Ahmad and Minister for Immigration and Citizenship
[2007] AATA 1787
•21 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1787
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0586
GENERAL ADMINISTRATIVE DIVISION ) Re MARYAM AHMAD Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal The Hon. R.N.J. Purvis AM QC, Deputy President Date21 September 2007
PlaceSydney
Decision The decision under review is affirmed. .................[sgd]...........................
The Hon. R.N.J. Purvis, AM QC Deputy President
CATCHWORDS
MIGRATION – refusal to grant spouse visa – migration misconduct – false and misleading information in applications for transit and protection visas – false claims adhered to while avenues of appeal exhausted – worked without consent – visa applicant not of good character – discretion reconsidered – protection and expectations of the Australian community – seriousness and nature of conduct – minimisation of use of false representations – use of improper and unlawful means to enter into and remain in Australia – married to Australian citizen – awareness of husband’s migration status – best interests of children – decision under review affirmed
Migration Act 1958 – sections 48B, 234, 235, 417, 501
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617
REASONS FOR DECISION
21 September 2007 The Hon. R.N.J. Purvis AM QC, Deputy President the application
1. In this application, the review Applicant, Mrs Maryam Ahmad (“Mrs Ahmad”), is appealing against a decision of a delegate of the Minister for Immigration and Citizenship (“the Respondent”) to refuse to grant to Mr Muhammad Arshid (“Mr Arshid”) a combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa. The visa was refused on the ground that Mr Arshid did not, within the meaning of section 501 of the Migration Act 1958 (“the Act”), satisfy the character test. The discretion available to the Respondent was not exercised in his favour.
2. In the reasons given for the above decision, and so far as they are relevant to the character test, it was stated:
…
4. I find that Mr ARSHID has engaged in an extensive course of dishonest conduct from 1999 to his departure from Australia in June 2005, in order to prolong his stay in Australia. Specifically, I find that:
· Mr ARSHID provided false and misleading information on his application for the Transit (Subclass 771) visa that he used to enter Australia on 7 September 1999. Mr ARSHID lodged an application for a protection visa three days after his arrival in Australia, which leads me to conclude that Mr ARSHID had no intention of entering Australia solely for the purposes of transit.
· Mr ARSHID listed his country of residence as Dubai on his Incoming Passenger Card on his entry to Australia in 1999, and then claimed in his protection visa application that he was seeking protection from Pakistan.
· Mr ARSHID applied for a protection visa on the basis of false and misleading information, in order to prolong his stay in Australia for reasons other than to seek protection…
· Mr ARSHID subsequently pursued those false claims to the Refugee Review Tribunal (RRT)…
· Mr ARSHID persisted with his false claims through every other avenue available, including two applications to the Minister to exercise his discretion under section 417 of the Act, and by judicial review…
…
9. Mr ARSHID’s adverse conduct continued until just before his departure from Australia on 11 June 2005...
10. I therefore find that there are no countervailing factors or subsequent good conduct to outweigh the serious nature, duration and frequency of Mr ARSHID’s bad conduct…
3. As to the exercise of the discretion, the Respondent in the said reasons stated:
Seriousness and nature of conduct
12. The nature of the conduct that Mr ARSHID has engaged in is directly referred to at Paragraph 2.6(c) of the Direction, by “making a false or misleading statement in connection with entry or stay in Australia”. I therefore find that the nature of Mr ARSHID’s conduct over a significant period of time is of the kind considered by the Government to be “very serious”.
13. I have also noted that Mr ARSHID sustained his false protection visa claims through all avenues available to him, seeking reviews, interventions and appeals through the RRT, the Minister and the High Court. This conduct has resulted in a significant waste of time and resources over a prolonged period of time, and constitutes a serious abuse of the migration system.
