Goldie v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 17 May 1993 the applicant applied to remain permanently in Australia. His application was for a permanent entry permit in category 801 Spouse (after entry). The application was based upon his marriage on 27 March 1993 to Jill Weiss, an Australian citizen. The application was refused on 20 May 1997 and the applicant was advised of the decision by letter dated 29 May 1997. 2 The applicant sought review of the decision in the Administrative Appeals Tribunal ("the AAT") by application filed 3 July 1997. The AAT (Deputy President Forgie), on 18 February 1998, affirmed the decision of the Minister for Immigration and Multicultural Affairs dated 29 May 1997 to refuse the application to remain permanently in Australia. In affirming the decision Deputy President Forgie determined that the applicant was not a person of good character for the purposes of s 501 of the Migration Act 1958 (Cth) ("the Act"). 3 On 25 February 1998 the applicant appealed to this Court from the decision of the AAT. Notwithstanding the grounds of appeal pleaded in the applicant's notice of appeal, on the hearing of the appeal only two principal grounds were argued by counsel on behalf of the applicant. 4 The first was whether the AAT erred in treating as relevant to the character of the applicant his failure to return to the United Kingdom to have resolved outstanding fraud charges against him. 5 The second ground was the contention that the applicant was denied natural justice by the AAT. The applicant alleges that his failure to return to Scotland to answer the charges and his recourse to proceedings for domestic violence as a loophole to obtain residence in Australia, were not pleaded in the respondent's contentions before the AAT, but were critical to the decision of the AAT. He contends that he was denied an opportunity to meet these allegations. He also alleges that he was refused particulars of the deceit relied upon in paragraph 6 of those contentions and that in the result, he was denied the opportunity to address a letter of 20 November 1994 from him to the Department, which letter was critical to the decision of the AAT. 6 Section 501 of the Act provides : "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: (a) subsection (2) applies to the person; or (b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would: (i) be likely to engage in criminal conduct in Australia; or (ii) vilify a segment of the Australian community; or (iii) incite discord in the Australian community or in a segment of that community; or (iv) 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: (a) 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. (3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person." 7 On 25 November 1994 a warrant was issued in the United Kingdom for the arrest of the applicant, together with James Cochrane and William Harrison, on two counts of being party to a scheme to obtain money or goods and services by fraud. The counts against the applicant related to money totalling Ł79,845 obtained by the use of worthless cheques and goods to the value of Ł2,811.83 obtained by worthless cheques. There were additional counts against the other persons named in the warrant. Although Crown Counsel in the United Kingdom declined to apply for extradition from Australia of the applicant and the others named in the warrant, the warrant, at all material times, remained on foot. 8 The AAT found that it could not make any finding as to whether or not the applicant was guilty of criminal conduct in Scotland. It followed that Deputy President Forgie was not satisfied that the applicant was not of good character, having regard to s 501(2)(a)(i) of the Act. That left for her consideration whether, having regard to the applicant's general conduct, she was satisfied he was not of good character. 9 In respect of the second issue, the Deputy President said : "162. That takes me to the second aspect of sub-section 501(2); that of his general conduct. In this context the activities in Scotland assume some relevance. There is an outstanding warrant for Mr Goldie's arrest in Scotland and there has been a decision taken by the Crown Counsel not to seek Mr Goldie's extradition from Australia. An outstanding warrant does not of itself necessarily reflect upon a person's character. What reflects upon it is what he or she does in the face of such a warrant. 163. I find that Mr Goldie has decided not to return to Scotland and that he is quite within his legal rights in choosing that course. His decision, however, must also be looked at in the context of his other actions. Ms Weiss and Ms Spence have both given evidence about what Mr Goldie told each of them in relation to the fraud allegations. Certainly Ms Spence wished to withdraw her statement but she did not wish to do so on the basis that he had never told her what she had recorded. Instead, she wished to do so because she did not know whether Mr Goldie had told her the truth. 