on 07/09/93 you were convicted of several driving offences in South Africa;
. your failure to disclose that you had criminal convictions when you applied for a further visitor visa in Perth on 13/12/93. In this regard, you ticked “no” to the question “have you…been convicted of a crime or any offence in any country?” on Form 601;
. the making of a false or misleading statement by you on Form 1005, when you applied on 29/11/94 for a Bridging Visa A, requesting permission to work due to financial hardship. At Question 16 on this form you indicated that you had A$2,000 in savings available and at Question 20 that your family’s total income was A$320 per week. However, it was subsequently revealed that whilst you had A$2,000 in your Westpac bank account on 29/11/94, you had withdrawn just over $10,000 the day before. It was also noted that your wife earned A$347.19 net each week at that time;
. your claim that you had not worked in Australia since arriving in Australia on a visitor visa on 17/09/03 when you were interviewed in December 1994 by your then case officer, Mr Anthony (Tony) Coates, in relation to your spouse visa application lodged in Perth on 29/11/94 on the basis of your relationship with your former wife, Ms Judith Godley. However, this was not correct, as on 12/04/95 you were prosecuted for working as an accountant in Meekatharra, Western Australia, on a visitor visa between 04/03/94 and 29/08/94;
. In relation to your conviction for Working Without a Work Visa on 12/04/95, Departmental records indicate that:
- you were aware that you were not entitled to work on your visitor visa;
- during your period of employment in Meekatharra, you were paid an amount equivalent to an annual salary of A$70,000, and on termination you were paid 3 month’s salary;
- you falsely stated that you were an Australian Resident for taxation purposes when you signed the employment declaration on 09/03/94. The effect of this false declaration was that you received a higher level of net wages than you would have, had you declared that you were not an Australian Resident for taxation purpose; and
- the work undertaken by you during this period was at the expense of an Australian resident who may have otherwise been employed; and
. on 13/06/95, a restraining order was issued by the Court of Petty Sessions Fremantle against you, following a complaint by your ex-wife in relation to your threatening and offensive behaviour towards her.’
26 It is to be noted that the “case officer, Mr Anthony (Tony) Coates” referred to in the foregoing letter was the author of the letter to the High Commission dated 13 August 2002 As that letter stated, he commenced business as a Migration Agent in January 1996 and began acting for the applicant in February 1996.
27 On 23 September 2002 the applicant replied to the High Commission letter of the 12th instant as follows:
‘Before addressing these further, further matters, I wish to comment generally on my case as I believe it is being unnecessarily complicated and amazing lengths seem to be taken in an attempt to pain to me as a criminal, even though I have no criminal convictions.
I am of the opinion that my case was pre-judged and I was found guilty and now the Department is trying to gather the evidence to justify the guilty verdict. This would explain the game of ping-pong going on with further matters being brought up which are either irrelevant or going over the same ground as matters I have already dealt with. This coming to a decision first and then trying to back it up later with evidence means that my case is not getting an objective hearing – a sinister slant is put on everything. So, to try and put everything in perspective I would like to remind you of the general facts before I deal specifically with your further, further matters. [sic]
I have no criminal offences. I have a driving offence in Australia in 1967 – dangerous driving. My next traffic offence was in 1993 in South Africa – although 7 different offences, they all related to the one incident where I clipped another car at night time. I did not stop as anyone familiar with the situation in South Africa would understand. It is dangerous to stop at a red traffic light in broad daylight as the risk of a car-jacking/robbery is so high. So to stop at night would be suicidal. My next offence was in Australia, driving while over the legal limit of alcohol in 1994 – no defence for that and it would not happen again. Onto my offence under the migration act in 1994 where I worked without permission where, as I stated before, I was a bit naïve and did not realise the seriousness of doing such.
