Ali and Minister for Immigration and Multicultural Affairs - [2001] AATA 939

DECISION AND REASONS FOR DECISION [2001] AATA 939

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1490

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Sudha Ali
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date12 November 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Ms Sudha Latchmi Baram passes the "character test" under s 501(1) of the Migration Act 1958.
..............................................

Deputy President
CATCHWORDS
IMMIGRATION – Skilled-Australian linked Visa - character test – past and present general conduct – breaches of Australia's immigration laws - false and misleading information in application form for grant of visa – countervailing factors – exercise of the discretion – best interests of the child - hardship suffered by Visa Applicant and her family –expectations of the Australian community

Migration Act 1958: ss 417, 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)(ii)
Migration Regulations 1994: Schedule 2, clause 105.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

Robin Handley, Deputy President

This is an application by Sudha Ali ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 18 August 2000 to refuse the grant of a Class A J sub-class 105 Skilled – Australian Linked Visa to the Applicant's sister, Subha Latchmi Baram ("the Visa Applicant").
At the hearing, the Applicant was represented by Justin Smith, of Counsel, and the Respondent was represented by Zac Chami, Solicitor of Clayton Utz, Lawyers. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant, Sivaam Baram and Hala Tananoa, and in person by the Applicant, Shiu Shankar and Seema Baram.