…
Likelihood that the conduct may be repeated
16. Mr ARSHID has been prepared to provide false and misleading information for the purpose of obtaining an entitlement to which he otherwise would not have been entitled on multiple occasions. He has shown an ongoing disregard for the migration law, and engaged in the conduct over a prolonged period of time… I find that Mr ARSHID has not taken responsibility for his conduct, and has shown a lack of real remorse and has not expressed an understanding of the seriousness of his conduct.
17. Given that Mr ARSHID has shown a clear pattern of disregard for Australian law over a prolonged period of time until very recently, I find that there is a considerable risk that Mr ARSHID will engage in dishonest conduct in the future.
…
Expectations of Australian Community
…
22. I find that the community generally would not expect that a person who has shown an ongoing and serious disregard for the Australian legal system during his previous stay in Australia would not be granted a further permanent visa to stay in Australia.
23. I do note that some members of the Australian community might have some sympathy for Mr ARSHID given that he has an Australian citizen wife and two children. However, given the extent and seriousness of Mr ARSHID’s conduct, I am of the view that the compassionate circumstances do not alter the general community expectation in this case.
...
Best Interests of the Child
…
30. I find that overall the children’s best interests would be served by being able to remain in Australia with both parents. However, I also find that the refusal of Mr ARSHID’s visa would not necessarily result in the children’s separation from Mr ARSHID, as the family could choose to live in Pakistan without significant problems. I also find that the children will have the choice to live in Australia when they are older. I therefore find that the refusal of Mr ARSHID’s visa would not be significantly detrimental to the children’s best interests.
…
4. Whilst the Tribunal is to consider anew the issues that arise for determination, identification of the above findings of the Respondent assist in directing attention to the significant factual situations that are relevant to a final decision.
5. The issues to be determined by this Tribunal are:
·Whether, having regard to the past and present general conduct of Mr Arshid, he is a person who is not of good character within the meaning of subsection 501(6)(c)(ii) of the Act.
·Whether the discretion available to the Tribunal pursuant to section 501 of the Act should be exercised to affirm or set aside the decision of the Respondent that is under review.
relevant legislation and ministerial direction
6. Section 501 of the Act relevantly provides:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
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(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
…
Otherwise the person passes the character test.
7. If the Tribunal finds that an Applicant does not pass the character test; the discretion in subsection 501(1) of the Act is enlivened. In exercising the discretion the Ministerial Direction, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”), must be followed and applied.
8. The provisions of the Direction that are relevant to the character issue in this application are:
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the character test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
…
· involvement in activities such as … breaches of immigration law; or
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(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
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9. In the event of a finding being made as to an absence of good character the decision-maker is then to consider whether to exercise the discretion referred to above. In making a decision whether to refuse or cancel a visa there are, in this connection, three primary considerations, as stated in paragraph 2.3 of the Direction:
(a) the protection of Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
10. The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include, pursuant to paragraph 2.5 of the Direction:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct maybe repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
11. In paragraph 2.6 of the Direction examples of offences, which in the government’s view are considered to be very serious, are detailed. Amongst them are:
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
12. Further, as to the expectations of the Australian community, the Direction provides by paragraph 2.12 that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that the Australian community would expect that the person would not be granted a visa or should be removed from Australia…
chronology of relevant events
Date
Event
1 January 1969
Mr Arshid born in Pakistan
20 October 1979
