Administrative Appeals Tribunal Act 1975 s 37

Migration Act 1958 s 501

Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Re Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157

Solicitors for the Respondent: Australian Government Solicitor

B.J. McMAHON This is an application to review a decision of a delegate of the respondent refusing an application for a permit for a person now known as Joe Thorn. Although formal reasons for decision were not prepared, contrary to the respondent's obligations under s 37 of the Administrative Appeals Tribunal Act, it seems clear that the application made on 22 June 1993 was for a permanent entry permit (Class 812). It also seems clear that the application, treated as a visa application, was refused on the ground that Mr Thorn was not of good character.

2. It was also agreed between counsel for both parties that the decision was made pursuant to s 501 of the Migration Act 1958 (formerly s 180A) which is in the following terms -

"s. 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;

(b) or 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;

(v) is satisfied that the person is not of good character; or

(a) 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."

3. The respondent relied upon sub-section (2). The issue to be determined in the present application, therefore, is whether I should be satisfied that Mr Thorn is not of good character and whether or not that is so, whether the Minister's discretion set out in the opening words of sub-section 501(1) ought to be exercised in favour of the grant of the visa. I will turn firstly to a consideration of Mr Thorn's past criminal conduct before passing to his general conduct. I will also consider the relationship of the proposed decision on the welfare of third parties as a factor in determining how the discretion should be exercised. As was pointed out in Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148 at 154, criminal conduct can only mean conduct for which a conviction has been recorded. I will therefore now pass to a history of Mr Thorn's convictions.

4. The only information put before the decision-maker came from a submission which Mr Thorn made in support of the visa application. As far as I can tell from the s 37 documents, no attempt was made by the respondent to verify the information put forward. At my suggestion, a copy of Mr Thorn's New Zealand and Australian record was obtained from official sources and (with one objection to terminology) was identified by Mr Thorn in evidence as a true record. These were his convictions.

5. In 1965 when he was then aged 19 he was a member of a gang in Wigan, Lancashire, he broke into premises after hours and stole cigarettes. He said that he was fined 20 pounds. There is no official confirmation of this before me.

6. The next conviction admitted to was not until 25 June 1976. He had been in Canada for a period prior to that time, but no Canadian convictions have been noted either by Mr Thorn or by the respondent.

7. On 25 June 1976 he said that he was convicted of possessing cannabis and was fined $100. No details were given of the circumstances surrounding that incident, except that it was said to have occurred in New Zealand.

8. In 1977 he said that he was charged with possession for supply of cannabis. Although he pleaded not guilty, a jury found against him after a trial and he was sentenced to 12 months imprisonment. By way of explanation, he said that he was travelling in a station wagon with another person when it was stopped and searched. Twelve kilograms of cannabis was concealed in the vehicle. The owner, according to Mr Thorn, pleaded guilty and took full responsibility. Mr Thorn said that he had nothing to do with the drug and that he certainly did not have it in his knowing possession. According to the fact of his conviction, one must assume that this version of events was not accepted by the jury.

9. Mr Thorn agreed that the next conviction occurred on 24 April 1978. It is described in his submission as "escaping from detention", for which he was sentenced to one day of imprisonment. In explanation, he said that he did not escape from prison but from a traffic policeman who wished to administer a breath test. Mr Thorn ran away and was not apprehended until some time later. The circumstances of his later apprehension and sentence were left unexplained. It is possible that the facts came to light while he was serving his sentence of 12 months imprisonment on the cannabis charge.

10. In his submission, Mr Thorn admitted to a conviction for burglary in 1980 for which he was fined $150. Having regard to the nature of the admitted charge, the extent of the fine appeared to me to be improbable. When the official record of conviction came to light on the second day of the hearing, it showed that on 11 July 1980 Mr Thorn was convicted of "Burgles (oth prop) (over $1000) by NGT". This is the item that Mr Thorn queries. From his account of events it seems more likely that he was charged with receiving. By way of explanation, Mr Thorn said that while living in New Zealand, a neighbour had stolen some coats and had asked Mr Thorn whether he knew of a way of disposing of them. Mr Thorn knew a third person who might be interested and arranged for an introduction. At the handing over, an undercover policeman became involved and arrests were made.

