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Federal Court of Australia - Full Court |
Last Updated: 23 October 2009
FEDERAL COURT OF AUSTRALIA
Mujedenovski v Minister for Immigration and Citizenship [2009] FCAFC 149
VITURYE
MUJEDENOVSKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE
APPEALS TRIBUNAL
VID 217 of 2009
RYAN,
MANSFIELD & TRACEY JJ
23 OCTOBER
2009
MELBOURNE
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AND:
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THE COURT ORDERS THAT:
2. The matter be remitted to the Administrative Appeals Tribunal for reconsideration according to law.
3. The first respondent pay to the appellant her costs of the appeal and of the application at first instance.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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VITURYE MUJEDENOVSKI
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
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JUDGES:
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RYAN, MANSFIELD & TRACEY JJ
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DATE:
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23 OCTOBER 2009
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
THE COURT:
1 This appeal is from orders of a Judge of the Court dismissing an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse a contributory parent/migrant visa to the appellant’s father, Mr Selimi. The outcome of the appeal depends on the proper construction of s 501(6) of the Migration Act 1958 (Cth) (the Act) and its application to the conduct of Mr Selimi.
2 For the Mujedenovski family, the appeal in effect represents a final opportunity to reunite in Australia. The father of the family, Mr Selimi, is presently living in Macedonia with his wife and one of their four children. Their remaining children live in Australia, together with their six grand children. If the appeal is unsuccessful, Mr Selimi will be unable to migrate to Australia and the family will remain geographically separated, presumably for other than temporary periods when they can be together.
3 As sometimes occurs, however, that outcome may be ordained by s 501(6) of the Act properly construed and applied to an assessment of Mr Selimi’s character.
4 It is necessary to explain why.
5 Mr Selimi is now 54 years old. He is a Macedonian citizen. He married in 1973. He and his wife had four children, all now adults. Three of the children, including the appellant (one of his daughters) live in Melbourne. The fourth still lives in Macedonia. Mr Selimi and his wife were divorced in Macedonia in December 1994. Later in December 1994, Mr Selimi came to Australia to attend the appellant’s wedding. He came to Australia on a tourist visa issued under the Act.
6 Mr Selimi did not return to Macedonia following the wedding. On 29 January 1995, he married an Australian resident, and on 1 February 1995 he applied under the Act for an Extended Eligibility (Temporary) (Class TK) (Subclass 820) (Spouse) visa and a General Residence (Class AS Subclass 801) (Spouse) visa. The marriage was contrived to enable him to stay in Australia. Officers of the Minister’s department apparently discovered that fact during 1999. They interviewed his then wife, that is the woman he had married in Australia. In mid 1999, Mr Selimi was also interviewed by officers of the Minister’s department. He had, at that time, been found living with his former wife, that is the wife whom he had divorced in December 1994. Mr Selimi attempted unsuccessfully to cover up the sham marriage. He was charged and convicted on 18 December 2000 in the Magistrates Court at Dandenong of 10 offences, nine relating to provision of a document which contained misleading particulars. The convictions as described were one count of "apply for a visa when did not intend to live genuine marriage relationship", and nine counts of "cause to be delivered a document containing a false statement" in relation to the visa applications based on the sham marriage. Mr Selimi was convicted and was given a two month suspended prison sentence, and placed on a $1000 bond to be of good behaviour for 12 months. The conviction of a breach of s 243 of the Act rendered him an unlawful non-citizen, upon which basis he was then detained.
7 Immediately following his conviction and release by the Magistrates Court on the terms just mentioned he was detained by immigration officials and admitted to an immigration detention centre. Two days later, on 20 December 2000, he applied for a protection visa under the Act, claiming that he was a refugee. His claim for a protection visa asserted that he had left Macedonia to escape from the persecution and discrimination suffered by him and all other Albanians at the hands of the Serbians, and that he feared mistreatment from the Serbian people, the Serbian police and Serbian supporters because he is Albanian. That application was refused on 15 January 2001. That decision-maker had "serious reservations" as to Mr Selimi’s credibility and the substance of his claims to fear persecution. That decision was apparently affirmed by the Refugee Review Tribunal on 24 August 2001. That is information different from that recorded by the Tribunal. It appears, by inference, from the material that Mr Selimi had left Australia at about that time. The application for a protection visa had been refused by a delegate of the Minister and Mr Selimi applied for that decision to be reviewed by the Refugee Review Tribunal. Before that review was conducted, he decided to return to Macedonia on a voluntary basis, which he did in August 2001. On 20 October 2004, in Macedonia, he remarried his former wife.