Mrs Ahmad born in Pakistan
1994
Mrs Ahmad arrives in Australia with her parents as a dependant applicant
17 November 1997
Mrs Ahmad granted Australian citizenship
7 September 1999
Mr Arshid arrives in Australia on a Transit (Subclass 771) visa
10 September 1999
Mr Arshid applies for a Protection (Class XA) visa and is granted a Bridging A visa
5 November 1999
Mr Arshid’s application for a protection visa refused
9 December 1999
Mr Arshid applies for a review of the refusal decision to the Refugee Review Tribunal (“RRT”)
14 March 2000
Mrs Ahmad obtains visa for entry to Pakistan expiring on 14 March 2005
18 March 2000
Mrs Ahmad travels to Pakistan
5 April 2000
Mrs Ahmad marries her first husband
22 April 2000
Mrs Ahmad departs Pakistan
22 February 2002
RRT affirms the delegate’s decision to refuse Mr Arshid’s application for a protection visa
31 May 2002
Mr Arshid requests the Minister to exercise the discretion under section 417 of the Act
5 June 2002
Mrs Ahmed divorces her first husband
18 October 2002
Respondent notifies Mr Arshid of refusal to exercise discretion
7 November 2002
Mr Arshid files a draft order nisi in the High Court seeking orders quashing the decision of the RRT
25 December 2002
Mr Arshid first meets Mrs Ahmad
2003
Mrs Ahmad informed of the visa status of Mr Arshid
15 March 2003
Mr Arshid and Mrs Ahmad decide to marry
9 July 2003
Mr Arshid and Mrs Ahmad marry
5 September 2003
The Federal Court dismisses the application which was remitted to it by the High Court
22 September 2003
Mr Arshid requests the Minister to exercise the discretion available under sections 48B and 417 of the Act
15 October 2003
Mr Arshid is notified his appeal under section 48B was considered not to meet the guidelines
18 March 2004
Birth of daughter, Hafsa Arshid
21 April 2005
Respondent notified Mr Arshid of the decision not to exercise his discretionary power pursuant to section 417 of the Act
11 June 2005
Mr Arshid returns to Pakistan
23 June 2005
Mr Arshid lodges application for subject visa at the Australian High Commission, Islamabad
9 October 2005
Mrs Ahmad obtains visa for entry to Pakistan expiring 8 April 2006
24 October 2005
Mrs Ahmad travels to Pakistan and departs on 26 February 2006
11 August 2006
Birth of son Muhammad Arshid
2 February 2007
Respondent refuses Mr Arshid’s application for a combined Partner visa
factual situation and findings of fact
13. Mr Arshid arrived in Melbourne on 7 September 1999 on a Transit visa valid for no more than 72 hours. He declared his intent on his inbound Passenger Card to stay in Australia for a holiday. In his protection visa application, referred to below, he stated as his reason for wanting to go to Australia as:
I told them that I wanted to go to Fiji and need a transit visa.
14. Within the period of 72 hours, above mentioned, Mr Arshid travelled to Sydney where he was introduced to a migration agent, Mr B Bhattarai, of Naosams Migration Services. Mr Arshid expressed a wish to the agent to remain in Australia and was advised to apply for a protection visa. This he did on 10 September 1999. In support of his protection visa it was claimed (S1, p.18):
I arrived in Australia on the transit visa escaping Pakistan due to my involvement in the Army.
I was an activist in the region of Kashmir, Pakistan. Supporting the view of the Independent Kashmir and supporting the activities of the Kashmiri militant. The Pakistani Army gave me the Military training. I was working in the Indian Side of the Kashmir In April 1999.
During my time in the Kashmir, hundreds of people were killed and they were innocent people. I was under the command of an ex-army officer who was not in the army but the government and the Kashmiri Mujahiddin (Separatist) gave him that position to fight in the Kashmir. The command was not good at all. The people who were killed did not deserve to die. I raised my voice against the killing of civilian, but I was sent back to Pakistan.
While I was sent back from the duty in Kashmir, I came home. My house in “between Kashmir and Sialkot”. The villagers asked me many questions about the condition in the Indian side of the Kasmiri region and I had to tell them the condition.
Next week there was an Army raid at my home and they were looking for another friend and me who was also a returnee from the region of Indian Kashmir. They took all arms and Ammunition from our house. Both of us were in Karachi at that time due to some private work.
We were told about the army raid and we were told that our life is in danger because the Army killed few people who were speaking in the public in our area.
My friend and I were very afraid and I decided to escape from Pakistan otherwise the Army would kill us. We both obtained the visa to come to Dubai first and then to Australia.
If I returned from here to Pakistan, The Pakistani Army will definitely kill us or we will go to jail for rest of our life. There is not fair justice to anyone in Pakistan.