BACKGROUND

Ms Latchmi was born in Fiji on 19 November 1958 and is aged 42. She is married to Sidam Baram and they have 4 children, Sevaam, a son born on 18 January 1977, Seema, a daughter born on 5 December 1979, Shivani, a daughter born on 30 October 1981, and Shivendra, a son born on 14 December 1985.
Mr Baram arrived in Australia on 2 November 1987 on a temporary entry permit and was granted a visitor visa. On 16 November 1987, he commenced work at the Shore Inn. On 16 February 1988, Ms Latchmi arrived in Australia with her four children on a temporary entry permit and was granted a visitor visa for three months. On 15 March 1988, she also commenced employment at the Shore Inn. Ms Latchmi continued to work at the Shore Inn until it closed on 21 December 1993. On 24 January 1994, Ms Latchmi started work at the Park Royal Hotel at Darling Harbour where she worked as a senior room attendant until August 1998.
On 24 May 1994, through Barlow & Co, her solicitors. Ms Latchmi lodged an application for refugee status together with an application for permission to work in Australia. On 1 September 1994, a Bridging Visa C was granted to Ms Latchmi. When this was initially granted without work rights, Ms Latchmi was advised to lodge a form 1005 to obtain work rights and these were granted on 23 December 1994. On 21 March 1995, a delegate of the Respondent notified Ms Latchmi that her application for refugee status had been denied. On 10 April 1995, Ms Latchmi applied for a review of this decision by the Refugee Review Tribunal ("the RRT") and, on 4 March 1996, the RRT affirmed the original decision. On 28 March 1996, through Barlow & Co, Ms Latchmi lodged an application under s 417 of the Migration Act 1958 ("the Act") for intervention by the Respondent. On 12 March 1997, the Respondent declined to intervene.
On 14 May 1998, Sevaam Baram was granted a sub-class 833 Change in Circumstance (residence visa) for which he had applied on 15 March 1996. He has since become an Australian citizen. Seema Baram also applied for a similar visa which was granted, and she became an Australian citizen on 7 November 2000 (A3).
After the Respondent refused to intervene under s 417 of the Act, it appears that a number of bridging visa Class Es were issued to Ms Latchmi and her husband. These enabled them to remain legally in Australia until 15 January 1999, when Ms Latchmi, her husband and their two younger children returned to Fiji.
On 25 January 1999, Ms Latchmi's application for a sub-class 105 visa was received by the Australian High Commission in Fiji. On 11 February 2000, the Department wrote to Ms Latchmi inviting her to comment on a finding that she was not of good character. On 27 March 2000, the Applicant's solicitors responded on behalf of Ms Latchmi. By letter dated 18 August 2000, a delegate of the Respondent notified Ms Latchmi of a decision to refuse the grant of a sub-class 105 visa. On 22 September 2000, the Applicant lodged an application for a review by this Tribunal.
RELEVANT LAW AND POLICY
Under s 501(1) of the Act, 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. The character test is set out in s 501(6) which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 105 visa. Clause 105.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a) the applicant satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Latchmi passes the "character test" having regard to her past and present general conduct, so as to be precluded from the grant of a sub-class 105 visa. If the Tribunal decides she does not pass the character test, it must decide whether to exercise the residual discretion under s 501(1) to, nevertheless, grant her a visa.
EVIDENCE
Subha Latchmi Baram (the Visa Applicant)
Ms Latchmi arrived in Australia on 6 February 1988 with her four children, Sevaam aged 9, Seema aged 7, Shivani aged 5, and Shivendra aged 18 months. Ms Latchmi started working soon after her arrival, although she knew that she did not have permission to work, in order to support her family by paying rent, electricity bills, school fees and medical bills, since they were not able to claim Medicare. Ms Latchmi said they came to Australia from Fiji because of the political problems in Fiji following the military coup lead by Colonel Rambuka in 1987 as a result of which she feared for her life and that of her children. Ms Latchmi and her family are Fijian Indian by background, and have been subject to taunts that they should go back to India, and that Fiji is not their country. Ms Latchmi said that she is afraid to remain in Fiji because stones have been thrown at her house and because, when she is walking in the street, her way is sometimes blocked by Fijians. She said it is also very difficult for Fijian Indians to find jobs. She did not, however, apply for a protection visa until 1994 because she was scared that she would be sent back to Fiji. She is now very sorry for having worked illegally.
Ms Latchmi said, at the time she came to Australia, she had two sisters, Vijay Nadam and Sudha Ali, and one brother, Shiu Shankar in Australia. Now, she has three brothers and two sisters in Australia, as well as her mother. Ms Latchmi said she is very close to her family in Australia as are her children. They used to get together on a regular basis, for example, on the weekends in the park. Her younger daughter, Shivani, and her younger son, Shivendra, miss their older brother and sister and other members of their family very much. They all keep in touch by phone.
Ms Latchmi and her husband are Hindu and, when they were in Australia, used to sometimes attend the Hindu Temple in Sydney. However, her children were brought up as Christians and attended the Seventh Day Adventist Church in Auburn. Ms Latchmi would sometimes go with them and also assisted with charity work for the church.
Ms Latchmi acknowledged that in her application to migrate to Australia, she answered "No" to the question "have you been excluded from or been asked to leave any country?" Ms Latchmi said that this was an oversight on her part for which she is very sorry. Her lawyers had completed the application form for her. She read the form through before signing it, but overlooked the answer to Question 70.
Ms Latchmi said she is not working in Fiji at the moment because it is very difficult to find a job. Neither of her children are attending school. Shivani was in Year 11 when they left Sydney, and Shivendra, who is now 15 years and 10 months and who has three years of schooling left to complete, has been told that there are no places available for him in Fiji. She said her children had adopted an Australian lifestyle and miss their family very much. Ms Latchmi also misses her two other children and they are all finding it very difficult being in Fiji.
Ms Latchmi said that while she is literate in English and can speak Hindi, she cannot read and write in Hindi because she was not taught at school. Ms Latchmi remembered that when she was granted a tourist visa to visit Australia, she signed a declaration that she would depart Australia at the time stated in her passport and that she would not seek employment in Australia. Ms Latchmi arrived in Australia with her children on 6 February 1988 and went to live with her husband, who had been in Australia since 2 November 1987. After the expiry of Ms Latchmi's visa on 6 May 1988, she remained in Australia unlawfully until granted a Bridging Visa C on 1 September 1994. He was living in Bondi and working, although he was also in Australia on a tourist visa. Ms Latchmi was aware that her three month visa expired on 6 May 1988. On 15 March 1988, she commenced working at the Shore Inn at Artarmon. She acknowledged that she had no intention of returning to Fiji at that time. She did not then seek a protection visa because she did not think that she was eligible for the grant of such a visa. Ms Latchmi said she obtained the job at the Shore Inn by completing an application form about a month after she arrived. This was the only job for which she applied. Her husband was also working there. Ms Latchmi did not tell her employer that she was in Australia on a tourist visa and they did not know that she was working illegally. Ms Latchmi worked at the Shore Inn for 5 years and 10 months until it was closed on 21 December 1993 and sold off as units.
In 1993, Ms Latchmi's husband, Mr Baram, applied for a protection visa including her and their children. The application was refused and an application for a review by the Refugee Review Tribunal (RRT) was lodged out of time by Mr Baram's solicitor. The RRT declined to extend the time for lodgement. Therefore, on 25 May 1994, Ms Latchmi lodged an application for a protection visa on the basis of similar claims to those which her husband had made in his earlier application. Ms Latchmi said that the application form was completed by her solicitors, although she acknowledged that she signed the statutory declaration at the end of the form. She admitted that the answers to some of the questions were incorrect: for example, in answer to Question 43, it was stated that her usual occupation or profession was housewife; in answer to Question 44, which requested details of her employment since leaving school, the answer given was "not applicable"; and, in answer to Question 45, where the appropriate answer was that she was working, the answer given was not applicable. Ms Latchmi agreed that, as a result, she had sworn a false declaration. She said, at that time, she was working at the Park Royal in Darling Harbour where, in March 1994, she had received an Excellence Award.
Ms Latchmi said that with her application, she also sought permission to work:
I wish to be able to help my husband support a family until our application for refugee status in Australia is finalised.

She agreed that the declaration given on the application for permission to work in Australia form signed on 26 April 1994 was also false in that she was already working at that time. Her solicitor completed the form on her behalf. Ms Latchmi said, after the Shore Inn closed, she was out of work for four weeks before got a job a the Park Royal. It was during this time that she lodged her protection visa application. In that application, she did not reveal that she had been working, because she was afraid that she would be sent back to Fiji. However, on 15 December 1994, she admitted that she had been working without permission.

