Azad and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 185
•7 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/823
GENERAL ADMINISTRATIVE DIVISION ) Re CLODINE AZAD Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block Date7 March 2005
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Deputy President J Block
CATCHWORDS
IMMIGRATION – character test - application for spouse (provisional) visa character test failed – genuineness of marriage conceded – Applicant became a party to the High Court Lie class action – false answers to immigration officers - consideration of discretion contained in Direction 21 – decision affirmed.
Migration Act 1958 sections 234, 235, 501
Ministerial Direction 21
Badlu and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 608
Carini and Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA 90
Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148
Copeland and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 144
REASONS FOR DECISION
7 March 2005 Deputy President J. Block PART A INTRODUCTION AND GENERAL
1. The decision under review is the refusal, dated 15 June 2004, by a delegate of the Respondent of an application for a provisional spouse visa (subclass 309) made by Junaid Azad (“the Visa Applicant”); that application was sponsored by Clodine Azad, who is his wife and who is the Applicant.
2. The Applicant was represented by Mr B Morris of counsel, instructed by Michaela Byers, solicitor. The Respondent was represented by Mr L Leerdam of Philips Fox, solicitors. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; in addition it admitted into evidence three exhibits as follows: -
·Exhibit A1 – statutory declaration by the Applicant dated 18 October 2004
·Exhibit A2 – affidavit of the Visa Applicant dated 4 October 2004
·Exhibit R1 –details of certain visas issued to the Visa Applicant.
3. This is a case in which the documentary evidence before the Tribunal, and included in the T-documents, contains background against which the matter was heard. They are of such relevance (and indeed much of the evidence related specifically to the documentation in question) that it is convenient and desirable to include them or extracts from them in this Part A.
4. The Respondent’s Statement of Facts and Contentions dated 11 November 2004, contains the usual helpful chronology of relevant events. It also sets out an outline of the Respondent’s contentions as to the character of the Visa Applicant. I include clauses 2 - 15 inclusive under the head of ‘Facts’ and clauses 20 – 30 inclusive, under the head of ‘Contentions’:
“FACTS
2.The visa applicant was born on 6 July 1973 in Barhad. He is a national of Pakistan. [T16 P69].
3.The visa applicant first entered Australia on a Short Stay Business Visa on 13 September 1996. This particular visa was valid (allowing him to stay) until 13 October 1996. [T
4.The visa applicant has an extensive previous immigration history. For the sake of completeness, a chronology of that history is contained at Attachment "A" of this document.
5.The visa applicant lodged a protection visa application on 10 October 1996. That application was refused by the delegate of the Minister on 3 April 1997. The Refugee Review Tribunal affirmed the decision not to grant a protection visa on 5 January 1998.
6.The visa applicant requested Ministerial intervention of that decision on 25 September 1998. That request for Ministerial intervention was denied on 1 June 1999.
7.The visa applicant became an unlawful non citizen in 1999. In the same year, the visa applicant also joined the Nancy Lie class action
8.The visa applicant was detained on 26 June 2001 after being found working without permission.
9.A record of interview, dated 28 June 2001 and signed by the visa applicant, indicates that the visa applicant claimed that he was at that time married to Fartna Salim and had two children with her.
10.The visa applicant was released from detention on 29 June 2001 on the basis that he needed to care for his wife and two children.
11. The visa applicant departed Australia on 11 July 2003.
12. The visa applicant withdrew from the class action on 13 July 2003.
13.The visa applicant applied for a provisional spouse visa (the present application under review) on 5 September 2003. The visa applicant's claims for the present application are that he married Clodine Sweha, an Australian citizen, in Australia on 13 August 2001, and that he has a continuing relationship with her.
14.The provisional spouse visa application was refused by the delegate of the Minister on 15 June 2004.
15.The visa applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision not to grant a spouse visa on 25 June 2004.
…
CONTENTIONS
20.For the purposes of the 'character test' it is not necessary for there to be a continuance of incidence of general conduct. It is sufficient if incidences of general conduct be displayed but once or twice, thereby laying "the character bare very tellingly" - Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142.
21.The Respondent contends on the material presently before the Tribunal that the visa applicant by reason of his past and present general conduct is not a person of good character and therefore fails the character test as set out in section 501 (6)(c) (ii) of the Migration Act 1958.
22.It was noted in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at 94 that the words good character should be taken to be used in their ordinary sense namely a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as fact, where the latter is a review of subjective public opinion.
23.Paragraph 1.9 to 1.11 of the Direction sets of a number of matters which decision makers are required to consider in determining whether a person is not of good character due to his or her past and present conduct. The following considerations set out in paragraph 1.9 of the Direction are relevant in this case:
23.1Whether the non citizen has been involved in activities indicating contempt , or disregard, for the law…this could include, but need not be limited to: involvement in …breaches of immigration law {para 1.9(a); and
23.2Whether the non citizen has , in connection with any application for a grant of a visa……..made a false or misleading statement {para 1.9 (b)}, and
23.3Whether the non citizen has been removed or deported from Australia…{para 1.9 )d)}
24.The Respondent contends that the visa applicant was the author of his pre-planned lengthy stay in Australia from the time of his entry into Australia on 13 September 1996 until his departure from Australia on 11 July 2003.
25.Although the visa applicant was not formally removed from Australia (at the time of his departure), the Respondent contends that the visa applicant has no option but to leave Australia having exhausted all avenues of remaining in the country both lawfully and unlawfully.
26.The respondent contends that the vias applicant deliberately made false and misleading statements to immigration officials. The claims made by the visa applicant in his interview on 28 June 2001, which was the basis of his release from detention at that time, are inconsistent with the claims made by the visa applicant in his present application for a provisional spouse visa.
27.The visa applicant now claims that he was never married to Ms Salim, that he never said that he was married to her, and that her children are not his. These claims are inconsistent with the signed record of interview made on 28 June 2001, and the respondent contends that the Tribunal should find the record of interview to be a correct reflection of the claims made by the visa applicant at that time.
28.There is sufficient evidence to suggest that the visa applicant married Ms Sweha in August 2001. Given the fact that this date is less than two months after the date on which the visa applicant claimed to be married to Ms Salim, the visa applicant either committed bigamy when he married Ms Sweha, or misled the Department in his interview in order to obtain a release from detention. In either case, the visa applicant’s conduct at that time was a serious type of misconduct.
29.During his previous stay in Australia, the visa applicant was, for lengthy periods before and after his time in detention, an unlawful non-citizen. He also worked unlawfully during that time.
30.Given the significant and repeated disregard for Australia’s migration laws during his previous stay in Australia, and given the fact that the visa applicant has, at the very least, misled the Department in the past regarding his marital status, the respondent submits that the Tribunal should find that the visa applicant’s past general conduct suggests that he is not of good character. Therefore, he fails the character test in s 501 of the Migration Act 1958, and his application for a provisional spouse visa should be refused.”
5. If only as a matter of balance I include, in respect of the Applicant’s Statement of Facts and Contentions dated 1 November 2004, clauses 1 – 15:
“STATEMENT OF FACTS
1.The Applicant’s husband (“visa applicant”) arrived in Australia on a Business
Visitor visa on 13 September 1996.