I have read and re-read the Minister’s Direction No. 21 and also Section 501 of the Migration Act and I am trying hard to see how they relate to me. I understand that you have found that I do not pass the character test and the question remains whether, in the circumstances that exist, the visa should be granted anyway. I will not waste time as to how you come to a conclusion that I am a bad character as the exercise of the discretion not to refuse my application seems so compelling.
From the Minister’s direction, and in the absence of any child involved with my case, there are two primary considerations:
a) the protection of the Australian community, and members of the community
b) the expectations of the Australian community
This is where I start to have major problems with this whole process and conclude that my case is not being looked at objectively. A mountain is trying to be made out of a molehill. I’m sure it is not just my wife and her family, and my family who expect that she be allowed to have her husband live with her in Australia. I‘m sure 99% or more, of the Australian Community, would expect a visa to be granted to me, notwithstanding that I do indeed have drink driving charge, which I am not trying to trivialise, and other traffic offences and a working without permission conviction. What are you trying to protect the Australian community from? Obviously if given a permanent visa, I can not work illegally, so you must be trying to protect the Australian community from me either drink driving again or my dangerous driving. How can this outweigh the compassionate circumstances of how this is all affecting Lois, who now, on top of everything else, has just found out her sister has been diagnosed with cancer. This was the last straw and is the reason why I am now rebelling against this process – we are all being pushed too far and with little or no justification.
So, back to the Minister’s Direction – Protection of the Australian Community – Seriousness and nature of the conduct. My offences are not related to drugs or crimes of violence and are not against children or young people.
Expectations of the Australian Community – 2.12 – I can not see how this relates, how could anyone expect me not to be allowed to live with my wife in Australia where I happen to also have all my living relatives and where I used to be a permanent resident.
So assuming the Australian Community does not need to be protected from me and/or expects that a person like me should not be given a visa for Australia unless there are compassionate circumstances – here are the compassionated circumstances: You are fully aware that Lois can not reasonably be expected to leave her mother and live with me in the UK. Now, with her sister being diagnosed with cancer, she really needs my support more than ever. I have no relatives outside Australia, my parents are buried in Australia. Australia is the Country I identify with because of these family ties and my previous residence there. I have no ties in South Africa, no property, no home as evidenced by the fact that I came to the UK to live while my visa was processed. My relationship with the UK is recent and I have no family or friends here.
So, having got that off my chest, I will now address the further, further matters in your letter dated 12 September 2002. [sic].
Point 1 – I have no criminal conviction in South Africa, there is no offence against the crimes act, it was an offence against the traffic act. When I attended the Australian High Commission in September 1993, I told them that I had just been done for not stopping at an accident at night and was fined. I was told that as it was not a custodial sentence of 12 months or more, this would not present a problem and the visitor visa was granted on the spot. I do not remember if I ticked yes or no to the offences question.
I can not remember when I completed the application form for the November 93 Preferential Family application. I presume I brought the forms with me to Australia and might have completed them before the offence. But even if it was after, I was of the mind that the South African traffic offence was not a problem and did not matter as it was not matter as it was not a criminal offence.
Point 2 – Again, this is consistent with my frame of mind at that time that traffic offences did not count.
Point 3 – I really can not remember back this far with such detail – I presume that I would have given a copy of my ex-wife’s pay-slip with the form 1055 and maybe there was some overtime on it and $320 was her guaranteed basic. Whether she earned 320 or 347.19 a week it was not enough to support her and her children – are we now looking for bits of dirt to make the molehill. On the amount of savings, again I can not remember for definite but I think the money was to pay for a car or maybe to pay off my ex-wife’s loan on her car. To question me 8 years later on these matters is unbelievable. If this was a concern at the time surely I was asked about the “fraudulent” income claim of my ex-wife, and the withdrawal of $10,000, at the interview with the department in December 1994. Maybe some of the $10,000 went to paying for the visa application also, I really can not remember.
Point 4 – This seems to be really scraping the barrel – this all relates to the offence of working without permission for which I was convicted and paid a fine. Yes, I was aware that I was not allowed to work but as I keep explaining, I did not think it was that serious in the big scheme of things as I had thought that I was returning home to Australia and that my permanent visa would be a formality and I did not, at the time, think it was such a serious matter.
