Adem and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 139

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/667

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FOZI ADEM

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon. C R Wright QC (Deputy President)

Date4 February 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd The Hon C R Wright)     

Deputy President

CATCHWORDS

Immigration - spouse visa application - refused on character grounds - false and misleading information - attempt to secure visa for relatives of applicant's husband by representing them to be relatives of the applicant - exercise of discretion - best interests of child of marriage

Migration Act 1958 – s501

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148  Re Renata and Minister for Immigration and Ethnic Affairs (1994) 19 AAR 157
Re Prasad and  Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Baker and Department of Immigration and Ethnic Affairs (1995) 37 ALD 744 
Re Annecchini and  Minister for Immigration and Multicultural Affairs (AAT 118387, 7 May 1997)

REASONS FOR DECISION

4 February 2005 The Hon. C R Wright QC (Deputy President)    

The Application to Review

1. Fozi Adem, the review applicant, has applied to the AAT to review a decision of the Minister’s delegate dated 2 December 2003 refusing to grant a Class UF Partner – Provisional (subclass 309) visa to his wife, Ilili Abduhalim Mohammed, the visa applicant, on the grounds that she does not pass the character test provided for in Section 501 of the Migration Act 1958 (“the Act”).

Relevant History

2.      The review applicant is 36 years of age having been born in Ethiopia on 18 December 1968.  The visa applicant was born in Ethiopia on 18 February 1982 and is 22 years old.

3.      The review applicant fled to Kenya with other members of his family in 1992 after his father and two brothers had been murdered and he and some of his surviving male siblings had been persecuted by Ethiopian government forces.  The review applicant remained in Kenya until 1998 when he migrated to Australia with his first wife, Muna, on a special humanitarian visa.

4.      He and Muna had been married in 1991 but within a year of their arrival in Australia they had separated and, a year later, on 15 April 2000 they were divorced.  There were no children of their marriage.

5.      In 1999 the visa applicant also fled from Ethiopia to Kenya, accompanied by her mother and some of her siblings.  Whilst in Kenya the mothers of the two applicants agreed that the applicants should marry.  An arrangement of this kind is apparently quite normal within the Ethiopian culture.

6.      Sometime after this agreement the visa applicant’s mother and her other family members returned to Ethiopia and, thereafter, she lived with the review applicant’s mother and his sister Ashraka and her husband Ibrahim as a member of their household in Eastleigh, a suburb of Nairobi in Kenya.  Se was registered with the UNHCR as a member of the family unit under the name “Ubah”, which is the Arabic version of her Oromo name, “Ilili”.

7.      The UNHCR referred the family to Australian authorities for a protection visa application but that application was refused for all included applicants because the visa applicant was not a dependent of Ibrahim and he declined to exclude the visa applicant and the review applicant’s mother (who was also regarded as non-dependent) from the application.

8.      The review applicant became an Australian citizen on 6 December 2000 and in January 2001 he returned to Kenya where he and the visa applicant married according to Sharia law on 8 February 2001. The review applicant thereupon sponsored Ibrahim’s family unit, including his mother and his wife for a special humanitarian visa in February 2001.  This application was also refused.

9.      In July 2001, the review applicant sponsored his wife’s spouse visa application.  He arranged for the preparation of the application form to include his mother, claiming her to be his wife’s mother and his niece (the daughter of Ashraka and Ibrahim), claiming her to be his wife’s sister.  The visa applicant knew of her husband’s plan to do this and accepted these inclusions in the application form which she signed knowing the claimed relationships mentioned above to be false.  It is not disputed that the applicants participated in this deceptive conduct to assist the review applicant’s mother and niece to escape from the very unsavoury neighbourhood in which they were living where violence and sexual attacks against women were commonplace.  Such attacks were perpetrated not only by the numerous neighbourhood criminals but also by members of the so-called security forces.