Ms Latchmi was asked about details of her employment given in her application signed on 13 January 1999. The application shows her employment at the Park Royal as commencing in November 1994. Ms Latchmi said this was incorrect. She had started work at the Park Royal on the 24 January 1994. She said this must have been a mistake by the secretary who typed the form for her lawyers. Ms Latchmi said it was also a mistake that in answer to Question 70, whether she had been excluded from or asked to leave any country, the answer given was "No." Ms Latchmi acknowledged that before making her application for a protection visa in 1994, she had been working illegally. She said that after she received notification of the Minister's refusal to intervene, dated 12 March 1997, there followed a sequence of five or six bridging visas before she and her family left Australia. She agreed that, on each occasion, she promised the Department that she would be leaving soon and was in the process of arranging her affairs. On the last occasion, she asked for an extension of three months from 8 October 1998, to allow her children to finish school. She acknowledged that she was asked to leave Australia after the Minister had declined her request for his intervention in March 1997. Her husband had permission to work until December 1998.
When she and her husband saw Robyn Harris at the Department's Parramatta office on 30 July 1998, Ms Harris told them that they should obtain air tickets for their departure from Australia and present these so that they could be granted a bridging visa. Ms Harris also gave them the medical forms and police check forms to complete and lodge before their departure.
Ms Latchmi said in the period before she left Australia on 15 January 1999, her elder son, Sivaam, had been living with a friend for about a year and prior to that with Ms Latchmi's brother in Liverpool. Shortly before Ms Latchmi departed, Sivaam returned home to be with his sister Seema.
Ms Latchmi said she had not wanted to return to Fiji because of the continuing problems there and because she wants her children to be educated in Australia. She has complied with the requirements imposed by departmental officers and believes that her family have now been punished enough.
Seema Baram
Ms Baram said she is currently living with a girlfriend in a unit in Burwood. Ms Baram said she applied for a change of circumstance visa in December 1997, which was granted in April 1998, and she became an Australian citizen on 7 November 2000. She works for Wizard as a customer relations officer. Her brother, Sevaam, had applied for a similar visa in March 1996. She knew from his experience that in order for her application to succeed, she needed to move out of home and to live elsewhere. She therefore lived with her aunty in Parramatta for about one and a half years but moved back into her parents' home for the two months before they left. Ms Baram said had she not needed to establish that she was living elsewhere for the purpose of her visa application, she would have continued to live with her parents. It is the custom in their culture for children to live with their parents, especially girls who would not normally leave home until they are married. Ms Baram said if her parents return to Australia, she will move back in with them.
Ms Baram said her mother is a very caring, loving and supportive person whom she misses a lot. She was particularly supportive with regard to their education, attending parent teacher nights at their schools and helping with fundraising and charity work. Ms Baram is aware that her mother stayed and worked illegally in Australia, but she did it for her children. Her mother has always strived for a better future for her family in Australia, both economically and culturally because Australia is a multicultural community. Culturally, it has also been important for them to have close contact with their extended family. Ms Baram has three uncles and two aunts and a number of cousins in Sydney. They are close and have regular family dinners and BBQs. Even though Ms Baram is currently living with a girlfriend, she still sees her extended family about every second weekend. She is closest to her aunty, Sudha Ali and her family, and the cousins with whom she grew up.
Ms Baram said she speaks to her parents and brother and sister in Fiji by phone every weekend. She has not seen them for over two years. Her sister and little brother do not want to go to school in Fiji; they just want to return to Australia. Ms Baram said she went to Fiji for a two week holiday in June 1999 to spend time with her family. It was like going to a new country for her and she would not want to live there. They went out during the day, but not in the evening unless they were visiting family members. In part, it would be expected that unmarried girls do not go out at night because of the need to perfect their reputation. Ms Baram said she had discussed the political situation in Fiji with her parents, including the coups in 1987 and 2000. Ms Baram said she would not like to live there. She has made her life in Australia: this is where her friends are and she likes to go out. If her mother is unable to come to Australia, she will have to adapt to this.
Sivaam Baram

