Anakotta and Department of Immigration and Multicultural Affairs [1999] AATA 139 (12 March 1999)

Last Updated: 17 March 1999

DECISION AND REASONS FOR DECISION [1999] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/563

GENERAL ADMINISTRATIVE DIVISION )

Re BARBARA JUNE ANAKOTTA

Applicant

And SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date 12 March 1999

Place Sydney

Decision 1. The Tribunal sets aside the decision under review.

2. In substitution therefor the Tribunal finds that Mr George Anakotta meets the requirements of criterion 4001(4) under the Migration Regulations.

3. The matter is remitted to the Respondent for consideration of the remaining aspects of the Applicant's visa application.

(Sgd) Rodney N Purvis

..............................................

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - Spouse Visa - refusal for not meeting the criterion of good character - remained in Australia illegally - married Australian citizen - whether spouse used Applicant to obtain residence in Australia - insufficient evidence of probative weight to show that spouse was not of good character - spouse should be granted visa.

Migration Act 1958 - ss 499, 501

Migration Regulations - cl 4001

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

REASONS FOR DECISION

12 March 1999 The Hon Mr R N J Purvis, QC, Deputy President

1. This is an application made by Mrs Barbara Anakotta, the wife of George Anakotta (hereinafter referred to as George) for review of a decision made by a delegate of the Department of Immigration and Multicultural Affairs (the Respondent) on 7 May 1998 rejecting, pursuant to section 501 of the Migration Act 1958 (the Act), an application for a Class 309/100 Spouse Visa.

2. On 7 May 1998, George was advised by the delegate that:

"... Information concerning your background that was taken into account in assessing your application, indicates that you are unable to meet the public interest criterion (ie. Clause 4001) prescribed in Schedule 4 of the Migration (1994) Regulations for the grant of a spouse 309/100 visa. A decision has been made to refuse the grant of the visa in accordance with section 501 of the Migration Act. ..."

3. In the application for review, the Applicant stated as her reasons for making the application:

"To be reunited with my husband in Australia - the rejection of his application, I truly believe did not take into consideration that his involvement with the so called 'Triads' in Hong Kong was caused by mitigating circumstances that existed at that time. Since his release from detention in 1980 - he has reformed, has remorse of his past but more so, is an honourable, hard working husband, loving partner and father to my children and granchildren (sic)."

EVIDENCE AND PROCEEDINGS

4. At the hearing of the application for review, the Applicant was represented by Mr McNally, solicitor; the Respondent by Mr Peek, a departmental representative.

5. The material placed before the Tribunal comprised the section 37 documents T7 to T36, and the following tendered as exhibits:

Exhibit No A B C D E F G H J K L M R1 R2 R3 R4 R5 Description Statutory Declaration of Barbara June Anakotta dated 18 September 1998 Statutory Declaration of Louis Anakotta dated 14 August 1998 Certified copy of Birth Certificate of George Anakotta Medical Certificate of Waratah Medical Centre dated 10 September 1998 Medical Certificate of Waratah Medical Centre dated 19 January 1999 Testimonial of Pastor Keith Young dated 1 October 1998 Letter from Hong Kong Police re: employment of George Anakotta within the service Photocopy Blood Donor ID card Photocopy Security Industry Licence ID card Photograph of Mr George Anakotta Family Tree of Mrs Barbara Anakotta Extract of International Triad Movements by Yiu-Kong Chu dated July/August 1996 International Covenant on Civil and Political Rights dated 27 January 1999 Bundle of documents relevant to Immigration application for George Anakotta dated 31 October 1998 Letter to Ms Dominello, Case Officer, DORS Secretariat from John Ingham, Migration Agent dated 7 February 1996 File Note (Department of Immigration & Ethnic Affairs, NSW) dated 14 June 1995 Minute to AFP Senior Liaison Officer dated 20 February 1998 Reply letter from Australian Consulate General, Hong Kong dated 22 April 1998

6. The attention of the Tribunal was directed to a publication, The Triads. The Chinese Criminal Fraternity by Martin Booth (Grafton Books London 1990).

7. The Applicant and Mr Louis Anakotta gave oral evidence and were cross-examined before the Tribunal. Pastor Young and George gave evidence and were cross-examined by telephone connection.

RELEVANT FACTUAL SITUATION

Generally

8. George was born in Hong Kong on 28 October 1948 of parents who had migrated to that place from Ambon, Indonesia. He attended St Patricks School and Yan Pak English College in Hong Kong, leaving school in 1965 at year 11. He initially obtained employment with the same company as his father, the Royal Interocean Lines, as a clerk; later moving to a subsidiary air cargo company as a cargo master. From 1967 to 1976, he was retained as an Auxiliary Police Constable with the Royal Hong Kong Police. He obtained the rank of a Senior Constable, being trained in police and rioting procedures.

9. In about 1976, George obtained employment with the MTL Container Station at Kai Tak Airport, Hong Kong as a cargo supervisor. It was whilst so employed that he committed theft of container goods and, on conviction, was sentenced to four years imprisonment, serving two years, eight months of his term.

10. On his release from prison he experienced difficulty in obtaining work and became engaged as a self-employed sub-contractor to the local film industry. George initially said that it was through Triad connections made while he was in prison, that he was able to find work as a stunt man and actor between 1980 and 1988. In his oral evidence before the Tribunal, he said that he was not now sure whether the connections were associated with Triads or not.