8 In November 2004, the appellant applied for him and his wife to be able to come to Australia on a Contributory Parent Class CA (Contributory Parent/Migrant) (Subclass 143) visa. That is the visa application which has given rise to these proceedings. To the present time, Mr Selimi remains in Macedonia.
9 The earlier application to enable Mr Selimi to remain in Australia permanently had been for an Extended Eligibility (Temporary) (Class TK) Subclass 820 (Spouse) visa and a General Residence (Class AS) Subclass 801 (Spouse) visa. Determination of his entitlement to that visa was delayed for some time for reasons which are unexplained. Ultimately, the application was refused.
10 The application for the Contributory Parent/Migrant visa was rejected because Mr Selimi did not pass the character test by virtue of s 501(6) of the Act, in particular s 501(6)(c)(ii) and the delegate then exercised the available discretion adversely to the appellant after addressing the relevant discretionary considerations.
11 The decision of the delegate was affirmed by the Tribunal on 2 June 2008 on the same basis.
THE LEGISLATION
12 Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister (on review, the Tribunal) that the person passes the character test. Section 501 then relevantly provides:
(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...
(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
...Otherwise, the person passes the character test.
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
THE TRIBUNAL’S REASONS
13 Mr Selimi made a statement dated 24 December 2007 (which he adopted at the telephone hearing before the Tribunal). He acknowledged the previous offences, with respect to his earlier spouse visa applications, but nevertheless claimed to be a good person.
14 He said he lived in a village in the Bitola region of south-west Macedonia, and had lived there all his life. He is Albanian by heritage. He is a farmer over a small parcel of land which he works with his son. He referred to the discrimination against Albanians in Macedonia over many years. He said that he is largely illiterate, being unable to read or write Macedonian although he can understand the language, and being unable to read, write or understand English. He depended on other people to help him. He said the appellant is one of his daughters, and is the sponsor of his application for the visa.
15 Mr Selimi’s statement explained that, although he had intended to visit Australia in 1994 only for a short time for his daughter’s wedding, he was informed by certain people whom he had met that it was easy for him to stay in Australia, and through an intermediary, Jemal, he was proffered the opportunity to stay in Australia by marrying an Australian citizen. He was introduced to the woman with whom he entered a sham marriage. He did not expect the marriage not to be successful, but it was obvious very quickly that it was not. He remained in Australia. In 1999, his former wife travelled to Australia, and they met up and over the following months began to re-establish their relationship. At that time, the investigation into the genuineness of the sham marriage was undertaken. Mr Selimi said he had been confused when confronted with the investigation into the nature of the relationship, and he was assured by Jemal that he did not need to do much about it. He claimed in his statement that, even when he went to Court, he did not realise what was happening and believed that it concerned his visa application. He was also advised shortly after that to apply for a refugee visa. He then decided to return to Macedonia when his son received a conscription letter in 2001 and he, in fact, returned to Macedonia with his former wife on 26 March 2001. They have since remarried.
16 He confirmed that evidence orally in a telephone hearing with the Tribunal. He was asked whether he had been assisted by an interpreter at the Magistrates Court hearing and could not remember. He could not remember whether he had pleaded guilty. He said he had been told by his solicitor at the end of proceedings that everything was alright. He did not realise he had been convicted of a criminal offence. He did not know who made the protection visa application on his behalf or its contents or whether those contents were false. He did not remember what, if any, documents were attached to his application for a permanent residency visa. The Tribunal said he "frequently cast blame on Jemal". He had paid Jemal $10,000 at the time, and was to pay him another $10,000 after the permanent residency visa had been granted. He also paid $25,000 to his sham wife. He agreed that the marriage to that woman had been contrived and that it was a serious offence. He agreed that he understood it to have been contrived to support an application for a permanent residency visa. He said he would abide by the law if he returned to Australia, and would not fill out any forms or authorise any people to fill out any forms on his behalf without having the contents interpreted to him by persons whom he trusted. He said he wished to live in Australia with his wife, his children and his grandchildren.