2.On 10 October 1996, the visa applicant applied for a protection visa.
3.On 3 April 1997, a delegate of the Minister refused to grant a protection visa.
4.On 29 April 1997, the visa applicant applied to the Refugee Review Tribunal to review the decision not to grant a protection visa.
5.On 5 June 1998, the Tribunal affirmed the decision not to grant a protection visa.
6.On 24 September 1998, the visa applicant made a section 417 request to the
Minister.
7.On 9 June 1999, the Minister refused to intervene to substitute a decision more favourable to the visa applicant. Soon after the visa applicant joined the Lie v RRT & Anor High Court Class Action.
8.From February 2000 to July 2001, the visa applicant was n a relationship with
Farina Salim. They did not live together, the visa applicant lived alone at 1/23
Rawson Street, Auburn and Ms Salim lived at Merrylands West.
9.From July 2000 until now, the visa applicant has been in a relationship with the Applicant, Clodine. The Applicant moved in with the visa applicant at 1/23
Rawson Street, Auburn in July 2001 and they married at Births, Deaths and
Marriages Registry, Sydney on 13 August 2001.
10.On 28 June 2001, the visa applicant was arrested and detained at Villawood
Detention Centre.
11.The visa applicant was released from Villawood Detention Centre on a $15,000.00 bond and ended his relationship with Farina Salim when he found that she was still married her husband and he was the father of the children and not the visa applicant.
12.On 24 October 2001, the visa applicant applied for a spouse visa to New Zealand with the Applicant as the nominator. This application was refused on 21 November 2002. The appeal to the Residence Review Board was also refused on 28 July 2004.
13.The visa applicant withdrew from the Class Action and returned to Pakistan. On 8 September 2003, the visa applicant lodged a spouse visa at the Australian High Commission, Islamabad in which he was nominated by the Applicant.
14.On 15 June 2004, the spouse visa application was refused on character grounds.
15.On 6 July 2004, an appeal application was made to the Administrative Appeals Tribunal.”
6. The Visa Applicant entered Australia on a short stay business visa on 30 September 1996; it was valid until 30 October 1996. On 10 October 1996, the Visa Applicant applied for a protection visa; when it was refused he sought review by the Refugee Review Tribunal (“RRT”). The RRT, in affirming the refusal decision, made adverse findings as to the credibility of the Visa Applicant. I include its findings and reasons for decision at Tp260 – Tp264:
“FINDINGS AND REASONS FOR DECISION
I found the Applicant to be a most unsatisfactory witness. He was uncertain of the dates on which events of significance to his account had occurred and he contradicted his own evidence on a number of occasions. He initially confirmed, for example, that he had left the Air Force in July 1996 as he had stated in his application and said that he had spent the time between then and his departure for Australia in September 1996 at Rawalpindi or nearby, but subsequently in the hearing he stated that he had not in fact left the Air Force in July 1996: he had merely given notice of his resignation at that time. He had still been serving in the Air Force and had been on leave at the time he had left Pakistan to come to Australia. He contradicted himself with regard to whether the Assistant Commissioner had come to the family home when his brother was arrested in November 1995 and he contradicted himself with regard to the cause of the fight in the marketplace in Murree. He initially said that the fight had been because he was from outside the area but he subsequently said that Murree was his ancestral village, where the family’s land was, and that was why he could not afford to lose respect in the town.
It does not assist that in significant respects the account which the Applicant gave at the hearing before me contradicts what he said in his original application. I have already referred to the issue of whether he had in fact left the Air Force in July 1996, as he stated in his original application or whether, as he said at the hearing before me, he continued serving until September 1996, when he went absent without leave and left Pakistan to come to Australia. In his original application he said that he had been involved in the Muslim Student Federation in his student days and had had a confrontation with the People’s Student Federation at his college, whereas at the hearing before me he played down the importance of this incident and said that he had in fact been offered the position of General Secretary of the People’s Student Federation at his college. In his original application he claimed that he had been subject to discrimination in the Air Force when his membership of the PML had been disclosed whereas at the hearing before me he denied that he had ever been a member of the PML and linked his stationing in the border area to the incident in the marketplace at Murree rather than to any involvement he may have had with the PML. It is true that he later suggested that the only explanation for the attack on him in Murree was political but this can hardly be equated with the claim that he made in his original application that he was subject to discrimination in his employment by reason of his political opinion. The incident in Murree was not mentioned in his original application.
The evidence before me has thus been left in an unsatisfactory state. However it is necessary for me to make findings of fact in order to determine the application. I accept that the Applicant’s father has been an active supporter of the PML since 1958 and that, as the Applicant stated, his father has on two occasions been offered the opportunity of standing for the Punjab Provincial Assembly on the PML ticket. I accept that, as the Applicant said at the hearing before me, he (the Applicant) did not in fact join the Muslim Student Federation while he was at college, nor did he join the PML after he left college~ I accept that the confrontation with the People’s Student Federation which the Applicant mentioned in his original application was, as the Applicant indicated in his evidence before me, a minor incident which did not cause the Applicant any further problems. To the extent that the Applicant has a political profile, therefore, it is because of his father’s involvement in the PML rather than any political activity he himself has engaged in.
I accept that in 1992 the bank of which the Applicant’s father was Area Manager at the time failed, and that a newspaper article appeared accusing the Applicant’s father of corruption because of his links with the PML. The Applicant said that the reporter responsible for writing the article had told him that he had been instructed to write the article by people higher up but the Applicant was unable to say what the reporter had meant by this and I am unable to see how the matter is relevant to the Applicant’s claims.
I accept that the Applicant’s father was called before the courts on many occasions to show where the money for which he had been responsible had gone. I do not accept, however, that after the change of Government in October 1993 the Deputy Commissioner in Lahore wished to arrest the Applicant’s father but could not do so and eventually arrested the Applicant’s younger brother instead in November 1995. In his original application the Applicant stated that the police had been unable to arrest his father because of his father’s status in society and his strong friendship with high officials. He stated that his father was under the protection of a PML Member of Parliament. At the hearing before me, however, the Applicant laid great stress upon the fact that his father’s political connections had been unable to secure the release of the Applicant’s younger brother. I do not accept that those same political connections would therefore have been able to protect his father if the authorities had in reality wished to arrest him.
At the hearing before me the Applicant stated that the police had been unable to arrest his father because his father had been working in the Federal capital, Islamabad, at the time. However he also said that his father had been commuting every day from Rawalpindi, where the authorities would have been able to arrest him if they had wished to do so. The Applicant said that during this period his father had returned home only at night and that he had not slept in the family home but at the home of the Applicant’s uncle. I regard the Applicant’s evidence in this regard as quite fanciful. According to the Applicant’s own account his father was going regularly to his place of work, was appearing before the courts and was commuting every day to Rawalpindi, even if he did not spend the night at the family home. I do not accept that the authorities would not have been able to follow him and arrest him at some time during the two years between October 1993 and November 1995 if they had genuinely wished to do so. It follows that I do not accept that the Applicant’s younger brother was arrested because the authorities were unable to arrest his father, nor do I accept that the arrest of the Applicant’s younger brother had any connection with the involvement of the Applicant’s father in the PML. The evidence before me does not enable me to make any positive finding as to why the Applicant’s younger brother was arrested. It is enough for present purposes for me to state that I consider that the Applicant’s younger brother was not arrested by reason of his father’s political opinions.
