Baleilevuka and Minister for Immigration and Multicultural Affairs
[2001] AATA 666
•20 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 666
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/93
GENERAL ADMINISTRATIVE DIVISION )
Re MERILYN BALEILEVUKA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon. C. R. Wright Q.C., (Deputy President)
Date20 July 2001
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – spouse visa – 6 month visitor visa – visa applicant worked in Australia without permission – prior convictions in Fiji – false and misleading statements – disregard for Australia's immigration laws.
Migration Act 1958 – s.501
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514
Ruhl v Minister for Immigration and Multicultural Affairs (2001) FCA 648
Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713
Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698
Radovanovic and Minister for Immigration and Multicultural Affairs (2000) AATA 146
REASONS FOR DECISION
20 July 2001 The Hon. C. R. Wright Q.C., (Deputy President)
This is an application to review a decision by the Minister's delegate on 11 December 2000 refusing an application for a spouse visa (Subclass 309) which was lodged at the Australian High Commission in Suva on 13 April 1999.
The review applicant, Merilyn Baleilevuka aged 31 years, is the wife of the visa applicant, Isimeli Vono Baleilevuka, a Fijian national aged 41 years.
On 29 October 1987, the visa applicant arrived in Australia and was granted a 6 month visitor visa valid until 23 April 1988. A condition of that visa was that the applicant not work during the period that he was in Australia. The visa applicant breached this condition by taking employment in February 1988. When his visa expired on 23 April 1988 he had decided to stay in Australia illegally. He has not held a valid visa or entry permit since that time. Until his arrest on 23 July 1997 he had worked in many jobs in Australia using the assumed name of Tomy Ataki. Whilst not continuous the overall period of employment was substantial. He changed jobs frequently to elude detection by Immigration Department officers.
In October 1991 he applied for a protection visa. This document was not before the Tribunal during the review hearing on 27 July 2001, nor does it appear to have been before the primary decision-maker.
The visa applicant was asked about the contents of the protection application during the hearing and, having regard to his understanding of the grounds, it is plain that it was doomed to failure from the outset. In any event the visa applicant withdrew the protection application on 1 December 1992. He had been granted temporary permission to work while the application was being processed. This permission terminated with the withdrawal of the application. The respondent does not suggest that any false or misleading statements were made in support of the protection application.
On 9 June 1990 the visa applicant met Ms Sharon Osman and, on 19 October 1991, they were married. On 12 November 1992 he applied for a December 1989 Temporary Entry Permit (TEP) and Permanent Entry Permit (PEP) under the terms of the amnesty and concession made at that time in respect of illegal immigrants. The ground of his application was that he was married to an Australian citizen. On 5 August 1993 the visa applicant was again granted permission to work pending a decision in relation to this application, but soon thereafter the visa applicant's wife advised the Department that she was no longer in a marriage relationship with Baleilevuka. This was confirmed by him 8 December 1993 and his TEP and PEP application was refused on 22 December 1993. He was advised of this and of the withdrawal of his permission to work by certified letter on 4 January 1994.
Oddly enough, during sworn evidence at the Tribunal hearing, the visa applicant said that he believed that he never had permission to work at any time whilst he was in Australia. Be that as it may, it is obvious that, apart from about 19 months during the period of 9 years and 9 months that he was in Australia, the visa applicant had no valid permit to work here, yet he quite deliberately set out to defy this restriction within about 4 months of his arrival and he set out to elude the authorities charged with the enforcement of Australian migration laws by changing jobs and using a false alias.
These are obviously relevant matters in determining whether or not the visa applicant passes the character test provided for by s.501 of the Migration Act 1958 ("the Act"). It was his failure to pass this test and a refusal by the primary decision-maker to exercise his discretion in favour of the visa applicant which brought about the refusal of Balielevuka's spouse visa application.
There was however additional material taken into account in the decision-making process. Between 1979 and 1982 the visa applicant was involved in the commission of several offences in Fiji. They were as follows:
15.5.1979Visa applicant convicted for throwing an object, fined $25 (in default of payment 1 month imprisonment) by Suva Magistrate's Court.
6.6.1979Visa applicant convicted for theft, fined $25 (in default of payment 1 month imprisonment) by Suva Magistrate's Court.
13.8.1979Visa applicant convicted for being drunk and disorderly, fined $20 (in default of payment 1 month imprisonment) by Suva Magistrate's Court.
15.10.1979Visa applicant convicted for Obstructing Police Officer, fined $30 or 6 months imprisonment, by Suva Magistrate's Court.
18.1.1980Visa applicant convicted for larceny, sentenced to 3 months imprisonment suspended for 12 months including "good behaviour period".
26.8.1980Visa applicant convicted for larceny from person, sentenced to 9 months imprisonment and suspended sentence of 2 months imprisonment activated (consecutive).
15.2.1982Visa applicant convicted for being drunk and disorderly, fined $20 (in default of payment 20 days imprisonment) by Suva Magistrate's Court.
Whilst in Australia and married to Sharon Osman the visa applicant was charged with breaching an intervention order which apparently had been made in his wife's favour, and with being drunk in a public place. The records available to the Tribunal suggest that he was given a 2 month suspended gaol sentence and was fined $100. When asked about his failure to disclose these offences in his current visa application, the visa applicant indicated that he believed that he was only warned by the presiding magistrate and he was not convicted of either offence. His wife, the review applicant, said that when they applied to the Victorian Police for details of these offences they were told that Baleilevuka had no police record, although this was shown to be inaccurate once the Federal Police were consulted on the matter. Whether or not the Victorian Police got it wrong, I am satisfied that the visa applicant should have disclosed these matters in his application and omitted to do so as he thought these details may harm his application.
