Alwi and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 442
•17 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 442
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/588
GENERAL ADMINISTRATIVE DIVISION ) Re AZIZAH ALWI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date 17 May 2005
Place Sydney
Decision The decision under review is affirmed.
[Sgd] Deputy President J Block
CATCHWORDS
IMMIGRATION – spouse visa application – whether Visa Applicant is of good character – application for spouse visa rejected on the basis of not of good character – overview of evidence – consideration of Applicant’s evidence – Visa Applicant’s evidence via telephone – discretion not exercised – decision under review affirmed.
Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Cai Lian Su and MIMIA [2005] AATA 107
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029
Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148
Migration Act 1958 – sections 234, 235 and 501
Ministerial Direction 21
REASONS FOR DECISION
17 May 2005 Deputy President J Block PART A – INTRODUCTION AND GENERAL
1. The decision which is under review is the refusal (by a delegate of the Respondent) on 28 April 2004 of a spouse visa applied for by Hadun Alwi (“the Visa Applicant”); that application was sponsored by his wife, Azizah Alwi, who is the Applicant.
2. The Applicant was represented on the first two hearing days (1 and 2 November 2004) by Mr R Turner of Tzovaras Legal. The matter was part heard at the end of those two days and was adjourned to a date to be arranged. Having regard to evidence by Mr Udal given during the afternoon of the second day, and in particular in relation to certain photographic evidence, Mr Turner indicated that he would in all probability wish to recall the Applicant who had by that stage completed her evidence. A Directions Hearing was convened in March 2005, at the request of the Respondent, and because the matter had not been again set down for further hearing. It was then, by agreement between the parties, listed to be heard by way of Resumed Hearing on 4 May 2005. Mr Turner indicated at the Directions Hearing that he did not then know whether the Applicant wished to proceed. In the result Mr Turner advised the Tribunal that he would not be appearing on 4 May 2005 but that the Applicant would herself appear. On 4 May 2005 the Applicant was self- represented; her English is, despite the fact that she has been in Australia for many years, far from perfect and so much so that the Tribunal indicated that, notwithstanding the delays which had already occurred, it might, subject to any objections by Mr Allatt, be prepared to grant her a further postponement in order to enable her to obtain legal representation. The Applicant said in reply that she would be prepared to incur the expense only if she were guaranteed success; she said also that neither she nor the Visa Applicant had the means required to obtain legal assistance. The Applicant was assisted by an interpreter in the Indonesian language. Mr Murray Allatt of the Australian Government Solicitor appeared for the Respondent throughout.
3. The Tribunal accepted the tender of the T-documents (in two Volumes and marked Part 1 and Part 2 respectively) and also two sets of Supplementary T-documents, all lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. References preceded by “T” relate to the T-documents proper; it is unnecessary to refer separately to Parts 1 and 2 because Part 2 is numbered sequentially after Part 1. References preceded by “S1” refer to the Supplementary documents consisting of 80 pages; references preceded by “S2” refer to the Supplementary documents consisting of 31 pages. The “S2” documents relate in the main to Alwi Bin Hadun Almohdar (and other similar names); as will be seen, the evidence before the Tribunal was such that it is considers that it is likely that Alwi Bin Hadun Almohdar and the Visa Applicant are one and the same, and moreover that. Alwin Ramadar and Irwin Almohdar are other names used by him (S page 2-14).
4. The Tribunal in addition accepted into evidence a number of Exhibits as follows:-
Exhibit A1 is a supplementary medical report by Dr Brendan O’Sullivan dated 14 October 2004. Dr O’Sullivan was not required for cross-examination; Exhibit A1, which is brief, reads as follows:
“I am writing to update my report of 21 July 2003.
Mrs Azizah Alwi continues to see me. She is an Australian citizen. She remains on long-term antidepressant medication.
Her continuing symptoms are exacerbated by her being without any local support. I consider that her medical situation would vastly improve if her absent husband was able to join her here in Sydney to provide that support.
Can I ask that you give your most urgent attention to her husband’s visa application.
Yours faithfully,
Dr Brendan O’Sullivan”.
Exhibit A2 is a photograph (referred to as the “yellow dress” picture).
Exhibit A3 is a photograph (referred to as the “motorcar” picture).
Exhibit A4 is the report of an interview of the Visa Applicant which took place in Jakarta on 11 September 2002.
Exhibit A5 is a sheet containing two photographs in colour of (so the Respondent contends) the Visa Applicant. The right hand photograph depicts him without a beard or moustache; the left hand photograph depicts him with both beard and moustache.
Exhibit A6 is a sheet containing two photographs in black and white of (so the Respondent contends) the Visa Applicant. The hairstyle in the right hand photograph differs from that in the left hand photograph.
Exhibit A7 contains three photographs where the middle photograph is of the Visa Applicant who is flanked on either side by the Applicant and by the Visa Applicant’s son, Mustafa. In his spouse visa application the Visa Applicant included his son, Mustafa (then aged 20), for entry to Australia. T, pages 294 to 295, relate to a letter from the Demography and Registry Office to the effect that the birth certificate provided in respect of Mustafa was false.
Exhibit A8 consists of pages from a driving licence issued in November 2002 to Alwi Almohdar of Unit 6 / 175 Haldon Street, Lakemba NSW 2195. On the reverse side of the driving licence is an “official change of address label” which indicates the address as being Unit 13, 25 George Street, Marrickville NSW 2204.
Exhibit A9 consists of a number of documents tendered by the Applicant on the third hearing day. They include, inter alia, a number of statements all dated 22 December 2004 by the Visa Applicant. One of them states that the Visa Applicant used the name Valerio Manuel Gonzalez when he was at school. Another specifies that he lived at Unit 6 / 175 Haldon Street, Lakemba, from March 2000 until the end of 2000 with Raziz Kahn and his wife Hallima and their daughters. Yet another sets out that the Visa Applicant did not live at 13 / 12 George Street, Merrickvill [sic].
Exhibit A9 also includes photocopies of extracts from passports of Maria Theresa Gonsalvez, (“Maria”), Carla Manuella Gonsalvez Jordao d Rallo and Elis Manuel Gonsalvez Tilar; in his evidence the Visa Applicant referred on many occasions to Maria and her family and the help which he alleges he gave them in East Timor. The passport extracts were tendered without any explanation of their relevance (if any).