164. Both Ms Weiss and Ms Spence state that Mr Goldie told them that he had been involved in fraudulent activities in Scotland. Ms Weiss, Mr Boccabella submitted, was understandably motivated by retribution in giving her evidence. It was understandable in view of the hurtful things that people say and do to each other when a relationship is breaking up. 165. There can be no quarrel with the second part of Mr Boccabella's submission. Nor can there be any doubt that the marriage between Mr Goldie and Ms Weiss became a relationship founded on, to some extent, violence, lack of communication at the very least (and deception on both sides at times) and general incompatibility. None of those things makes either person a 'bad' person. They may simply be indicative of a relationship not suited to become a relationship of marriage. None of these things means that one or other person will necessarily carry feelings of vindictiveness through the following years. 166. What may happen, however, is that unhappiness in a relationship may distort the memories of that relationship. It is not always safe in those instances to rely upon the participants' memories but to look to [sic] for independent corroborating material. This is a case of that type. 167. Looking to the evidence of both Ms Weiss and Ms Spence, I consider that the likelihood of their both having imagined what Mr Goldie told them to be too remote as to be likely. Both were most upset about the way in which their relationships with him proceeded but that upset could not have distorted both their memories on such a matter. Ms Weiss has sought medical advice over a period of time but I do not consider that her medical condition has distorted her perception of events. Consequently, I find that he told both of them that he had been engaged in fraudulent activity in Scotland. This does not mean that I am satisfied that he committed any crime for his statement does not equate with a finding that, in law, he is guilty of any crime. 168. I also find that Mr Goldie has decided that he will not return to Scotland to 'clear his name'. I make that finding on the basis of Ms Weiss's evidence that he told her that he would do so. I also base it on the fact that Mr Goldie has not done so. While it could be said that he is unable to take leave from his current employment to clear his name, that does not explain why he has not done so at an earlier time. He said that he did not become aware of the allegations until his interview with Mr Tunbridge in February, 1997. That interview took place well before he took up his current position. 169. At this stage, I should mention the notes taken by Mr Tunbridge of his interview with Mr Goldie. I have not taken them into account. They were challenged by Mr Boccabella as not reflecting an accurate account of the interview. Whether they do or not (and I have made no finding), I have had no need to have regard to the matters raised in them in order to reach my decision. 170. Mr Goldie's actions in not returning to Scotland must be assessed in the context of the migration laws. As I have said earlier those laws require that those coming within their purview act honestly. They also require that they act with integrity. That Mr Goldie has chosen not to return to Scotland must, therefore, be judged in the context of his asking that he be regarded as a person of good character in the context of the migration laws. Judged in that context, the scales tip against his being regarded as a person of good character." 10 The applicant, by his counsel, submitted that, as the applicant was found not to be a person falling within s 501(2)(a)(i) of the Act, there was no obligation on him at law to return to Scotland to answer the charges or to clear his name and that, having regard to the then current state of the evidence, the AAT erred in concluding as was stated in counsel's written submission "... that it was fatal to Mr Goldie that he did not return to Scotland." 11 At the outset it should be said that the AAT made no such finding. The AAT also acknowledged that the applicant was not obliged at law to return to Scotland. What the AAT did was to look at the conduct of the applicant when he became aware of the existence of the warrant and his statements to others in respect of the charges made against him as relevant to a consideration of his general character for the purposes of s 501(2)(a)(ii) in contradistinction to the inquiry directed to his character for the purposes of s 501(2)(a)(i) of the Act. It cannot, in my view, be said that the conduct of the applicant in the way in which it was used by the AAT concerning the existence of criminal charges in Scotland as set out above, is totally irrelevant to any consideration of his general character. In those circumstances there is no demonstrable legal error in this aspect of the AAT's decision. In any event, this was not the only matter which the AAT treated as relevant to the question of the applicant's character. As Deputy President Forgie said after dealing with the criminal charges pending against the applicant and his response to them : "171. That, however, is not the only issue to which regard should be had. Regard should be had also to his behaviour generally. ..." 