11. On 15 February 1982, he was convicted for theft and fined $150. On that occasion he said that he had been arrested for drunkenness. When searched, he had in his possession a driving licence and a bank card which did not belong to him. He said that he had found them in a hotel. This was the last of the New Zealand convictions.

12. Shortly after he came to Australia, he was charged and convicted on 10 June 1982 with stealing and received a fine of $200. In explanation, he said that he had no money at the time and was desperate for clothes. He therefore decided to engage in shoplifting. The evidence from Ms Baker and from Mr Thorn 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.

13. On 27 August 1984 he was convicted of having goods in custody and was fined $300. By way of explanation, he said that while drinking at the Hotel Bondi, a person approached him with a social security cheque which had been addressed to another person, known to be a Maori. As Mr Thorn knew some Maoris, he said that he would take the cheque and try to find the owner. He said he put it in his pocket and forgot all about it. Some time later he was travelling to the city with a person who was going to have some jewellery valued when the police arrested both his companion and Mr Thorn. It is not clear to me why, if Mr Thorn was not involved with the jewellery affair as he alleges, the police searched him. However a search was carried out and the cheque was then discovered, leading to the charge and conviction.

14. On 25 March 1987 he was convicted of drink driving and was fined $600. No account was given of the circumstances surrounding that conviction.

15. His remaining convictions relate to passports which will be dealt with in the next section.

16. Mr Thorn (then called Taylor) was born in the United Kingdom on 18 October 1945 and was given the name of Ronald Joseph Taylor. He later acquired a British passport with those particulars. With an appropriate visa, he travelled to Canada. He could not remember the year, but knew that he was then aged in his late 20s.

17. While in Canada, he took up paid employment contrary to the terms of his visa and was deported. He said that he had lodged an appeal against the implementation of the deportation order, but subsequently withdrew it.

18. In 1973 or early in 1974 (at any event a short time after he returned to the UK) he travelled to New Zealand. Later, for reasons to which I will come concerning his relationship with the applicant, Mr Thorn decided to come to Australia. Fearing that he would not obtain a necessary entry visa, because of the convictions in New Zealand, he decided to embark upon a course of obtaining a false New Zealand passport through false declarations. He was then of course known as Ronald Joseph Taylor. He shared a flat with a person named James Donald Ross Thorne who, he knew, had not applied for a passport. Mr Thorn obtained a copy of his flatmate's birth certificate, he says from a post office in New Zealand, and used that document to obtain a passport carrying his photograph, but showing his name as James Donald Ross Thorne and his date of birth as 2 September 1946. It was on this passport that he travelled to, and entered Australia in 1982.

19. This passport was later used to acquire official documents such as a New South Wales driving licence and a Medicare card. As Mr Thorn said, he had always been known as Joe, so he decided to call himself Joe Thorn from the day he stepped off the plane. When asked why he had dropped the 'e' from the false name, he said : "It seemed expedient at the time". Using this third name, he chose a third birthday, namely 7 January 1947 wherever it was necessary to quote such a day.

20. During the currency of the false New Zealand passport, he applied in 1984, to the British High Commission in Australia for renewal of his British passport. He said in evidence that he was aware that he had been here illegally since 1982. He wished to have a valid British passport in case he had to leave.

21. After that passport expired, and as part of the events following the prosecution to which I will refer, he applied for and obtained a European passport in the name of Joe Thorn without an 'e'. By that time, he had completed an instrument evidencing change of name from Ronald Joseph Taylor to Joe Thorn, which was registered in the Land Titles Office on 30 July 1993.