Exhibit A9 also included two documents in the Indonesian language which of course the Tribunal cannot understand.
Exhibit R1 is a draft letter by Mr Allatt to Mr Turner dated 19 November 2004 (sent in fact as to the first part only to Mr Turner) together with certain records and screen dumps in connection with (Alwi Bin Hadun Almohdar, Erwin Almohdar and Alwi Almohdar).
Although Exhibit R1 was not sent in the form in which it was tendered, it contains in Clauses 2 – 5 information relevant to this case and reading as follows:
“2.I now enclose copies of movement records and screen dumps in connection with the names of Alwi Bin Hadun Almohdar, Irwin Almohdar and Alwi Almohdar (also spelt Al Mohdar).
3.You will note that the last date of departure for Alwi Bin Hadun Almohdar was 14 March 1992. There is no record of him returning to Australia. However there are numerous records of Mr Irwin Almohdar arriving and departing from Australia between 3 January 1994 and 12 March 1997. There is no record of Irwin Almohdar having departed Australia after 12 March 1997. Your client Alwi Hadun arrived in Australia on 20 February 2000.
4.In reference to the material contained in the Supplementary Section 37 Documents, it is to be noted that Alwi Almohdar, the protection visa claimant, “claims to have arrived in Australia in May 1993 as a crew member aboard the Japanese vessel Zokar and jumped ship in Perth WA” (S47). For the purpose of that decision the decision maker accepted that that was so. This Alwi Almohdar, having claimed to have arrived in 1993 only lodged a protection visa application in 1996. That application was disposed of by the RRT in April 1998. (S63). Only in April 2001 (after the arrival in Australia of Alwi Hadun) does Alwi Almohdar pursue his PV application via a section 417 letter to the Minister. (T78).
5.It should be noted that in this letter to the Minister (T78) Mr Alwi Almohdar claims to have been in Australia since 1989. However in the supplementary documents it is plain that he claims to have arrived in Australia only in May 1993 as a crew member aboard ship and that he jumped ship in Perth, WA. That Alwi Bin Hadun Almohdar and Alwi Almohdar are one in the same is evidence because the date of birth given on the Department movement records is 11 November 1961 and the decision of the delegate at S47 notes the date of birth 11 November 1997 for Alwi Almohdar but that the date appeared to have been manually altered from 1961.
Yours sincerely,
Murray Allatt
Senior Lawyer”
5. The Respondent’s Statement of Facts and Contentions dated 22 October 2004 contains the usual helpful chronological survey under the heading “FACTS” and reading as follows:
“FACTS
Date Event
4/6/1963 Visa Applicant was born in Indonesia [T4, f48 and f61] NOTE:
It is alleged that the Visa applicant in other applications under
Other names has given his birth date as 11/11/1967 [S1, f1 &
41] and 8/6/1963 [T2, f7] – See below re tourist visa
Application.
5/2/1955 Review Applicant was born in Indonesia [T13, f119]
21/08/1996 Review applicant obtains Australian citizenship [T11, f110]
20/02/2000 Visa Applicant arrives in Australia under current identity on 1
Month tourist visa [T4, f66]
3/4/2000 Visa Applicant lodges PV application [T4, f37] claiming to be a
“rebel” and pro East Timor [f38]. He also claims to be a ‘social
Worker’ [f49]. Further, he claims to be Muslim by religion [f49].
He claims to have undertaken numerous “holidays” in 1996 to
1999 as evidenced by his passport stamps [f64]. He is listed
In his passport as a “trader” [f68]
30/10/2000 Visa applicant’s PV application rejected [T5, f70 to 77]
December
2000 Review applicant and Visa applicant meet [T13, f113]
25/03/2001Review applicant and Visa applicant undergo “religious” marriage [T13, f113]
12/4/2001The visa applicant writes to Minister Ruddock under the alias of Alwi Almohdar addressing his letter from 8 / 175 Lakemba Street, Lakemba, NSW, 2195. He notifies his post address as PO Box 113, Lakemba, NSW 2195 [T6, f78]. This is the same postal address as that notified to the RRT of “Alwi Hadun” the PV applicant by letter dated 18 July 2001 [T7, f79].
27/6/2001The RRT refuses the visa applicant’s PV application [T7, f82]
2/8/2001Solicitors acting for the visa applicant on his PV claim write to the Minister seeking s, 417 review [T8, f92]
18/08/2001Visa applicant and review applicant marry [T11, f107]
17/12/2001Visa applicant’s solicitor writers to the Minister to advise of marriage [T11, 106].
23/01/2002Department advises visa applicant’s solicitor that s 413 application rejected and that visa applicant should attend department officers to arrange departure. [T12, 112]
27/03/2002Visa applicant departs Australia [T37, 307]
22/04/2002Application for spouse visa dated 30/01/2004 lodged with Australian Embassy, Jakarta [T14, f221]
7/05/2002Letter received for community member advising allegations that visa applicant has travelled to Australia on false passports [T15, f223]. Correspondence from the Indonesian Consulate, Sydney, dated 3 December 1998, details three of the false names alleged to have been used by the visa applicant. The name Alwi Almohdar is the name contained in the Supplementary Documents. Following that correspondence at [f227] is another letter from a member of the community detailing allegations of identity fraud by the visa applicant.
19/03/2003Letter from “Demography and Registry Office” advising that birth certificate provided in connection with “Mustafa” a claimed dependant of the Visa applicant is false. [T27, f294 – 295]
09/12/2003Letter from Department to visa applicant detailing Mustafa birth fraudulent and advising of allegations of identity fraud [T31, f299]
8/01/2004Letter from Visa applicant’s agent responding to s. 501 letter [T34, 307]
28/04/2004Delegates decision refusing spouse visa on Character and discretionary grounds [T2, f 5-9]
21/05/2004Application to AAT [T1, f1]”
6. As a matter of balance I included Clauses 1 to 10 of the Applicant’s Statement of Facts and Contentions, undated but date stamped in the Tribunal on 30 September 2004 as follows:
“1. The Visa Applicant was born on 4 June 1963 and is a citizen of Indonesia.