The Tribunal spoke by conference telephone with Mr Baram in Singapore. He said he was offered the opportunity to work in the hospitality industry in Singapore and will be there for about a year. He intends to return to Australia after this because Australia is his home and where he wants to live.
Mr Baram said that his mother is a person of good character. His parents came to Australia to ensure a better future for their children. The children were sent to a private school and his mother worked, in part to pay their school fees. She was entirely focused on the support of her family, working as a housemaid because she had not had any further education. He said he was not aware until he was older that his mother worked illegally.
Mr Baram said he spoke to his parents and younger brother and sister in Fiji last Sunday. He said they are a close family and, originally, when they arrived in Australia, they all lived together in a two bedroom flat. He said that he visited Fiji last year to see them all. It was dreadful in Suva – full of thugs. A Fijian man pushed him into a room of the street and tried to rob him. Indians often get mugged and there is no work and nothing for him there. Mr Baram said it is especially hard to be separated from his parents knowing that how they are living in Fiji. His mother barely smiled the whole time he was there. His brother and sister are just waiting to come back to Australia because they do not relate to the situation in Fiji. Mr Baram said he felt very sad about the situation, including for his little brother who, Mr Baram knows, looks up to him.
Mr Baram said that, culturally, his is a close but extended family and, in Australia, they would often visit their relatives on weekends. His application for a change of circumstances visa lodged on 15 March 1996, was made on the advice of their solicitor, Mr Barlow, because Mr Baram wanted to stay in Australia. Mr Baram agreed that the application was lodged two weeks after the RRT decision to affirm the refusal of his mother's protection visa application. In order to support his application, Mr Barton advised him to live with his uncle in Liverpool, which he did for about 14 months. However, he would see his parents at weekends and sometimes during the week. His sister Seema did something similar in support of her application for a visa. Mr Baram said that after he had obtained the change of circumstances visa, he went back to live with his parents. Mr Baram acknowledged that at the time he lodged the visa application, he signed a declaration to the effect that he was an independent person. He was working at Homebush Panel Beaters as an apprentice spray painter.
Shiu Shankar
Mr Shankar, who is Ms Latchmi's brother, said his sister was of good character. She is very caring of her family and children, for whom she is a loving mother. She was actively involved in her children's school – a private school – and its regular fundraising activities. She was also a supporter of her children's church activities. Mr Shankar said he was aware that his sister had worked illegally in Australia and agreed that this was probably for about six or seven years. However, in 1988 when his sister came to Australia after the coup in Fiji, she was afraid of returning to Fiji and thought Australia was a better place for her family. She worked illegally in order to support her family and make ends meet.
Mr Shankar said he has two children, Shiva aged 16 and Hannah aged 9. Shiva is about the same age as Ms Latchmi's youngest child, Shivendra, who is nearly 16. Shiva and Shivendra were very close and played soccer together from 1996 until when Shivendra left Australia in January 1999. Mr Shankar said that he had a very good relationship with Shivendra because he used to take Shiva and Shivendra to Milperra to their soccer training and to soccer games. Shiva and Shivendra would spend weekends together and now miss each other very much. They talk on the phone when Mr Shankar phones his sister in Fiji, which is about once a forthright. Mr Shankar's daughter, Hannah, also remembers his sister's family, especially Shivani, who is now aged 20, who used to play with Hannah when she was a little girl. When his sister and her family lived in Australia, he would see them about once a week, either at a prayer meeting or family get-togethers.
Sudha Ali (the Applicant)
Ms Ali, who is Ms Latchmi's sister, said her sister is a person of good character. She is humble, friendly, generous, and hardworking. Ms Ali is aware of her sister having worked illegally in Australia, but she did this in order to survive and support her four children. Ms Ali said her sister is generous in the sense that she is very giving and loving. While she was in Australia, she would provide meals for the family and would give her support for fundraising for the children's school and their church.
Ms Ali said she has two children, Falisha, aged 13 and Imran, aged 10. She used to see her sister and family regularly, sometimes every weekend. Her sister's younger son, Shivendra, used to play with Ms Ali's two children, especially when they lived close by in Auburn. When Ms Ali moved to Mount Druitt, they would still often get together at weekends. Generally, there used to be a lot of family gatherings, often weekly. She particularly misses her sister when they have religious celebrations because of their closeness.
Ms Ali said she keeps in contact with Ms Latchmi by phone, either weekly or fortnightly, and the children also like to talk and say they miss each other. Ms Ali believes that currently in the circumstances in Fiji, Fijian Indians are treated like second class citizens and her sister's family fear to go out of the house.
Hala Tananoa
Mr Tananoa said Ms Latchmi is a friend whom he has known for approximately 11 years. He considers her to be a person of good character: honest, trustworthy, humble and loving. He was not aware that Ms Latchmi worked in Australia without a visa, but said, nevertheless, that he still believed her to be a good person. Ms Latchmi trusted the Seventh Day Adventist Church to which she took her children in Auburn, and, even though she was not of that faith, she supported their being involved in church activities. Mr Tananoa said he has been the youth leader at the church for three to four years but has worked with the youth group for five to six years. Her children were part of that youth group and Mr Tananoa considered them to be committed and good young individuals.
SUBMISSIONS
The Applicant
Mr Smith, for the Applicant, submitted that there were two questions for the Tribunal: first, whether Ms Latchmi is of good character and, secondly, if not, whether the discretion in s 501(1) should be exercised in her favour. Mr Smith contended that if the circumstances are examined, it is clear that Ms Latchmi is of good character. He referred the Tribunal to paragraph 1.9 of Direction No. 21 with regard to assessing Ms Latchmi's past and present general conduct pursuant to s 501(6)(c)(ii). Mr Smith noted there are two relevant matters to consider: first, breaches of immigration law and secondly, any false or misleading statements. Mr Smith acknowledged that it is clearly a breach of immigration law to work illegally and that Ms Latchmi does not deny having worked illegally and apologises for having done. However, paragraph 1.9 requires the consideration of any countervailing factors. Ms Latchmi had testified as to her fear of persecution as a Fijian Indian and as to the economic conditions in Fiji in the aftermath of Colonel Rambuka's 1987 coup. Ms Latchmi's fear of persecution is not in doubt. For example, the delegate who considered her protection visa application accepted that (T23, p150):
When the Applicant departed Fiji in early 1988 with her family she held a subjective fear of persecution and continues to do so.
Mr Smith noted physical abuse is not necessary to establish that a person is a refugee. Moreover the RRT, despite affirming the refusal of her visa application, accepted that Ms Latchmi had a subjective fear of persecution (T26, p171):
It is clear from the Applicant's evidence at the Tribunal that she and her family developed some subjective fear as a result of the general insecurity created by the 1987 coups in Fiji.