I accept that at some time in the first half of 1996 the Applicant had a fight with a Pathan in the marketplace in Murree, the town where he was stationed, and that he was hospitalised as a result of the injuries he had suffered in that fight. I do not however accept the Applicant’s assertion that the only explanation for the attack is political: that is, that the attack was somehow staged by his father’s political enemies. Once again I regard the Applicant’s evidence in this regard as quite fanciful. In the first place, for reasons given above I do not accept that the Applicant’s father was somehow immunised from attack by his political connections. If his political enemies had wished to attack him then they could have done so directly, rather than in the roundabout way suggested by the Applicant. Secondly, if the intention was to injure or kill the Applicant, it is hardly likely that he would have been attacked in public in the marketplace. If, in the alternative, the intention was to blacken the Applicant’s reputation in the Air Force, the persons presumed responsible for arranging the attack could hardly have known that Air Force would lay the blame for the fight on the Applicant. Thirdly, I consider it significant that the Applicant did not mention this incident at all in his original application. This suggests to me that the attribution of a political motive to the incident is an afterthought. Indeed even when giving his evidence before me the Applicant seemed more concerned with the insult to his dignity and the loss of respect that the affair involved than with any connection that the attack might have had with his father’s political opinions.
I conclude, therefore, that the fight in the marketplace was a fight pure and simple and that it had no connection with the political involvement of the Applicant’s father. I accept that, following this incident, the Applicant was stationed in the border area where he was at greater risk. I accept that, as a result of this decision and the fact that he considered that he had nor been treated fairly by the Air Force, the Applicant submitted his resignation. If the Applicant’s own evidence is to be believed, however, he was already contemplating resignation even before the incident in Murree in that his father had already decided that he should leave Pakistan. This is lent some support by the fact that the Applicant obtained his passport in January 1996. Nevertheless, the timing of the Applicant’s departure from Pakistan would appear to have been dictated by his being stationed in the border area: I understand the Applicant’s evidence to be that he considered that he needed to leave Pakistan without waiting for his resignation to be accepted because he believed this step was necessary to save his life.
I accept that, having left Pakistan before his resignation was accepted, the Applicant may face a court martial on his return. As I put to the Applicant in the course of the hearing, however, this fact does not bring him within the terms of the Convention. If he is punished for having gone absent without leave from the Air Force, such punishment will not amount to persecution for a Convention reason unless there is a real chance that he will be singled out for punishment, or punished more harshly, for one of the Convention reasons: see Applicant A, referred to above, per Brennan CJ at 334-5, McHugh I at 354. There is nothing in the evidence before me to suggest that this will be the case. The Applicant suggests that the punishment he faces should be attributed to the decision to station hint in the border areas which in turn he suggests is attributable to the incident in Murree which he asserts can only have a political explanation. Even if I were to accept that the chain of causation could be stretched in this way, I do not accept, for reasons that I have already given, that the incident in Murree had any connection with the political involvement of the Applicant’s father (the only ‘political explanation’ suggested by the Applicant). I conclude, therefore, that any punishment which the Applicant may face as a result of his decision to leave Pakistan without waiting for the acceptance of his resignation from the Air Force does not constitute ‘persecution’ for one of the Convention reasons.
Having regard to the findings I have already made I do not accept that the Applicant has a well-founded fear of being persecuted by reason of his own political opinions or his father’s involvement with the PML if he returns to Pakistan now or in the foreseeable future. The Applicant’s own political involvement has, on his own evidence, been minimal: he stated that he did not join either the Muslim Student Federation or the PML and that he did not like politics. His claim in essence is that he fears persecution by reason of his father’s involvement in the PML I do not accept that the Applicant’s past experiences in Pakistan provide any basis for such a fear. For reasons I have already given I do not accept that either the arrest of his younger brother or the incident at Murree bear any causal relationship to the political involvement of the Applicant’s father. Moreover it is relevant in this connection that the PML, the party with which the Applicant’s father is involved, is now in power in Pakistan.
At the conclusion of the Applicant’s evidence he suggested that his father’s political connections had in some way distanced themselves from him and were unable to assist with the threat of a court martial which the Applicant faces. Be that as it may, it is clear that the Applicant’s father, and by extension the Applicant, need no longer fear persecution by State agencies instigated by his father’s opponents in the PPP. Although the Applicant stated that the Assistant Commissioner and the police inspector responsible for the arrest of the Applicant’s younger brother were still in their positions, there is nothing in the evidence before me to suggest that they were personally motivated to take the action they did because of the involvement of the Applicant’s father in the PML. Indeed the Applicant himself suggested that his brother was kept in the police station because of an express order given by a Minister in the PPP Government. Even if I were to accept, therefore, that the arrest of the Applicant’s younger brother was attributable to his father's political involvement, I would not consider that the Applicant faced any continuing threat from the police officers concerned, having regard to the change of Government. I conclude, therefore, that the Applicant does nor have a well-founded fear of persecution by reason of his father’s involvement in the PML if he returns to Pakistan now or in the foreseeable future.
This being the only claim raised by the Applicant’s evidence, I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”
7. It is unnecessary to set out all of the evidence to which the RRT made reference. However, the following (relevant) paragraphs from the evidence before the RRT are included in these reasons; the last full paragraph on Tp254, the last full paragraph at Tp257 and the paragraph which commences with the last two lines of Tp257 and ends in the first half of Tp258; those paragraphs read:
“By way of background to the Applicant’s claims, the PML led by Mohammad Nawaz Sharif and the Pakistan People’s Party (PPP) led by Benazir Bhutto have alternated in power in Pakistan over the past decade. The PPP won the general election held in November 1998 but in August 1990 Benazir Bhutto was dismissed as Prime Minister by the President. Mohammad Nawaz Sharif won the general election held in October 190 as the leader of an Islamic Democratic Alliance which included the PML. He was dismissed in turn in 1993 and Benazir Bhutto returned to power at the general election held in October 1993. She was again dismissed by the President in November 1996: Europa Publications, The Far East and Australasia 1997, London, 1997. Elections held in February 1997 saw the return of Mohammad Nawaz Sharif as Prime Minister. The PML also regained power in the Punjab, where it took all but seven of the 113 available seats in the Provincial Assembly (Australian Department of Foreign Affairs and Trade (DFAT) cable IS2346, dated February 1997, CX21680)
…
The Applicant said that the police were arresting all the bank executives and that his family had heard from Lahore that the Deputy Commissioner wished to arrest his father. I asked when this had occurred and the Applicant said this was after Benazir Bhutto had come to power (in October 1993). He said that the Punjab Government had not been able to arrest his father because at the time his father was working in the Federal capital, Islamabad. I put to the Applicant that I thought he had said that his father lived in Rawalpindi. The Applicant said that his father had started working in Islamabad after he (the Applicant) had joined the Air Force, that is, some time after September 1992. His father still worked there, with another bank. He commuted every day from Rawalpindi, which was a 25 to 30 minute drive from Islamabad. The Applicant said that during this period (when the police were trying to arrest him) his father had returned home only at night and that he had not slept in the family home but at the home of the Applicant’s uncle.