2.He arrived in Australia on 20 February 2000 as the holder of a visitors visa, valid until 20 March 2000.
3.On 3 April 2000, he applied for a protection visa. This application was refused on 30 October 2000.
4.On 27 November 2000, he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the decision on 27 June 2001.
5.On 18 August 2001, the Visa Applicant and the Applicant, an Australian citizen, were married.
6.On 4 September 2001, the Visa Applicant applied to the Minister for Immigration and Multicultural and Indigenous Affairs to exercise the discretion contained in the Migration Act 1958 (the Act) s.471.
7.On 7 January 2002, the Minister declined to exercise the discretion.
8.He then held a number of Bridging Visas up to the time of, or about the of, his departure from Australia on 27 March 2002.
9.He lodged an application for a “spouse” visa in Jakarta on 22 April 2002. This application was rejected on 28 April 2004.
10.On 18 May 2004, the Applicant applied to this Tribunal for a review of that decision”.
7. It is convenient to include in this Part A, a part of the report (which is lengthy) of an interview of the Visa Applicantin Jakarta on 11 September 2002. Pages 2 and 3 as to his various names read as follows:
“MS BROWN: This is a record of interview between Felicity Brown, Senior Migration Officer, and Alwi Hadun, applicant. The interview starts at 2:07pm on the 11th of September 2002. Thanks for coming, Alwi. Now could you please give me your full name and your date of birth please?
MR HADUN: Alwi Hadun. Date of birth is 4 June 1963.
MS BROWN: Have you ever been known by any other names?
MR HADUN: Sorry?
MS BROWN: Have you ever been known by any other names?
MR HADUN: No,…at school they give me name of Manuel Gonzales.
MS BROWN: Manuel Gonzales?
MR HADUN: Yes.
MS BROWN: So I will just write that and you tell me if that is the right spelling?
MR HADUN: Yes.
MS BROWN: Is that the right spelling, Manuel Gonzales? Okay, so you’re Manuel Gonzales. So the school gave you that name?
MR HADUN: Yes.
MS BROWN: Why did they give you that name?
MR HADUN: I don’t know. I think…
MS BROWN: Right. So what does that name represent though?
MR HADUN: This is how I spell…
MS BROWN: All right.
MR HADUN: My father is Portuguese.
MS BROWN: Your father is Portuguese, right, and your mother was Indonesian?
MR HADUN: Indonesian.
MS BROWN: Okay. SO just the two names then. So Alwi Hadun and otherwise known as…Manuel Gonzales?
MR HADUN: But we don’t write this one because we not take this one…
MS BROWN: Right, so you don’t have any official documents in the name of Gonzales?
MR HADUN: No.
MS BROWN: Okay. All right. So today I want to talk to you about your character, particularly with regards to applications for protection visas in Australia and appeals to the RRT and to the Minister and anything else to do with your character. So first of all I want to remind you that in the interview with me you must be 100 per cent truthful with me. If I feel that you are giving me false or misleading information I can refuse your visa on that basis. All right. Do you understand that?
MR HADUN: Yes.
MS BROWN: Okay. So don’t tell me anything that’s not true.
MR HADUN: Yes.”
And pages 23 and 24 as to his various religious affiliations read as follows:
“MS BROWN: Right. Did you ever convert to Christianity?
MR HADUN: Yes.
MS BROWN: You told me before you were a Muslim. You didn’t say that you converted to Christianity?
MR HADUN: Look, I tell you. Look I am study about this religion, all right, in 1994. Then I didn’t like…I really hate the fight because I want to know more about this religion. When I am coming to Timor this…I get like you know my father, he say everything the good one, everything the good one. I say…so can take this one. You can stay in Timor and then you learned everything. Then I say when I am going there a Catholic and then… is angry with me. So I love this one, I love my parent. So what can I do. My father say you come from me, my mother…
MS BROWN: So did you convert to Christianity?
MR HADUN: About three years, three years, four years.
MS BROWN: Three years but you are now Muslim again?
MR HADUN: Yes.
MS BROWN: So from about 1994 to ’97 you were a Christian?
MR HADUN: Yes.
MS BROWN: That’s right?
MR HADUN: Yes. Then this time, this, I get a little thing for the religion so I make this, I study…
MS BROWN: About ’81 until ’84”.
I might mention that I do not include any other parts of the interview report since to do so would lengthen this decision unnecessarily; however I note that it contains other parts which do not accord with the Visa Applicant’s evidence before the Tribunal.
PART B – OVERVIEW OF THE EVIDENCE
8. I have in spouse visa decisions given previously, dealt extensively with the evidence given before the Tribunal. To do so in this case is, because it is so clear cut ,not necessary at least to the same extent. I intend accordingly to deal in somewhat brief terms with the evidence of the Applicant; in respect of the Visa Applicant I propose to deal with important and relevant aspects in particular while dealing in brief and general terms with other (sometimes lengthy) parts of his evidence which, while not deserving of credibility, need not be referred to in detail.
9. The Visa Applicant’s evidence was characterised by lengthy answers (sometimes too lengthy for the interpreter) often bearing little or no relation to the question asked and consisting at times of intemperate outbursts (generally when he was caught out in a particularly flagrant discrepancy). Of even more importance is the fact that his evidence was so often and so demonstrably untruthful.
PART C – THE EVIDENCE OF THE APPLICANT
10. The Applicant is of Indonesian origin. All of her close family other than her daughter and granddaughter live in Indonesia.
11. The Applicant’s statement is contained at T, pages 283 and 298 which need not be included in these reasons.
12. The Applicant first met the Visa Applicant in December 2001 at a Mosque in Tempe. She married him by Muslim rights on 25 March 2001; the marriage was registered on 18 August 2001.
13. The Applicant said that she has been married three times according to Islam. As to precisely what is meant by this is not clear; at a later stage she said that she did not marry the man in Indonesia who is the father of her daughter, and she also did not marry Ibrahim Abdullah whom she met in Australia. Nothing very much turns on this.