11. George travelled to Australia in 1988 on a Visitor's Visa. He came, he now says, to lose himself, intending to overstay his visa; he did not want to remain in Hong Kong. This is not what he told the Respondent when applying for an extension to his visa in 1989. He overstayed and remained in this country until 1997. After a short residence with his brother, Louis Anakotta, in Melbourne, he moved to Sydney where he obtained employment with the NSW Leagues Club and, later, the Wolper Jewish Hospital. George married the Applicant in 1994.

12. George has two brothers, Max and Louis. Max is living in Canada with Mrs Anakotta senior. Louis, now an Australian citizen, lives in Melbourne with his wife and children.

AS TO VISA APPLICATIONS

13. George arrived in Australia on 29 May 1988 on a Visitor's Visa which initially expired on 1 December 1988 but was extended to 29 January 1989. He remained in Australia until 2 August 1997, without applying for an extension to his visa, even though he told his brother Louis that he had obtained a "Bridging Visa through an agent", and that he was extending his visa to regularise his status. He had been warned by Louis not to overstay his visa. George was not, in this regard, truthful to his brother.

14. A Deportation Order was signed on 10 May 1994. George was placed on Search and a deportation photograph published publicly in June 1994. George knew of the issue of a warrant. About ten months after his marriage, he made himself available to officers of the Respondent, admitting that if he had not been married, he "wouldn't have surrendered" (T26, p200). In evidence before the Tribunal, he said that he surrendered in the company of his wife and her family, feeling that he must be fair to her. He made up his mind for his "conscience and the family's sake".

15. On 14 September 1995, George applied for a Protection Visa which was refused on 15 February 1996. The Refugee Review Tribunal affirmed the decision on 5 November 1996 and ministerial intervention was refused on 22 May 1997. On 2 August 1997 the Applicant left Australia under a monitored departure.

16. The subject Spouse Visa application was lodged on 4 August 1997.

17. George is the holder of a United Kingdom and Northern Ireland passport which states that he has a right of abode in Hong Kong. It would seem that George's passport is only a travel document issued by the United Kingdom authorities which identifies his status as British National Overseas. George, at present, holds Hong Kong citizenship and has a right of return to Hong Kong.

18. Section 501 of the Act sets forth the power to refuse visas on the ground of character, the main policy applicable to the exercise of this power being contained in the Migration Series Instruction. The Instructions are to be followed by the Tribunal unless special reasons on the facts of the case warrant departure from it, see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419-421. There are no such reasons identified in the context of the present application.

19. The General Direction of the Minister, under section 499 of the Act, is also to be followed by the Tribunal. The General Direction is relevant both in relation to the question of determining whether a person is of good character and as to whether the discretion should be exercised to refuse or grant a visa.

RELEVANT PRINCIPLES AND GUIDELINES TO BE APPLIED

20. The special power to refuse a visa, conferred by section 501 of the Migration Act 1958 (the Act), so far as here relevant, provides as follows:

"501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

subsection (2) applies to the person; or

the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:

be likely to engage in criminal conduct in Australia; or

vilify a segment of the Australian community; or

incite discord in the Australian community or in a segment of that community; or

represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.

(2) This subsection applies to a person if the Minister:

having regard to:

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character; or

(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation, who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct."

21. In order to be granted a visa, the nominated individual must satisfy the criteria specified in the relevant regulations made under the Act. Regulation 100 of the Migration Regulations (the Regulations) stipulates that the public interest criteria, set out in schedule 4 of the Regulations, must be satisfied, item 4001 of which provides as follows:

"PART 1 - PUBLIC INTEREST CRITERIA.

(1) The applicant meets the requirements of subclause (2), (3) or (4).

(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.

(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal under section 501 of the Act, to grant the visa, the Minister has decided that the evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.

(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."

22. It is the contention of the Respondent that George does not satisfy item 4001 and the public interest criteria of schedule 4 of the Regulations.

23. Consideration of an application under section 501 thus involves firstly a finding that one or more of the provisions of section 501 applies to the relevant person and then, pursuant to such a finding, a decision as to whether to exercise the discretion to refuse the grant of a visa pursuant to that section.

24. The Migration Series Instruction of the Department of Immigration and Multicultural Affairs, in paragraph 9.3.4, stipulates that, for the purpose of decision making, consideration is to be given to:

* whether the relevant person is likely to engage in criminal conduct in Australia; or

* would vilify, incite discord in or represent a danger to the Australian community; or

* is not of good character, because of past criminal conduct or general conduct; or

* is not of good character because of association with another person, group or organisation; or

* is reasonably believed to have been involved in criminal conduct.

25. The Migration Series Instruction in para 9.2.2 notes that whilst conduct refers primarily to a person's criminal conduct as seen in a record of convictions, it is not limited to conduct in respect of which a person has been convicted. The reference to the person's general conduct in subsection 501(2)(a)(ii) enables a range of conduct of a person to be taken into account. Such conduct, however, needs to be sufficient to satisfy the Minister that the person is not of good character at the time of the decision.