The second part of this point shows how you are really trying to throw everything at me – whether you are an Australian Resident for Tax purpose, does not relate to whether you have permission to work or not. Many people who reside in Australia on visitor visas and especially on retirement visas, have no permission to work, but are certainly Australian residents for tax purposes. The main consideration for whether somebody is a resident for tax purposes would be – do they intend to remain in Australia?, could they be considered a tax resident of any other country?. Ties to other countries would come into this. I had no residence, assets, bank accounts or intention of returning to South Africa as proved by the fact that I later came to the UK when faced with leaving Australia (temporarily). I therefore believe now, as I did at the time, that I was a resident of Australia for Tax purposes.
The third point again shows the sinister slant being put on everything. Australia has a shortage of skilled experienced accountants so to make out that I adversely affected another experienced accountant and that he or she may have been unemployed longer, due to my working without permission, shows an amazing imagination. Without trying to trivialise my working without permission, a more positive (and more realistic in my opinion) slant would be that I eased a skills shortage in Australia and provided extra tax revenue.
Finally, you have dragged up a restraining order that my ex-wife took out after we separated. She was harassing me for money and I eventually got a bit verbally abusive towards her. The temporary restraining order was not confirmed by the court as our lawyers drew up an agreement to include that she would refrain from contacting me as well me from contacting her. I had no input into the initial temporary restraining order and no inference should be implied by you that I was actually guilty of threatening behaviour towards my ex-wife. The Court of Petty Sessions issued the restraining order having only been aware of my Ex-wife’s side of the story, and it is in no way a judgment of myself – so I am very concerned that you think it relevant when you know that the order was never endorsed.
So, I’m sorry to sound a bit paranoid in my response but I really do find it all very difficult to understand how the fact that the degree of my offences can have such a devastating affect on my life, and more particularly on the lives of Lois and her family.
I do request that due to Lois’s personal circumstances, which have become more desperate since her sister’s diagnosis, that my case be referred to Canberra without further delay. Should you decide there are further matters again in relation to my case I beg you not to put them to me and cause further delay. At this stage we need a decision either way, so that if rejected, we can have our right to appeal.’
28 In July and September 2002 the High Commission received reports from the medical practitioner who was treating Mrs Godley in Western Australia attesting to the fact that Mrs Godley, then aged 60, was suffering stress bordering on depression attributable to the delay in dealing with the applicant’s application for the visa. The High Commission was informed that Mrs Godley was undergoing continuing checks for cancer, was caring for her elderly mother and was not in a position to leave Australia to live with the applicant overseas. Her mental and physical health had been deleteriously affected by the absence of her husband to support her.
29 A document entitled “Issues For Consideration For Possible Visa Refusal Under Section 501(1) of the Migration Act 1958” (“the Issues Paper”) was prepared by the Minister’s Department, providing the Minister with a summary of relevant matters for his consideration in determining whether the power to refuse the visa under s 501(1) was available and, if so, whether it should be exercised. The Issues Paper attached a South African and an Australian record of convictions and copies of the correspondence exchanged between the High Commission and the applicant between 27 April 2002 and 23 September 2002, although it may be that the letter from “Mr Tony Coates” was not included.
30 It is to be noted that the Issues Paper reflected a less than objective approach to the applicant’s application.
31 Although not referred to in the recollected reasons of the then Minister, some passages in the Issues Paper contained gratuitous prejudicial assertions on which the applicant was not given the opportunity to comment. The material constituted tendentious propositions designed to secure a particular outcome.
32 For example, it was asserted that the applicant “falsely stated” that he was a resident of Australia for taxation purposes and that he had done so to obtain a tax benefit when he commenced employment in March 1994. As at March 1994 the applicant had been residing in Australia for 6 months. He remained here for a further 6 years. Having regard to the terms of s 6 of the Income Tax Assessment Act 1939 (Cth) it was likely that the assertion in the Issues Paper was unsupportable.