12 This the Deputy President did in her consideration of the applicant's conduct in his dealings with the Department and in his obtaining a domestic violence order against his wife as a means of securing residence in Australia by allowing his application for permanent residence to remain on foot after his relationship with his spouse had ended. 13 I turn to the allegations of a denial of natural justice. The allegation in paragraph 6 of the respondent's contentions before the AAT was that the applicant denied the allegations of fraud in Scotland when confronted with them by the Department. The paragraph stated : "6. The Applicant, when confronted with the fraud allegations by the Department, denied that he was involved. The record of interview with the Regional Manager of the Department, Jeff Tunbridge, clearly shows that the Applicant set out to misled [sic] and deceive the Department. The Respondent relies on the well established stream of authority, in decisions of the Tribunal, holding that deceit of immigration authorities weighs heavily against an Applicant when assessing character." 14 On 17 October 1997 the applicant by his counsel sought further and better particulars : "1. As to paragraph 6 of the Contentions on the final page of the document give particulars of each and ever matter in which it is contended that the applicant set out to deceive the Department and in each case set out the words relied upon." 15 The respondent replied on the same day in the following terms : "As you are aware, the hearing of this matter is only 7 working days away. I am, therefore, very disappointed that you have waited for eight weeks, after receiving the Department's Statement of Facts and Contentions, before requesting further and better particulars of that Statement. In any event, I regard your request as vexatious. The allegations against Mr Goldie are clearly set out in the Department's Statement of Facts and Contentions and in the police material included in the section 37 documents. To the extent that Mr Goldie denied those allegations, we say that he was lying." 16 Clearly the deceit relied upon in paragraph 6 was the allegation of false denials made by the applicant as to his involvement in the fraud in Scotland when confronted with the charges in an interview with Mr Tunbridge, the Regional Manager of the respondent in North Queensland. The respondent was contending that the attempt to mislead and deceive by false denials was apparent from the record of interview. As appears from paragraph 169 of the reasons of the AAT set out above, the Deputy President did not take into account the contents of the record of interview. She did not find that the applicant had made false denials as to his alleged involvement in the fraud in Scotland and in fact found that she could not make any finding as to whether or not he was guilty of that conduct. By parity of reasoning she must have made no findings as to any false denials in respect of involvement in the allegedly fraudulent conduct. The applicant knew the case he had to meet under paragraph 6 of the contentions and was not denied natural justice in respect of that issue. Further, that issue was not resolved in any way adversely to the applicant. 17 The question of the applicant returning to Scotland to personally clear things up was mentioned in paragraphs 32 and 33 of the record of interview prepared by Mr Tunbridge. It was the subject of evidence led from the applicant by his counsel in evidence in chief in relation to paragraph 33 of the record of interview before on the hearing before the AAT; the applicant proffered reasons why to return was impractical. In cross-examination he was questioned as to whether he contemplated going back to the United Kingdom to sort things out and his reasons for failing to do so. Also, his failure to return was the subject of submissions before the AAT by both sides. The applicant's counsel submitted : "Obviously one may ask: why would he not go back to Scotland? Well, there are a lot of people one could ask about how they felt about the criminal process in white-collar matters. Recently, Mr Ansett of Budget, who literally lost five years of his life through fighting these charges and ultimately there was a hung jury and the Director of Prosecutions decided not to proceed. There are numerous other examples of long, involved, complicated trials on white-collar matters where the results lead to a person not being convicted, but in the meantime they might have lost a career, a relationship, all their property because they have to put it into finances - put it in to finance legal defences; so it would certainly indeed be an unusual person to leave a career, a relationship, their assets for the dubious distinction of having it out with the border police in the UK, whereas here he has a career, he has a relationship, has assets, all of which are going along swimmingly, and I submit the motive is merely to keep those, not necessarily to go over and do what people like Bob Ansett and a lot of others have had to do, and basically use years of their lives, and yet not achieve anything. Any legal adviser would say, 'Well, if there's no reason to go over there, why go over there?' and Mr Goldie obviously has no reason to go over there, and I submit that is not, in itself, evidence to establish that Mr Goldie has nothing to hide. It is unfortunate, but our criminal justice system is not perfect, and there any [sic] many examples in the white-collar area where people have been put on trial and there are [sic] no convictions have resulted." 