Mr Smith said this subjective fear explains why Ms Latchmi came to Australia and why she worked illegally. Her motivation was not selfish. It was to protect and support her family. In relation to her protection visa application, Ms Latchmi thought that if she admitted to having worked illegally in Australia, she would lose her job and have to go back to Fiji. However, when in December 1994, Mr Latchmi applied for a bridging visa and for permission to work, she disclosed that she and her husband were working without permission in order to support their family. Mr Smith agreed that by working illegally and making a false statement, Ms Latchmi committed an offence, but, he contended, there were mitigating circumstances.

With regard to Ms Latchmi's most recent visa application lodged on 25 January 1999 (T37), Mr Smith noted the application had been prepared for Ms Latchmi by her solicitors. It was an oversight to answer No. to Question 70, "Have you, your spouse or any of your dependent children or other dependents ever been excluded from or asked to leave any country (including Australia)?" However, Ms Latchmi did reveal in other answers that she had been in Australia on the basis of a visitor's visa and gave details of her having worked in Australia. Mr Smith noted that there was a mistake in the dates given for her having worked at the Park Royal at Darling Harbour. The stated dates were November 1994 to August 1998, when, in fact, Ms Latchmi started work at the Park Royal in January 1994. Mr Smith said an experienced departmental delegate would have realised the significance of such information in the context of the document as a whole, and these mistakes should be accepted as a mere oversight for which Ms Latchmi also apologised. Mr Smith also referred to the Departmental Minute by Robyn Harris dated 30 July 1998 (A1) which he said revealed that Mr Baram and Ms Latchmi were attempting to work within the migration system by contacting the Department and taking their advice as to what courses of action were open to them.
Apart from these countervailing factors which should be taken into consideration with regard to Ms Latchmi's character, Mr Smith said there was other evidence of good character. Mr Tananoa, the youth leader of the Auburn Seventh Day Adventist Church admired her character in bringing her children to the church, even though she is a Hindu. He did not waiver in his opinion, even when he learned she had worked in Australia illegally. Moreover, Ms Latchmi's daughter, son, brother and sister all told of Ms Latchmi's generosity towards her family and of their close family relationships. Mr Smith said this indicates that the migration offences are not representative of her otherwise good character.
Mr Smith submitted that even if the Tribunal finds Ms Latchmi does not pass the character test, it should exercise the discretion in s 501(1) in her favour to issue a visa. He referred the Tribunal to Part 2 of Direction No. 21 and, in particular, the requirement in paragraph 2.2 that the Tribunal should "adopt a balancing process which takes into account all relevant considerations". With regard to the first of the primary considerations which the Tribunal must consider, "the protection of the Australian community", Mr Smith noted the only relevant examples of serious offences referred to in paragrapgh 2.6 are "serious crimes against the Migration Act". He submitted that making false or misleading statements was not in the same category as the other offences listed. There is also no likelihood of recidivism. If Mr Latchmi is granted a visa, she will be able to work legally in Australia. In any event, Ms Latchmi has apologised for working illegally and, in December 1994, disclosed that fact. With regard to other incorrect statements in Ms Latchmi's current application, Mr Smith said these were as a result of a mistake and were unlikely to be repeated.
With regard to general deterrence, Mr Smith submitted that the particular circumstances in which Ms Latchmi fled Fiji because of her fear of persecution and in order to protect her family, were circumstances such that a person would be unlikely to be deterred by the refusal of a visa. He submitted that the attitude of Mr Tananoa could be seen as "representative of the expectations of the Australian community", the second of the primary considerations. Mr Tananoa's attitude was one of forgiveness and understanding given Ms Latchmi's background and his knowledge of her character.
Mr Smith said the third of the primary considerations, "the best interests of the child", were of significance in this matter. Shivendra Baram, now aged 15, lived in Australia from the age of 18 months until he left Australia in January 1999. The age of 15 or 16 is a difficult time for children when they have a particular need for support and guidance from members of their family. Shivendra has lived most of his life in Australia, his family and friends are largely here, such as his cousin Shiva Shankar with whom he played in a soccer team. Shivendra has only ever been to school in Australia. He has not been able to return to school in Fiji and there is still uncertainty in Fiji over the future of Fijian Indians. Shivendra is separated from his older brother and sister who are Australian citizens and from his extended family with whom he was involved in family get-togethers at weekends on a regular basis in Australia, and who are an important part of his cultural background. Shivendra does not understand the situation in Fiji and only wants to return to Australia to resume his life here. Mr Smith submitted that it is in Shivendra's best interests to return to Australia to resume his education here and the close relationships with other members of his family and with his friends.