15. The matters stated were substantially incorrect. Mr Arshid had been working in Dubai for the four to five years preceding his arrival in Australia. He had never engaged in the military activities described or been an “activist”. He had no fear for his life.
16. Mr Arshid blamed the migration agent for the falsities, alleging initially that at the time of the application being lodged, he was unaware of its above contents. However, in the course of his evidence before this Tribunal, he said that he knew the application was being made on the basis of his being an alleged refugee, the migration agent had told him this when he was handing over his passport at their first meeting. Later he was told the details of what had been written to which Mr Ashid says he replied “that is quite dangerous”. The agent allegedly said “that is the way things are done here”.
17. The application for a protection visa was refused. Mr Arshid appealed to the RRT. He appeared in person with the aid of an interpreter at the RRT hearing. The decision under review was affirmed. In the course of the reasons for its review decision the RRT (T20) stated at page 5:
…
At the RRT hearing, the Applicant contradicted this account strikingly. He said he was trained by the army to speak to villagers in Kashmir to gain their support for going to Pakistan. He claimed that his only job was to speak to them. He claimed he did this on his own. He claimed no knowledge of pro-Pakistan networks, none even disclosed to him by his trainers. He seemed to have forgotten his claimed placement within the Mujahedin. He later said he was told not to have anything to do with the pro-Pakistan organisations in Kashmir and thus, in the course of saying this, changed his evidence about not knowing of any. He expressly stated that he was not trained in the use of arms and that he had never possessed any firearms. He omitted reference to his previously-claimed commander, and said he worked alone. He said he always entered Kashmir on foot and that the journey sometimes took weeks. He said that in mid-1997 he discussed his work in Pakistan with friends and that very soon after this the army raided his house. He placed these events two years earlier than he had placed them in his written statement. He omitted reference to the arms and ammunition described in his written statement. He said he fled Pakistan in 1998 on the passport he tabled at the hearing…
18. During the course of his giving evidence before the present Tribunal Mr Arshid acknowledged that he had lied in his evidence before the RRT. He was never “trained by the army to speak to villagers in Kashmir …”. He did not enter Kashmir on foot. The army did not raid his house. He had not fled Pakistan. The statements by him were a litany of lies, a continuation of, even be they in some respects inconsistent with, the untruths detailed in his protection visa application. He says that the migration agent advised him to maintain the charade. This he did, well knowing that he was attempting to mislead the RRT Member. He was well aware of the deceit and was an active party, indeed the principal party in its perpetration.
19. Maintaining his litany of untruths, Mr Arshid applied for Ministerial consideration under section 417 of the Act. In his application Mr Arshid caused the migration agent to maintain the untruths. It was alleged that he “arrived here in Australia with a purpose of seeking protection”. Not only was this also untrue, but it contradicted what was said in the protection visa application form, and in his evidence before this Tribunal. He had by this time, June 2002, been propounding the falsities for nearly three years using every means available to prolong his stay in this country. Further unmeritorious applications were made by Mr Arshid, and finally, in April 2005, the final application was refused. He left Australia in June 2005. Throughout this time he practised deceit on the migration authorities and the Minister, actively seeking a benefit to which he was not entitled. He knew this to be so. Expressions of regret at this time carry little, if any weight.
20. Whilst she was not, on the evidence, aware of the details of her husband’s deception, Mrs Ahmad knew since before their marriage of his visa status. According to Mrs Ahmad she was told by her prospective husband that he did not have a visa, and was asked whether, in the circumstances, she was prepared to marry him. She said she was not told about the protection visa application or his claims to persecution. Nor did he tell her why he did not have a visa. Even though she realised he might be deported she “went ahead”, she said, and married him.
21. Mr Arshid and Mrs Ahmad were married for nearly two years before he left Australia, but seemingly never in that time did he inform his wife of the falsity under which he was living. This does not reflect favourably upon his character, let alone the likelihood that if circumstances arose he would not again try to live a life of deception.