17 After reciting the evidence, and referring briefly to s 501(1) and (6) of the Act, the Tribunal in its reasons proceeded directly to consider whether Mr Selimi is a person who is not of good character. It referred to Mr Selimi’s conduct in making false statements and in providing documents in an endeavour to dispel the concern that his 1995 marriage had been contrived. The documents were false and purported to be evidence of expenditure on household items, insurance, school fees and the purchase of real estate.
18 The Tribunal’s reasons include these paragraphs:
[20] I am satisfied that Mr Selimi’s past criminal conduct and his past and present general conduct indicates that he is a person not of good character. [21] Mr Selimi was convicted in the Dandenong Magistrates’ Court of 10 charges relating to his contrived marriage to Flegel and his submission of documents in support of his residency application which were found to be fraudulent. There is nothing which points to any present criminal conduct but there is much from the above summary of the evidence indicating past and present general conduct which is not of good character. The past general conduct is evident from the above; it concerns his behaviour and contempt of Australian laws over six years and points to a person of poor character. Some of his past general conduct attracts the provisions of paragraph 1.9(b) of Direction 21 (provision of a bogus document or making a false or misleading statement) and I am compelled to take that conduct into account. There is little that would point to present general conduct as being of good character. His acknowledgement of past mistakes, in my view, is of insufficient degree in the absence of any evidence of rehabilitation or other recent conduct which would suggest that he is at present of good character. The acknowledgement of his past conduct and his statements of intending to comply with Australian laws (paragraphs 13 and 16 earlier) coincide with these proceedings. The gravity and extent of his past criminal and general conduct and the absence of evidence of present general conduct, on balance, is heavily weighted against succeeding under Part 1. [22] If not already apparent, I cannot find Mr Selimi has enduring moral qualities; he has committed infractions ... that show weaknesses or blemishes in character and he is a person who lied to officers of the respondent thereby demonstrating an absence of good character ... (original emphasis).19 The Tribunal said that it, therefore, was not satisfied that Mr Selimi passes the character test.
20 The Tribunal recognised that it then had a discretion under s 501(1) as to whether to refuse to grant Mr Selimi the visa. For that purpose, the Tribunal was to consider Direction No 21 made by the Minister pursuant to s 499 of the Act on 23 August 2001. It did not refer to Pt 1 of Direction No 21 directed to the application of the character test. That is apparently because it had already addressed that issue. It referred only to Pt 2 of Direction No 21 relating to the exercise of the discretion. It identified the three primary considerations relevant to the exercise of the discretion, as identified in Pt 2 of Direction No 21. They are the protection of the Australian community and members of the community, the expectations of the Australian community, and, in a case involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. It addressed each of those matters in turn.
21 It is necessary to note in a little detail what the Tribunal found on those matters, because it was submitted to this Court by Counsel for the Minister that those were findings of fact which the Tribunal had made for the purpose of determining whether, in terms of s 501(1) and (6), Mr Selimi is a person not of good character.
22 Under the heading "Protection of the Australian Community", the Tribunal at [26] reiterated, and expanded upon, its findings as to the offences of which Mr Selimi had been convicted. It found that he had been a willing participant in a scheme devised by Jemal to secure a permanent residency visa, and that Mr Selimi, despite his lack of knowledge of the English language in any form and his poor education, knew that he had engaged in a course of conduct which was illegal. It observed:
He was not prepared to make a legitimate application for permanent residency and for many years either made, or allowed to be made, statements and representations which he knew were false and which were intended to conceal that his marriage was a sham.23 As to the future, the Tribunal noted that Mr Selimi had said that he regretted his past conduct and had given assurances that it would not be repeated. Whilst giving him credit for those comments, it added:
... nothing else is known, nor was anything put, which would assist in assessing the likelihood of similar offences again being committed.Because Mr Selimi had engaged in that criminal conduct, the Tribunal said, it had "little confidence that similar conduct would not be repeated" and noted that there was "no evidence of any rehabilitation that might reasonably be expected to have been made".