10.     The review applicant had returned to Australia from Kenya approximately one month after the marriage to his wife.  He remained in Australia for the next two years awaiting the outcome of the spouse visa application.  In 2003 the review applicant returned to Kenya.  In his statement (Exhibit A1) he said “I returned to visit Ilili and my family”, but in his evidence in chief, given before the Tribunal at the hearing in Melbourne on 26 November 2004, he said “I went back to say I am sorry I made mistake, to Australian Embassy”.

11.     It is common ground that on 9 May 2003, Ms Lodge, a delegate of the Minister at the Australian Embassy in Nairobi had written to the visa applicant notifying her of the delegate’s intention to consider refusal of her visa application on character grounds.  The review applicant responded to Ms Lodge’s letter by a letter signed by him and dated 9 June 2003 in which he expressed deep regret for what had been done.  He also attended an interview at the Embassy on 24 July 2003 (with his wife) and again on 12 August 2003.

12.     It is clear to me on the evidence that the review applicant’s purpose in returning to Kenya in 2003 was not primarily to visit his wife but rather to salvage the spouse visa application by providing apologies and explanations for the falsehoods contained therein.

13. The review applicant remained in Kenya for a period of about three months. During this time his wife became pregnant. Their son, Nayom Fozi Bushra, was born on 9 March 2004. If he was a full term baby this would place the date of conception in June 2003. At that time both applicants knew that the spouse visa application was in serious trouble. These circumstances obviously generate the suspicion that the child may have been deliberately conceived to provide added leverage for a favourable determination of the spouse visa application. This was put to the two applicants during the course of their evidence but was denied. There is consequently no sound basis for making an affirmative finding on this issue. It is relevant to observe at this point that as a child of the review applicant Nayom would be entitled to the grant of Australian citizenship pursuant to Section 10B of the Australian Citizenship Act 1948. The review applicant says that he has not yet decided whether to apply for citizenship for his son.

Character issues

14.     The Minister’s delegate who made the decision the subject of the present review, made the observation in his written reasons that significant resources had been deployed to resolve the visa applicant’s application and he also commented that her misrepresentation that members of her husbands family were her dependents “constitutes an attempt to smuggle people into Australia which comes within the scope of Section 233 of the Migration Act”.  In the applicant’s Statement of Facts and Contentions it is suggested that to characterise this as an attempt to smuggle is fanciful, but I do not agree with this.  If the deception had not been exposed I am quite satisfied that the applicants would have continued with their plan to bring the mother and niece of the review application to Australia illegally.  The review applicant claimed that he would have told the truth at some time but I reject this.  Had he done so after his relatives had been admitted to Australia, a confession by him would almost certainly have resulted in their deportation back to Kenya.

15.     The Minister’s delegate also included the following observation in his decision (see Exhibit R1 – T Documents @ page 13):

“Ms Mohamed’s application is one of many lodged by Ethiopian applicants who have wilfully abused the Migration system by falsely applying for visas with misleading statements and bogus documentation.  The type of conduct displayed by Ms Mohamed has been repeated by others in the family caseload at the post in Nairobi.  The current rejection rate for family migration applications emanating from Ethiopia represents the second highest in the world.  This results in considerable resources being expended in an effort to provide integrity in the program and significant delays in determining all applications, including those who have not engaged in any unacceptable conduct”.

This material serves to emphasize the significance and seriousness of the misconduct of the visa applicant.

16.      The respondent advanced the contention that the visa applicant was also guilty of misleading conduct in failing to inform the department in her visa application (see Exhibit R1 @ page 51) that she was known by the name Ubah, as well as her preferred name of Ilili.  As already mentioned she had been referred to by the name of Ubah in Ibraham’s unsuccessful protection visa application (see paras 6 and 7 above).   Counsel for the respondent suggested to the visa applicant that as she had been included in Ibrahim’s application under the name Ubah she had deliberately set out to conceal the fact that she had been included in a previous unsuccessful application from departmental officers by, (a) using the name Ilili in her spouse visa application and (b) failing to disclose her Arabic version thereof.  Although she conceded that she was aware Ibrahim had referred to her as Ubah in the protection application after the form had been lodged by him, the two propositions just mentioned were never clearly put to the visa applicant in cross examination and it is impossible to make a specific finding in relation to them save to say that the applicant failed to provide relevant information in her spouse visa application.  Whether this was deliberate or accidental I am not able to say.

