Case: Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Outcome: considered
[22] the Tribunal said: If not already apparent, I cannot find Mr Selimi has enduring moral qualities ; he has committed infractions . . . that show weaknesses or blemishes in character and he is a person who lied to officers of the respondent thereby demonstrating an absence of good character (refer Irving v Minister for Immigration and Multicultural Affairs [1996] FCA 1660 ; Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 ; Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 ; (1994) 19 AAR 148). The Tribunal then turned to the discretionary considerations in Part 2 of the Direction. After considering the three primary considerations and the "other" considerations, it concluded that the discretion should be exercised in favour of a refusal of the visa. I do not need to record the Tribunal's reasoning process in this connection, because its treatment of the discretionary matters was not attacked. It is however necessary to note some findings of fact made in the course of this part of the Tribunal's reasons. At [12] of its reasons the Tribunal recorded Mr Selimi's oral evidence about the Court proceedings referred to at [8]-[9] above. He told the Tribunal he did not know the purpose for his appearance there, but understood that it had something to do with the issue to him of a visa. He could not remember whether he had an interpreter assisting him. He did not understand the proceedings. He could not remember whether he gave evidence or whether he pleaded guilty or not guilty. He said that at the conclusion of the proceedings his solicitor told him that "everything was alright". He did not discover that he had been convicted until the present application was made. At [32] of its reasons, in the course of dealing with discretionary considerations, the Tribunal said: I am satisfied and find as a fact that Mr Selimi did understand the nature of the proceedings, that he did plead not guilty, that he did give evidence and that the allegations against him were properly interpreted. His denial throughout the hearing of this application of his understanding of the proceedings at Dandenong Magistrates' Court and his memory of it does him no credit. The present case is quite different from Godley (2004) 83 ALD 411. What Lee J there described as "weaknesses or blemishes in character" were trivial matters and matters uninformative as to whether Mr Godley was not of good character. The matters the Tribunal in the present case so described were not of that nature. Paragraph [22] of the Tribunal's reasons begins: "If not already apparent, I cannot find Mr Selimi has enduring moral qualities ". This refers to the incidents recorded elsewhere in the reasons, especially in [21]. The offences of which he was convicted, his conduct in relation to the claim for a protection visa, making or allowing to be made false statements for many years intended to conceal that his marriage was a sham, and his recent false evidence at the Tribunal hearing, were not trivial or uninformative matters that Lee J described in globo as "weaknesses or blemishes in character". They were serious matters that went to the core of whether Mr Selimi was a person not of good character. The Tribunal twice referred to the offences as "serious". It also stressed "the gravity and extent" of the past criminal and general conduct. It noted that in the Direction the Minister regarded serious crimes against the Act as being "very serious". In those circumstances the Tribunal's conclusion that it could not find that Mr Selimi had enduring moral qualities would, but for the balance of the sentence at [22], be unassailable. The "enduring moral qualities" test applied by the Tribunal is endorsed by Full Courts in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 and Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 at [8] , to which the Tribunal referred, and by Full Courts in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 and Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [35] , to which it did not refer. What seems to have happened at [22] is that the Tribunal has taken "enduring moral qualities" from Irving and Goldie and has assimilated those qualities with "weaknesses or blemishes in character". Irving and Goldie were of course contrasting those characteristics. However, despite this slip, it is clear from a reading of the Tribunal's reasons as a whole that it regarded Mr Selimi's conduct as serious, grave and extended, and concluded that he did not have enduring moral qualities. That the Tribunal used "weaknesses or blemishes in character" as a general description of that conduct does not mean that it regarded it as trivial or uninformative of true character. The expression "infractions ... that show weaknesses or blemishes" should, in the context of the whole of the Tribunal's reasons, be understood as "weaknesses or blemishes in character of a serious nature", which, taken together with the fact that Mr Selimi lied to Departmental officers and gave false evidence to the Tribunal, demonstrated an absence of enduring moral qualities and thus an absence of good character. It is important to understand that the Tribunal was not strictly wrong in calling Mr Selimi's infractions "weaknesses or blemishes in character". They did have that quality. The description only seems to understate the seriousness of the infractions because it was used in Godley (2004) 83 ALD 411 to describe trivial matters and matters uninformative as to whether Mr Godley was not of good character.