Of the other considerations to which the Tribunal should have regard, Mr Smith said these had mostly been dealt with under other heads. However, he drew attention to the disruption to Ms Latchmi's family ties in Australia. Ms Latchmi has five siblings, eight nieces and nephews, and two of her four children who are Australian citizens. Her mother is also currently in Australia and has applied for residency. Mr Smith said Ms Latchmi's younger daughter, Shivani who is nearly 20, also has the same relationships and connections with Australia. Other aspects of Ms Latchmi's character, in particular her over-reaching concern for her family and her generous and charitable nature, should also be taken into consideration.
The Respondent
Mr Chami, for the Respondent, noted that both Ms Latdhmi and her husband commenced working within a short time of entry into Australia on tourist visas, a condition of which was that they should not work. It is an offence punishable by a fine for a temporary visa holder to undertake employment in Australia. The maximum applicable fine in the period 1987 to 1989 was $1,000, was increased to a maximum of $5,000 in 1989, and in 1992 to $10,000. This is a recognition to the seriousness attributed to such a breach of visa conditions.
Ms Latchmi did not lodge her protection visa application until five years and nine months later. Mr Chami noted that both the departmental delegate and the RRT found that Ms Latchmi's fear of persecution was not well-founded. The RRT noted Ms Latchmi's evidence that she did not suffer any physical harm during or after the military coup in 1987. Mr Chami submitted Ms Latchmi's lodging of a protection visa application was a clear abuse of the migration system. He noted that her two older children, Sivaam and Seema both applied for a change of circumstances visa and, in order to support their applications, moved out of their parents' home to live with other family members. However, once those visas had been granted, they moved back in with their parents. Mr Chami said the history of Ms Latchmi and her family's migration applications were one of manipulating the system to their advantage.
Mr Chami noted that Ms Latchmi had made a number of false declarations and misleading and deceptive statements in her visa applications. These constitute an offence under s 487 of the Act punishable by imprisonment for up to six months. On the basis of the above evidence, Mr Chami concluded that Ms Latchmi is not of good character.
Mr Chami said that if the Tribunal finds Ms Latchmi is not of good character, then it must consider exercise of the discretion in s 501(1) of the Act. In doing so, the Tribunal should have regard to Direction No. 21 and the three primary considerations and the other considerations set out therein.
With regard to the first of the primary considerations, the protection of the Australian community, Mr Chami stated that Ms Latchmi had committed a serious crime against the Act of making a false or misleading statement in connection with entry or stay in Australia. An example is her failure to give details of her employment in Australia in her application for a protection visa lodged on 21 May 1994, which also, therefore, involved a false declaration and an offence under the Statutory Declarations Act. Mr Chami acknowledged the circumstances of Ms Latchmi coming to Australia in early 1988 after the military coup in Fiji. However, he said Ms Latchmi had agreed that her claims of persecution in respect of the coup were exaggerated. Mr Chami noted it was not an answer to explain the inclusion of incorrect information in migration application forms by saying that the form had been completed by someone else.
Mr Chami noted that on about 8 October 1998, Ms Latchmi was asked to leave Australia. Ms Latchmi was issued with bridging visas on a number of occasions after ministerial intervention was refused and, on each occasion, she said she would be returning to Fiji shortly. However, she did not return to Fiji until 15 January 1999.
Mr Chami submitted that there was a possibility of Ms Latchmi committing further migration offences based on her history of breaches of the Act, false declarations and misleading and deceptive statements made to the Department. He said that the refusal of a visa to Ms Latchmi would deter similar conduct by like- minded persons. Mr Chami said the expectation of the Australian community is that visitors who are granted short-term visas should abide by Australian law and the conditions imposed by the visas. Ms Latchmi had shown disrespect for and had breached Australian law within a short time of entry.
With regard to the best interests of any children under the age of 18, Mr Chami noted that Shivendra is currently 15 years of age. Paragraph 2.15 of Direction No. 21 states that "the child's best interest would be served if the child remains with its parents" . Paragraph 2.16 requires decision-makers to have regard to a number of factors including the age of the child – Mr Chami submitted that Shivendra is almost an adult and the time that the child has spent in Australia. Mr Chami acknowledged that Shivendra had been 2 years of age when he entered Australia and had lived her until 2 ½ years ago. Other factors to be considered include educational facilities, the health system and language and cultural barriers. Mr Chami said Shivendra is a child of Fijian Indian origin and there is no evidence as to language barriers, or barriers related to the health and education systems.
With regard to other considerations, Mr Chami noted that Ms Latchmi's two older children, Sivaam and Seema, are adult and living independently. Even though Seema is an unmarried woman, and evidence was given of cultural expectations that an unmarried girl/woman would continue to live with her parents until marriage, nevertheless, Seema had lived with her aunt for an extended period and had now chosen to live independently with a girlfriend. Mr Chami also noted Ms Latchmi's extended family in Australia. He submitted that these other considerations were outweighed by the primary consideration of the protection of the Australian community.
FINDINGS