26. The prerequisite referred to in subsection 501(2)(b) enables information which links an applicant to a person, group or organisation who is, or that is, known or reasonably believed to be or have been, involved in criminal conduct to be considered when assessing whether the applicant is of good character. Association may also involve, but is not limited to, a family or business connection/relationship, membership of an organisation, affiliation with a person or group, or ongoing interaction on some other basis.

27. Para 9.5.2 of the Instruction states that subsection 501(2)(a) of the Act is not concerned with whether the conduct has had some temporal result, such as incurring a conviction, but is concerned more with the light the conduct throws on the person's character. The intention of parliament is, to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories, past criminal and general, each of which is to be taken into account when making a decision about character.

28. Good character, in the context of section 501 of the Act, has been considered in Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; (1996) 68 FCR 422 and Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136. The reasons for decision in these two cases enable the following principles to be enunciated (see Irving at 87-88; and Baker at 142, 143 and 144):

(a) whether a person is of good character is a question of fact;

(b) matters relevant to character may vary according to the purpose of the visa class in question;

(c) good character in the immigration context is not concerned with weaknesses or blemishes in a person's character but with the exercise of the power to refuse entry to Australia of a person whose character makes refusal of that entry in the public interest;

(d) the words "good character" in the section should be understood as a reference to the enduring moral qualities of a person. Conduct may make those qualities visible but it should never be confused with them. In each case, having had regard to conduct, the Minister or other decision maker must still come to a further conclusion whether or not to be satisfied that the person is not of good character;

(e) a person may be judged to be not of good character on the basis of his or her criminal conduct, or general conduct or a combination of both;

(f) criminal conduct includes not just conduct for which a conviction has been recorded but, in the absence of a conviction, there must be rationally probative evidence for a finding of criminal conduct;

(g) general conduct does not mean only prevalent or usual conduct. A person's conduct on only one occasion may be a very good guide to that character;

(h) in the case of criminal convictions, the nature of the offences must be assessed to judge whether they reflect on character.

29. Paragraph 9.7.1.3 of the Instruction provides that general conduct can be a course of conduct which shows a blatant disregard of other's authority and/or a failure to undertake legal obligations as a responsible member of the community. The conduct may not be criminal in nature but may serve to exemplify the character of the applicant.

30. The General Direction of the Minister under section 499 of the Act referable to visa refusal under section 501 provides that all non-citizens who apply to enter or stay in Australia are to meet certain standards of behaviour, conduct and character. Paragraphs 2 and 3 provide:

"(2) ... the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.

(3) The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:

* where a non citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;

* where a non-citizen has been convicted of offences, or the non-citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

* where there is membership of, or close association with, any group or organisation however small, which is involved in criminal activity;

* where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody."

31. Paragraph 6 of the General Direction provides:

"If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:

* where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:

* whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);

* if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and

* in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established."

FACTORS REFERABLE TO THE CHARACTER OF MR GEORGE ANAKOTTA

As found by the Delegate

32. The delegate found George to be not of good character due to his past criminal conduct and general conduct.

Triad association in Hong Kong

33. The delegate noted in her findings on material questions of fact that George reiterated his claim to Triad membership while at school and said that "if you're in it (ie Triads) I said you can't come out ie not voluntarily leave like in an RSL but I've hopefully left it". When at interview, George was given an opportunity to provide background information referable to the offence that he had committed in Hong Kong; he said he committed that offence with a member of a Triad organisation. He also agreed, in his interview with her, that there was a Triad presence and influence in the film industry with which he had been associated after serving his prison sentence. He stated that he knew senior Triad figures working in the film industry, specifically a Mr Heung, this the delegate considered may relate to a Mr Heung Wahyim who was influential in the film industry and known to be the leader of the largest Triad organisation, the San Yee On, until his death in 1988, although he stated that "since prison I've lost contact" (ie with Triads). George also stated to the delegate that "to know is one thing but I'm not in criminal activities". He claimed he had knowledge of Chinese Triads in Australia.

34. It is estimated that in 1996 there were about 160,000 Triad members in Hong Kong, the majority having regular jobs and not being active in criminal activities. Indeed it was estimated by the Hong Kong Police in 1980 that only about 10% of Triad members were active criminals (see International Triad Movements, Yiu-Kong Chu).

35. In Martin Booth's book The Triads. The Chinese Criminal Fraternity at page XI of the Introduction, it is said:

"Wherever there is a Chinese community throughout the world there is at least one Triad society making a criminal living from it, surviving parasitically by squeeze - a metaphorical expression of long standing in the East covering protection rackets, the control of service industries (even as small as the delivery of noodles from a cooked food store racket), the operation of labour markets, the running of gambling and vice establishments and generally taking advantage of every opportunity for profit within the Chinese community."

At page 93 Martin Booth states:

"In the early 1970's when corruption was at its height in the Hong Kong Government it was estimated that 35% of all Chinese policemen were Triad members or affiliates and that most police stations had at least one senior Chinese NCO who was a Triad officer bearer. Some estimates were even higher. The precise figure is immaterial. The only thing that still matters - is the iron grip the Triads had over what went on in Hong Kong ..."

And at page 138:

"The only new development is the exportation from Hong Kong to other countries of the Chinese youth or street gangs. These are little more than accumulations of thugs, sometimes allied to Triads in that '49' soldiers are members of the gangs and the gangs are used as recruiting grounds for the Triad societies proper but they do actually partake of the fruits of serious criminal activity."