33 In addition the Issues Paper commented adversely on the credit of Mr Coates. The purported grounds for those comments, and further adverse comments on the applicant, were not put to the applicant for comment. Nor was Mr Coates given an opportunity to respond. A document referred to that part of the Issues Paper, said to be an attachment thereto and to be relevant to the foregoing comments, was not part of the papers placed before the Court.
34 Under the heading “DECISION” the following options were set out. The options rejected were struck-through by the Minister who then signed the document to show the decision made:
‘I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and [Mr Godley’s] comments and have decided that:
Please delete whichever is NOT applicable:
(a) I am satisfied that Mr Godley passes the character test;
OR
(b) I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(1) of the Act to refuse the visa;
OR
(c) I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he passes the Character Test BUT I have decided NOT to exercise my discretion under subsection 501(1) of the Act to refuse the visa BUT Mr Godley is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he commits any further offences;
OR
(d) I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) OF THE ACT TO REFUSE THE VISA, so I hereby refuse the visa.’
35 On 9 December 2002 the High Commission notified the applicant that his application had been refused pursuant to s 501(1) of the Act. The letter stated that it “enclosed[d] ...a copy of the decision record sets out the reasons for the decision”. The “copy of the decision record” appeared to be the Issues Paper as endorsed and signed by the Minister. On its face the notification failed to comply with the requirements of s 501(G)(1)(e) of the Act and s 25D of the Acts Interpretation Act 1901 (Cth) which, together, required the Minister to give a written notice that set out the reasons for the decision, the findings made on material questions of fact and referred to the evidence or other material on which those findings were based.
36 The applicant commenced this proceeding on 6 January 2003.
37 Included in the papers placed before the Court was a document headed “STATEMENT OF REASONS – THE REFUSAL OF MR KARL GODLEY’S SPOUSE VISA PURSUANT TO S501(1) OF THE MIGRATION ACT 1958” signed by the then Minister and dated 10 July 2003.
38 It appears to be conceded that the Minister had not complied with the statutory duties imposed by s 501G(1)(e) of the Act and s 25D of the Acts Interpretation Act. However, a document prepared according to the best recollection of the Minister six months after the decision to represent the reasoning relied upon in making the decision cannot stand as compliance with the requirements of s 501G(1)(e). That section directs how the decision of the Minister is to be notified. It requires the notification and the provision of reasons to be given in “a written notice” and implies a direct temporal relationship between the two events. Therefore, a document volunteered six months later as a written statement of reasons, would not obtain admissibility as a document produced under s 501G(1)(e) of the Act. It is not a document contemplated by the Act and does not otherwise obtain admissibility under the Evidence Act 1995 (Cth). (See: Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069per Hely J at [63]-[67]).
39 Indeed the Minister frankly and properly acknowledged the limitation upon the usefulness of the document by expressing at the outset the following qualification:
‘Mr Godley’s case is one of many visa refusals that I have personally considered. This document sets out my best recollection of the reasons for my decision of 18 November 2002.’
40 At best the document (“the recollected reasons”) must be treated with great caution and unless an appropriate ground of admissibility is established it should not be received. (See: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 at [67]). There is an element of public interest in such a requirement in circumstances where a statutory duty imposed for the public good has not been performed. Provision of reasons for the decision after a proceeding challenging the decision has been commenced, may be perceived as bolstering a defence to the issues raised against that Minister in that proceeding. As such it may appear to be self-serving and to cause the party seeking review of the Minister’s decision to doubt the fairness of the procedure and to lose the respect for the system of law administered by the Court.
41 The principles on which Parliament to be taken is taken to have acted when introducing provisions such as s 501G(1)(e) and s 25D of the Acts Interpretation Act were referred to in W157/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 55at [47]-[52]. The provisions are intended to operate as a safeguard against arbitrary exercise of executive power.