…
The Applicant said that the Assistant Commissioner had come to the family home to arrest his father. He then said that the Assistant Commissioner had not actually come to the family home. A neighbour had told the Applicant that he had seen a jeep parked 100 or 200 metres down the street. The jeep had been there on a number of occasions. A constable had actually come to the family home. His younger brother, who had been aged 15 years old at the time, had answered the door and the police had arrested him. The Assistant Commissioner had registered s First Information Report against the Applicant’s brother, saying that he had lunged at him with a knife. (The ‘First Information Report’ or FIR in Pakistan is the initial report of a criminal offence recorded by the police. It is not a charge but once an FIR is lodged the police conduct an initial investigation and a person may be charged with an offence as a result: Human Rights Society of Pakistan, fax to Immigration and Refugee Board, Canada, 18 October 1994, CX20608; Australian Department of Foreign Affairs and Trade (DFAT) cable Is43024, dated 29 September 1993, CX3670.) the Applicant said that his father had tried to use his political connections to free his son but the Deputy Commissioner had informed one of the Ministers in the Government of the day that he had received representations from a senior Opposition politician seeking the release of the Applicant’s brother and the Minister had said that the police should not let him go.”
8. After the Visa Applicant was detained in June 2001, he was interviewed at the detention centre. The record of that interview (“the first interview”) appears at Tp13 – Tp17. It is unnecessary to include the whole of its content; the most relevant questions and answers are those numbered 5, 6, 8, 13, and 18; I include the questions and answers as follows:
“5. What is your address and telephone number in Australia?
Address 1/23 Rouston St, Auburn
Telephone number: 96463137
6. Do you have any immediate family in Australia? Yes
Last name: Salim
Given names: Fatima
Address: as above and 2 children
D.O.B: 17.9.77
Relationship: spouse. (citizen)
…
8. Is there any reason why you cannot depart Australia?
There is 2 reason. One that I have 2 kids and spouse. And 2, … My life is in danger. I have a relationship for a 1 & half years.
…
13. Do you have an identity card? Yes
National ID card with my girlfriend. Birth cert is in overseas.
…
18. Is there anything you would like to tell me? Yes
I have a spouse & children in A/A. What is your intention? I will apply through my solicitor. I will go outside country to apply for a spouse visa.”
9. On 25 February 2004, the Visa Applicant was interviewed in Pakistan. The record of that interview (“the second interview”) appears at Tp125 – Tp128; it is included as in full as follows:
“Bond $15,000. To be released from detention as he had been found working illegally. Was in detention for 2 days. Says was not told about $120 debt when he left. Had been working as a security guard, but reported a bullet that had hit his car and police took a report, and then PA called to the police station, who then called DIMIA.
PA states that he has never married in Pakistan. Resided with family.
Wife lives with her parents.
When PA left A/a he says PV application was going to a further court and had been refused at RRT and min. int. PA says claims in PV app are true. Says was part of Muslim league, and have FIR’s lodged against him. Did have an RRT hearing.
Ever worked anywhere else without permission? No. Worked in a factory – Barry Juices, but had permission.
Traffic changes – speeding, about 2 years. $1400 and 3 mths suspension. Didn’t appear in court, got 6 mths suspension, did not pay $1400 fine. Was given extra time, wife paid one instalment of $100. Does not know what has happened since.
Had other speeding fines. Cant remember how many, but never lost all points.
Clodine in Islamabad in December for 17 days.
Went on a 456. Travelled with father. Why? Never travelled overseas before, and father wanted to be sure he got there. Why a business visa? Don’t know, father wanted him to go. PA says he did not have any business. Did father have any business reason? Thinks father had a business reason, but does not know.
What is Sanatakar Chambers? PA knows the name, but can’t recall what it is. Could be to do with father.
PA aware of detention costs, but did not know that he had to pay. Says Farina Salima was a girlfriend and the children were not his. Was not living with her. PA says that he never indicated that she was his spouse. He said that Farina would “fight her case”. Said Clodine had problems at that time.
PA met Farina on the internet. They met in Parramatta. Says he told Clodine about Farina.
When did r/ship end with Farin? About January, before in detention. Says only in relationship with Farina for about 5/6/7/8 months. Farin was Fijian. Says never mentioned that Farina was his wife. Says never made that statement.
Apprehended V.O – Sangita (maybe Prasad), but she was married to a Pakistani and she had one child. Says they had a fight and she owed money to PA. PA says she wanted to be rid of him so she caused a fight. They went to court. Letter said he could not go within a certain distance of her. She contacted him again. Relationship went for 2-2 ½ years. She was separated from her husband at the time, but she was also seeing an Indian guy. This was well before PA met Farina.
PA jointly owns car with Clodine. Car now sold. ANZ account still open (opened Dec 2002). Were renting together, Clodine left after lease expired.
Stat Decs
Liaquet Ali – friend, he is a teacher. Studied Woll. Uni. He worked in NUST, skilled migration.
Muhammad Manshad Satti – skilled migration, engineer
Parents accepted the marriage after Clodine came back from New Zealand. Clodine was hospitalised in NZ. PA was questioned when Clodine went to NZ asked about her whereabouts.
Met Clodine at a restaurant thru a friend. Blind date. Says he liked Egyptian art and he felt that their backgrounds were similar. 2nd meeting at her uni, told her about his immigration status and his past girlfriends.
PV claims
PA was staying a technical diploma with the air force.
Why father came back to Pakistan if he was also targeted? Says father did not have enough money to contest elections, so PA says he was involved in political support for his father. Also says he had younger brothers and his grandfather died and he was busy. He worked in a bank. Says his father could not leave because he needed accounts, income etc.
Sighted cards, letters, original documents.
PA says he tried to get a student visa and study but could not. But says he was on the wrong visa in the first place. Says his family could not afford it. Had been studying Pakistan before PA left. Says he was not aware of the availability of the student visa. B. Comm from Punjab College of Commerce. Has copies of his degree but not with him today.
Clodine supporting him. She sends money. Says relationship is genuine. Says they are in love. Says his past is bad luck. Says he stopped working so that he would not get in further trouble. Says Clodine cannot live here. Says best part of his life was in Australia. Says he will study if he goes back. Says his past was childish. Knows his friends got skilled migration easily.
B. Comm – exams done privately. Finished before going to Australia, about 94-95.
92-95 – air force studies.
Since July 2003 – working with friends, computer sales, Says Clodine doesn’t want him to work because she does not want him to stay in Pakistan.
Nothing extra to ask or show? No.”
