Case: Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Outcome: distinguished
next ground is that the fifth sentence of the passage quoted at [11] disregards the precept that "continuing conduct must be demonstrated that shows a lack of enduring moral quality". That is a quotation from the reasons of Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 ( Godley ) at [56], approved on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10 ; (2005) 141 FCR 552 at [34] . The whole passage is as follows: Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct. The applicant contends that there is no continuing conduct of the kind of which Mr Selimi was guilty previously. The third ground attacks the passage in the Tribunal's reasons set out at [12] above ([22] of the Tribunal's reasons). Reliance is placed on another passage from Lee J's judgment in Godley (2004) 83 ALD 411 , also approved by the Full Court. His Honour said at [77]: A provision such as that contained in s 501(6)(c) is not concerned with weaknesses or blemishes in character but with ensuring that the power to refuse a visa by reference to quality of character of a visa applicant is only provided to the minister when it is demonstrable that the visa applicant is not of good character thereby giving sufficient cause for the minister to determine whether the degree of absence of good character is such that it would be clearly in the interests of the Australian community to refuse entry to that person ... This passage is preceded by an elaborate examination of matters relied upon by the Minister, which Lee J generally characterised at [77] as weaknesses or blemishes in character which in his view did not justify a conclusion that Mr Godley was a person not of good character. The matters included insignificant traffic offences, offences that were "non-informative" as to whether he was a person not of good character, a failure to disclose something influenced by his need to obtain earnings as a husband as much as by any innate defect in character, a matter of which his Honour said it was difficult to see how it could have been used by the Minister to determine bad character, and a matter that in terms of assessing a person's enduring moral quality was described as trivial. It was this catalogue of incidents that Lee J characterised as mere weaknesses or blemishes in character falling short of demonstrating that Mr Godley was not of good character. His Honour went on to hold that the Minister's reasons, which relied on the catalogue of incidents, showed that he did not apply his mind to the threshold question required to be determined under s 501(6)(c) , namely whether he could find as a fact that Mr Godley was a person not of good character. 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. When the passage from Godley (2004) 83 ALD 411 set out at [22] above is read in the context of the facts of that case, it is seen that it provides no assistance to the applicant's third ground. For the avoidance of doubt I should record that the document described as "Application for an order to show cause" has a fourth ground. However, it appears to be an amalgam of the first and second grounds, and is disposed of by what I have said about them. None of the grounds having been made out, the application must be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 5 March 2009 Counsel for the Applicant: JA Gibson Solicitor for the Applicant: Thornton Immigration Counsel for the Respondents: R Knowles Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 9 February 2009 Date of Judgment: 5 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/199.html