24 The Tribunal went on to observe that the refusal to grant a visa would be of general deterrence to the general community. It added at [28]:
It is my view that fair-minded decent honest persons would not ever engage in conduct previously committed by Mr Selimi but there may be others who might be deterred from conduct similar to that previously undertaken by him if they learn that there is a likelihood of detection, prosecution and punishment.25 On the first primary consideration, therefore, the Tribunal said it attached considerable weight to the protection of the Australian community and members of it. Its reasons are a little hard to understand. There is little to suggest that Mr Selimi might engage in similar conduct in the future. The fact of the subject application for the visa tends to suggest the contrary. As to deterrence, the Tribunal’s finding at [28] of its reasons recognised that the factor that would amount to deterrence had already occurred. However, there was no complaint at first instance of the exercise of the discretion by the Tribunal, at least none that the Tribunal had erred in a way which had undermined its jurisdiction. It is therefore unnecessary further to consider that aspect.
26 The next step in the Tribunal’s reasons was to address the second primary consideration, namely the expectations of the Australian community.
27 Under that topic, the Tribunal discussed the extent to which Australian citizens would be "disturbed" about the conduct of Mr Selimi. It said he had "demonstrated virtually nothing since he left Australia in March 2001 which would permit a conclusion that he is a person who is now honest or can be trusted". It referred to him as a person prepared to disregard Australian laws to ensure that he was able to stay. It referred to the purpose of his tourist visa, but it did not make a finding that, at the time, he did not have the intention of merely staying for his daughter’s wedding. It noted his application for a refugee visa (which it said was clearly in the mind of his representatives at the Magistrates Court as a fallback position), but again it did not make a finding as to Mr Selimi’s state of mind when he made that particular application. As to the claim in the protection visa application, the Tribunal said:
That application was as false as the marriage he entered into and despite the professed fear of returning he voluntarily left Australia in March 2001 and returned to (and remains on) the farm that he worked before he left in 1994.It is not apparent how the Tribunal came to reach that conclusion about the protection visa application. Nor is it clear that Mr Selimi was put on notice about a possible adverse finding about his state of mind when applying for a protection visa or what, if any, evidence was before the Tribunal as to the degree of his awareness of the application and its contents, and as to the relevant role of his migration agent at the time. However, no issue was raised about these matters at first instance.
28 At [32] the Tribunal also said that, because Mr Selimi had not readily acknowledged his conduct "rather than be a willing participant in a lengthy record of interview for which the answers given are false and for which there had previously been coaching or a rehersal [sic]", the expectations of the Australian community would be less favourable. That is presumably a reference to the interview by the officers of the Migration Department in 1999. It then said that Australian citizens would find it difficult to believe that Mr Selimi had appeared before the Magistrates Court at Dandenong for three days with little memory of the evidence, and, having pleaded not guilty, that the Magistrate may have allowed the proceedings to continue for three days in the absence of an interpreter. It therefore said:
I am satisfied and find as a fact that the [sic] Mr Selimi did understand the nature of the proceedings, that he did plead not guilty, that he did give evidence and that the allegations against him were properly interpreted. His denial throughout the hearing of this application of his understanding of the proceedings ... and his memory of it does him no credit.The Tribunal said that Mr Selimi’s application would have been more favourably considered if he had made admissions during the interview in May 1999 and had pleaded guilty and had renounced or ended his association with Jemal.
29 Consequently, it concluded, that the Australian community would hold an expectation that the past conduct of Mr Selimi would justify the refusal to grant him a visa.
30 Finally, under the heading of "The Best Interest of the Child", the Tribunal addressed the circumstances of Mr Selimi and his wife and their relationship with their grandchildren. It is not necessary to refer to its reasons on that topic in any detail.
31 The Tribunal concluded that, having regard to the discretionary considerations, it should affirm the decision to refuse the visa.