PART B THE EVIDENCE OF THE APPLICANT
10. Exhibit A1, which is the Applicant’s statement, reads as follows:
“I, Clodine Azad of 11 Coorabin Place, Riverwood in the State of New South Wales,
Student, do solemnly and sincerely declare that:
I am the sponsor of my husband Junaid Azad, for a spouse visa to Australia and the
applicant for appeal to the Administrative Appeals Tribunal.
I first met Junaid on a blind date on 10 July 2000. My father was quite strict about
dating, so Junaid would meet me at university (UWS Bankstown) and I would call him every day from home after my father had gone to work.
I moved in my Junaid in July 2001 after he was released from detention. I saw him rip up a photo. He told me that it was his ex-girlfriend Ms Salim, and how she had lied to him about being divorced when she was still married and how she said her children were his but they were most probably her husband’s. He asked me what would I do if she came to the house with the children or took legal action against him to pay for the children. I said that we would deal with it together.
To the best of my knowledge, Junaid has had no contact with Ms Salim since August
2001.”
11. The Visa Applicant met the Applicant on a blind date in 2000. That date resulted in meetings, which in turn ripened into a closer and more intimate relationship; she moved in with him in July 2001 and they were married in August 2001. Although the Visa Applicant was born in Australia, she is the only child of parents who came to Australia from Egypt. Her father behaved towards her in a manner which could be described as heavily Victorian as regards boyfriends. The Applicant’s relationship with the Visa Applicant was kept secret from her father and reconciliation, after she left home to live with the Visa Applicant, was achieved only at a later date, and after they were married.
12. The Applicant said that the Visa Applicant was honest with her from the start. He told her from the outset of his illegal status in Australia. He also, so she said, told her about his previous relationship with Farina Salim, who is referred to in these reasons as “Salim”.
13. The Applicant is a Christian of the Coptic Sect. Her HSC result (46) was poor; she nevertheless obtained entrance, in 1997, to the Australian Catholic University where she studied fine arts and religion. She eventually completed her Bachelor of Arts degree at the University of Western Sydney some years later (after two deferments) and is currently teaching religion at an Armenian school in Sydney. She speaks fluent Arabic, having conversed with her parents in that language; it is probably that ability which was to some extent influential in her obtaining that appointment, because many of the students at the school are of Lebanese origin and who speak Arabic. She hopes to be teaching art in the near future at the same school when a post in this area becomes available.
14. The Applicant has visited the Visa Applicant in Pakistan twice; once in December 2003 and once in December 2004. When she was asked whether she would be reunited with the Visa Applicant in Pakistan if the decision under review is affirmed, she was at first somewhat hesitant, but then said firmly that she would join him in Pakistan. She said that she was sure that she could obtain a job at a school (and in particular an international school for the children of expatriates) or perhaps another institution where fluent English and Arabic would be useful.
15. After the Visa Applicant was detained in June 2001, he was released when a friend provided a bond in the amount of $15000. Advice was sought from Mr Christopher Levingston, a solicitor, who has considerable expertise in this area. His advice was that the couple could go to either Pakistan or New Zealand; it may perhaps be inferred that Mr Levingson’s advice was that Australia was not an available option. It was apparently contemplated that she, as an Australian citizen, would be entitled automatically to residence in New Zealand and that through her the Visa Applicant would obtain a similar right. The Applicant deferred her studies and went to New Zealand on her own in August 2001. (The Visa Applicant remained in Australia). As to why that particular endeavour did not succeed was never made clear, but a motor accident in New Zealand may have contributed toward her abandonment of it. She returned to Australia in August 2002 and in September 2002 was admitted to hospital for treatment of an ovary problem.
16. While at university the Applicant worked at a chicken take-away in Strathfield; (the fact that she was working in that capacity may be one reason why her studies took much longer than is usual for an arts degree). After he went back to Pakistan she sent him money periodically for his support; the aggregate amount sent was about $5000. She said that she had told him that he need not work in Pakistan on the basis that when he came back to Australia he would have to work and that it would be a while before they could travel to Pakistan again.
17. As I have said, the Applicant is a Christian of the Coptic Orthodox sect. The Visa Applicant is a Muslim. She said that their children would be brought up in her faith but with knowledge of his faith. The Applicant said that she fell in love with the Visa Applicant soon after meeting him.
18. The Applicant is the only child of elderly parents. She said that her mother is not well (although she did not specify the illnesses or other disabilities concerned) and that her mother needs care. As indicated previously though, she said firmly that despite the fact that she would be reluctant to leave her parents, and particularly her mother who is need of care, she would, if necessary, be reunited with the Visa Applicant in Pakistan.
19. That the Applicant has displayed quite extraordinary devotion to the Visa Applicant cannot be denied. As to whether he was as frank with her as she thought is decidedly uncertain. She said of Salim that the Visa Applicant had finished his relationship with her before he met her, the Applicant, and that from July 2000, and after they met, he was hers and hers alone. The Visa Applicant’s evidence indicates in the clearest possible terms that in that belief she was sadly mistaken.
20. The Applicant tried to reconcile the statements of the Visa Applicant at the first interview, with her belief that he had broken with Salim. She was referred to the questions and answers and particularly in respect of questions 5 and 6, and in which the Visa Applicant described Salim as his spouse and her twins (then four months old) as his and in which he described them as living with him and at his address. Her explanation was that he needed help and could obtain it from Salim. She said “It looks bad – it’s not like that – she was the only help he had”. She said that he could not obtain help from her by phoning her because her father would have disapproved. She has a mobile which according to her evidence she switches off at night. The Applicant accepted, however, that the Visa Applicant could at any time have phoned her on her mobile during the day.
PART C THE VISA APPLICANT
general
21. Exhibit A2 is the Visa Applicant’s statement; it reads as follows:
“I, Junaid Azad of NB 77 7th Road, Satellite Town, Rawalpindi, Pakistan, say on oath:
I am the applicant for a spouse visa that has been refused on character grounds.
I declare that before I married my wife Clodine, I was in relationships with two different women. I was in a relationship with Farina Salim from Febraury 2000 to July 2001. I began a relationship with my wife Clodine from July 2000. I did not live with Farina Salim and at all times kept a separate residence at 1/23 Rawson Street, Auburn.
I told my wife Clodine, about my relationship with Farina in July 2001, as Farina had told me that her children Zahir and Zuhyar were mine and was making a fuss when I broke-off the relationship with her.
When I was in detention Farina said that she would help me get out. I did not doubt her. At the time of interview in detention on 28 June 2001, I believed that Farina was the mother of my children, so I wrote that she was my spouse.
I broke-off the relationship with Farina in July 2001 after I was released from detention, as it was then that I found out that she was still married and not divorced as she had told me and still in a sexual relationship with her husband. I doubted her genuineness towards me and that the children were not mine, especially as she registered their births with her husband as their father. The last time that I had any contact with her was in August 2001.