14. The Applicant came to Australia in 1988 as a tourist. She overstayed her visa (illegally) and thereafter prolonged her stay in Australia through a (false) protection visa application and which failed. She was however able to obtain residence status in Australia through her de-facto relationship with Ibrahim Abdulla. Mr Turner informed the Tribunal that based on his experience, visas, despite conduct of this nature were easier to obtain at that time.
15. The Applicant spoke at some length of her health. She said that her blood pressure is too high and her blood sugar is too low and that she is depressed. She said that all of this was caused by the fact that she does not have her husband with her.
16. The Applicant sees her daughter once a fortnight and sometimes once a week (and apparently sees her granddaughter when she sees her daughter).
17. The Applicant was asked whether she could live in Indonesia. She said that it would not be possible “because I am happy here. I have been here a long time and it is better here. My husband has to come to Australia because I am an Australian”.
18. The remainder of this Part C relates in the main to the cross-examination of the Applicant.
19. The Applicant acknowledged that her reference to meeting the Visa Applicant in December 2001 was mistaken and should have referred to December 2000.
20. The Applicant said that she did not ever visit the Visa Applicant while in Australia because he came to see her. She was asked whether she ever ascertained that he lived in Lakemba. She said that he never told her so; this was followed by a long diatribe as to the fact that he, the Visa Applicant, never used a false name.
21. Her evidence was that she knew that the Visa Applicant was in Australia illegally. He told her several weeks after they met that he had a refugee claim on foot. However he was afraid that it would be rejected.
22. The Applicant was asked whether the Visa Applicant informed her that his protection visa claim had been rejected. She said that they were living together when he received his rejection letter. When it was pointed out that he received his rejection letter two months before she met him, she agreed that he told her that he had received a refusal and that it had been recommended to him that he consult “Richard”.
23. The Applicant agreed that the Refugee Review Tribunal (“RRT”) affirmed the refusal in June 2001, that application was made to the Respondent under section 417 of the Migration Act 1958 (“the Act”) in August 2001 and that his claims failed.
24. When asked what her husband, the Visa Applicant, did in Indonesia, she said that he bought and sold cars and also looked after his father’s affairs. She did not ask him about whether and where he had travelled. She said that she could not ask him that sort of question. She did say that she believed that he was well off in that his father owned rice fields.
25. When asked about his claim to be a refugee she said that she knew that all of the people from Indonesia apply on a false basis and so that she assumed that his refugee application was also false. As noted previously, she too after coming to Australia claimed (falsely) to be a refugee.
26. The Applicant said that she knew the Visa Applicant had been in East Timor; however he did not tell her that he was known as Gonzales. He said that although he had not been married, he had a son of a prior relationship.
27. Further as regards his protection visa claim, she was asked whether she did not ask about it because she knew it was false; she answered that he just wanted “to try to see how far he could get” and she went on to say that she regretted spending so much money on the relevant proceedings.
28. The Applicant agreed that the photograph at T page 37 was of the Visa Applicant; (it was furnished in connection with his protection visa claim). She confirmed also that the photograph at T page 61 (of a man with a beard and moustache) was her husband.
29. At this stage the Applicant was asked to look at a number of photographs in order to state whether they were photographs of the Visa Applicant. She agreed that photographs at T page 182 and T page 213 were photographs of her husband but said that the photograph at T page 228 is not. She was also shown a photograph of Almodovar at S1 page 29 and said that it was not a photograph of her husband. She was asked whether the photographs in Exhibits A5 and A6 were of her husband and said that they were not. When pressed on this she again denied that they were of her husband. She was asked whether the double chin in the photograph at T page 37 did not cause her to think differently; she answered that people can have double chins “but these photos are very different”. She refused to agree that there were similarities in respect of other features (and in particular ears, nose and eyes).
A number of other questions by reference to other parts of the T-documents (T page 228 and S2 page 12) were answered in similar fashion.
30. All of this evidence is open to considerable doubt in the light of the fact that she stated that a photograph which formed part of the spouse visa application by her husband (and being the right hand photograph in Exhibit A5) was not a photograph of her husband.
31. The Applicant visited the Visa Applicant and his family in Indonesia for some six weeks and was there until his father died. She said at first that she visited Indonesia in December 2003 but then altered that evidence to refer to a visit in November 2004.
32. I do not think that it is necessary for me to detail the Applicant’s quite lengthy cross-examination in connection with telephone calls alleged to have been made to and from her husband (T page 269 – T page 272). They indicate that most calls from Indonesia were made to other persons in Indonesia. Evidence referable in particular to T pages 165, 166 and 171 indicated that the Applicant took concrete steps to ensure that she had evidence of the fact that there was a genuine relationship. She insisted that the Visa Applicant moved in with her after they were married in March 2003.
33. As to her health she said that Doctor O’Sullivan prescribed medicine for her depression and that she also takes blood pressure pills. She said that she does not need insulin. She said, however, that living in Indonesia would be difficult from a health perspective because some medicines are different in Indonesia.
34. The Applicant in re-examination said that it would be difficult for her to go back to Indonesia because she had lost her Indonesian citizenship. (The Tribunal doubts whether this can be true).
35. The Applicant said that she was born in 1955. On this basis and assuming that the Visa Applicant was born in 1963 as set out in the statements in Exhibit A9, she is some 8 years older than he is. The Applicant works as a process worker in a factory which produces jewellery boxes.
36. It is hard to know how to characterise the Applicant’s evidence. Her refusal to acknowledge that Exhibit A5 contains a photograph of her husband was surprising. She knew that his refugee claim was false and that he was not entitled to be in Australia. I do not believe her evidence that she would find it difficult to regain her Indonesian citizenship. Her evidence as to the photograph has the result that I must have some doubts as to her evidence that she knew nothing whatever of his other identities. The photographs, in particular in Exhibits A5 and A6, do appear to me of the man whose photographs figure in the T-documents.
PART D – THE VISA APPLICANT
37. Although the Visa Applicant clearly has considerable English, his evidence was generally given with the aid of an Indonesian interpreter and by telephone link to Indonesia. He said on the third hearing day that he learned English at school and was fluent in English even before he came to Australia.
38. The Visa Applicant went to primary school in Basuku. Similarly, he attended a junior High School in the same place. His senior High School education was undertaken at a religious boarding school in Bangor Pasarun.