THE REASONS OF THE PRIMARY JUDGE
32 The learned primary Judge rejected a contention advanced on behalf of Mr Selimi that the Tribunal had erroneously imposed on him an onus of establishing that he is at present of good character instead of considering whether his past and present general conduct show that he is not of good character. His Honour referred to the fourth sentence from [21] of the Tribunal’s reasons reproduced at [18] above that "Some of his past general conduct [original emphasis] attracts the provisions of paragraph 1.9(b) of Direction 21 (provision of a bogus document or making a false or misleading statement) and I am compelled to take that conduct into account." However, his Honour did not regard that sentence as imposing an onus on the appellant to establish that Mr Selimi is of good character. Rather, he analysed the relevant part of the Tribunal’s reasons in these terms (at [19] of the reasons at first instance):
... The Tribunal first recorded the matters indicating that he is not of good character. It then asked itself whether there was anything of present general conduct indicating good character. Correctly, in my view, it said there was little that could be pointed to on that score. The fourth sentence is quite neutral in terms of onus – "there is little that would point to" is not even suggestive of the imposition of an obligation on the applicant to establish that Mr Selimi is at present of good character. ...
The learned primary Judge also regarded, as militating against the
imposition of the onus which had been imputed to the Tribunal,
the statement at
[22] of the Tribunal’s reasons, also quoted at [18] above that:
His Honour characterised that sentence as referring "quite impartially"
to "the absence of evidence of present general conduct."
33 The fifth sentence of [21] of the Tribunal’s reasons the learned primary Judge regarded as explaining the word "little" in the fourth sentence. In other words, the Tribunal considered that Mr Selimi’s acknowledgement of past mistakes was insufficient to overcome the absence of other evidence of present general conduct tending to point to good character possessed at the time of the Tribunal’s decision. In his Honour’s view, the Tribunal’s language was "quite neutral" and inconsistent with the imposition of any onus. The analysis at first instance of the onus point concluded with this passage, at [20]-[21]:
... The words "he is", emphasised by the applicant, do not assist. The Tribunal is there saying that had there been evidence of rehabilitation, for example, it would have suggested that Mr Selimi was at present of good character. There was no such evidence, and no other evidence of recent conduct so suggestive, and accordingly it was not prepared to treat his acknowledgment of past mistakes as sufficient to show present good character. Moreover, the Tribunal’s approach was consistent with s 501(1) which requires a visa applicant to "satisfy the Minister that the person passes the character test". Where there is evidence that a person does not pass the character test – by operation of s 501(6) – it is open to the Tribunal to conclude as such when there is no, or insufficient, other evidence adduced by the applicant showing that he or she does pass the character test. 21 In my view there is no substance in the onus ground.34 The learned primary Judge next rejected an argument based on the reasoning of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 as approved on appeal by a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552, at [34]. The argument which his Honour imputed to the applicant was that "continuing conduct must be demonstrated that shows a lack of enduring moral quality." That proposition was derived from a passage at [26] of the reasons of Lee J in Godley which, as quoted in full by the primary Judge in this case, reads:
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.35 However, the learned primary Judge here rejected a contention on behalf of the appellant that "there is no continuing conduct of the kind of which Mr Selimi was guilty previously." Rather, he noted that the Tribunal had "made findings that established that Mr Selimi’s bad conduct continued over an extended period of time." As well, his Honour emphasised the Tribunal’s finding quoted at [22] above that Mr Selimi had "for many years" (his Honour’s emphasis) made or allowed to be made false statements intended to conceal that his Australian marriage was a sham.
36 In the same context, his Honour noted the Tribunal’s finding that Mr Selimi had made false or misleading statements in support of his application for a protection visa. As well, his Honour referred to the Tribunal’s observations about Mr Selimi’s evidence at the hearing on 21 May 2008 which are reproduced at [28] above. The use made by the primary Judge of that finding is described as follows at [26] of his reasons:
This confirmed for the Tribunal the continuing nature of Mr Selimi’s unsatisfactory moral qualities, and that his behaviour had not changed sufficiently since he engaged in his previous temporally extended criminal and generally dishonest behaviour. I do not accept the applicant’s submission that reliance cannot be placed on these observations because they were made in the course of considering the discretionary issue. The Tribunal’s reasons must be considered in full in order to determine whether it committed reviewable error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291. The Tribunal did not fail to consider Mr Selimi’s continuing conduct.