I apologise for not declaring this relationship in my spouse visa application, however, I felt ashamed to bring out all the details of the relationship with Farina again in an application in which my wife was sponsoring me. We had been married for more than 2 years at the time of the application and I thought my previous relationship was no longer relevant as I did not live with her and I now do not believe the children to be mine. I apologise for my bad judgment on this chapter of my life.
While I was detained I did not ask Clodine to help me as I know her father has a terrible temper and at times can be violent and she had her university studies and examinations.
When I found out the truth about Farina I was sad and disappointed with life, especially after my detention experience. I plucked up the courage to speak to Clodine and telephoned her. We met and I told her all that I was not too ashamed to tell and I was surprised at how forgiving she was.
During my DIMIA interview at Islamabad I was asked about Farina Salim and I told them that she was my girlfriend and the children were not mine. Nothing was said about bigamy and I was shocked to see such an allegation in the DIMIA decision record.
As to my protection visa claims I stand by the today. I have only returned to Pakistan as it was the only opportunity opened to me so I could spend my life with Clodine in Australia. I had no choice in the matter. I am afraid living in Pakistan and I do not want Clodine to live here as it is too dangerous for her as an Australian female and she would not be able to pursue her desired career path in teaching.
I want to say that I love my wife so much. I know that I have done some stupid things but I am very much in love with my wife and I want to be with her as soon as possible. I am happy when she visits me in Pakistan but with the current situation in Pakistan I fear for her safety. I sent her home early because of all the bombings and the uncertainty of the War Against Terror and the situation between India and Pakistan. I know that I have been stupid but I am not a criminal. I have had some bad relationships but I am now so lucky to have Clodine. I am afraid that if this application is not successful I will lose her for good as she could not live with me in Pakistan. I could not ask her to do that.”
22. Exhibit R1 was tendered by the Respondent with a consent of the Applicant. It indicates that the Visa Applicant received a bridging visa on 29 June 2001 after his release from detention and the payment of the bond. At the first interview, the Visa Applicant said that he intended to leave Australia to apply for a spouse visa; (see question 18 of the first interview report). The Respondent appears to have accepted that undertaking at face value since the bridging visa issued at that time did not include a cessation date. It would, in fact, be two years before the Visa Applicant departed Australia.
23. At the commencement of the Visa Applicant’s evidence, I sought assurances that he is fluent in English. He assured me that he is fluent and that he is an educated man who has studied English. He has a commerce degree obtained from the Punjab College of Commerce, after two years of study. He did, of course, spend a number of years in Australia and in my view based on that initial discussion, he is indeed perfectly fluent in English.
24. The Visa Applicant said that he met the Applicant in July 2000. He said that his domestic circumstances were such that he was still involved in a relationship with another woman (Salim). When asked whether he subsequently married the Applicant, he said (surprisingly), no. (I am prepared to accept that that answer was simply a mistake) The Visa Applicant said that his statement (Exhibit A2) is correct and confirmed all of its contents.
25. The Visa Applicant was detained in June 2001. He said that he had been working illegally for “more than a year” in a security job. (It seems likely that the period involved was considerably longer).
the visa applicant and salim
26. The Visa Applicant confirmed that he completed the answers himself and in his own handwriting in the first interview report. He said that he broke off his relationship with Salim only in August 2001. He did so because Salim was “totally misleading everything. I find out that she was still married and living with her husband”. He said that he never lived with Salim as husband and wife. He said that he had believed that the twins were his but had formed doubts as to their paternity only when he came out of detention and found that Salim was still living with her husband. Subsequent evidence revealed that the relationship with Salim had endured for a considerable time. He said that he thought the twins were his because he and Salim had intercourse without protection. (The Tribunal here notes that it is not credible that the Visa Applicant discovered that Salim, his long - term mistress, was living with her husband for the first time only in August 2001 and that prior to that time he was deceived and it was these circumstances only which caused him to doubt the paternity of the twins).
27. The Visa Applicant was referred to his answers to questions 5 and 6 of the first interview report which in effect state that he was living at an address in Rawson Street, Auburn and that his spouse and family (referred to as immediate family) were living at the same address. It was at that stage that the Visa Applicant said “to be very honest I don’t remember what I said at the interview. English is not my first language”.
28. It was at this stage that I raised the question of whether the Visa Applicant, having referred to the fact that English is not his first language, should not have an interpreter. His barrister and solicitor confirmed that he is fluent in English, and indeed his evidence indicated in the clearest possible terms that this is so.
29. A number of further questions extracted admissions from the Visa Applicant that references in the first interview to “the girlfriend” and “a Muslim” were references to Salim (and who is the mother of the twins). Salim is a Muslim and of course the Applicant is not.
30. In cross-examination it became increasingly clear that the Visa Applicant had said that he had no recollection of the first interview report only because it was adverse to him. In fact he knew perfectly well what it said. He nevertheless continued to protest that although he filled in the form he could not remember what he had said.
31. When finally confronted again with the answers to questions 5 and 6 of the first interview report and asked why he wrote those answers, he said “I am sorry for that”. When it was put to him that he made those statements in order to get out of detention, he answered “I intended to tell the truth; they asked me about relationships”. Again in relation to question 8 and the answer provided, he said “it’s true but I can’t remember”.
32. The cross-examination of the Visa Applicant as to Salim was lengthy in part because he was so evasive. He insisted that he could not marry Salim because she was already married. However, he admitted that the spouse reference in the first interview report was a reference to Salim.
33. He was asked why, if the relationship with Salim was broken off in August 2001, he did not then leave Australia. His answer was that he wanted to see the Applicant to say goodbye to her before going back to Pakistan. That statement was completely untrue; his intentions as regards the Applicant were entirely different; he married her within a very short period thereafter.
34. It is apparent that at the time the Visa Applicant was seeking to preserve all of his options. The Applicant may have been sure of his devotion to her but that was not his evidence. All of the evidence suggests that he married the Applicant because he had exhausted all other options and that that course presented the only possible course of action which might obtain residence in Australia for him.
35. Further pointed questions to this effect were evaded at times with answers that he did not understand the question. And he repeated “I went to see Clodine to say goodbye and we decided to get married”.
36. When asked why he did not then go offshore to file a spouse visa application, he answered that the lawyer (Mr Levingston) had advised them as to the possibility of New Zealand and which led to the Applicant going to New Zealand. He could not accompany her and stayed in Australia. He could not go to New Zealand; he said “if I went back I might never see Clodine again”.
the visa applicant and cars
37. The Visa Applicant was referred to the contents of the second interview report which makes reference to a speeding charge which resulted in a fine of $1400 (Tp125 and Tp126). The Visa Applicant said that all of it was true; he was doing 100km in a 60km zone when he was stopped by the police. A long and somewhat incoherent answer was, so far as I could understand it, that he wanted to go to court to contest it but could not and in the end did not go to court. He was given an opportunity to re-open the case but did not take it. He was granted time to pay the fine upon his application and based on his statement that he could not afford to pay the whole amount. When he again and later sought further time to pay he was given permission to pay in instalments. The first instalment was paid (by the Applicant and not the Visa Applicant) but no others. The fact that most of the fine has not been paid did not appear to weigh heavily upon him
38. Tp271 contains a reference to a Toyota Cressida car belonging to the Visa Applicant. He said he paid for it while working illegally as a security guard, and through his earnings of $15 per hour (and that there was sometimes overtime). But even with overtime, $15 per hour after tax (and after living expenses) does not allow for the purchase of a car. (It must be remembered that the Cressida was purchased before the Applicant came on the scene given that she would presumably have been prepared to pay for it; she paid for so much else, and including his outstanding debt to the Commonwealth of Australia, after he eventually left Australia).
the visa applicant and sangita
39. Tp126 refers to a relationship between the Visa Applicant and Sangita which resulted in an apprehended violence order (“AVO”) prohibiting him from going anywhere near her. I do not think it necessary to repeat his long (and incoherent) explanation of the manner in which he became subject to that order.