36. In an interview with the Registry Supervisor On-Shore Protection of the Respondent, George claimed that he was a member of the Triads in Hong Kong and that as at January 1998 he continued to support this group (T22, p143). The latter was denied by him as being accurate in his evidence before the Tribunal.

37. In February 1998, in an interview in Hong Kong, he said that he joined a Triad to stop being bashed at school.

38. In elaboration of the latter statement before the Tribunal, George stated that he had a very tough time in Hong Kong when he was a student. Not being Chinese and having a dark pigmentation to his skin, he was discriminated against and felt the need to prove to himself and others who he was. He became associated with a football team, the members of which "hung out together"; it was not involved in criminal activities. His initiation into the team was by payment of an amount of money; he was then told that he was a member of a society or Triad. His membership of the group, Triad or society was initially in order to avoid being bashed while he was a teenager. He was what he described as a participating member for 10 to 15 years but did not actively involve himself in its activities. From material tended to the Tribunal it appears that George was a member of the Wo Sing Wo Triad society. He said that he used his membership to obtain information which he used in association with his Hong Kong Police activities. The membership continued up until shortly before he committed the abovementioned offence. He said that after leaving prison he realised the danger of being a member and thereafter disassociated himself from the society and did not have any further involvement.

39. The above evidence of George as to the circumstances existing in Hong Kong when he was a teenager was confirmed by his brother Louis. Louis said that at that time racism was common everywhere in Hong Kong and that he and his brother were teased at school and called names like "black ghost". Fights were often unavoidable as the Anakotta brothers tried to protect themselves and "maintain dignity and personal integrity". As they reached their teenage years, feeling the need and right to protect their identity became even stronger and the brothers were forced to be part of strong groups or gangs in order to feel secure and to not be bullied even in their own neighbourhood. Most of their time, according to Louis, was spent roaming the streets as a result of which they were easily influenced into bad habits, smoking and drinking, this continuing until they left secondary school. In his oral evidence before the Tribunal, Louis Anakotta spoke again of the racial vilification and discrimination that existed at that time in Hong Kong, and of the existence of gangs, some of which were associated with Triads.

Conviction

40. The delegate noted that George had a criminal record in Hong Kong of theft for which he was convicted and sentenced to four years imprisonment.

41. George was convicted on 23 May 1977 of theft in 1976. He said that his criminal activities were not associated with any Triad even though his sole accomplice, who turned Crown witness, was a member of a gang. George said that the items stolen consisted of leather jackets and watches to a total value, according to the Hong Kong newspapers, of $HK1.7 million.

42. George served two years and eight months of his sentence before being released on parole.

[Iota]llegal Residence in Australia

43. By an application made on 31 October 1988 George applied for an extension to the Visitor's Visa earlier granted to him. His brother Louis was guarantor. In the application George stated that he proposed to leave Australia at the end of February 1989, the reasons for the extension being to spend time with Louis and his family over the Christmas period and to see his mother in January or February 1989 when she proposed to visit Australia. As elsewhere mentioned in these reasons, George left Melbourne, travelled to Sydney, obtained employment and remained there until his monitored departure in 1997. The reasons stated by George, in his application for extension of visa, were not consistent with his true intention at that time. His act of remaining in Australia was in breach of the legislation, as was his obtaining of employment.

Association with the Federal Police and Triad members in Australia

44. The delegate noted, in the reasons for her decision that George continued "by his own admission" to maintain knowledge of Chinese and Vietnamese organised crime in Australia and, in this connection, had been contacted by Australian law enforcement agencies. The delegate found that George's Triad membership was of a nature that would give rise to significant concern in the Australian community and that his association with "an organisation involved in criminal conduct" had been direct and conscious and apparently long term, and that this association was sufficient to render the Applicant not of good character. There was not any evidence before the Tribunal that the organisation, society or Triad of which George was a member had been involved in criminal conduct or associated with criminal conduct or persons engaged in such conduct.

45. George says that he assisted the Australian Federal Police in Sydney with information as to Chinese and Vietnamese persons involved in drug activities and Asian crime in China Town and Cabramatta. It was due to the nature of his work at the Leagues Club that he first came to know socially officers of the Australian Federal Police. He was introduced to under cover agents, whom he assisted in their investigations. George was at no time a registered informant. In his evidence before the Tribunal, George said that he was never a member of a Triad organisation in Australia but knew people who were and they recognised him, and he recognised them, from his time in Hong Kong. Consequent on meeting police officers at the Leagues Club, he was introduced to and met a Mr Bruce Peg, a Federal Police officer, who asked him questions about Cabramatta and groups in China Town. George gave Mr Peg information, the names of people and other relevant facts. George recognised the danger in which he placed himself but said that he cooperated and gave information to the police, not expecting any payment, wanting a clean future and with no ulterior motives.