18 In his final address, Mr Gregg, on behalf of the respondent, said : "The applicant has been aware since at least 26 February this year when he was interviewed by Jeffrey Tunbridge that an arrest warrant had been issued in respect of him. Again there is no evidence that the applicant has taken any steps to resolve this matter, other than seeking legal advice. If he was, indeed, innocent of the charges and a person of high integrity as he claims, our submission is that the reasonable course of action would have been for him to take positive and direct steps to clear his name. At this point in time, there is no evidence of when or how the applicant proposes to clear his name of these allegations against him. In the applicant's evidence, he stated that his employment position made it impossible for him to return to the United Kingdom at the moment, or during the course of the current year. There is no evidence to support that assertion, other than the opinion of Donald Grant, who has worked briefly with the applicant for a matter of weeks, and who is not in any management position at Fleur Daniel, and who is not qualified to speak about the importance and urgency of the applicant's current work commitments. The applicant also stated that he had ceased work with Xanthico, his previous employer, in August 1997 after giving 4 months notice. In our submission, Deputy President, the applicant could readily have arranged his affairs over the course of the current year to enable a return visit to the United Kingdom to clear his name. The applicant admitted in his evidence that he has not disclosed to his current employer, Fleur Daniel, that he is the subject of an arrest warrant in relation to fraud allegations. No management official of that company with responsibility for Mr Goldie was called to give evidence. It is therefore not known what attitude that company has to the fact that their Finance and Administration Manager has outstanding fraud allegations to face in the United Kingdom. Nor is it known whether that company, if apprised of the situation, would be willing to assist the applicant or give him leave of absence to return to the United Kingdom to clear his name. It is also relevant to consider the evidence of Ms Weiss. At page 165 of the T documents appears the file note relating to Ms Weiss' visit to the Department of 4 November 1994. That records that Ms Weiss told the Department that the applicant had admitted that he may be the subject of charges relating to theft or defrauding of a bank immediately prior to his last departure from the United Kingdom." 19 The applicant was fairly appraised that the respondent would seek to use the applicant's failure to return to clear his name as conduct which reflected adversely on the character of the applicant. The applicant in his evidence and by his counsel sought to explain the failure to return in a way which the applicant contended did not adversely effect his character. The applicant was not denied natural justice in respect of this issue. 20 The Statement of Facts and Contentions of the respondent, in paragraph 8, raised the issue of the applicant's purpose in applying for a domestic violence order against his wife. Counsel for the applicant led evidence from the applicant as to the reasons he sought a domestic violence order against his wife. The applicant was cross-examined and had put to him the respondent's contention that the application for a domestic violence order was for the purpose of allowing the applicant to maintain his application for permanent residence after his marriage had broken down and while carrying on a relationship with Ms Christina Spence. It was also put to the applicant that he attempted to placate his wife only because she intended to oppose the domestic violence proceedings and that a failure to obtain an order would be prejudicial to his application for permanent residence. It was in this context that it was put to the applicant that a letter which he wrote to the respondent on 20 November 1994 was false. The applicant gave the following evidence as to the circumstances giving rise to the letter being forwarded to the respondent : "I put it to you that your letter, which appears at page 167, was written because you were aware that Ms Weiss was going to oppose your application for a protection order, and you were concerned that if that protection order was not granted you would not be able to pursue your application for permanent residence?