40. His evidence was that the relationship with Sangita started in 1997 (soon after he came to Australia) and lasted until about three months before he commenced his relationship with Salim and which began at the end of 1999.
the visa applicant and his refugee claim
41. The Visa Applicant made it clear that he persisted with all of his refugee claims; “I am standing with protection visa and all the claims I make.”
42. The Visa Applicant said that he has not worked since returning to Pakistan. It was put to him that he said at the second interview that he was working with friends in computer sales. He replied that he was not working but merely trying to keep up to date with computers.
43. The Visa Applicant said that he has no money or assets in Pakistan and that his family cannot support him “at the moment”. He agreed that the Applicant has sent him approximately A$5000.
44. It was put to the Visa Applicant that the RRT found that he was an unsatisfactory witness who gave inconsistent evidence. He said that the RRT was wrong, and in particular in relation to its findings (in the second paragraph). He insisted that he was an active member of PML. It was put to him that this was what he claimed in his original application but then denied at the RRT hearing. His answer was that “I denied that I had any position in PML. I was never a leader in PML. In my application I said I was a member”.
45. At this stage Mr Morris objected to cross-examination as to the Visa Applicant’s protection visa claims; when it was explained to him how relevant this line of cross-examination was in this case he withdrew his objection.
46. The Visa Applicant insisted that “I have threat on my life”. He said that the people in Rawalpindi who had made a threat against him when he was still in Pakistan before coming to Australia were still there and that the reason why he could not take a job was that a job would involve his presence in the market place and which would have the result that his presence would be known to “those people”.
47. The Visa Applicant was referred to Tp254 and Tp257 and insisted that he had a fear of being arrested in his family home. He agreed that his family home is in Rawalpindi. He agreed also that that is where he is living. His answer was that his wife, the Applicant, would confirm that he does not always sleep there but moves from house to house to avoid detection. (His wife, the Applicant, said nothing of the sort)
48. It was put to the Visa Applicant that if he has a commerce degree and if he is (as he described himself) an engineer, he could find work elsewhere in Pakistan and where presumably he would not be in danger from “those people”. He started by saying that he didn’t understand the question; he was then referred to the fact that when the Applicant visited him in Pakistan, he and she travelled all over Pakistan and where photographs were taken. (This was put to him in response to his statement that he would be vulnerable everywhere in Pakistan). He said that he travels accompanied by his two brothers. He did say that he would not be vulnerable in Islamabad, which as he put it is federal “and where the federal police can’t arrest me”.
49. When it was put to him that Islamabad is the city of embassies and international schools (somewhat like Canberra) he agreed that this was so. He agreed that his fear of persecution arose specifically because of his father’s membership of PML. He said that the authorities were trying to arrest his father and everyone connected with his father. He was asked whether this was why his father worked for a time in Islamabad; he gave a long and incoherent answer. It is relevant though that, notwithstanding the lapse of years, there was no evidence that his father is not free and at large or that he was ever arrested.
50. He was asked why, if he was afraid of being in the company of his father, his father accompanied him to Australia. He said that his father wanted to make sure that he got to Australia safely as it was his first trip out of Pakistan. (It should be remembered that he was an adult when he came to Australia).
51. As to the air force, and of which he was a member, he said that he resigned from the air force, but that the air force did not accept his resignation. He said also that he had no rank. (The Tribunal doubts whether it is possible for any enlisted man simply to resign from the force in which he is enlisted. The Visa Applicant said before the RRT, but not before this Tribunal, that he was on leave from the air force. The probabilities are that he deserted)
52. In re-examination the Visa Applicant agreed that the ruling government of Pakistan is now very different than what it was in 1996. He said that there is now a military government and the effect is the same as it would be if martial law applied. However, when prompted by his counsel, he said a party associated with the Bhutto family might at some time in the future regain power and when he would again be in danger.
53. Considerable further evidence as to his refugee claims indicated in the clearest possible terms that the RRT was altogether correct in its assessment of his evidence. He was never a refugee and knew he was never a refugee. There are numerous other instances of inconsistencies and answers which are either untruthful or simply silly. But it is unnecessary for me to particularise them. Like so many others, the Visa Applicant came to Australia (although on a business visa rather than a tourist visa) and promptly filed a protection visa application, which was not truthful. I note, in this context, that his evidence was sometimes lengthy and sometimes so incoherent that it was not possible to make sense of it. As regards his protection visa claims, it was invariably untruthful.
the visa applicant: general
54. The Visa Applicant had at least two jobs prior to 1998 and one of them twice, (with Berri) in Australia. Although this is not certain, I am prepared to accept that they were undertaken at a time when it was permissible for him to do so.
55. In June 1999, Mr Levingston received the letter which is contained at Tp270 and at which the Respondent refused to grant the Visa Applicant’s application under section 417 of the Migration Act 1958 (“the Act”). The Visa Applicant said that although Mr Levingston sent the letter to him he did not receive it. He did agree though that Mr Levingston told him that he would have to leave Australia.
56. The RRT decision had the effect that he could not work within a short period thereafter. He admitted that his last bridging visa (prior to the bridging visa obtained in 2001) made this clear and he knew that this was so. His work as a security guard (much longer than a year) was illegal. He said that this was a “mistake. I knew I was working illegally, I was looking for some way to make me legal in Australia.”
57. The Visa Applicant said that he consulted friends (not named) who advised him to join the Lie class action conducted by Adrian Joel and he did so, paying Adrian Joel $450 for this purpose. When asked what his intentions were prior to his detention he answered that he wanted to work and stay in Australia. He said that he was making inquiries at that time about the possibility of a student visa.
58. The spouse visa application commences at Tp43. At Tp25 question 29 asked what money he had to bring into Australia and he answered “$17,000”. It was put to him that he said that he had no money and he answered that land in the name of his father in his village could be sold to provide the money if needed. The Visa Applicant’s evidence as regards his family’s means was decidedly contradictory. He described them as “a highly respected and wealthy family” (see Tp230) but he also described them as not being able to help him.
59. The Visa Applicant said that the Applicant would not be able to settle in Pakistan and that she would not find work in Pakistan. He said the conditions in Pakistan for her would not be as good as they are in Australia.