42 For the foregoing reasons the document prepared in July 2003 cannot be relied upon by the Minister to counter any defect in the decision-making process that may otherwise be established by the applicant on the material before the Court and its admissibility must be limited to the extent to which it presents an admission against interest.
43 In circumstances where reasons are not provided to show how a consideration material to the making of a decision has been addressed and dealt with and where relevant findings of material facts identified, the absence of appropriate reasons will permit a conclusion to be drawn that the material consideration was overlooked. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323per Gaudron Jat [35], [37]-[38] per McHugh Gummow, Hayne at [69]).
44 I turn now to the grounds for review relied upon by the applicant. The first ground concerned the proper construction of subs 501(6) of the Act. The relevant provisions of s 501 read as follows:
‘501(1) 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.
...
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (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 Australia community or to a segment of the 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.’
45 Under s 65 of the Act if the Minister is satisfied the criteria prescribed for a visa by the Act and Regulations have been satisfied the Minister is to grant the visa, and if not so satisfied, the visa is to be refused. Subsection 501(1) provides the Minister with a discretion to refuse a visa if, on the material presented, one of the circumstances defined in subs 501(6) is shown to apply. Subsection 501(6) acknowledges that it is a limited discretion in that it provides that a person “passes the character test” unless paragraph 501(6)(a), (b), (c), or (d) applies to that person. In so far as s 501(1) requires a visa applicant to “satisfy” the Minister that he or she “passes the character test” it imposes no separate onus on that person. It is s 501(6) that governs the operation of s 501(1).
46 Paragraph 501(6)(a) requires the Minister to make a simple finding of fact. Of course there must be material before the Minister capable of supporting that finding.
47 Paragraph 501(6)(b) combines a finding of fact by the Minister with the formation of a reasonable suspicion. First the Minister must form a reasonable suspicion that a person, group or organisation has been or is involved in criminal conduct. It may be taken that to be a reasonable suspicion the suspicion must be based on reasonable grounds. Second the Minister must make a finding of fact that the visa applicant has, or has had, an association with that person, group or organisation. Again it would be necessary for there to be material capable of supporting that finding. It is unnecessary to consider the meaning of the word “association” but for a visa applicant not to pass the character test it may be taken to require the Minister to make relevant findings of fact as to the knowledge, or awareness, by the visa applicant of the facts that point to the involvement of the person, group or organisation in criminal conduct.
48 Paragraph 501(6)(d) requires the Minister to form an opinion as to the degree of risk of particular conduct being engaged in by the visa applicant if that person were allowed to enter, or remain in, Australia. Although not stated in par 501(6)(d) it is to be taken to be implied that the formation of such an opinion is to be based on reasonable grounds. That would require the Minister to identify such grounds before forming an opinion that there is a “significant risk” of conduct by the visa applicant of the type described in subpars 501(6)(d)(i) - (v).
49 The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.
50 Unless such a finding of fact is made by the Minister the visa applicant “passes the character test” and thereby satisfies the Minister under s 501(1). If the Minister finds that the visa applicant is “not of good character” that person “does not pass the character test” and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words “not of good character” is all important.
51 The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).
52 A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187at 197).
53 The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions. (See: 4 Bl. Com. 5; Shorter Oxford English Dictionary at 456 – “crime”, “criminal”).
54 Context, however, is important and may provide a broader meaning for such a term in appropriate circumstances having regard to the purpose to be served. (See: Marcel Beller Ltd v Hayden [1978] 3 All ER 111).
55 For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at 194-195).
56 Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
57 The foregoing is not a mechanical exercise and although expressed in different terms from those considered in Irving and Baker the task to be performed differs very little from that under the Act and regulations as they stood before amendment.
58 The next ground relied upon by counsel for the applicant was that the Minister restricted himself to consideration of past conduct of the applicant in purporting to determine whether the applicant was now a person not of good character. Counsel relied upon the recollected reasons of the Minister to support that submission.