39. The Visa Applicant’s evidence as to his work activities was quite remarkably inconsistent. From 1981 to 1988 he worked for his father who owned rice fields and dry land. His father also made furniture and dealt in timber. His father in addition had aviaries. He was not rich but “middle class”.
40. The Applicant said that after his father died the rice fields have been looked after by his family and nephews. He said that he had employees working for him in a business dealing with building materials. (On the third hearing day he said that he is running the rice field).
41. As to the aviaries business his evidence was that it had to do with bird’s nests which are harvested and sold to buyers from Surubiah and used to make herbal medicines.
42. When asked about a transport business involving trucks he said that there were only two trucks left because he sold the third to buy rice.
43. When asked about the furniture business he said, after a long dialogue with the interpreter that “when my father was ill, there were big medical costs. I came back to Indonesia to look after my father and my father died in my arms. I was sorry to leave my wife but I had to come and look after my father”.
44. The Applicant said that he came to Australia in February 2000. When asked why he came to Australia he said “I came to Australia because my business had burnt down and people wanted to kill me because I assisted Christians. My business is a building materials business called Muliara”.
45. The Visa Applicant was asked whether he had been anything other than a Muslim. He answered “yes I did when I was living with a Christian family in East Timor and assisting them. So I entered Catholicism. She had a child like me but that child died and so as to make her happy I became a Catholic. It is not an excuse that I am making up”.
46. On the second hearing day the Visa Applicant gave evidence about East Timor. He said that he went to East Timor in 1997. When asked why he said “I was helping the hungry”. When asked how he did this he answered “because there was a family there”. He said that this was a reference to Maria and her family.
47. The Visa Applicant then gave lengthy evidence (never consistent) as to his relationship with Maria and her family. It resulted according to his evidence in a second trip to East Timor, although the dates of that second trip varied considerably. It also involved his taking Maria and all of her family (then referred to as consisting of five children) to Basuku prior to their going on to Portugal in 1998. At this time he said when asked what he was doing “I was taking care of materials” and “it is my own business”.
48. The Visa Applicant next gave lengthy evidence as to his occupation (assisting his father) and his use of the name Valerio Manuel Gonsalez. He said that he used the latter name at the request of Maria from 1998 to 2000. When asked why he gave it up in 2000 he said “I applied to change my name in Australia but was unable to do so”. When asked why he could not do so, he answered that this was because he was neither a permanent resident nor a citizen of Australia. (The Tribunal here notes that a change of name is accomplished simply by the execution of a Deed Poll).
49. The Applicant denied that he either knew Alwin Ramada or Alwin Almohdar or Alwi Almodar. He also denied that he ever used any those names.
50. In the context of why the Visa Applicant came to Australia the following exchange took place:
“I asked you yesterday why you came to Australia?”
“I came to Australia because people were trying to kill me and there was an arson attempt on my business”.
“When was the arson attempt?”
“After September 1999 towards the end of 1999”
“What did somebody try to burn down?”
“They burned down a business Udin Mutiara – a building materials company”.
“Did you report it to the Police?”
“No”.
“Why not?”
“Because the Police were also looking for me”.
“You said people were trying to kill you, who are they?”
“I don’t know them”.
“Why?”
“Because I was helping people who were non-Muslims. I was providing them with food and a place to stay. They were Maria Theresa and friends from East Timor”.
“What led you to believe that they were trying to kill you?”
“Someone at night broke the windows and they entered the home but I wasn’t at home at the time”.
“How do you know?”
“Maria Theresa was there at the time. She told me about it.”
51. This was followed by evidence as to his movements to various places and countries (with or without Maria and her family) because “people were looking for me”. Once again his evidence was inconsistent, muddled and not worthy of credit.
52. The Visa Applicant said that this answers at his interview (Exhibit A4) were true. Mr Turner contended, somewhat unusually, that the interview report constituted a statement by the Visa Applicant.
53. Mr Allatt then cross-examined the Visa Applicant at some length as to his protection visa application. At that stage he maintained that the protection visa claims were true. On the third hearing day he said that the whole of his protection visa application was concocted by his migration agent (A1 Migration) and that he made the application simply in order to obtain time. It is for this reason that I need not detail his (often fantastic) answers as to his refugee claims. In essence he said that people were trying to kill him because he was helping non-Muslims in East Timor.
54. I also need not deal otherwise than briefly with lengthy evidence as to Maria and her family and visits to East Timor. According to the Visa Applicant Maria considered the Visa Applicant as her child. Maria, although a Catholic was somehow related to his (Muslim) family. In this context, the Visa Applicant frequently amended his evidence as to dates. He sometimes prefaced his answers by “if I am not mistaken”. He was asked at this stage why he had not made mention of the later trip to East Timor in answer to questions in this context from Mr Turner; his answer was that Mr Turner had not asked him the relevant questions. He said also that he was obliged in October 1998 to report to the Police in Situbond. Mr Allatt asked him after a particularly difficult series of questions and answers whether he was making it up as he went along. Although he denied that this was so, his answers were so inconsistent in nature that I think it likely that in fact he was.
55. It was Maria who asked him (at the beginning of 1998) to take the name of Allirio Manuel Gonsalez and “it was legitimated by Archbishop Mello”. It was put to him that at his interview (Exhibit A4) that he said that he was given that name at school. He denied that at the interview he had been asked the relevant question.
56. Mr Allatt put it to him that he told Ms Brown at the interview that he took the name at school, while he told the Tribunal that he took it at Maria’s request in 1998 and that one of those two answers must of necessity be false. He said in relation to the answer given to Ms Brown “I didn’t go to school. I went to a Muslim school”.
57. He was asked why if the Archbishop legitimised his name change he could not produce a certificate. He answered “I didn’t receive a certificate. It was done orally. The person has died”.
When asked who had died he answered that a child (aged 19) of Maria had died and so he took the child’s name. He was asked again how many children Maria had and he answered that she had six (in contrast to his previous answer as to five).
58. When asked whether Maria is alive he answered that “her husband died”. He then said that she is alive and living in Portugal. When asked how he knew that this was so, he answered “my feeling is she is alive and she once contacted one of my friends”.