22. But more so, Mr Arshid became the father of Hafsa in 2004 at a time when his refusal application had been referred to the Minister, and the father of Muhammad when he was in Pakistan, 14 months after his present application had been lodged and there was reasonable uncertainty as to whether it would be granted. Indeed, Mrs Ahmad said that she knew when she became pregnant with Muhammad that Mr Arshid “could not return to Australia”.
23. For the majority of the time he was in Australia, Mr Arshid was employed even be it he did not have permission to be so.
character of mr arshid
24. Whilst in Australia Mr Arshid did integrate, to an extent, into the Australian Muslim community. He attended the Green Valley Islamic Centre (Exhibit C). He was known to the Imam of Rooty Hill Mosque who spoke of his “values, ideals and integrity” (Exhibit B). But even though the Iman had known Mr Arshid for four years there was not any evidence of his having been aware of the deception under which Mr Arshid was living. He was not “honest” with the migration authorities and the Minister nor was he “loyal“ to the Australian community. A General Councilor (sic) of a Union Council in the district Sialkot, Pakistan certified as to Mr Arshid’s reputation and “good moral character” saying that “he is not involved in any anti-government activity politically, sectarian activity or any other notable agency working against the country” (Exhibit E). A parliamentary secretary in Pakistan wrote to much the same effect (Exhibit D). It is to be noted that Mr Arshid had frequently avowed that he had been involved in just such activities.
25. The conduct of Mr Arshid over a relatively long period speaks poorly of his character. He was untruthful, deceptive, scheming and sought to take advantage of the migration appeal system and the avenue of Ministerial discretion, all the time relying upon false representations. He said that he lied because “my lawyer [the migration agent] told me to do so”. He knew, however, that what he was saying was untrue. It is not a defence or an excuse in the present context to say that he relied upon the agent. He is responsible for his own conduct. His continued attempt to attribute fault for his misconduct upon the agent reflects poorly upon his character.
26. Mr Arshid was, and on the evidence is, there being no evidence one way or the other of recent conduct, not of good character.
hardship to mrs ahmad
27. Mrs Ahmad’s parents and three sisters live in Australia. He has relatives in Pakistan. Mr Arshid does not have any family other than his wife and children living in Australia.
28. In September 2003, Dr Sarfraz, a general practitioner, stated that Mrs Ahmad then experienced “mood fluctuation and not getting along with her parents sometimes” (S9, p.63). In February 2005, Dr Sarfraz stated that Mrs Ahmad was suffering “mental health problems aggravated due to financial reasons” (S17, p.123). She was then living in Australia with her husband. In April 2007, Dr Sarfaz (Exhibit A) inter alia stated:
Mrs Mariam (sic) Ahmed is quite upset about her husband not being with her as she feels she needs him with her during the critical period of upbringing her children. She is suffering from Anxiety and Major Depressive Disorder.
It is mandatory for the maintenance of her health that her husband is allowed into the country the sooner the better. She is unable to cope with the children by herself. I am terribly afraid that she would suffer a nervous breakdown if her husband is further delayed.
29. Mrs Ahmad is disinclined to join her husband in Pakistan. Her family, she said, is in Australia. She is an Australian. She has Australian citizenship. She does not wish to live in Pakistan. She also said that if she was in Pakistan she did not know “whether her husband would be able to support her”. He is not at present employed. In Australia she and her children are been supported by her parents, supplemented by Centrelink payments. Mr Arshid is not providing any financial assistance to the family.
30. Mrs Ahmad said that she does not talk to her husband “much but sometimes”. She did not know how often. She said she had not discussed the present proceedings with him. When she does talk to him on the phone she said “he gets upset”. Mr Arshid gave a different version saying that since he had returned to Pakistan, his wife had “completely lost her memory”.
31. Mrs Ahmad was a teenager when she first entered Australia. She attended school up until year 12, but at the present time still has difficulty in expressing herself in English. She gave her evidence through an interpreter. Her memory for past events is not good.