22. Mr Thorn was aware that the real James Donald Ross Thorne had spoken to the New Zealand police and feared that there would be consequences for him. He knew that if he had to leave Australia, he would not be able to use his British passport as there was no indication in that document of his entry into Australia. Consequently when he was offered facilities to obtain a false Australian passport, he said : "I jumped to it".

23. A person approached him and offered to provide a New South Wales birth certificate in any name he cared to specify. In November 1992, he obtained such a certificate in the name of Joe Thorn showing a birthday of 7 January 1947. He was interviewed at Bondi post office on 4 November 1992 and subsequently was issued with an Australian passport based on this false documentation.

24. He was later arrested by Australian Federal Police in June 1993 and charged with certain passport offences. On 16 August 1993 he was convicted 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. He said that he was fined a total of $1500 and was ordered to do 200 hours of community service. This time was spent in cataloguing at Waverley Library and working in a certain hostel.

25. After the convictions he took steps to regularise his status. These included the present application for visa and the legal change of name.

26. During his period in Canada, Mr Thorn met and married Judith Quaile on 10 July 1972. He believes the marriage ended in divorce the following year, after he had been deported to England. Ms Quaile stayed with him for a while but ultimately returned to Canada.

27. In New Zealand he met and married Joy Bennett on 10 June 1976. They had previously had a daughter, Ani Undine Bennett, born 5 May 1975. There was no evidence of any current contact between Mr Thorn and his daughter. He believes that Joy Bennett commenced divorce proceedings against him but is unsure whether they were ever concluded.

28. In New Zealand, he formed an association with the applicant, Wendy Susan Baker. Within 12 months of marrying Joy, a son Louis was born to Ms Baker and Mr Thorn. He said in evidence that this was the main reason why his marriage to Ms Bennett broke up.

29. Between 1975 and 1980, Mr Thorn and Ms Baker lived together intermittently with their son Louis but not on the basis of a full time relationship. Ms Baker visited him while he was in prison, near Rotarua. She believes that it was only on one occasion during the whole of the 12 months sentence period.

30. In February 1980 the applicant came to Australia with Louis. She said that by then Mr Thorn was having problems with his family and she saw no future for herself. Mr Taylor (as he was then known) was working in odd jobs in New Zealand as a labourer and would come to see them at irregular intervals after Louis was born. During the time between his release from prison and her departure, she said, they lived with him "on and off". As she put it : "I decided to come to Australia to get on with my life and get my son a good future. The position with Taylor was not good, there were problems with the other family".

31. Mr Thorn decided to follow her to Australia and arrived here on 7 March 1982, with a New Zealand passport in the name of Thorne. Ms Baker said she knew nothing about how he obtained his false passport. She offered no explanation for his change of name. He came to live with her and Louis at a flat in Bondi and has lived with them ever since. Both agreed that he has been known widely as Joe Thorn since his arrival.

32. For the first several years he worked when he could, but this was not often. He was mostly unemployed. Ms Baker said that she cleaned on occasions but was unable to obtain permanent work. For the most part, both of them lived on social security. Mr Thorn came from New Zealand with some money but after it ran out he was obliged to apply for unemployment relief. At all relevant times he was the applicant to the Department of Social Security and received benefits in the name of himself and Ms Baker and Louis as dependants. He ran a bank account for the purpose of negotiating social security cheques. Ms Baker and Louis are presently receiving Austudy.

33. Mr Thorn did not obtain full time employment until he was appointed to an executive position with a local Council tenancy advisory service. He lost that position when the Council funds were withdrawn from the service and diverted to another tenancy body.

34. Ms Baker was granted Australian citizenship for herself and for Louis in 1985. She said that in her application she described herself as single because "I am a feminist and believe myself independent of Joe. I wanted our son to be Australian".

35. Ms Baker has taken Louis back to New Zealand on a number of occasions since 1982, and on other occasions he has returned to that country with other relatives. She said that family had paid for these trips. Mr Thorn has not accompanied either of them on their visits to New Zealand.