59 It was not submitted by either counsel that the Issues Paper could be taken as a guide to the reasoning process of the Minister. In respect of the question of whether the applicant “passed the character test” the following paragraphs appear in the recollected reasons under the heading “Character Test”:
‘6. Between 1993 and 2001 Mr Godley provided false or misleading information to DIMIA in relation to a number of visa applications, specifically:
. On 24 November 1993 Mr Godley failed to disclose his seven convictions (traffic related) incurred whilst residing in South Africa when he lodged a subclass 104 (Preferential Family) visa application.
. On 13 December 1993 Mr Godley failed to disclose his convictions when applying for a further stay visa.
. On 29 November 1994 Mr Godley failed to disclose his convictions when applying for general residence on Spouse grounds.
. On 29 November 1994 when applying for a Bridging A visa Mr Godley declared financial hardship (he had only $2,000 in savings available). However, it was later revealed he had withdrawn over $10,000 the day before.
. In December 1994, when interviewed for his onshore spouse visa application he declared that he had not worked in Australia since arriving on a visitor visa. Mr Godley worked illegally, between 4 March 1994 and 29 August 1994, as an accountant whilst on a visitor visa and falsely stated that he was an Australian resident for taxation purposes.
. On 24 January 1996 Mr Godley failed to disclose his convictions when applying for a subclass 806 (Last Remaining Relative) visa.
. On 20 January 2000 Mr Godley failed to disclose his convictions when being interviewed by a DIMIA officer.
. On 20 October 2000 Mr Godley failed to disclose his relationship with his current spouse when being interviewed by a DIMIA officer.
. On 19 July 2001 Mr Godley failed to disclose fully his convictions when he lodged his provisional spouse visa.
7. For the above reasons and for the convictions committed in both South Africa and Australia Mr Godley was unable to satisfy me that he passed the character test.’
60 Counsel submitted that the foregoing reasons were to be read with a benevolent construction having regard to the fact that they represented the conduct of an administrative function. However, if the reasons disclose that the relevant law has been applied incorrectly and consequently that there has been a failure to consider and determine the correct question and a failure to carry out the decision-making process authorised by the Act, no degree of benevolence can overcome that error.
61 The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character. In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.
62 With regard to the criminal conduct considered, the whole of that conduct was past. There was no recent criminal conduct evidenced by a recorded conviction to which the Minister could give regard. In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available. (See: Baker at 194).
63 In having regard to the criminal conduct of the applicant the Minister had to assess the extent to which the particular offences showed moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attachable to past offences as indicators of moral worth.
64 The offences in South Africa were traffic offences arising out of one incident. On their face, the offences were not significant having regard to the penalty imposed and there was no other account of the relevant facts before the Minister than that provided by the applicant. The offences occurred more than nine years before the Minister had regard to them.
65 The offences in Australia were equally non-informative as to whether the applicant was a person not of good character in November 2002. Two of the three offences were traffic offences, one a charge for which a minor penalty had been imposed 35 years prior to the Minister’s consideration. Whatever the relevant facts may have been, and they were unknown to the Minister, it had to be regarded as an offence that provided no assistance to the resolution of the question before the Minister.
66 The other traffic offence involved driving under the influence of alcohol, a matter regarded with concern by society but often explicable by circumstances that involve a single error of judgment and not absence of good character. That offence occurred eight years before the Minister had regard to it.
67 The remaining offence was a conviction on a complaint brought by the Minister’s Department in relation to the applicant obtaining employment in breach of a condition of the visa then held by the applicant. Immediately after that conviction the applicant applied for and obtained a visa with no restriction on the right to obtain employment. The offence is not of a type that suggests absence of good character necessarily and furthermore it occurred seven and a half years before the Minister gave consideration to it.