46. Mrs Barbara Anakotta, the Applicant, was aware of George having some knowledge of Triads in Sydney and Hong Kong and of his discussing matters with the police. This, she said, worried her. She was given a password by George which she was to use if somebody sought to get into their premises in his absence. Mr Bruce Peg, in his evidence, said that he met George, face to face, three or four times and spoke to him on the telephone "many more times". George attempted to give him information on organised crime, providing him with names of people "first names, nick names making it difficult to identify to whom he was referring". Mr Peg understood that George was willing to voluntarily give information, although the quality of the information that he received was not precise and was "wishy-washy". The fact of George giving Mr Peg information led Mr Peg to believe that George was still active in organisational activities. George had said to him that he had been an office holder in an organisation and Mr Peg believed that George still retained the position. He was not a registered informant, and said that he did not want anything for his information but that he might need some assistance with immigration. Mr Peg did not believe that George was providing or had provided information "as a sham for immigration purposes".

Employment

47. Details have been set forth above as to the work in which George has been engaged. His employment record whilst in Australia is without blemish, the Chief Executive of the New South Wales Leagues Club saying that George had been employed by the Club since 5 July 1988, firstly as a casual barman, this until he was appointed to a permanent position in February 1989. During the period of his employment:

"George has always applied himself to the highest degree, his honesty and sober habits have never been questioned and he is highly regarded by both members and fellow workers of this club".

48. The catering manager of the Club stated of George that, having worked with him for not less than four years, he found him to be very popular and well respected by members and guests:

"I personally find George to be a most efficient, courteous and honest person and I am confident that he will maintain his integrity to be a responsible member of our community."

A director of the Club stated that George had been chief steward on the sixth floor of the Club for most of the period he was so employed:

"I find him a very honest and hard working chap and the success of the snooker tournaments are mainly due to his ability to handle the members in a very efficient way."

The Personnel Manager, after detailing the duties assumed by George at the Club, said that:

"During his period of employment Mr Anakotta proved to be efficient, honest, punctual, friendly and a very conscientious employee. His cheerful and outgoing personality made him very popular with management, staff and, most importantly, the clientele."

49. It is noted that at all times George was a payee tax employee.

50. Upon leaving the New South Wales Leagues Club, George obtained employment with the Jewish Hospital where he remained until he left Australia.

Relationship of Mr George Anakotta and the Applicant

51. The parties were married on 30 October 1994. They had met each other on George's birthday in 1993 at the time of a small party at the Aquatic Club. Thereafter, each wanting companionship, they went out together and, on an occasion, when having dinner at the Applicant's home, George told her what he described as his life story. He informed her that he was an illegal immigrant. They began living together about six months before marriage and remained so until George departed in 1997. About a month prior to the departure, the Applicant resigned from her employment in order to spend more time with George. It would seem that of recent time she has not been able to re-enter the workforce.

52. The Applicant gave evidence as to the involvement of George in her life and with her children and grandchildren. She had been previously married, was divorced and in need of companionship. She said that for most of the time they were together, they were both working, they obtained a flat and became emotionally dependent on each other. After George departed Australia, she stayed in their flat for about one month and then went to live with her daughter, Rhonda, and Rhonda's two children of 11 and 14 years of age. She said that she is required to sleep in the lounge-room, her furniture is stored, what little there is remaining, and that if the present application fails, she does not know what she will do, she cannot remain living with her daughter and grandchildren indefinitely.

53. The Applicant is 56 years of age and is presently in receipt of Social Security payments. She said that if George obtains a visa, she expects that he will be able to get work and support her.

54. There is no doubt, from the evidence of Mrs Anakotta, George and others, that deep attachment exists between George and his wife. There was not an ulterior motive in the marriage, it was consequent upon a bonding that developed between them.

Assessment of Mr Anakotta by others

55. The Tribunal has before it a large number of references provided by various individuals. It also has evidence of the Applicant's children and grandchildren, extending fond thoughts to, and of, George. The references, generally on Statutory Declaration, speak of George's character and behaviour being highly recommended; of his being an exceptional person, his generosity and honesty being his greatest attributes; of there being no hesitation in recommending him as a decent human being who is devoted to his spouse and will be a credit and an asset to Australia; and of him being found to be honest, reliable and hard working, always courteous and helpful. Mr N A McNally, a solicitor of the Supreme Court of New South Wales in his Statutory Declaration, after acknowledging George as a good friend of approximately eight years standing, stated:

"I consider George to be an honourable, hard working, decent man of exceptional fame and character. He is a caring man who always has time for his friends and has given me wise and helpful advice and guidance many times. George has many friends due to his kind and outgoing manner. He can also be an openly religious man at times, believing in Christianity. I understand that much praying in relation to his residency application has taken place and I have also prayed for its success. I consider (with the greatest respect for the decision maker) that it would be a great shame and injustice for George's residency application to be unsuccessful."

56. No one of those providing a reference for George was called upon by the Respondent for cross-examination. The Tribunal is entitled to and does accept the evidence abovementioned as indicative of the perception of others as to George being of good character. This is one aspect in determining objectively the enduring moral qualities of George.

Reconversion to Christianity

57. The circumstances as they relate to the religious conviction of George will be further detailed later in these reasons. Suffice it here to say that in his evidence Louis Anakotta said:

"In 1990 George gave his life to Jesus Christ in a Christian crusade when he took a step of faith. Pastor Keith Young of Wattle Park Chapel later baptized him. This act of obedience brought out the spiritual dimension within George which lead true repentance of his past lifestyle. Being a practicing Christian myself, I have noticed that his Christian walk has been consistent and genuine."