36. Louis is now 17 years of age and is about to commence his final year of High School. Mr Thorn said that he had a very close relationship with Louis and this evidence was corroborated by others who have seen them in a domestic situation. They go camping together, possibly once a year, and go on fishing expeditions, possibly once a month. There is no doubt on the evidence put before me that emotional hardship would be suffered by Louis if Mr Thorn were obliged to leave Australia. I am also prepared to assume that because of the length of their association, emotional hardship would also be suffered by Ms Baker in those circumstances. Nevertheless it is fair to say that she is not financially dependent upon him. It is also fair to say that Louis has reached an age when he has almost become a legal adult and is no longer as dependent upon Mr Thorn as he would have been as an infant. I also find it difficult to accept that Ms Baker was completely unaware of the fact that her de facto husband was in the country illegally and had been since the day he arrived with a different name in 1982. The relevance of this is referred to in Lachmaiya at 154.

37. A further matter should be mentioned under the heading of relationships, because it deals with the only explanation Mr Thorn has given for the most recent passport offences.

38. He said originally (and has indeed said the same to a number of other witnesses who have recalled conversations to that effect) that he applied for the false Australian passport to enable him to visit his aged parents in England whom he had not seen for many years. This stated explanation does not bear closer examination. Firstly, he had a British passport which would have enabled him to travel to England. The false document could only have been required to facilitate re-entry. Secondly, and more tellingly however, it transpired in the course of evidence that shortly before he was arrested in June 1993, he and another person purchased a fishing boat for $10,000. Mr Thorn contributed $3,000 in cash, which he said was savings and did not come from a bank account. He was at the time unemployed and was drawing social security. To spend money on a boat rather than upon airline tickets is hardly consistent with his stated purposes. Mr Thorn appeared to realise this during the course of his evidence. In re-examination, he gave a different version. He said that he wished to have the passport only if an emergency arose with his parents or if he had to attend a funeral of one of them. The fact is that he had the passport for more than 6 months prior to his arrest, but made no attempt to settle arrangements to go to England. The evidence leaves me in considerable doubt whether he even discussed this with Ms Baker. On the whole, I do not accept the explanation he has given for his conduct.

39. A feature of this application has been the abundant evidence available of Mr Thorn's involvement with community affairs in the Waverley Municipality. The list of them was given in her statement by the Mayor -

Waverley Action for Youth Services

Detached Youth Work Program (for street kids).

Eastern Suburbs Rental Housing Association

Eastern Suburbs Tenants Association.

Save our Beach.

Bondi Community Action Group.

Water Board Community Advisory Group.

Secretary, Combined Beach Precinct Groups.

Several Working Committees of Waverley Council.

An education group for Maori children

Norman Andrews House.

40. Evidence of more particularity was given concerning his involvement in a Clean Water campaign, in matters affecting tenants' rights and in matters affecting youth activities in the area. In addition to municipal work, he was also involved in work at a local church hostel and in managing a gymnasium for a well known boxing coach during his absences at other boxing competitions. There can be no doubt that Mr Thorn is well known in the community and has given freely of his time and energy. It should be noted, however, that one of the bodies concerned, Eastern Suburbs Tenants Association, paid him wages while it was still receiving Council funding.

41. I accept that this work assists in determining Mr Thorn's aggregate of qualities. I do not accept, however, that if he were to leave the country all the organisations with which he was concerned would collapse. He would certainly be missed. This is not to say, however, that another volunteer would not arise in his place. It is quite fanciful to say that the community would be destabilised by his departure and that accordingly to facilitate his deportation would be to subvert the purpose of the Act. Reference was made in support of this proposition to observations of Purvis J in Re Renata and Minister for Immigration and Ethnic Affairs 19 AAR 157 at 159. In my view the submission is based up upon a misreading of what His Honour there said. The purpose of the legislation is to regulate and control entry into the country and thereby to contribute towards the stability of the Australian community. That purpose would not be subverted by removing the services of a highly appreciated volunteer worker in the community.