68 Other matters identified under the heading “Character Test” in the recollected reasons that may be said to be elements of past and present general conduct, were matters that may have provided some information as to the existence of enduring moral qualities but a determination that the applicant was a person not of good character required more than mere reference to those events. The Minister had to look at the totality of the applicant’s circumstances and assess whether the events relating to visa applications he had made, illuminated the true character of the applicant. (See: Powell v Administrative Appeals Tribunal (1998) 98 FCR 1per French J at [15]). The defaults required closer analysis than the Minister appeared to give them if a finding of fact was to be made that the applicant was a person not of good character.
69 The first three items in paragraph 6 of the recollected reasons concerned failure to disclose traffic convictions recorded against the applicant in South Africa in September 1993. In addition, in respect of the third item, it included a failure to disclose a traffic offence conviction in Western Australia, namely, driving under the influence of alcohol. The Minister had to analyse the relevant circumstances of non-disclosure before being able to say whether they provided insight into the matter of the enduring moral worth of the applicant.
70 In the absence of any instruction in the prescribed form drawing the attention of a visa applicant to the need to include traffic offences within convictions of a “crime or offence” the Minister had to give regard to the fact that a failure to disclose such offences had some ambivalence as far as being an indicator that a person was not of good character, a finding that would involve a statement of the propensity of that person to engage in day-to-day conduct that was morally bankrupt and not the exposure of mere weaknesses or blemishes in character from time to time.
71 Furthermore, in respect of the alleged failure to disclose prior convictions in January 1996, January 2000 (in fact October 2000) and to “disclose fully” such convictions in July 2001, the defaults as stated are not entirely accurate. In January 1996 the applicant disclosed the conviction for working contrary to the terms of his visa in 1994 and in October 2000 repeated that disclosure and added the disclosure of the conviction for driving under the influence of alcohol. Otherwise the undisclosed offences remained the lesser traffic offences in South Africa and the minor offence in Western Australia that had occurred thirty years previously.
72 With regard to the failure to “fully disclose” convictions in July 2001 the applicant ticked the box to confirm that he had been convicted of “a crime or offence” but did not respond to the request to supply details “if the matter relates to a criminal conviction”. In carrying out the task of determining whether the applicant was a person not of good character, the Minister would have to keep in mind that at, or after, the applicant lodged the application, it appeared to be a requirement that the applicant provide “police clearances” from South Africa and Western Australia. The relevant authorities prepared those documents in September 2001 and the documents disclosed all traffic offences recorded against the applicant. Those documents were received by the High Commission in September 2001. The papers before the Court show that the report from South Africa was provided to the applicant’s migration agent in the United Kingdom and, it may be assumed, was forwarded by the agent to the High Commission. It may also be assumed that a similar course was followed in respect of the report from the Western Australian police.
73 The remaining matters listed by the Minister under the heading “Character Test” had limited usefulness in respect of any determination to be made as to whether the applicant was not of good character. A failure by the applicant to disclose in December 1994 that he had worked contrary to the terms of his visa was likely, on due inquiry, to show that his conduct was influenced by his need to obtain earnings as a husband as much as any innate defect in character. If properly informed the Minister would have had to take into account that immediately after that interview it was accepted by the Minister’s Department that the applicant’s circumstances required that he be given the right to work.
74 With regard to the reliance placed upon an implied assertion in the High Commission letter of 12 September 2002 that the applicant had made a dishonest claim of financial hardship in 1994 it is difficult to understand how this item, as stated, would have assisted, or have been able to have been used by, the Minister in determining whether the applicant was a person not of good character. There is no further information on the papers before the Court, those papers being said to be the relevant papers available to the Minister, other than the applicant’s response in his reply to the High Commission on 23 September 2002 in which he complained that he had not been asked to provide any explanation in respect of that circumstance any time in the preceding eight years and in which he provided his recollection as to the use of funds. It is not clear whether the account from which the sum was withdrawn was a joint account of the applicant and his then wife or the personal account of the applicant. The letter to the applicant to the High Commission on 12 September 2003 referred to “your Westpac bank account”. The Minister would have had to address that issue and the applicant’s response before determining whether it could assist the finding of fact he had to make.