Mr Anakotta, his brother Mr Louis Anakotta and the family

58. Mr Louis Anakotta supports his brother's application for migration to Australia under a Spouse Visa. He and his wife migrated to Australia in 1977; they have two children 15 and 19 years of age. Louis and his wife attended George and the Applicant's wedding in Sydney in 1994. Mr Louis Anakotta says that George was loved and respected by the family and, from his observation, was and is a caring husband to Barbara and a stepfather to her children and grandchildren. From conversations he has had with Mrs Anakotta, he senses a deep concern for George and a desire on her part for his return. Mr Anakotta's daughter, Jane 19 years of age, supports her uncle's application and says that:

"He has proven himself to be a very loyal, sincere and, most of all, loving uncle towards my brother John and I. We both love him dearly. There are many personal qualities that I have seen him develop since his arrival to Australia, one of which is his unfailing love and dedication towards his wife Barbara. ..."

Louis says that:

"George is a fun loving and hard working person who gets on well with almost everyone he comes across. He is known to be helpful and has a heart of compassion and love, especially for children and older folk. He has been a regular blood donor to the Red Cross Blood Bank for over 25 years and was awarded with a high commendation for being a faithful donor."

FACTORS MORE RELEVANT TO THE EXERCISE OF A DISCRETION

Decision of the Delegate

59. In her decision of 7 May 1998 the delegate noted the documentation submitted by the Applicant, step-children and step-grandchildren, friends and colleagues in support of George and considered the feelings of the Australian parties towards him to be genuine. She considered also the "claimed emotional effects of separation on Australian citizens". She also considered the documents presented in support of the genuineness of his relationship with the Applicant, accepting them at "face value". On balance, the delegate gave less weight to claimed compassionate factors, given that George's marriage took place after the publicly advertised Deportation Order for him and given his admission that he explained to the Applicant, as early as May 1994, that he was an over stayer in Australia and had a criminal record. It appeared to the delegate that the relationship between George and the Applicant was entered into and established notwithstanding that George had not been granted a visa for Australia and that the Applicant therefore entered into marriage irrespective of the difficulties which might reasonably be presumed to confront George in obtaining a visa to return to Australia.

As to Mrs Barbara Anakotta

60. Mrs Anakotta was born in Sydney on 15 January 1943. She was previously married and of such marriage has five children. She is the grandmother to 13 children. At the time of her meeting George, and up until a few months before he left Australia, she was employed as a housekeeper and/or factory hand. She is presently unemployed, in receipt of Sickness Benefits and living with her daughter Rhonda and her two grandchildren. She sleeps on a sofa in the lounge-room. The premises are crowded. Whilst living with George, they rented appropriate accommodation. Medical evidence before the Tribunal discloses that Mrs Anakotta is suffering from stress, acute depression anxiety and is on medication.

The Family of Mrs Anakotta

61. The Applicant has an extensive, direct family in Australia as evidenced by the Family Tree tendered at the hearing. She was divorced from her first husband about 15 years before meeting Mr Anakotta.

62. The Applicant, Mr Louis Anakotta and others deposed to and declared George's involvement with the children and grandchildren.

63. The grandchildren express, in their writings before the Tribunal, a love and affection towards George, saying that they miss him personally and experience an emptiness at his absence. The children of the Applicant, whose notations appear in the Tribunal exhibits, endorse the bonding that exists between the children and grandchildren and George.

Christian persuasion

64. Pastor Keith Young of the Wattle Park Chapel, Box Hill, Victoria speaks highly of George and is supportive of the subject application. In January 1998 he wrote that in his position as Senior Pastor of the church, he gave strong endorsement to George's application. He first met George through Louis, who at the time was and is a highly esteemed member of the church. George became involved in the church fellowship and in due course was baptised by Pastor Young. When George moved to Sydney, he became involved in active church life in that city. According to Pastor Young:

"George is an outgoing, pleasant gentleman with a wonderful rapport with people. He is an excellent communicator and people warm easily to his friendly approach.

He has a strong character and is a man of integrity. He is sharp and perceptive with a bright, warm personality."

65. In October 1998, having been informed of the rejection of the Applicant's application for a Spouse Visa, Pastor Young wrote a further letter (Exhibit F) in which he said:

"I was disappointed to hear that the application for George Anakotta was refused and yet at the same time I am aware that there are strict guidelines (and there should be), in dealing with such situations.

I am looking at my previous comments and have read the transcript of George Anakotta's tape from China and I am wondering what else I can add of benefit to this incredibly serious situation.

As a father of four of my own children plus three foster children and with 40 years in full time Christian ministry, I can only add my confirmation to what I have already stated in my previous letter of commendation regarding George.

I interviewed George at the time of his commitment to Christ and his desire to be baptised. At that time visa's were not an issue so his motives for coming to Christ were purely (as I judged it), that of deep sorrow for his past life and a genuine desire to start life anew.

I think he could see his life contrasted to that of his brother Louis whose Christian life was so strong and such a blessing to many. I think George identified with the New Testament parable of the 'Prodigal Son' and felt his past life did not count for anything. In fact he verbalised this to me at the time realising his actions and attitudes were totally 'self' centered.

I did not detect anything in my conversation with George but a truly deep desire to make his life count from that time on for God.