59. It was put to the Visa Applicant that he had said that he came to Australia to lie low for a month. He said he came to Australia to seek protection. It was then put to him that he told Ms Brown at the interview that he came to visit Australia, and was asked whether he had lied at the interview. His answer was that he wanted both to visit Australia and to seek protection.
60. Further questions as to his interview served only to confirm that his answers at interview were frequently untruthful.
61. The Visa Applicant’s evidence as to his profession or occupation was endlessly confused. He claimed in his protection visa application that he was a social worker. The following exchange took place:
“In your protection visa application you claim to be a social worker?”
“Yes”
“Are you a social worker?”
“Yes”
“And how do you say that you are a social worker?”
“Because I am helping and spending my own personal funds helping people. People who are under-privileged – whether or not Muslims. I help them as much as I can afford”.
“At T page 49 you set out your occupation or profession as social worker”
“It’s not my work. It’s my profession”.
“Do you have a degree in social work?”
“No”
“Why haven’t we heard about your profession in your evidence?”
“Yes”
“Do you regard the profession as taking up a good deal of time and a source of pride?”
“Yes”
“Why didn’t you put this in your evidence in chief?”
“Because it’s what I do on a personal nature”
“You are before this Tribunal because your character is in issue”
“Yes”
“Why wouldn’t the Tribunal be interested in your good works?”
“It’s work of a personal nature – it’s work to do with the fellow human beings and those are people who are unknown to theTribunal”.
PART E – THE EVIDENCE OF MARTIN ERNEST UDAL
62. The cross-examination of the Visa Applicant was suspended at this stage because the telephone card funds were exhausted and there was no further telephone card then available. In these circumstances Mr Udal’s evidence was interposed. He is a Legal Officer in the Enforcement and Litigation Section of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”).
63. Mr Udal produced a number of photographs of the Visa Applicant. He referred in particular to the colour photographs, one with beard and moustache and one without. He said that the photo without beard was obtained from the Visa Applicant’s protection visa application (T page 37) and the other photograph formed part of the Visa Applicant’s spouse visa application. The latter was one of three photographs of the Applicant, the Visa Applicant and Mustafa respectively.
64. Mr Udal then referred to the photographs of Alwi Almodar which appear at S2 page 12 and S2 page 15. S2 page 12 contains a note reading “names usually used” and the names are: Alwi Almohdar, Irwin Mohdar and Alwi Hadun.
S2 page 15 contains two photographs; they too refer to Alwi Almohdar.
65. Mr Udal said that he did not know who made the notations. He was then referred to S2 page 6 which is the back of an envelope where the sender is Alwi Almohdar of PO Box 113 Lakemba and where the front of the envelope at S2 page 7 indicates that there addressee was the compliance branch of DIMIA.
66. Mr Udal referred also to an e-mail message (referred to by Mr Allatt colloquially as the “dob-in message”) at S2 page 11 and which reads as follows:
“Dear Sir,
I like to complain to immigration…man an illegal migrant has four passports in four different names and date of birth. In another word one person has four identifications.
Let me explain to you.
First came to Australia name Elwine Ramanda date of birth 18.06.1968 in about 1990-1991 then he went back to Indonesia.
Second he came back again to Australia has changed the name and date of birth with this name Alwi Almuhdar date of birth 11.11.1967 and after few years in Australia he decided to go back to Indonesia. And then he tells to the consulate Indonesia that his passport has been lost, he likes to go back to Indonesia with the new passport. But he tells lie to the consulate and he used a fake birth certificate with this name Erwine Almuhdar date of birth 18.06.1963 then he back to Indonesia he tell the immigration in airport he said he came to Australia by boat, now he like to go back to Indonesia. He left passport name Alwi Almuhdar in Australia that he pretend he never left Australia, after about two and half years he came back to Australia with new name again Alwi Hadun on January or February 2000. I know this man when he came back in his friend house who live in 8 / 175 Lakemba st Lakemba NSW 2195. And he carry on again this name Alwi Almuhdar, and he tell the Australian immigration that he has been long time in Australia he tell lie. He tries to apply Australian permanent resident by this name Alwi Almuhdar and the other one Alwi Hadun all this matter I have been complained to Australian Immigration in Sydney. I have met Mr (blank) complain branch the rock office 88 Cumberland Sydney NSW 2000, Telephone (02) 92584684. I talked to Mr (blank) face to face and I explained everything all the details of this problem about this person Alwi Almuhdar. And all his passport number and all his prove of him. I came to Mr (blank) to complain with my friend that he knows more than I do about Alwi Almuhdar or Alwi Hadun the same person. Now he lived in 6 / 4 Fairway cl Manly vale 2093 Sydney NSW.
Actually this all information is very true and easy for the immigration to catch him and deportation to his country Indonesia. This man Alwi almuhdar or Alwi Hadun the same person he always tells lie to the immigration and to everyone.
My question is? Why (blank) and not do anything to him. From 9.01.02 I complained if keeping him too long maybe he moves the place where he lives now, because is not easy to find where he lives. He always used false address and then sent then rent PO Box from post office the one I know in Lakemba. Alwi Almuhdar driving license different address.
The quicker immigration catch him is better other ways he moves again. Now he still live with his girl friend 6 / 4 Fairway cl manly vale 2093 Sydney NSW.
Alwi Almuhdar he will never say that he has a passport in all those name. Immigration should catch him and take him to consulate Indonesia in Sydney that will be the big improvement for the Australian Immigration on my complain Muhamad Abubakar.
Thank you.
10.02.02.”
67. Mr Udal also referred to S2 page 23 which is a copy of a drivers licence issued to Alwi Almodar of Unit 6 / 175 Haldon Street Lakemba.
68. In conclusion of his examination in chief Mr Udal referred to S2 page 24 which records that Alwi Bin Hadun Almodar “arrived by ship in Perth beginning of 1993. Did not pass through Immigration Clearance”.
69. Mr Udal was cross-examined as to his belief that having regard inter alia to the photographs in evidence before the Tribunal, Alwi Hadun and Alwi Almodar are one and the same person. Mr Udal was unshaken in his view that they are..