There is no dispute that Ms Latchmi worked illegally in Australia from 15 March 1988 when she commenced employment as a housemaid with the Shore Inn Hotel until December 1994 when she was granted a Bridging Visa C with work rights. The Tribunal accepts Ms Latchmi's evidence that her motivation in coming to Australia was to escape the aftermath of the military coup in Fiji in 1987 and her fear of persecution as a Fijian Indian. In the Tribunal's view, that this fear was a subjective one does not mean that it was not real for Ms Latchmi. The Tribunal notes Ms Latchmi's particular focus on securing a safe environment for the upbringing and education of her children and accepts that she worked in order to provide financial support for her family including that required for their education.
On 24 May 1994, Barlow & Co Solicitors, lodged an application for a protection visa on behalf of Ms Latchmi. This application was completed by Barlow & Co. and signed by Ms Latchmi. In the application, Ms Latchmi declared that she was a housewife and not working, which was untrue. At the time, she was working at the Park Royal Hotel in Darling Harbour. On 22 December 1994, through her solicitor, Ms Latchmi lodged an application for a bridging visa and permission to work. She revealed that she was working without permission in order to support her family. A bridging visa C and permission to work was granted on 23 December 1994. After the RRT affirmed the decision to refuse Ms Latchmi's application for a protection visa on 4 March 1996, Ms Latchmi and her husband pursued other legal avenues in order to remain in Australia. The Tribunal notes the Departmental Minute dated 30 July 1998 (A1), which records their seeking information about how to remain in Australia legally and is an indication of their desire to comply with Australia's migration requirements. Although a number of bridging visas were issued around this time, the Tribunal accepts Ms Latchmi's evidence that she sought to remain in Australia until the end of 1998 in order to enable Shivani and Shivendra to complete the school year. Ms Latchmi and her husband and two children left Australia in accordance with their visa on 15 January 1999.
The Tribunal notes the evidence as to Ms Latchmi's support for her children's education, including assisting with fundraising for their private school, and in support or their church activities with the Seventh Day Adventist Church, even though Ms Latchmi and her husband are Hindus. The Tribunal also notes the evidence of Ms Latchmi's family members as to her support for their extended family in Sydney and participation in regular family get-togethers. Ms Latchmi has three brothers and two sisters who are Australian citizens and live in Australia with their families. Ms Latchmi's two older children, Sivaam and Seema are also Australian citizens: Seema lives in Sydney; Sivaam regards Sydney as his home, but is currently working in Singapore gaining experience in the hospitality industry.
After her return to Fiji in January 1999, Ms Latchmi submitted an application for a sub-class 105 permanent visa to enable her to migrate to Australia with the remaining members of her family. The application was sponsored by Ms Latchmi's sister, Sudha Ali. The migration application form was completed for Ms Latchmi by her solicitors, Parish Patience. The details provided of her employment history stated incorrectly that she worked for the Park Royal at Darling Harbour from November 1994 rather than late January 1994. Ms Latchmi also answered "No" to Question 70 which asked whether she, her spouse, her dependents had ever been asked to leave any country (including Australia). The Tribunal accepts that Ms Latchmi relied on her solicitors to accurately complete the forms on the basis of information provided by her and this incorrect information was inadvertent. Nevertheless, the Tribunal acknowledges that Ms Latchmi declared that the information provided in response to the questions, including specifically in response to Question 70 was, true and correct.
The Tribunal notes that Shivendra Baram was aged 2 years when he arrived in Australia in February 1988. He remained in Australia until returning to Fiji on 15 January 1999 at the age of 13. His education and upbringing have been mostly in Australia where most of his friends and family are located and that he has therefore suffered hardship as a result of his having to return to Fiji. Shivani, who is now aged nearly 20, has been similarly affected. The Tribunal also accepts that hardship has been caused to Ms Latchmi and her husband as a result of their having to return to Fiji and their being separated from their two older children and extended family in Australia.
APPLICATION OF THE LAW
The Respondent contends that Ms Latchmi, by reason of her past and present general conduct and the application of s 501(6)(c), is a person not of good character and is, therefore, a person who does not pass the character test in s 501(1).
What is meant by "good character" has been the subject of discussion in a number of Federal Court and Tribunal decisions. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501 (2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277)
The Tribunal must also have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, Ms Latchmi does not pass the character test, it will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that Ms Latchmi does not pass the character test. In so doing, the Tribunal will have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Firstly, with regard to whether Ms Latchmi is of good character, the Tribunal had regard to paragraph 1.9 of Part 1 of Direction No. 21. This states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, if relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs (a) and (b) which direct the decision-maker to consider:
(a) Involvement in activities such as…. breaches of immigration law; or…
(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, or false or misleading declaration;