When he met and married Barbara, he came down to Melbourne from Sydney to attend church on Sunday to introduce her to us all. He was so proud of this lady and I could tell they were so incredibly happy and in love. I do believe George is now truly a reformed person and of good character. That he is endeavoring (sic) to follow through with his commitment to Christ by living a life helpful to the community where he resides.

...

In conclusion I can only say once again that I totally support George's appeal to the extent if it would help, I will personally come up and verbalise these comments or certainly be available for an Audio Conference if that would help in any way."

66. In his evidence before the Tribunal, Mr Louis Anakotta confirmed his own religious belief and his commitment to Christ some 20 years ago. He is an elder of his church. In his evidence, Pastor Young spoke of the conversations that he had had with George and the discussion that took place as to "the considerable serious problems with his life" just prior to his making his commitment to Christ and being baptised. It was clear to Pastor Young that George wanted his life to change. His expressions of remorse were felt to be genuine. In the view of Pastor Young, George is a man whom he would regard as a very good risk, highly unlikely to re-offend. Indeed, Pastor Young went so far as to say that there is "no question whatsoever as to his re-offending". Pastor Young is confident that any criminality is all behind him. When it was put to Pastor Young that George's illegal residence in Australia was inconsistent with the commitment given to him, he acknowledged that he was expecting George to put things in place.

67. Whilst living in Sydney, George involved himself with the work of the Wesley Mission and for two years worked as a volunteer assisting fellow Christians and new comers to the church. He said that he "walks day by day with the Lord" and, when asked how does he feel about the past, he said "you can't mend a broken mirror, I can't be proud of it, I feel humble, hopeful of a decision for the future".

68. The Applicant speaks of George as being very religious, saying grace before meals, prays before going out of the house and at night and who placed a cross inside the front door of their flat.

Mr George Anakotta in China

69. From November 1997 up until April 1998, Mr Louis Anakotta was in Hong Kong and mainland China. He had the opportunity to spend time with George and the two stayed in the same home. According to Louis, George shared with him how much he missed the Applicant and her family, emotions which often brought tears to the eyes of both of them. Since Louis' leaving China in April:

"George chose to continue living in China where the living standards are much lower than Hong Kong. He has been living off charity from people he met in China. ... Without a regular income, life is hard and difficult to sustain. Occasional work is scarce and medical treatment in China is poor and not adequate even more so for foreigners of which George is so regarded."

According to Mr Louis Anakotta, the situation in Hong Kong is even worse, the living standard is very high. George's life in China is:

"... really very appalling and helpless, his emotional state is catching up on him and causes his health to deteriorate. He is presently treated for high-blood pressure and is on medication supplied from Hong Kong. I strongly believe the future for George in China or Hong Kong is a dead end street. The only hope for survival he has is in Australia with his family."

SUBMISSIONS AND DECISION

70. It was submitted on behalf of the Respondent that conduct, as described in Irving (supra) and Baker (supra), as relevant to good character was not shown by the evidence as being favourable to George. Mention was made of George's membership of a Triad and his alleged involvement in criminal activities.

71. Apart from the theft committed by him in Hong Kong, there is no evidence, apart from the giving by him of information to the Australian Federal Police, of George having been involved in criminal activities. The Tribunal accepts that George became a member of an organisation in his teenage years and that he remained a member of such organisation for 10 to 15 years thereafter. He was a member of the Hong Kong Police and is said to have passed on to the police such information as he had referable to Triad activities in Hong Kong. Although not a member of any law enforcement agency in Australia, he did much the same for a number of years in this place. Membership of an organisation engaged in criminal activities can cast upon such a member a shadow of criminality and/or illegal activities. However, there does need to be evidence of criminal activities by or on behalf of an organisation and of involvement by a member in the activities of the organisation. There is no such evidence in the present case. The Tribunal is not satisfied that George did engage in criminal activities of any group, gang, society or Triad or, indeed, that he was an active member of a body that engaged in criminal activities.

72. Nevertheless, he has been an associate both in Hong Kong and Australia of people who did engage in Triad activities. He knew and was known to Triad members.

73. George was in breach of migration legislation, did overstay his visa and did remain in Australia and engage in employment without consent or approval. He was accordingly acting contrary to migration law attracting penalties, even though they were not imposed.

74. The Respondent further contends that George made false and misleading statements in Australia and Hong Kong as to his association with Triad organisations and the police. It was contended that his assistance to the Australian Federal Police, whilst to an extent in his favour, was embellished by him and was in order to ingratiate himself with the police in aid of his migration problem. The Tribunal does not see George as motivated by self-interest, nor does it consider that he embellished the extent of the assistance that he gave to the police. It may be that, from the police point of view, the information was "wishy-washy" but, at the same time, regarded by George as being of significance. The Tribunal does not accept that George intended the information that he gave to not reveal significant facts.

75. The Tribunal does not find, as the Respondent sought it so to do, that George would say nearly anything to seek to prove his case. It is true that George was not truthful to his brother, when Louis sought to assist him in extending his visa and was informed by George that this had been achieved. It had not. Likewise, he did not reveal to any person at the Leagues Club that he was an illegal resident. There is no evidence that he was asked. He was a taxpayer, no doubt with a tax file number. Pastor Young had no reservation as to the high standing in which he held George.