The third contention advanced on behalf of the appellant which was
rejected at first instance was that directed to [22] of the Tribunal’s
reasons which is set out at [18] above. That contention apparently invoked
Lee J’s identification in Godley of mere weaknesses or
blemishes in character falling short of demonstrating that Mr Godley was
not of good character. In the
present case the learned primary Judge
distinguished Godley, observing at [28] of his reasons:
37 The learned primary Judge acknowledged that, at [22] of its reasons, the Tribunal had made a "slip" in assimilating "enduring moral qualities" to "weaknesses or blemishes in character" whereas in Irving and Goldie the Court had drawn a contrast between those characteristics. Nevertheless, his Honour considered it to be clear from a reading of the Tribunal’s reasons as a whole that "it regarded Mr Selimi’s conduct as serious, grave and extended and concluded that he did not have enduring moral qualities." In his Honour’s view, despite its use of the expression "weaknesses or blemishes in character" which had been applied in Godley to trivial infractions which could not illuminate the questions of whether a person was not of good character, the Tribunal assessed the totality of the evidence, including what it found to be Mr Selimi’s false testimony at the hearing of the Tribunal, as leading to the conclusion that he is not of good character.
CONSIDERATION
38 Counsel for the Minister contended that the reasons for the Tribunal had to be read as a whole, and the adverse findings made in the course of considering the exercise of the discretion were matters which also amounted to findings made by the Tribunal in considering whether s 501(6)(c) was engaged at all.
39 That submission, we consider, should be rejected. The Tribunal’s reasons are sequential. The headings themselves indicate that. It is plain, from the sequence of its decision and the headings used, that the Tribunal first recited the circumstances and evidence, then the relevant legislative provisions, and then turned to consider specifically whether Mr Selimi is a person not of good character. It reached a conclusion on that topic at [20]-[22] of its reasons. It is only at that point that it turned to consider the discretion then available to it. It correctly identified the three primary considerations relevant to the exercise of the discretion specified in Pt 2 of Direction No 21. Its reasons indicate that the further findings then made were not findings which it had taken into account in reaching the decision that Mr Selimi is not a person of good character. It had already reached that conclusion.
40 The reasons why Counsel for the Minister sought to advance the argument which he did is because there are shortcomings in the reasons for decision of the Tribunal on the primary question, namely whether Mr Selimi is a person not of good character.
41 Section 501(6)(c) is set out above at [12]. It is apparent, and accepted by Counsel for the parties, that sub-paragraphs (i) and (ii) of paragraph (c) are each compendious. Sub-section (6) required, in this case, satisfaction that Mr Selimi was not of good character having regard either to his "past and present criminal conduct" or his "past and present general conduct", or both. Neither alternative sub-paragraph (i) or (ii) could be engaged simply by looking respectively at his past conduct, or at his past criminal conduct.
42 The Tribunal’s reasons at [20] (set out at [18] above) may therefore reflect an error by referring only to Mr Selimi’s "past criminal conduct" rather than to the compendious requirement of sub-paragraph (i) of his past and present criminal conduct. In contrast, however, the Tribunal has later in that paragraph referred, correctly, to his past and present general conduct. Moreover, when the introductory words of [20] of the Tribunal’s reasons are compared with the corresponding part of [22] the Tribunal appears to have applied the correct onus by expressing itself satisfied, in [20], that Mr Selimi is a person not of good character. On the other hand, the Tribunal appears to have reversed the onus by declaring itself unable, because of Mr Selimi’s conduct, to be satisfied that he has the positive attribute of a person of good character, enduring moral qualities. Hence, at the start of paragraph [23] of its reasons, the Tribunal said that it was not satisfied that Mr Selimi passes the character test.