42. Guidelines (very similar to the Citizenship Instructions) purport to give some assistance in assessing past criminal conduct. They are in these terms -

"8.5.2 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

death, or to imprisonment for life or to a period of not less than

1 year; or

(b) has at any time been convicted of 2 or more crimes and

sentenced to imprisonment for periods that add up to at least 1

year if :

1 any period concurrent with part of a longer period is

disregarded; and

2 any periods not disregarded that are concurrent with each other

are treated as one period;

whether or not :

3 the crimes were of the same kind; or

4 the crimes were committed at the same time; or

5 the convictions were at the same time; or

6 the sentencings were at the same time; or

7 the periods were consecutive;

(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; or

(d) has at any time been convicted of an offence in circumstances

indicating habitual contempt, or disregard, for the law or for

human rights."

43. 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 12 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.

44. A consideration of his past criminal conduct, however, reveals a pattern of dishonesty recurring throughout Mr Thorn's active life. This pattern is repeated significantly in migration offences to which particular regard must be had in cases of this nature.

45. In Lachmaiya I said in relation to s 20 of the Migration Act (as it then was) at 155 and 156 -

"The section sets out the circumstances in which non-citizens may

become illegal entrants. Many of the provisions of the section

are reflected in the regulations, particularly in Sch 4 which sets

out the public interest criteria. For present purposes, however,

it is important to note that emphasis is given in the first

subsection to the giving of false information, the use of bogus

documents and the making of false or misleading statements. These

are overall requirements important in the administration of

immigration procedures. The observance of truth in dealing with

officials in migration matters (particularly where the truth is

known only to the person making the statement is of fundamental

importance to the control mechanism which this country exercises

in visa applications when dealing with the many reasons for coming

to Australia. To lie consistently, as Mr Lachmaiya has over a

period of years, is to subvert the administration and, in the

context of the Act, to demonstrate that Mr Lachmaiya is not a

person of good repute or good character. Australia can have no

confidence that he would not again transgress in matters where

truth and good faith could be deceptively withheld."

46. 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.

47. As was said, in both Lachmaiya and Renata, however, there is a discretion in the Minister and it is appropriate that the interests of third parties should be considered in balancing out the way in which the discretion should be exercised.

48. As I have said, I am prepared to accept that Ms Baker would suffer emotional deprivation should Mr Thorn be obliged to leave the country. For all practical purposes, a refusal of his visa application will have this consequence. Nonetheless there was no evidence that she would not follow him to the United Kingdom. There was also no evidence that she was financially dependent upon him. Indeed what evidence there was, tended to support the view she expressed that she wished to be independent of Mr Thorn. Most importantly, I am not satisfied that she was an innocent victim in the sense that she was unaware of his wrong doings. At the very least, she must have known that he was in Australia in doubtful circumstances. Although she said in her evidence that she did not enquire, I find it difficult to believe that she did not at least discuss this matter with Mr Thorn. That being so, the extent of her hardship must be appropriately diminished in balancing the discretionary considerations.

49. I accept that Louis could not be expected to have the same degree of knowledge of Mr Thorn's misconduct as his mother. I also accept that at the age of 17, he will be in need of the guidance of his father. I also accept that his relationship with his father is close and that separation must bring emotional hardship. Nevertheless, I have come to the view that the extent of that hardship is outweighed by all the other considerations pointing to the way in which the discretion ought not to be exercised in Mr Thorn's favour. Although Louis can not be blamed for the likely consequences to his future life, and although his father must accept responsibility for the harm his actions will have inflicted on his son, there is some comfort to be drawn from the fact that Louis will shortly achieve adulthood and will not be so dependent upon his father as he would have been, say, 10 years ago.

50. For these reason I consider that the decision under review should be affirmed.