60. According to the Visa Applicant, he cannot find work in Pakistan. This is apparently due in part to the economic circumstances but also as set out previously, to his “fears”. He has a commerce degree, even if it was obtained after what would seem to be a short period of study. While in Sydney he took an eight day computer course. He said that he obtained a diploma in electrical engineering while in the air force. He had, in his refugee claim, expressed a fear of a court martial by the air force if he returned to Pakistan; he agreed that there had in fact been no such event after his return. It must be wondered then why he lives on money provided by the Applicant who, as a teacher, would not have substantial means. On one occasion a more than usually significant amount was sent so as to assist a member of his family. If he cannot work in Rawalpindi, it must be wondered why he cannot work in Lahore or Islamabad. It may be noted that the distance between Rawalpindi and Islamabad is very short. Mr Morris, in his closing submissions, suggested that he is not working because he is awaiting the result of this hearing; that is hardly an answer given that a job can be resigned on notice.
the visa applicant: re-examination
61. Very little which was new came out of re-examination. As to the amount of $17,000 and the land, the Visa Applicant furnished the Tribunal with a long explanation which would appear to involve arcane aspects of Pakistani law, but which did not detract from the fact that he did not have $17,000 available as stated in his spouse visa application.
PART D THE CHARACTER TEST
62. Mr Morris submitted that the decision-maker may have been unduly influenced (Tp2) by his statement that the Visa Applicant had been involved in bigamy and fraud. There was of course no bigamy but there was certainly fraud, or at the very least deception, in respect of his protection visa applications. It may be that the decision-maker was using the term “bigamy” as a form of short hand in relation to the fact that the Visa Applicant had two relationships with females at exactly the same time. But in all events there is nothing to suggest that the decision-maker was unduly influenced thereby. Mr. Morris pointed also to a mistake as to age in relation to the children; it was of no significance.
63. The Visa Applicant’s protection visa claims are founded on the proposition that his father was a member of a party in opposition to the government, that his father was in consequence in danger, and that moreover he and other members of the family were also in danger. If there were any substance in those claims, evidence by his father and perhaps other members similarly in danger would have been necessary to support it. No such evidence was furnished.
64. In the second interview report, the interviewer noted that the Visa Applicant was surprised that he had received a business visa allowing him to enter Australia. It might be thought that a business visa would not be granted except upon application.
65. I have noted that the Visa Applicant is living on the bounty of the Applicant. It is only fair to note that she provides it willingly.
66. On the evidence before me, the Visa Applicant is an unprincipled opportunist and a rogue. The Respondent accepts that the marriage is genuine; I accept that this is so in the sense that the Applicant is altogether devoted to him. As to whether the Visa Applicant is equally devoted is not clear. His evidence as to the circumstances in which he conducted two relationships and then broke one on grounds which were altogether spurious, speaks for itself. The Visa Applicant has committed a considerable number of breaches of section 234 of the Act. The penalties prescribed for breaches of section 234 are such that I must regard his conduct in a very serious light. (See in this regard clause 2.6 of Ministerial Direction 21 (“Direction 21”)). His breaches of section 234 arise from all of his protection visa claims, his statements at interviews and his spouse visa application. I would put his joining the Lie application in the same category given that he never was and knew he never was a refugee. His evidence before me was so spectacularly untruthful that it falls into the same category. And of course he was in breach of section 235 of the Act in respect of illegal work over an extended period. (The facts in this case remind me to an extent of those in Badlu and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 608).
67. Of course the Visa Applicant fails the character test. Mr Morris argued that he made applications which were legally permissible. His contention was that on this basis he was entitled to make a protection visa application. And equally when it failed he was entitled to pursue all of the other remedies and including the joining of the Lie class action. That contention suffers from one considerable flaw; there was no truth in any of those claims.
68. In the same context, Mr Morris contended that the conduct of the Visa Applicant has not been such that it would be found or thought to be “abhorrent”. It need only be pointed out that Direction 21 clause 2.6 (c) makes it clear that whatever an ordinary member of the public might think, conduct of this nature falls into the very serious category.
PART E DIRECTION – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – No. 21 (“DIRECTION 21”)
69. Having found that the Visa Applicant fails the character test, it is necessary for me to consider Part 2 of Direction 21 and the discretionary powers therein contained. In this Part E, references to clause numbers refer to numbered clauses in Direction 21.
70. Clause 2.3 of Direction 21 reads 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.”
71. Clause 2.3 must be considered in conjunction with clause 2.5, which provides:
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(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).”
72. Generally in connection with both recidivism and deterrence, I refer to my decision in Copeland and Minister for Immigration and Multicultural and Indigenous Affairs (2005) AATA 144 and the decisions cited in paragraph 96 of Copeland. I refer in particular to what Deputy President McMahon said in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148 as follows:
““...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”.
73. The Visa Applicant said, when confronted with the fact that in his original protection visa application he said that he was a member of PML but denied it before the RRT, that he was a member but not a leader. This is not the first occasion on which such an explanation has been given; see Carini and Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA 90.
74. It is abundantly clear that the Visa Applicant had one aim and one aim only in mind. He wanted to achieve residence in Australia and he was prepared, ready and willing to breach Australian migration law just as often as it was necessary to do so. His conduct is similar to so many other applicants similarly placed. This Visa Applicant went one step further and joined the Lie class action as yet another delaying tactic.
75. There are some disturbing features about his behaviour in respect of the speeding fine which, except for a small portion, has never been paid. And there are also some disturbing features about the AVO in respect of Sangita. But those offences are not generally regarded as very serious in the scheme of things. I do not think then that he is would present a serious risk to Australia or that recidivism would be very likely. I note though that his behaviour in respect of Australian law has been generally so cavalier that one cannot discount either of these possibilities.
76. In relation to deterrence, this decision might not be known in Pakistan but it will be known amongst the Pakistani community in Australia. To reward a Visa Applicant such as this with a visa would be to send entirely the wrong message.
77. In relation to clause 2.12, I do not doubt that the expectations of the Australian community would be that this application be refused.
78. In respect of hardship under clause 2.17, I accept that there will be hardship to the Applicant if a visa is refused. But it must be remembered that she married the Visa Applicant with full knowledge of his status in Australia (or perhaps more accurately lack of status in Australia). Her devotion to him has been such that one can only admire it while also wondering whether she has not been naïve. She heard the evidence of the Visa Applicant and must have noted the extent to which it contradicted hers, and in particular as regards Salim. However, she said that she would be reunited with the Visa Applicant in Pakistan. She said moreover that she was sure that she could get a job in Pakistan. I am inclined to believe her in these assertions, more particularly because Rawalpindi is very close to Islamabad and where there is a substantial international community (and embassies and international schools).
79. This is not a case in respect of which it is possible to exercise the discretion in favour of the Visa Applicant and accordingly the decision under review must be affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: A. Krilis
Associate
Date/s of Hearing 24 - 25 February 2005
Date of Decision 7 March 2005
Counsel for the Applicant Mr B. Morris
Solicitor for the Applicant Ms M. Byers
Solicitor for the Respondent Mr L. Leerdam
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