Ms Latchmi acknowledged that she was in Australia unlawfully after the expiry of her visitor's visa on 6 May 1988 until her bridging visa C was granted on 1 September 1994. She also worked unlawfully from 15 March 1988 until 23 December 1994. Ms Latchmi apologised for her unlawful actions and these breaches of Australia's immigration laws but explained her action in doing so by reference to her fear of persecution in Fiji as a Fijian Indian following the military coup in 1987, and the need to secure a safe and stable future for her children. The Tribunal accepts her not lodging an application for a protection visa until 1994 was by reason of her fear that she would be returned to Fiji. Thus, in relation to paragraph 1.9(a) and Ms Latchmi's breach of Australia's immigration law, there are countervailing factors related to the coup in Fiji.
With regard to paragraph 1.9(b), while Ms Latchmi's application for a protection visa lodged on 25 May 1994 and her application for migration to Australia on 25 January 1999 contain incorrect information, as the Tribunal has found above, these application forms were completed by Ms Latchmi's solicitors. In the case of the 1999 application, the Tribunal accepts that what Ms Latchmi described as a mistake, was not deliberate, albeit that she must bear responsibility for this incorrect information.
Paragraph 1.9 provides that matters such as those set out in paragraph 1.9(a) and (b), in the absence of any countervailing factors, constitute a failure to pass the character test. In Ms Latchmi's case, there are countervailing factors that, in the Tribunal's view, are sufficient to outweight the evidence that Ms Latchmi is not of good character by reason of her breaches of Australia's immigration laws and her having made a false and misleading statement. Some of the countervailing factors are referred to above, but the Tribunal also had regard to other evidence of Ms Latchmi's good character. Particularly, that in relation to her support of her family, her support of her children's private school and church and the other evidence in the T Documents, including references from former employers, at the Shore Inn and Park Royal at Darling Harbour, and letters of support from members of Ms Latchmi's community in 1993 and evidence given at the hearing. Thus, there is sufficient countervailing evidence to justify a conclusion that Ms Latchmi does pass the character test. The Tribunal also notes that the incidents involving breaches of Australia's immigration laws occurred at least seven years ago and there have been no other incidents involving breaches of those laws in the interim. The Tribunal has noted that the incorrect information given in the 1999 application form was as a result of its completion by Ms Latchmi's solicitors and the Tribunal accepts that she had no intention to mislead.
Even if the Tribunal were to find that Ms Latchmi did not pass the character test and then proceed to consider the exercise of the discretion in s 501(1) to grant a visa, the Tribunal would determine that the discretion should be exercised in her favour. In particular, the Tribunal would have regard to the third of the three primary considerations to which decision-makers are directed by paragraph 2.2 of Direction No. 21. This consideration is the "best interests of the child." Paragraph 2.16 states that when considering the best interests of the child, decision-makers should have regard to a number of factors including the age of the child and the time (if any) that the child has spent in Australia. The Tribunal has found that Shivendra Baram has been adversely effected by his parents' return to Fiji and, is of the view, that his best interest would be served by his parents and sister returning to Australia.
With regard to the other considerations to which a decision-maker is directed by paragraph 2.17, which where relevant will generally be given less individual weight than that given to the primary considerations, the Tribunal had regard to the hardship suffered by Shivani who is now aged 19, and to Ms Latchmi. They are living in Fiji following a second coup in circumstances where Fijian Indians are again being discriminated against by the Government, and where they are separated from the two older children of the family who are Australian citizens and Ms Latchmi's extended family who are also Australian citizens and live in Australia.
The Tribunal recognises the importance of unlawful entry into and unlawful employment in Australia not being condoned, and of others being deterred from committing similar offences. Nevertheless, in the circumstances of the present case, Ms Latchmi has been sufficiently punished for her past unlawful conduct and should be permitted to reunite with her family in Australia. In the Tribunal's view, the expectations of the Australian community would be that Ms Latchmi should be permitted to reunite with her family in Australia.
The Tribunal, therefore, sets aside the decision under review and remits the matter to the Respondent with a direction that Ms Latchmi passes the "character test" referred to in s 501(1) of the Act.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing   24 & 25 September 2001
Date of Decision   12 November 2001
Counsel for the Applicant         Mr J Smith
Solicitor for the Applicant          Mr N Dobbie, Parish Patience Solicitors
Solicitor for the Respondent    Mr Z Chami, Clayton Utz Lawyers