17.      In essence therefore the case impugning the visa applicant’s character is dependent upon the fact that she willingly and deliberately participated in the scheme put forward by her husband in an effort to secure a migration advantage for his relatives.  I have already referred to the seriousness of this conduct in para 15 above.  It is apparent that this type of misconduct is not uncommon in applications made in Nairobi.  It is plain that considerable resources must be needlessly wasted in attempting to determine the genuineness and reliability of information contained in such applications.  The applicant was not coerced into complicity by her husband and I think it irrelevant that she herself may have obtained no direct benefit if their scheme had succeeded.  Her unpleasant living conditions in Eastleigh and her original flight from Ethiopia do not in my opinion militate against an adverse character finding.

18. There are many Federal Court and Tribunal decisions dealing with the meaning of “good character” and the scope and purpose of Section 501 of the Act. A number of these were referred to in the Applicant’s Statement of Facts and Contentions. I have also considered the Minister’s Direction No. 21 issued in August 2001. It has long been recognized that lies told or false information provided by visa applicants to the department (particularly if those falsehoods relate to issues directly relevant to the likelihood of success or failure of the application) may be regarded as sufficiently serious to warrant an adverse character determination.
(see Lachmaiya v DIEA (1994) 19 AAR 148; Renata v MIEA (1994) 19 AAR 157 @ 159; Prasad v MIEA (1994) 35 ALD 780 @ 781; Baker v DIEA (1995) 37 ALD 744 @ 751; Annecchini v MIMA AAT 118387 / 7 May 1997)

Such a determination is by no means automatic however and the conduct must be viewed in the context of all relevant circumstances (see e.g. Okafor v MIMIA (2004) AATA 975.

19. In my opinion, notwithstanding the motives of the review applicant in seeking protection for his relatives, the visa applicant has not shown that she is a person of good character within the meaning of Section 501 and on the evidence I am affirmatively satisfied that she is not of good character.

Discretionary rules

20.      It is therefore necessary to consider whether or not to exercise my residual discretion to direct that the visa applicant’s lack of good character is not used as a basis for refusing her application.  In this connection I have referred (inter alia) to the Minister’s Direction No. 21 in relation to the exercise of discretion.  All three of the primary considerations referred to therein are relevant for current purposes.

Protection of the Australian community

21.      The conduct of the visa applicant involves an offence which in the Government’s view, as expressed in para 2.6 (a) of the Minister’s Direction is “very serious”.  It is unlikely that the visa applicant would repeat similar offences, but in assessing the risk of recidivism, it is necessary to consider whether there may be future fraudulent behaviour by her, either alone or in conjunction with her husband, in dealing with governmental or public agencies in Australia.  The review applicant is presently working part-time as a taxi driver and is receiving supplementary social security benefits.  Both applicants have expressed remorse and have apologized for their fraudulent scheme but the genuineness of contrition expressed in such circumstances is always open to question.  All I can say is that there is no particular reason for concluding that the visa applicant is likely to engage in deceptive conduct in Australia if the visa is granted.  There is, however, one aspect of this primary consideration which I regard of significant weight. I refer back to the observations of the Minister’s delegate reproduced in para 15 above.  General deterrence is a legitimate matter of concern particularly in situations where a common deceptive practice has been exposed in an individual case such as the present.  If a visa refusal is based upon exposure of such practices it seems to me to be likely that such a consequence (visa refusal) will act as a significant deterrent to potential offenders contemplating similar deceptive conduct.  This effect is not necessarily achieved by the adverse outcome of a single case but, if a consistent result is seen to flow from successive cases of immigration fraud, the message soon gets through.

The expectations of the Australian community

22.      This is the second primary consideration mandated by the Minister’s Direction.  It is generally accepted that the expectations in question are those of moderate and reasonable individuals who have a clear understanding of all relevant facts.  In attempting to formulate the expectations of such members of the community it is necessary to consider (inter alia) the best interests of the child of the marriage.  Indeed the best interests of such a child are specified by the Minister as the third primary consideration for the attention of decision makers.  Consequently I intend to look at this issue before returning to the community expectation question.