75 What reliance the Minister, in determining whether the applicant was not a person of good character, could place on what was said to be a failure by the applicant in October 2000 to disclose the relationship the applicant had with Mrs Godley when interviewed by an officer after being apprehended as a person suspected of not holding a current visa, is hard to discern. In respect of the matter of assessment of a person’s enduring moral quality the event described would appear to be trivial.
76 The applicant is now of advancing years – as noted at the commencement of these reasons, he is now 67. It may be assumed that he has practiced as a professional person, a qualified accountant, for most of his working life. Obviously there will be much to be put into the balance to determine whether at this time in his life there is to be a statement to the world that he is not a person of good character. More than a snapshot of the applicant’s activities would be required to ground that determination.
77 A provision such as 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the Minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the Minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person. (See: Powell per French J at [14]-[15]).
78 As noted above the recollected reasons are limited in their worth in respect of the reliance that may be placed upon them. But the reasons as constructed do not show that the Minister applied his mind to the threshold question required to be determined under s 501(6)(c), namely, whether he could find as a fact that the applicant was a person not of good character. The absence of any reasoning process relating to that determination and of the identification of any findings of fact in that regard, show that the Minister misunderstood what the Act required. It should be accepted that the recollected reasons confirm that when the decision was made by the Minister in November 2002 it was equally affected by that misunderstanding of the law.
79 That conclusion is further confirmed by the terms of the decision made by the Minister by his endorsement of the Issues Paper. The Minister’s decision was expressed as follows:
‘I reasonably suspect that Mr Godley does not pass the Character Test and Mr Godley has not satisfied me that he has passed the Character Test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(1) TO REFUSE THE VISA so I hereby refuse the visa.’
80 Plainly the terms of that recorded decision were inconsistent with the requirement of s 501(6)(c) that the Minister make a finding of fact that the applicant was a person not of good character and for that reason, did not pass the character test and, therefore, failed to satisfy the Minister that he passed the character test. If the Minister had followed the requirements of subs 501(6)(c) the terms of the decision could not have been expressed as they were. The remainder of the recollected reasons suggest that, as in Powell, the finding of the jurisdictional fact and the exercise of the jurisdiction were intertwined and not separated. (See: Powell at [15]).
81 A further ground relied upon by counsel for the applicant was that the Minister wrongly treated conduct of the applicant that involved no conviction of an offence, as an “offence” or as criminal conduct and, further that the Minister did not provide the applicant with an opportunity to make submissions on a proposition so prejudicial to the applicant’s interests.
82 It may be noted that s 234(1)(b) of the Act makes it an offence for a person to make a statement to an officer of the Minister’s Department, that, to that person’s knowledge, is false or misleading in a material particular. It was by no means patent that it could be shown beyond reasonable doubt that the applicant had engaged in criminal conduct in respect of the matters described by the Minister and the Minister’s treatment of the material in that manner departed from the requirements of the Act and denied procedural fairness to the applicant. (See: Dagli at [24]; Baker at [194]).
83 It is unnecessary to deal with other grounds raised by the applicant that derive from the grounds already discussed or are of lesser substance. For the reasons set out above jurisdictional error has been established in that the decision purported to be made by the Minister did not apply the law as set out in the Act and was not a decision authorised by the Act. A writ of certiorari should issue to quash the decision and a writ of mandamus should be issued directing the Minister to deal with the application for the visa according to law.
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I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. |
Associate:
Dated: 18 June 2004
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Counsel for the Applicant: |
AO Karstaedt |
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Solicitor for the Applicant: |
M Rothstein & Co |
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Counsel for the Respondent: |
J D Allanson |
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Solicitor for the Respondent: |
Blake Dawson Waldron |
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Date of Hearing: |
26 November 2003 |
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Date of Judgment: |
18 June 2004 |