32. Mrs Ahmad will experience emotional hardship if a visa is refused. She will continue living with her parents and no doubt have their support. It is unlikely she will receive any financial support from her husband. She did, however, enter into the marriage well knowing her husband’s migration status, and did conceive her children when her husband was the subject of visa refusal, in the one instance, and living out of Australia with the other.
discretionary reconsiderations
33. In light of the character finding the Tribunal must have regard to the primary and other considerations identified in the Direction, and as outlined above, in determining whether the discretion to refuse the visa should be exercised.
34. Mr Arshid perpetrated unacceptable conduct over a period of time with full awareness of the fact that he was relying on false documentation and the provision of false information; and engaging in illegal and improper activities in remaining in Australia and working without permission. From 1999 to 2005, Mr Arshid obtained the benefit of his falsehoods, overtly maintaining the same through his protection visa application, subsequent appeal and Ministerial requests. He was aware of the latter. His character is laid “bare” by his conduct (Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195). Apart from his leaving Australia, and he had no option in this regard, there is not any evidence of his recent general conduct.
35. Mr Arshid, in light of his relationship with Mrs Ahmad, is in effect applying for a permanent visa. His character and conduct is to be looked at in this light. Is he, may it be asked, a person who should be admitted into Australia, allowed to remain here, and have all of the benefits of residency?
36. The Act is intended to regulate, in the national interest, the coming into and remaining in Australia of non-citizens. Citizens are to be protected from those who have engaged in, and may well in the future engage in, unacceptable conduct.
37. In the context of the Act and the Direction, the general conduct of Mr Arshid was “reprehensible and abhorrent” and may well, if the opportunity was afforded to him, be repeated. After all, he was about 30 years of age when he made the false representations to remain in Australia and thereafter used them to his advantage.
38. As was stated in Re Zhang and Minister for Immigration and Citizenship [2007] AATA 1617 at 29:
It is true that in the context of “protection of the Australian community”, the Direction refers to the decision maker, the Tribunal, taking “reasonable steps” to ensure such protection. One such step is to refuse, where warranted, a visa…
39. The instances of conduct identified in the Direction as being serious include migration misconduct. Mr Arshid engaged in migration misconduct. Where it might impact upon the welfare of the Australian community, the community is, so far as reasonably able, to be protected from it.
40. The misconduct of Mr Arshid was very serious. Again, as was noted in Zhang (supra) at 30 “Whilst the conduct itself is important, it is also the consequences or possible consequences of the conduct that is to be considered”. To allow Mr Arshid to enter Australia, in light of his adverse conduct, would negate its seriousness. It would allow a person to breach the Act in a reprehensible manner, over a period of time, and still be allowed to enter the country. It may well allow and encourage others to do the same, to the detriment of the migration system put in place for the protection and betterment of the lawful residents and citizens of Australia.
41. Mr Arshid’s conduct was in breach of sections 234 and 235 of the Act, and continued for a relatively long time. He knew, or should have known, that engaging in employment was not permitted. Whilst it is true no convictions have been recorded against him, he has acted contrary to the provisions of Australian law, and it cannot be said that, when the opportunity and relevant circumstances again arise, he would not behave as was his habit in the past.
42. The Tribunal is satisfied on the basis of the evidence before it, that it would be reasonable, and it would be proportionate, to refuse to grant a visa in the subject circumstances in aid of deterring others from engaging in like-minded conduct. Visa regulation and the minimisation of the use of false representations would be assisted if those who avail themselves, or seek to avail themselves of such stratagem, do not succeed in their endeavours. If a visa be granted, then the people intent on using improper and unlawful means to enter into and remain in Australia will be encouraged to do so. This cannot be in aid of protecting the community. The community expects non-citizens and citizens alike to obey the law. A righteous community would expect a prospective visa holder to proceed to apply for such a visa in accord with the law, and not to engage nefarious means to sidestep it, to negate its intent. This is what Mr Arshid sought to do.