70. I have previously noted that the Applicant denied that a photograph taken from the spouse visa application was a photograph of her husband. A consideration of the photographs and the other evidence leads me to consider that it is very likely that they were all of the same person. That evidence is reinforced by the evidence as to addresses referred to later in these reasons.
PART E – VISA APPLICANT’S CROSS-EXAMINATION RESUMED ON 4 MAY 2005
71. It will be recalled that the Applicant was on the third hearing day self- represented.
72. The Visa Applicant answered the telephone in English and spoke for a time in English. It was at this juncture that he said that he learned English in Indonesia at school and could speak English well before he came to Australia.
73. It was put to him that he claimed that he worked in East Timor. The following exchange took place:
“You claimed to do work in East Timor”
“I am not working for money. I am working for the people”
“Why didn’t you highlight that in the past?”
“No answer”.
“What I was getting at is you styled yourself a social worker”
“Yes”
“On the last occasion I asked you why you put yourself down as a social worker?”
“I am not putting myself down as a social worker, I just love to help people”
74. Further cross-examination of the Visa Applicant as to his trade or occupation resulted in the following exchange:
“First I open a company for building materials. Before that I was helping my parents with their business concerned with travel and also the rice fields. That business was burned by people. I went to East Timor to help people – that was in 1999”
“What were you doing between 1985 and 1989 by way of employment?”
“In that time I did work with some people and my parents”
“What kind of work?”
“Trade. Selling and buying and also acting as the middle person if they want to sell I find the buyer”.
75. The Visa Applicant acknowledged that he described himself as a social worker in his protection visa application (T page 49). It was put to him that had no formal qualifications as such; he answered:
“No I didn’t have one because it comes from my heart”
“And did you have any formal qualifications of any kind? Did you graduate from any school, College or University?”
“No”
76. It was put to the Visa Applicant that in his protection visa application (T page 52, question 33) he claimed that he had a Bachelor of Accountancy degree and that that claim was untruthful. There was no answer and at that stage the telephone service was interrupted as indeed it was interrupted on a number of occasions subsequently.
77. When the telephone service resumed the Visa Applicant was asked why in his protection visa and spouse visa applications he described himself as an accountant and in his protection visa application claimed to have a degree in accountancy. His answer was that Simon told him to sign the forms in blank. He said that Simon is the husband of Rookma Malmita (A1 Migration Agency) who is the migration agent who made up the story. The following exchange took place:
“On telling us that the protection visa application was made up by Mr Simon”
“Yes”
“Mr Simon made up a story for you?”
“Yes he did – he just made it up – he just copied it from another file. I don’t know what was said”.
78. It was put to the Applicant that on 1st April 2000 he signed a form acknowledging to the migration agent that it was likely that his claim would be rejected. He said that he remembered this and nevertheless went ahead with his application and when it was rejected sought its review by the Refugee Review Tribunal (“RRT”). When asked whether he gave evidence at the RRT in support of his false claim he said “I did but it doesn’t come from my heart”. He went on to say that Simon told him that he might not get residency but “maybe I prolong my stay”.
79. It was put to the Visa Applicant that his protection visa application involved allegations in respect of East Timor and he was asked whether they were concocted by Simon. A very long answer in Indonesian resulted. The Visa Applicant was advised that the answer could only be a “yes” or “no”; he answered that “East Timor is true but the part about education is not true”.
80. Further cross-examination resulted in the following exchange:
“So when you say Mr Simon made things up did he only make up the Bachelor of Accountancy qualification?”
“My confusion is that I thought the question was about education only”
“But you told us Simon made it up and copied it from another file? To what extent was your application copied from another file?”
“I don’t know about it. I just went to Simon’s house. If he wasn’t there I just had to sign the form”
“Part of your claim is that you were working directly with Archbishop Mello, the Catholic Archbishop in East Timor”
“Yes”
“Why can’t you get anything in writing from Archbishop Mello substantiating your claim?”
“Can I answer that Mr Mello gave me a necklace and Rookmar told me it didn’t matter anyway”
“You have had a good deal of time since your spouse visa application and the November 2004 hearings in order to get a certificate from Archbishop Mello. And it was also possible to get one at the time of your refugee claim. You have done nothing to substantiate your claim”
“Correct. Yes because there has been war over there”
“East Timor has been peaceful for the past three years”
“Yes – that’s true but the connection between East Timor and Indonesia is not great”
“But why didn’t you write to the Archbishop from Australia?”
“That’s true but between Indonesia and East Timor there is difficulty”.
81. His evidence as regards his religion was if anything even more inconsistent. A number of questions as to his religion resulted at first in an answer that he is a Muslim. When asked whether he is a Sunni or a Shia Muslim he answered that he is a real Muslim. Eventually he said that he is a Rasullah Muslim.
82. The Applicant said that he was a Hindu between 1994 and 1996 and a Catholic between 1998 and 2000. He was asked about the interview report and in particular the fact that he said that he was a Hindu from 1981 to 1984. This resulted in a lengthy tirade to the effect that his religion is his own business and between him and God and had nothing to do with anybody else.
83. The Visa Applicant denied that he had ever used any other name. He said and repeated that he came to Australia only in 2000. He said that he could not answer a question as to why anyone would write the “dob-in letter”.
84. The Visa Applicant said that although he lived in Haldon Street Lakemba he did not live at Unit 8 / 175 Haldon Street Lakemba although he had a friend who lived there. He also denied that he ever had a Post Office Box in Lakemba.
85. The Visa Applicant was then asked why the RRT who dealt with his appeal sent his decision to him at PO Box 113 Lakemba.
His answer was:
“After I was rejected I have been given the wrong address. I was confused at that time”.
“You received the RRT Decision didn’t you?”
“I did receive it from Mr Simon. Everything went to him”
“The only way the RRT would have got that address is from an application by A1 Migration Services?”
“That’s true – this is my weakness – I realise how stupid I was”
“What do you mean how stupid you were?”
“I mean that I don’t understand the rules in Australia”
“How did the RRT get this address?”
“I always mixed with Malaysian people – never with Indonesian people. I want to apologise – I did wrong to my wife. I made a sin because I can’t look after my wife. I can’t be there when she is sick and look after her and the children.” (The Tribunal does not know what the reference to the children is meant to suggest).