---I obviously disagree with that. We were going through a process of reconciliation. To give you some idea, it was a reasonably difficult period of time, and there was a lot of conversations to and fro with people. There were a lot of things going on. We were both under an extreme amount of pressure and stress, and my motivation for doing all this was as a result of a conversation had with an officer of the Department in Townsville, and he said , 'Keep us informed at every stage of the process, and keep us informed of every development. It is crucial that you do so.' Yes?---The gentleman concerned was John Ingram. Well, again, I put it to you that that letter at 167 is completely inaccurate where you state that My wife and I have resumed our normal relationship. ?---I put we had resumed our normal relationship as normal as it could have been at that point in time. I put it to you that that letter was completely incorrect when you stated two paragraphs down: My wife has now returned to live in our home. ?---That statement - I jumped the gun on that one. She in fact had said she was intending to come back the following day and I wrote the letter that night. I also put it to you that it is incorrect to say that all legal actions, etcetera, have now been dropped because your domestic violence application was still before the Townsville Magistrates Court?---At that time, it was my intention to cease the action. However, I was advised by my solicitor that I shouldn't cease the action, that the matter should remain afoot. I take you again to page 171 where Jill Weiss stated in a letter dated 7 December that: This is to confirm that there has been no reconciliation between myself and my husband, Brian Goldie. We have consistently been separated for some months and I do not intend to resume a relationship. ?---I believe I stated earlier that in the first two weeks in December that the relationship did, in fact, deteriorate which resulted in me continuing the matter and in court on 12 December, I had the full and final order put in place. There was reconciliation approximately up to the end of November where we were trying to work our differences out. And in the first week in December those matters certainly broke down. It then went to court. Jill had, at that point in time, told me that when she went to court on 30 November, she wasn't going to contest the order that were [sic] going to put it on file that we would attempt to reconcile. When she actually got into court, she changed her story and said that she was intending to oppose the action or whatever. Obviously, I wasn't very happy with that and we discussed the matter again. She said that she was in fact going to oppose this action as vigorously as possible. Obviously, she wrote you people this letter in the interim period because by that point in time, she was aware that I was proceeding with the 12 or 13 December. Well, I put it to you, Mr Goldie, that she wrote this letter because she was asked by an officer of the Department to clarify whether the statements made in your letter were correct?---With all due respect, the letter which I wrote on 20 November 1994 was absolutely accurate, and the events which took place after that point in time are well documented. And as I have persistently stated, in the first two weeks in December, the relationship started to break down again. And I proceeded with the full order. Well, I repeat my question to you from before. I mean, how can you say that it was absolutely accurate when it was not true that your wife, Jill Weiss, had returned to live in your home?---It was the intention - - - You said before you were jumping the gun?---It was the intention that we would start to live together again. Perhaps I wrote the letter 24 hours too early. But I put it to you that this letter is designed to given an appearance of complete normality between you and Jill Weiss in an effort to have your application for permanent residence finalised. You talk about planning a holiday in Scotland, apologising for the inconvenience and assure you that there will be no further recurrences?---That was in fact the case, because at that point in time, as I have stated in my previous evidence, Miss Weiss' brother was in fact at that point in time in Scotland with my family. And it was in fact her intention to go and visit them so she could spend some time with my parents and I could meet her brother who I'd never met. And did you seek an extension of your protection order against Miss Weiss in December 1995 which would have been a year later?---Yes. The order was valid for one year?---That's correct. A year later you sought to have the expiry date enlarged?---That's correct. Why did you do that?