The best interests of the child

23.      Nayom, the applicants’ son is less than one year old.  He has spent his entire life to the present time in the care of his mother in Nairobi.  No application has been made to register his Australian citizenship to date, but his entitlement to that status must be borne in mind.   There is no evidence that he has experienced ill health or deprivation of necessary support or health care at any time while living in Nairobi.  There is no evidence to suggest that this mother or other relatives who act as carers suffer from disabling health conditions.  The Minister’s Direction suggests (para 2.15) that a child’s best interest will be  served if it remains with its parent.  Para 2.16 directs attention to the nature of the relationship between the child and the non citizen whose visa is in question and issues such as duration of the relationship and separation.  These issues are contemplated as arising in cases where refusal of a visa may result in breaking a relationship between a visa applicant and a young child and, of course, in this case no such disruption is contemplated.  However in the present circumstances it is clearly relevant to consider the continuing separation of the review applicant and his child.  There appears to be no impediment to the review applicant travelling to see his wife and son in Nairobi whenever he wishes but it is likely that his meagre financial resources would create significant practical difficulties.  No evidence was led on the subject but it is safe to assume that the standard of educational and health facilities in Australia are superior to those available in either Kenya or Ethiopia.  In view of the child’s youth no question of language or cultural difference between Kenya and Australia appears to arise.  Overall therefore it seems appropriate to conclude that the best interests of the child would be served by allowing the visa applicant to enter and reside in Australia, assuming of course that Nayom accompanies his mother as a dependent.  Such a conclusion is not necessarily determinative of this review however (see Wan v MIMIA (2001) 107 FCR 133).

24.      The review applicant conceded that if his wife does not secure a visa he will return to Kenya or Ethiopia.  The question of his safety in Ethiopia under the present regime was not explored in evidence.  There is no reason to consider that he could not successfully live and support his family in Kenya.  He lived there with his first wife for a period of about six years before migrating to Australia.  One does not lightly create a situation where an Australian citizen is obliged to quit a settled life in this country to maintain an established relationship.  On the other hand, although there is no challenge to the genuineness of the existing marriage it may be relevant to bear in mind that his was an arranged marriage not preceded by any relevant courtship and, all told, the spouses have spent only about four months together since the nuptials.  It would nonetheless be unsafe to assume that the relationship has poor prospects for permanency notwithstanding the failure of the review applicant’s first marriage so soon after he secured citizenship.

25.      It is difficult to prognosticate about the expectations of the Australian community in all the circumstances of this case.  There is plainly room for the two conflicting views viz:  that the visa applicant should be permitted to enter Australia with her son and establish a hopefully happy domestic relationship with her husband with the welfare and allied benefits Australian residency can provide or that the visa applicant should be refused entry because of her complicity in a serious attempt to defraud the Australian immigration system, such refusal providing a warning to other like minded persons who may otherwise contemplate a similar expensive and resource wasting enterprise.  I cannot say with confidence that a fair-minded humane member of the community or a majority of such members would necessarily expect one solution in preference to the other.

Conclusion

26.      Cases involving children are always difficult to resolve.  There is a natural tendency to wish to give all children the best prospects for a healthy and happy life but this is plainly not the only touchstone.  The Minister’s Direction and general principles make it plain that there must be a balanced approach taking account of all relevant considerations including the integrity and effectiveness of the Australian migration system.

27.      In this case I have not been persuaded and I am not satisfied that my discretion should be activated in favour of the visa applicant.  In consequence, therefore, I determine that the decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C R Wright QC (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  26 November 2004
Date of Decision  4 February 2005
Counsel for the Applicant         Mr G Hughan
Solicitor for the Applicant          Refugee & Immigration Legal Centre Inc
Counsel for the Respondent     Mr M Brereton
Solicitor for the Respondent     Australian Government Solicitor