43 The Tribunal has explained those conclusions at [21] of its reasons where it refers to the past criminal conduct of which Mr Selimi was convicted in relation to his contrived marriage and his submission of documents in support of his residency application which were found to be fraudulent. The Tribunal noted that "there is nothing which points to any present criminal conduct", but considered that "there is much" from its summary of the evidence "indicating past and present general conduct which is not of good character" (original emphasis). The past general conduct was said to be Mr Selimi’s behaviour and contempt of Australian laws over six years (that is the period between his sham marriage and his conviction on 10 charges by the Dandenong Magistrates Court). There is no evidence that, since 2001, Mr Selimi has done anything either illegal or morally blameworthy apart from giving false evidence to the Tribunal. This misdeed was not, however, considered by the Tribunal when it assessed Mr Selimi’s past and present general conduct for the purposes of s 501(6)(c)(ii). It was later to be brought into account when the Tribunal was deciding how to exercise the discretion conferred on it by s 501(1). The evidence indicates that Mr Selimi has been living in Macedonia on his farm since 2001. There is nothing to indicate that he has there committed any offences or otherwise engaged in any conduct which would impinge adversely upon his eligibility for a visa on character grounds. The Tribunal’s reasons disclose as much. It noted his acknowledgement of past mistakes, but did not think that was sufficient "in the absence of any evidence of rehabilitation or other recent conduct which would suggest that he is at present of good character". It does not say what rehabilitation might have been undertaken. Nor does it indicate what other recent conduct might have been considered as suggestive in the requisite sense of present good character. Mr Selimi is an illiterate farmer who has been farming on his family land. So far as the Tribunal has identified, and so far as the evidence disclosed, he had not engaged in any inappropriate conduct for some seven years at the time of the Tribunal’s decision. At one point the Tribunal says that the evidence to which it had referred disclosed "past and present general conduct" which is not of good character, but, because it later acknowledged that there is no evidence of present general conduct involving any impropriety, that passage, we consider, should be read as treating the concept of "past and present general conduct" compendiously, but regarding the past general conduct as of such significance that the absence of positive evidence of present general good conduct meant that it was satisfied that Mr Selimi fell within s 501(6)(c)(ii).
44 We accept that the Tribunal’s reasons for decision should be given a "beneficial construction" as explained by the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2 because "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". Care must be taken not to turn a judicial review on proper principles into a reconsideration of the merits of the decision. See also per Kirby J, at 291.
45 It was common ground between the parties that the relevant principles for determining the appeal in the context of ss 501(1) and (6) have been set out in the reasons of a Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552 (Madgwick, Lander and Crennan JJ). Their Honours dismissed an appeal from a decision of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411. In discussing s 501(6), the Full Court at 559-62 quoted with express approval lengthy passages from the reasons of Lee J at first instance including, in particular, his Honour’s observations about s 501(6) which they said, at 559, "constitutes a valuable guide for decision-makers". The passages there approved are reflected also in the Full Court’s reasons at [54]-[56]. At those passages, the Full Court said:
That argument should be rejected because it is contrary to the express terms of s 501(6). A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than by a positive finding to that effect by the Minister. If the only paragraph under consideration is para (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test. It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so, then, if that is the only matter under consideration, that person will have passed the character test. This is so notwithstanding the requirements of s 501(1) that the person concerned "satisfy" the Minister that he or she passes the character test. An applicant must satisfy the Minister in relation to factual matters relevant to the Minister’s determination of whether a placitum in s 501(6) applies. In effect, s 501(6) provides a complete statement of how the person may satisfy the Minister. The effect of that statement is that, unless a placitum in s 501(6) applies, the person is to be taken as having satisfied the Minister. A placitum in s 501(6) only applies if the Minister determines positively that it does so.46 As to s 501(6)(c), their Honours quoted with express approval the following passages from Lee J at first instance, at [34]:
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). 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 187 at 197). ... 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). 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.47 The last paragraph of the passage just quoted, particularly indicates that the compendious concept "past and present general conduct" requires attention to the character of the visa applicant over the continuum of a period of time. It is not necessary, as the last sentence indicates, that in every circumstance there must be past general bad conduct and present general bad conduct. Past bad conduct may, in certain circumstances, outweigh recent general good conduct so as to compel or favour a conclusion that the person continues to lack moral worth.