---That original order which is dated about November - the temporary orders - I'm under the impression that Jill believed that those orders had expired and a few days before that, there started to be phone calls at Christina Spence's place of employment and at my home. There were a number of fairly nasty telephone calls which continued over a period of about a week to ten days." 21 The applicant's counsel made submissions on "the issue of the domestic violence". There was no denial of natural justice in relation to the raising of this issue before the AAT. 22 In the proceedings before the AAT the applicant led evidence of good character which put in issue generally his character. His counsel appears to have dealt with the letter of 20 November 1994 in that context. In final submissions he said : "You heard the evidence of Mr Grant as well, you have heard Mr Goldie's evidence that he is holding down a responsible job as verified by Mr Grant, so certainly in October 1997 I submit that Mr Goldie's conduct overall cannot be such as to satisfy the Tribunal that he is not of good character. Now regarding the allegations of misleading the Department as I see it really only comes down to that one letter where Mr Goldie said that we are going to move in again together, it has been reconciled. Now you will recall the evidence of Ms Weiss was that there were lucid moments after 8 October 1994 when they were able to have civil conversations. Inevitably two people at different ends of the relationship can misinterpret what is going on but when Mr Goldie realises that he is not going to - that it is not going to come back together he notifies the Department. Now I submit that one incident is not sufficient to establish a general conduct of a kind which would allow the Tribunal to be satisfied that he is not a good character." 23 The applicant was not denied an opportunity to know the case put against him or to respond to it. He gave a detailed explanation which his counsel contended did not reflect adversely upon his character. Importantly, the conclusions drawn by the AAT are entirely consistent with the case put to the applicant and addressed the applicant's explanation of the various events. With respect to this part of the case, Deputy President Forgie said : "177. ... His relationship with Ms Weiss was punctuated by evidence of violence by each of them. That finding is supported by the evidence of both of them. It is also supported by the evidence of Ms Spence who was present on 8 October, 1994. As I have said, this is not necessarily evidence of bad character. What can be evidence of bad character is the actions people take outside the relationship as it were. 172. In this case, Mr Goldie took certain actions with the Department during the course of his marriage. His letter of 20 November, 1994 is not supported by any of the evidence other than his own. In particular, it is not supported by that of Ms Weiss or Ms Spence. By that time, Ms Spence was 'keeping company' and 'sleeping over' with Mr Goldie. Neither event is either conducive to, or indicative of, his resolving difficulties with Ms Weiss. Neither is consistent with their having resumed their normal relationship or with Ms Weiss's having returned to their home. Earlier in the month, Ms Weiss had consulted Dr Gibney and had complained of her husband's 'hassling' her. This also weighs against a finding that they had resumed their relationship on 20 November, 1994. 173. Mr Goldie acknowledges that he was 'jumping the gun a bit' but that does not excuse his letter and it does not persuade me that his letter was accurate when it was written. I find that it was not accurate and that he knew that it was not accurate. 174. Finally, I have considered Ms Spence's statement as to Mr Goldie's telling her that, in obtaining a protection order, he had found a loop hole in the system and secured his residence via the back door. I accept that he told her this. I found her to be a witness of truth. 175. Taken alone, Mr Goldie's statement does not reflect on his character either way. It may be that he obtained his protection order on proper grounds. I also accept Ms Weiss's evidence that the magistrate told her that he could see no harm in issuing the order even if she had done nothing wrong. When taken with Ms Spence's evidence, which I accept, that Mr Goldie had told her that he was trying to stay on Ms Weiss's good side so that she would not advise the Department of their separation and that he did not intend to tell the Department of his new girlfriend, it takes on a different character. It takes on the character of a statement of a person who will take whatever steps he needs to in order to achieve his purpose. 176. Looking then at all these matters, I have concluded that Mr Goldie is not of good character. The lack of honesty and integrity which he has displayed in his dealings with the Department and his lack of integrity (in the sense of wholeness, soundness and uprightness) in not confronting the allegations of fraud in Scotland are not outweighed by the good reports he has received from some of his past employers or Mr Grant's personal commendation of him. I accept that he has, over years and except in relation to one position, displayed diligence and efficiency in his workplace. That is not enough to overcome the personal qualities he has displayed." 24 The issues argued on the appeal do not make out appellable error on the part of the AAT. As noted earlier in these reasons, no other grounds of appeal were advanced on the hearing. 25 The appeal is dismissed. 26 There is no reason why costs should not follow the event. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper