Minister for Immigration and Ethnic Affairs v Sciascia

" was that when he arrived in this country, he brought money with him and lived on that money until it ran out when he then applied for, and received, social security. The evidence does not support a view that he was so desperately poor that shoplifting was the only way open to him to secure suitable clothing."

On 27 August 1984, Mr Thorn was again convicted, this time of having "goods in custody", incurring a fine of $300.00. Next, on 25 March 1987, Mr Thorn was convicted of "drink driving", for which a fine of $600.00 was imposed. It is now necessary to turn to another aspect of Mr Thorn's conduct. During the relatively short time that he was in Canada, he contravened a condition of his visa requiring him not to obtain paid employment, as a result of which he was arrested and a deportation order was made. Although he appealed against this order, he later withdrew the appeal, returning to the United Kingdom. His recently acquired Canadian wife travelled with him, although that marriage ended not long afterwards. Whether he was actually deported from Canada or left "voluntarily" is perhaps unclear; and one of the points raised in the appeal is whether the Tribunal erred in finding that Mr Thorn "was deported" from Canada. However, the Canadian deportation order was made a long time ago, and presumably a genuine marriage to a Canadian citizen would, had the appeal been pursued, have provided a strong ground for reconsideration of the terms upon which Mr Taylor (as he then was) might live in Canada. In the context of all the other matters considered in the Tribunal's reasons, it is perfectly clear that the distinction between deportation in the strict sense and departure compelled by an acknowledged deportation order, made so long ago, could not have been significant to the Tribunal's decision: cf. Conway v Repatriation Commission (1988) 16 ALD 770; Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254. Later events were very much more serious. When the then Mr Taylor decided to come from New Zealand to Australia, he feared, the Tribunal found, that he would be refused a visa because of his convictions in New Zealand. So he took a series of steps, involving the commission of further crimes, to evade Australian immigration laws. He obtained a copy of the birth certificate of an acquaintance who had never applied for a passport. Claiming to be the person named in that birth certificate, he obtained a New Zealand passport as James Donald Ross Thorne, born 2 September 1946, and on that passport he came to Australia in 1982, using it again later to acquire a New South Wales driving licence and a Medicare card. Once in Australia, he dropped the "e" from his false name, and reverted to the given name he had always used, calling himself Joe Thorn. For whatever reason, he in fact distanced himself further from his false identity by giving as his birthday, when it was necessary to do so, the date 7 January 1947. Much later, on 30 July 1993, he duly registered a formal change of his name Ronald Joseph Taylor to Joe Thorn. Mr Thorn was aware of a particular shadow on his false passport. The real James Donald Ross Thorne had, as he knew, spoken to the New Zealand police about the matter. And if he used his British passport on any journey out of Australia, he realised his position would be precarious upon any attempt to return. He received an offer of a New South Wales birth certificate, and in November 1992 he procured one in the name Joe Thorn born 7 January 1947. Using this, he obtained an Australian passport after an interview at Bondi Post Office on 4 November 1992. As a result of these matters, Mr Thorn was arrested in June 1993, and on 16 August 1993 he was convicted, the Tribunal found, "of being in possession of a false New Zealand passport, of obtaining an Australian passport with false statements and of possessing a false Australian passport."

Fines were imposed totalling $1,500.00, and Mr Thorn was ordered to do two hundred hours of community service. Following the charges that led to these convictions, he arranged for the taking of legal steps to change his name to Joe Thorn, and for the making of the application which has led to the present appeal. Mr Thorn gave an explanation of his conduct in procuring a false Australian passport. He said he needed it to visit his aged parents in England, whom he had not seen in many years. The Tribunal considered this explanation carefully, and rejected it. While many of the matters that have been recounted reflect badly on Mr Thorn's character, the Tribunal noted that there was "abundant evidence available of Mr Thorn's involvement with community affairs in the Waverley Municipality". He had "given freely of his time and energy", although, at one stage, payment had been made for some of the community work done by him. He was accepted as "a highly appreciated volunteer worker in the community". Before proceeding to the task of decision, the Tribunal referred to certain Departmental Guidelines in relation to the assessment of past criminal conduct. Paragraph 8.5.2 of these Guidelines includes the following provisions: "In the absence of special circumstances, a person would, normally, as a matter of policy, be taken to be not of good character because of their past criminal conduct if the person: (a) has at any time been convicted of a crime and sentenced ... to imprisonment for ... a period of not less than one year."

There follow (in paragraph (b)) a series of amplifications referring to convictions "at any time" involving disparate offences, and then an extraordinary paragraph (c), as follows:

"(c) has at any time been charged with a crime and either: 1 found guilty of having committed the crime while of unsound mind; or 2 acquitted on the ground that the crime was committed while the person was of unsound mind."

It will be noted that this paragraph contains no limitation at all by reference to the seriousness of the crime, the length of the term of imprisonment which might have been imposed had guilt in the normal sense been established or the antiquity of the events, and says nothing about the nature of the unsoundness of mind or the completeness of the recovery that may have followed. Mr McMahon commented: "In my view these guidelines go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of twelve months or more, no matter when that conviction took place, is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions."

We think the learned Deputy President's comment is plainly justified. The Guidelines are both inhumane and irrational. For a person to "be taken to be not of good character", apart from special circumstances, upon any such basis would, of course, also be quite inconsistent with s 501(2), the provision defining the Minister's power, which authorizes satisfaction in relation to the actual present state of a person's character - "is not of good character". The Department should not maintain Guidelines that could not lawfully be implemented, and that might mislead administrators to whom they are directed into making decisions outside their statutory powers. It was disappointing that, although a Deputy President of the Administrative Appeals Tribunal had drawn attention to the matter (in the passage we have quoted) as long ago as 27 January 1995, Counsel was not able to tell us that any action had been taken to rescind these Guidelines. We express the hope that that situation will not continue. One of the prime purposes of the system of administrative review on the merits is the improvement of administration; when serious errors are pointed out by the Tribunal, things should not simply remain the same. Drawing together the threads of the decision in relation to the application before it, the Tribunal found that a consideration of Mr Thorn's past criminal conduct "reveals a pattern of dishonesty recurring throughout [his] active life". With particular reference to the migration offences, Mr McMahon said: "Mr Thorn has not been careless in dealing with migration officials in various countries. He has been deliberately dishonest. He was deported from Canada in circumstances indicating a lack of respect for conditions of his entry visa. He left New Zealand and entered this country on the basis of a false document, intended to deceive, and resorted to because he knew or believed that he would be unable to enter Australia legitimately. He obtained Australian documentation by deception and forgery, again intending to deceive. These offences were not isolated aberrations. Their frequency indicates a fixed course of disregard for the truth in dealing in immigration matters. As it is of particular importance that truth be observed in that field, a consistent failure to do so is particularly reprehensible when considering a visa application. The course of Mr Thorn's conduct resulted not only in migration officials being deceived, but also in other officials being misled. His receipt of social security benefits and Medicare benefits in circumstances when he knew he was not entitled to them as an illegal immigrant, merely add to the aggregate of qualities being weighed against a finding of good character. I am therefore of the view that the ground for refusal has been made out." When the matter was appealed to this Court, it was pointed out, in the hearing before the learned judge at first instance, that the passage we have quoted followed an earlier statement in the Tribunal's reasons, limiting relevant criminal conduct to "conduct for which a conviction has been recorded". His Honour thought this limitation not to be justified. If so, the error would have been favourable to the respondent. However, his Honour went on to hold that a distortion of the Tribunal's consideration of Mr Thorn's conduct in relation to the receipt of social security payments and Medicare benefits had resulted. He said: "The Act envisages that a decision under par (a) of subs 501(2) that a person is 'not of good character' will be anchored on one of the matters mentioned in subpars (i) and (ii). In my opinion, the Tribunal misconstrued the meaning of 'criminal conduct' in subpar (i). This led to error in the way in which it considered the receipt of social security payments and Medicare benefits by Mr Thorn. If such receipt be criminal, then it falls to be considered as part of his conduct under subpar (i). But this is what the Tribunal said it could not do where there are no convictions. On the other hand, considered as part of a person's 'general conduct', the stage has not yet been reached in Australia where the recipient of social security is necessarily to be regarded as a person not of good character." With respect, we cannot accept this reasoning, which appears to contain the essential ground of the orders under appeal setting aside the decision of the Administrative Appeals Tribunal. At the outset, we should say that we agree with his Honour that the words of the statute "past criminal conduct" cannot be read down to refer only to past conduct the subject of criminal convictions. As his Honour pointed out, the context of s 501 includes s 506, subs 3(b) of which refers to "any criminal convictions in Australia or a foreign country". Similarly, the section of the same Act considered in Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 referred to "a person who had been convicted of a crime" (emphasis added). We think it is clear that, by contrast with these provisions, s 501(2)(a) is concerned with a person's conduct - either "general conduct" or conduct of a more particular kind, described as "criminal conduct". It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B. Robertson, Criminal Allegations in Civil Cases, (1991) 107 LQR 194. However, the proposition that a finding on the question whether a person is not of good character "will be anchored on one of the matters mentioned in sub-pars (i) or (ii)" cannot be so easily accepted. It is convenient to consider it in conjunction with the view, elsewhere stated by his Honour, that "the person's general conduct" in sub-s 2(a)(ii) refers to "a person's prevalent or usual conduct". We think the key to the understanding of sub-s 2(a) is to be found in its object - satisfaction on the issue whether a person is not of good character. In deciding whether he is so satisfied, the Minister is required, by the phrase "having regard to", to look at the conduct of the person the subject of the enquiry. Of course, an obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of "general conduct". So the words "having regard to" and the disjunctive "or" must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation. An obligation, in a statute, to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator "to take [the specified matters] into account and to give weight to them as a fundamental element in making his determination", but not to make it by reference to them exclusively: The Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623. If each of the types of conduct mentioned in s 501 was thus regarded by the legislature as of fundamental importance, but at the same time as not excluding other considerations, it is impossible to imagine that either was regarded as excluding the other. Both were fundamental. It follows that the word "or" should not be read as strictly disjunctive, but as a kind of hybrid of disjunctive and conjunctive, equivalent to "or, or as well", conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to. A very similar meaning was given to the word "and" in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 530-531 in the judgment of Burchett J with whom Sheppard J agreed, although Pincus J (at 526) expressed a different view on this point. Authorities were cited (at 530) to justify the alteration of "and" or "or", where the context requires, to correct what may fairly be described as "nothing more than a faultiness of expression". Particularly relevant to the present case is also the decision in R.F. Brown and Co., Limited v T. and J. Harrison (1927) 43 TLR 394, affirmed under the same name by the Court of Appeal, (1927) 43 TLR 633. On the appeal in that case, Atkin LJ said (at 639): "I disagree with the learned Judge in his view that the word 'or' can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use." See too Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481-482; Ormerod v Blaslov (1989) 52 SASR 263 at 269 et seq; The Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547. That leaves for consideration just what is meant by "general conduct" when, in the same context, this expression is used to distinguish conduct that is not "criminal conduct". In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of "general conduct", is conduct in general. The root meaning conveyed by the adjective "general", as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s 501(2), it expresses a contrast with the particularity inherent in the reference to "criminal conduct". We do not think there is any warrant for extracting, from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly. An example is to be found in the judgment of Dixon J in the sad case In Re Davis (1947) 75 CLR 409 at 426, where the decisive consideration on the question of character was a failure of candour on a single occasion. It was an important occasion. Since s 501(2)(a) does not specify exclusive considerations, a construction that would treat subparas (i) and (ii) as covering only some of the relevant forms of conduct, while making those forms of conduct fundamental considerations, would create extreme practical difficulty. It would be necessary to place each example of conduct proved in respect of a person into the right category, in order to determine whether it should be treated as a fundamental element in the making of the required decision, or only as a relevant matter. We do not think Parliament intended anything of the kind, but simply to comprehend all forms of conduct that could be relevant to a determination about character within two easily stated categories. Returning to the essential ground, identified earlier, of the orders under appeal, it follows from what we have said that the Tribunal was not bound to anchor its decision in one of the matters mentioned in subparas (i) and (ii) of s 501(2)(a). It was entitled to treat each as a fundamental consideration, and to rely both on conduct falling within subpara (i) and also on conduct falling within subpara (ii). Since that is so, no importance can be attached to the fact that some of the conduct, which was actually "criminal conduct" within the meaning of subpara (i), was considered on the basis that it was made relevant by subpara (ii). The fact is that the Tribunal was entitled and bound to treat it as a fundamental consideration, and it is clear that the Tribunal did so. A misnomer cannot be of importance unless it affects the substance. Here it did not. The learned judge took a different view, suggesting that the Tribunal had somehow been led into "error in the way in which it considered the receipt of social security payments and Medicare benefits by Mr Thorn". We have been unable to perceive such an error in the reasons of the Tribunal. His Honour pointed out that a "recipient of social security is [not] necessarily to be regarded as a person not of good character". We would prefer to put the matter more strongly, and to state that the mere receipt of social security, without more, says nothing about character. However, the Tribunal did not suggest the contrary. The significance it saw in the receipt of social security and Medicare benefits lay in the fact that the application for them was fraudulent, made as it was in the known absence of entitlement and on the basis of an illegally obtained passport in a name that was not the name of Mr Thorn, but of another person. Even so, the Tribunal contented itself, in the statement of its ultimate conclusion which we have already quoted, by referring to Mr Thorn's receipt of these benefits, "in circumstances when he knew he was not entitled to them as an illegal immigrant", as a factor to be weighed in "the aggregate of qualities" that militated against a favourable view of his character. The learned judge suggested also that the circumstances of Mr Thorn's departure from Canada were "plainly irrelevant" to an assessment of his character. This proposition seems to be at odds with the view taken by Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 88. The true view, as Davies J made clear (ibid), is that the making of a deportation order is a matter that may be taken into account, although such orders "do not of themselves throw much light upon the inherent qualities which a person may have". In Irving's case, a number of deportations and refusals of entry did enable an inference with respect to character to be drawn. Similarly, here, the circumstances of Mr Thorn's departure from Canada may be taken into account together with the circumstances of his departure from New Zealand and entry into Australia. That is how the Tribunal used the evidence about the Canadian deportation order, which it described as "indicating a lack of respect for conditions of [Mr Thorn's] entry visa", a description of this evidence quite different from its description of the evidence about Mr Thorn's departure from New Zealand and entry into Australia, which, in its opinion, indicated dishonesty.

Of course, all of the conduct under scrutiny for the purposes of s 501(2)(a) is to be examined in order to see what light it may throw on the question whether the decision-maker "is satisfied that the person is not of good character". Even criminal conduct may not lead to that conclusion, perhaps because of the nature of the crime (certainly some absolute offences need involve no moral obloquy), or perhaps because of the lapse of time since the offence or the existence of positive evidence of reformation. The words "good character" in the section should, as Lee J pointed out in Irving (at 94), 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 the 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. When the decision was made by the Tribunal that it was satisfied Mr Thorn was not of good character, there yet remained a discretion expressed by the words in sub-s (1) of the section: "The Minister may refuse to grant a visa to a person ... ". The Tribunal recognized this, and there is no basis on which its exercise of that discretion can be held to have miscarried. For these reasons, the appeal must be allowed with costs; the orders made at first instance must be set aside; and in lieu of those orders it should be ordered that the appeal from the decision of the Administrative Appeals Tribunal be dismissed with costs, and that the decision of the Tribunal be affirmed. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate: Date: 26 February 1997 Counsel for the Appellant: Mr N.J. Williams and Mr D.H. Godwin Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr D. Patch Date of hearing: 13 February 1997