48 We have noted the learned primary Judge’s conclusion that the Tribunal did not impose on the appellant any onus of showing that Mr Selimi is of good character. However, we consider, with respect, that, even reading the Tribunal’s reasons with the benevolence enjoined by Wu Shan Liang, an ineradicable impression remains that the Tribunal asked itself whether there had been an affirmative demonstration of facts occurring since 2001 sufficient to displace the conclusion, otherwise compelled by his past criminal conduct, that Mr Selimi is not of good character. In other words, the Tribunal erroneously considered it unnecessary to take into account, in Mr Selimi’s favour, the absence of evidence of "present criminal conduct."
49 Accordingly, we consider that, in the circumstances of the present case, the Tribunal has erred in the application of the relevant test. The Tribunal has regarded past conduct (whether it be called criminal conduct or general conduct) as of such significance as to demonstrate a present lack of enduring moral quality. That would be unexceptionable without more but the Tribunal’s reasons disclose a twofold error. In the first place, although the Tribunal seems at [20] of its reasons to ask itself whether Mr Selimi is a person who is not of good character, at [22] it appears to reverse that correct onus by asking whether he has enduring moral qualities (a phrase taken from Godley and the decisions there quoted) rather than asking whether it is satisfied that he does not have, or that there is a lack of, enduring moral quality. Moreover, the Tribunal has placed weight only on the past criminal and general conduct. In effect, that is the conduct of Mr Selimi in 1994 (nearly 15 years before the time of the Tribunal’s decision) having arrived in Australia lawfully on a visitor visa and having (as it apparently accepted) been given the opportunity through Jemal of remaining in Australia by a fabricated marriage, having succumbed to that invitation and then some years later, when investigated having, by the conduct of which he was subsequently convicted, endeavoured to preserve the sham by presenting false documents to persuade the authorities that his Australian marriage was genuine. He was convicted of those offences, but they all arose out of the same two transactions: the sham marriage itself and the attempt, when confronted, to present evidence which was fabricated to maintain the sham.
50 The sham marriage was contracted some 15 years before the Tribunal’s decision, and the conduct giving rise to the criminal convictions otherwise occurred in 1999, some nine years before the Tribunal’s decision. Its reasons in the passages referred to, quoted in full on this topic, do not disclose any conduct after that which could point to any present criminal conduct (a matter accepted by the Tribunal), or any adverse present general conduct, and, indeed, to the extent to which it was relevant, Mr Selimi had acknowledged his past mistakes. The Tribunal then expected evidence of rehabilitation or other recent conduct tending to suggest that he is at present of good character. But apart from evidence of what he had been doing, and apparently lawfully doing, after he had returned to Macedonia in 2001 and remained there, it is difficult to discern what further evidence might have been adduced. When applying s 501(6)(c)(ii) the Tribunal did not refer to any later improper conduct by Mr Selimi.
51 In that respect, we consider that the learned primary Judge did not appreciate the effect of the evidence as a whole when he rejected the appellant’s contention that "there is no continuing conduct of the kind of which Mr Selimi was guilty previously". His Honour, at [23], explained that rejection by saying "The Tribunal made findings that established that Mr Selimi’s bad conduct continued over an extended period of time." That much may be conceded but the Tribunal’s findings do not support a conclusion that there was, at the time of its decision, continuing conduct of the kind which had been engaged in between 1995 and 2001.
52 It is also important to bear in mind, as s 501(6)(a) provides, that there is a presumptive conclusion that a person does not pass the character test if that person has a substantial criminal record, as explained in s 501(7), namely having been sentenced to, relevantly, a term of imprisonment of 12 months or more. If that had occurred, the Tribunal would readily have concluded that Mr Selimi did not pass the character test. But his conviction for related conduct in 2001, did not lead to such a conclusion and there is no evidence of any other criminal conduct, or for that matter general bad conduct, after that date or indeed, before that date other than the conduct which resulted in the conviction or his account, which the Tribunal regarded as untruthful, of the circumstances of that conviction.
53 In our view the Tribunal has erred in its failure to apply s 501(6)
properly construed. The appeal should be allowed and the matter remitted to the
Tribunal for reconsideration according to law.
The Minister should pay the
appellant’s costs of the appeal and of the application at first
instance.
Associate:
Dated: 23
October 2009
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Solicitor for the Appellant:
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John Finlayson Lawyers
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Counsel for the First Respondent:
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Mr R Knowles
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Solicitor for the First Respondent:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/149.html