43. Mr Arshid was the perpetrator of the activities that resulted in his present position. He chose to remain in Australia by use of false representations. He chose to marry Mrs Ahmad, well knowing his migration situation. Mrs Ahmad chose to become pregnant, well knowing that her husband may not be able to remain in and/or return to Australia. They were each the author of the circumstances in which they presently find themselves.
44. Whilst the Tribunal is not unsympathetic to the position of Mrs Ahmad, and is appreciative of the various matters earlier discussed in these reasons, especially her emotional state of health, it can not be said that the community would expect a visa to be granted to Mr Arshid, when all of the other relevant considerations are made known.
45. One of the other considerations, and a primary consideration, is the best interests of the children, Australian citizens. They are separated from their father. It is true that the separation of the parents cannot be said to be in the best interest of them. There is no reason to believe, however, and no evidence to support a finding, that the children will be affected adversely in an education-sense, health-wise or emotionally, other than by the absence day-to-day of their father. The Direction, at paragraph 2.16, provides that when considering the best interests of a child, the decision-makers should have regard to the matters set forth in that paragraph. Mr Arshid has had little contact with his children, and has not provided Mrs Ahmad with any child support since leaving Australia. There is no evidence, other than an occasional telephone call, of a bonding between the children and their father. He has spent little time with them. The children are still very young and have not themselves, on the evidence, developed any bonding with their father. Indeed, it is with their grandparents that a bonding exists. They are Australian citizens. There is no evidence of an adverse effect upon the children if they remain living as they are at the present time. The hardship is one that will be experienced by the childrens’ mother and no doubt, to an extent, this will affect or bear upon her relationship with the children. However, she has had the responsibility of caring for them with the assistance of her parents and sisters since 2006. There is little evidence as to the comparative facilities in Pakistan and Australia. Suffice to say that the children, on the evidence, are being maintained in Australia and receiving the benefit of appropriate attention.
46. It is unlikely that Mrs Ahmad will take the children on a permanent basis to Pakistan. She has already spent time in that country with her daughter and may well travel with both children in the future. The Tribunal is satisfied that the best interests of the children will not be significantly affected in an adverse sense if Mr Arshid’s application is refused. If the children should relocate to Pakistan they will experience little difficulty, on account of their age, in learning a new language. They have not as yet had the opportunity of developing a significant cultural attachment to Australia. They have family ties in Pakistan, their father’s mother and siblings living in that country.
47. In the opinion of the Tribunal the adverse conduct of Mr Arshid was very serious. The nature of it has already been outlined. It comprises falsity, provision of misleading statements and misleading information. It extended over a period of time. It was deliberate and made with the intent of misleading migration officials and the Minister. There is not any reason to believe, on the evidence, that Mr Arshid would not engage in the same, or a similar form of conduct, if the circumstances so warranted. The refusal to grant a visa may well dissuade others contemplating like conduct, and encourage potential visa holders to respect and proceed in accord with the law, and not by use of false documentation; this all in the interest of and for the protection of the Australian community. It is apparent that the best interests of the children would be served if their parents were living together. However, a refusal of a visa is not going to otherwise unduly affect such interest.
48. Having considered the seriousness of Mr Arshid’s conduct, and the protection and expectations of the Australian community, the Tribunal is of the opinion, and so finds, that these considerations outweigh the consideration of the best interests of the children.
49. Mrs Ahmad will experience hardship. This the Tribunal understands. The Tribunal is satisfied, however, that the primary considerations of the nature of the conduct, the protection and expectations of Australian community outweigh the other considerations.
50. Accordingly, the decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. R.N.J. Purvis AM QC
Signed: ..................[sgd]..............................................................
AssociateDates of Hearing 13 and 14 August 2007
Date of Decision 21 September 2007
Solicitor for the Applicant Mr A. Ajiz, A.H. Ajiz & Associates
Solicitor for the Respondent Ms T. Quinn, DLA Phillips Fox
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