86. Mr Allatt then asked the Visa Applicant whether it surprised him to hear that Alwi Almodar whose address was in Lakemba first came to Australia in May 1993 as a crew member of a ship, jumped ship in Perth, filed a protection visa application in 1996 (some 3 years later) and which was dealt with by the RRT in 1998 and that the same Almodar Alwi applied to the Respondent under section 417 of the Migration Act 1958 (“the Act”) in April 2001 (and after the Visa Applicant had come to Australia) and used the same PO Box address. T page 79 purports to be written by Alwi Almodar to the Respondent’s Minister and asks for letters to be sent to him at PO Box 113 Lakemba.
87. It was put to the Visa Applicant that his wife, the Applicant, had failed to recognise him in a photograph of him which formed part of his spouse visa application. His answer was “Maybe my wife is under stress and not thinking too well”.
88. The evidence before me indicates that it is very likely that the Visa Applicant is indeed the same person as Alwi Almodar (and the other identities mentioned) and that he did jump ship in Perth in 1993. The Visa Applicant’s protection visa claims were was false in every respect; so was his evidence before the RRT which understandably enough did not believe him. And so was his application to the Minister. His evidence before me was as has been demonstrated, a tissue of lies. The attempt to bring Mustafa in on the basis of a false birth certificate remains a mystery.
89. The Visa Applicant said that he is the owner of the rice fields having inherited them from his father. He is earning a living. When asked why he did not send any money to the Applicant and at least sufficient to pay for legal representation, he answered that the exchange rate is such that it was not worthwhile.
90. How much did the Applicant know about all of this? I do not know but having regard to the photographic evidence I would imagine that she knew more than she was prepared to admit.
91. The Respondent’s allegations as contained in his Statement of Facts and Contentions are made out and the Visa Applicant must of course fail the character test. His flagrant breaches of the Act (both as Alwi Hadun and as Alwi Halmadar) have the effect that such a conclusion is inescapable.
PART F- VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No. 21 (“DIRECTION 21”)
92. In this Part F references to numbered clauses relate to numbered clauses in Direction 21.
93. Clause 2.3 sets out the primary considerations as follows:
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the 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.”
94. Clause 2.3 must be considered in conjunction with Clause 2. 5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
95. Generally in the context of recidivism and deterrence I refer to a number of decisions of this Tribunal:
“In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, per Deputy President Wright:
“33.In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
In Cai Lian Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107, per Deputy President Walker:
“In my view the community expects that the migration program will be administered in a just and humane manner. That implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.”
In Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, per Deputy President McMahon:
“As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.”
In Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029, per Deputy President Walker:
“In the Tribunal’s view, [the Applicant’s] conduct indicates that she would be prepared to continue to make false and misleading statements if she perceives this to be for her benefit. The Tribunal recognises that the refusal of a visa in such circumstances is likely to deter others who may be contemplating committing similar misconduct”.
In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, per Deputy President Forgie:
“The fact that I am satisfied that they [the Applicants] are both likely to lead law abiding lives in the future does not, in this case, outweigh the need to deter others from adopting the same course of conduct to gain entry to Australia”.
In Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 per Deputy President Chappell:
“56. The Tribunal acknowledges that Ms Kaufman has suffered considerable hardship as a result of her separation from her husband and the uncertainty of the outcome of these proceedings. However, as the Tribunal has emphasised on a number of occasions in earlier decisions, the dilemma for the decision maker in cases of this type is to seek to balance the competing interests o the individuals involved with those of the Australian community at large.
…
57. …this hardship is not of sufficient weight to justify the exercise of the discretion to grant a visa contained in s501 of the Act. The legitimate interests of the Australian community in the maintenance of an ordered immigration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour.”
And in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148 per Deputy President McMahon:
“...The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.”
96. The Visa Applicant’s breaches over so long a period and his utter disregard of Australian law are all so serious in my view that, and as Mr Allatt contended, recidivism must be a real risk. His evidence before the Tribunal, was as I have demonstrated, for the most part, a tissue of lies.
97. Based on what the Applicant said as to the making of false protection visa claims by Indonesians I cannot say that this decision is likely to have a deterrent effect on other Indonesians (and for that matter other people) bent on taking the same course. But to grant the visa application would serve only to encourage others and thus send entirely the wrong message.
98. As to clause 2.12, I have no doubt that the expectations of the Australian community would be that the visa be refused.
99. There is undoubtedly some hardship to the Applicant. As to whether she is as ill as she sought to maintain is not clear. But I have no reason to doubt that she is genuinely committed to the Visa Applicant. Based on his photographs he is young and good-looking. (As to whether he feels the same degree of devotion is questionable). It must be remembered that she is of Indonesian origin and with most of her close family in Indonesia. She has only her daughter and granddaughter in Sydney and she sees them periodically. She obtained residence in Australia through the same dubious means. She could live in Indonesia but she does not wish to do so. For her to say that she could not regain her Indonesian citizenship is probably not true. To rejoin her husband would require her to leave her daughter and granddaughter in Australia but according to her evidence, and as I have said, she sees them periodically. And she married the Visa Applicant knowing what his situation was. All of these factors must have the effect that the hardship factor so far as she is concerned. is very limited. There was no evidence whatever as to any relationship between the Visa Applicant and the Applicant’s daughter or granddaughter.
100. The Visa Applicant spoke in vague terms of doing good works; there was no evidence of anything of the sort. On the third hearing day, the Applicant tendered extracts from the passport of Maria and (presumably) two of her children. Those extracts proved nothing at all; Maria and members of her family could have been called but they were not.
101. I should note that quoted parts of these reasons have been taken from my notes and bearing in mind that I took careful notes during the hearings. There may not be exact accord with the transcript, but any difference will not be significant.
102. This is not a case in which the exercise of the discretion in favour of the Visa Applicant can be contemplated; the decision under review must be affirmed.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Associate
Dates of Hearing 1 and 2 November 2004, 4 May 2005
Date of Decision 17 May 2005
Counsel for the Applicant Mr Ray Turner on 1 and 2 November 2004
Representative for the Applicant Self-represented on 4 May 2005
Counsel for the Respondent Mr Murray Allatt
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