76. It is true that the Applicant must satisfy the public interest criteria at this time in order for George to be eligible for a Spouse Visa. It is for the Tribunal to make a finding of fact as to whether George is not of good character or that the evidence is insufficient to satisfy it of any of the matters referred to in paragraph (1)(b) and subsection (2) of section 501 of the Act. There is a desirability of consistency in decision making and the legitimate use of policy as an expression of standards and values to guide decision making. Policy can assist in preventing inconsistency and it is legitimate for decision-makers to use policy for that purpose. George was indeed convicted and sentenced for his offence in Hong Kong. It was submitted on behalf of the Respondent that this action indicates a disregard for his obligations to his employer that attest to him being a person not of good character. This was certainly so at the time of the commission of the offence and, in the absence of other material, might be conclusive. However, the offence was committed 22 years ago and there is not anything adverse to George of a criminal nature since that time, other than his breach of immigration laws. He overstayed his Visitor's Visa to Australia and remained illegally in this country for more than eight years. This was an offence punishable under section 77 of the Act. It was indeed during this illegal period that he met and married the Applicant and, it is said that not only was there disregard for immigration laws but that the Applicant and George both knew that George was illegally in the country. George was also working without permission during the time he was an illegal entrant.

77. On behalf of the Applicant, Mr McNally acknowledged the offence committed by George and his organisational association, but submitted that this association was attributable to circumstances existing in Hong Kong when George was a teenager. This is accepted by the Tribunal. It is true, as Mr McNally further submitted, that mere membership of an association does not necessarily lead to the imprimatur of bad character. There needs to be much more. There needs to be evidence of the activities of a particular association or evidence from which appropriate inferences may be drawn and involvement attributed directly or indirectly by a member in such activities. There is evidence before the Tribunal as to George having seen the error of his past. Evidence of reform; this seen not only in the absence of any adverse conduct by him but the character evidence given by those who knew him in the workplace and socially. The evidence as to the religious persuasion of George is significant, as is that of Pastor Young. There is no issue as to the sincerity of the relationship between the Applicant and George. The Tribunal does not find the marriage between them being in aid of George obtaining permission to remain in Australia. The Tribunal accepts, as submitted on the Applicant's behalf, that George was full and frank in matters which were against his own interest. The activity with which he involved himself in Australia and his association with the Australian Federal Police, was not without danger to himself and the Applicant. It was not consistent with his being an active participant in any Triad illegal activities.

78. Having taken all of the above matters into consideration, the Tribunal is not satisfied that George is not of good character.

AS TO THE EXERCISE OF A DISCRETION

79. Even be it that the evidence is insufficient to satisfy the Tribunal of the disentitling statutory prescriptions of the matters referred to in section 501 of the Act and that George is not of good character, it proposes to consider the discretionary factors.

80. On behalf of the Applicant, it is submitted that the extensive material from her relatives, children and grandchildren all bear witness to the loss they have experienced at the absence of George. The dependency of the Applicant on George is both emotional and financial. George became a significant member of the Applicant's family. There is clear evidence as to his character sufficient to establish the enduring moral qualities that he reflects.

81. The association that George had with societal organisations in Hong Kong is long past and has not been transferred to Australia. The Tribunal is satisfied nevertheless that his association in Hong Kong was at the most minimal, and in later years in aid of his law enforcement activities.

82. The Respondent submitted that there was not anything special or compelling that would warrant the exercise of a discretion in the circumstances of this matter. The Applicant knew that George was in Australia illegally and that he had been convicted of a crime in Hong Kong at the time of their marriage. She knew of his involvement with Triads. She entered into the relationship notwithstanding that George had no visa. The above is true. However, the Tribunal is satisfied that the circumstances existing prior to, and at the time of, the subject marriage related to two people, each in need of a companion, that the marriage was a genuine marriage and that it brought to the Applicant, her children and grandchildren a great measure of satisfaction. There is a strength of family bonding between George and the Applicant's family and the Australian community as evidenced by the testimonials and references earlier referred to. Hardship would be caused to the immediate family members lawfully resident in Australia, all of whom are Australian citizens. The Tribunal is satisfied that undue harm would not be likely to result for the Australian community if the visa is granted.

83. It is true that George remained in Australia and worked illegally and that this may indicate a then lack of respect for Australian law. However, he did surrender himself to the authorities, this following his marriage and after some months of deliberation and with the support of the Applicant and her family.

84. If called upon to do so - and in view of the absence of a finding as to George not being of good character the issue does not arise - the Tribunal would exercise its discretion in favour of the Applicant and thereby Mr George Anakotta.

DECISION

85. For the reasons herein before set forth, the decision under review is set aside.

86. In substitution for the delegate's decision the Tribunal finds that Mr George Anakotta meets the requirements of criterion 4001(4) under the Regulations.

87. The matter is remitted to the Respondent for consideration of the remaining aspects of the Applicant's visa application.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the decision and reasons for decision herein of:

The Hon Mr R N J Purvis, QC, Deputy President

Signed: .....................................................................................

Associate

Date/s of Hearing 27 and 28 January 1999

Date of Decision 12 March 1999

Counsel for the Applicant N/A

Solicitor for Applicant Mr N McNally,

Leitch Hasson Dent

Counsel for the Respondent N/A

Solicitor for the Respondent Mr G Peek,

Australian Government Solicitor's Office