The visa applicant's marriage to Ms Osman was dissolved by Decree Nisi on 16 March 1996. Before this, in 1995 he had begun an intimate relationship with the review applicant and in about August 1996 they began to live together as husband and wife.
Departmental records suggest that on 28 October 1996 the visa applicant was located by DIMA staff but that he gave them a false name, refused to accompany them when requested to do so and made good his escape. The visa applicant denies this and a perusal of the relevant departmental entries suggest that there may have been a misidentification of the visa applicant as the absconder. I am not prepared to find that it was the visa applicant.
However it was admitted by Baleilivuka that about 3 weeks later at Hoddle Street, Lilydale, while living together with the review applicant, he was surprised by immigration personnel who arrested him. He agreed that he threatened one of the officers and escaped by running away. He was not finally apprehended until 23 July 1997 when DIMA staff again visited his premises, this time before dawn and accompanied by 3 Victorian police officers. He was then detained in custody and returned to Fiji on 6 August 1997 where he has remained ever since. Prior to his departure the visa applicant was interviewed by departmental officer Paul Sykes, who asked (inter alia):
Q3. "Have you been convicted of a criminal offence in Australia or overseas?" His answer, "No", was clearly false.
Q32. "Have you worked in Australia?" His answer (in part) "Carlton Brewery – 1 year" was inaccurate as he did not disclose the numerous other employers for whom he had worked. I think that this answer was probably intended to mislead.
His wife, who conducted the applicant's case herself, suggested to him when he was giving evidnce that, given the circumstances of his arrest and detention before interview he was in a confused or disturbed state of mind. He did not accept this proposition saying he was probably "not 100%, but I tried to make sure everything was OK". He added "I told Sykes I could escape from the detention centre and he said 'That would be very bad of you' – we were just talking like 2 people". I do not accept that he was overcome, unfairly treated or did not understand what was going on.
On 30 August 1997 the review applicant travelled to Fiji and on 6 September the same year she and the visa applicant were married. It has not been contested that this was a valid and genuine marriage.
Evidence from both the review applicant and the visa applicant establishes to my reasonable satisfaction that Mr. Baleilevuka ceased using alcohol about 7 or 8 years ago following his conviction for breaching the intervention order in favour of his first wife.
It is clear enough that most, if not all of his trouble with the police both in Australia and Fiji was caused by excessive drinking and immaturity and I think it likely that his propensity to offend has substantially diminished.
It was suggested by one of the visa applicant's many referees that his prior convictions in Fiji should be totally disregarded when considering his character for immigration purposes. This proposition was based upon the provisions of the Rehabilitation of Offenders (Irrelevant Convictions) Act 1997 (Fiji). The particular provisions of that legislation which may have had a bearing upon this issue were not referred to but it is plain enough that the proposition stated finds no support in Australian law. The convictions, although meeting the description of "spent" convictions for the purposes of the Crimes Act 1914 (C'th) Part VIIC are not immune from disclosure by virtue of s.85ZV of that Act and, in any event are not precluded from examination and consideration for purposes such as the present review, by reason of s.85ZZH(d).
In applying the character test to the visa applicant regard must be had to the Minister's policy Direction given under s.499 of the Migration Act 1958 ("the Act") entitled "Visa Refusal and Cancellation under Section 501, No. 17". The terms of this Direction have been set forth in many previous Tribunal decisions and need not be quoted extensively for present purposes.
Under s.501(1) of the Act the obligation is cast upon the visa applicant to satisfy the Minister that he or she passes the character test. Activities and conduct which preclude an applicant from passing the test are set forth in s.501(6). In the present case it is contended that the visa applicant fails to pass the test by reason of his "past and present general conduct". The meaning of "good character" has been considered in many reported decisions e.g. Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187.
The respondent contends that the visa applicant's conduct in the following respects demonstrates that he is not of good character in the relevant sense.
Overstaying for 7 years after the expiration of his visitor visa.
Working without permission during his illegal sojourn in Australia.
Taking action to evade his detection and apprehension by departmental officers in order to prolong his illegal stay in Australia.
Making false and misleading statements to officers of the Department both at interview and on official forms.
Making false and misleading statements to the Australian Taxation Office.
Dealing with point 5 first, no specific taxation documents were referred to during the hearing and the visa applicant gave oral evidence that although he had used a false identity, he in fact lodged tax returns and paid income tax upon his earnings. Whilst I regard his claims with a certain amount of scepticism, it is fairly obvious that, at least while working for reputable employers, taxation contributions would have been deducted from his pay. On the other hand, as he had assumed a false identity it is equally obvious that if he had lodged taxation returns or other documents in the name of Tomy Ataki (as he says he did), he would have made a "false and misleading statement" to the ATO. On the whole I am left in doubt as to this allegation and therefore propose to confine my consideration to the other four particulars of alleged bad character.
The Minister's Direction No. 17 provides in Clause 1.9 that in considering good character under s.501(6)(c(ii) a decision-maker should have regard to whether the applicant has been engaged in "activities indicating contempt or disregard for the law…", whether the applicant has in connexion with any application for the grant of a visa "made a false and misleading statement", whether the applicant has "made a false or misleading declaration on an approved form". In the absence of countervailing factors any adverse finding in respect of such matters should be regarded as constituting a failure to pass the character test.
Counsel for the respondent pointed out that the visa applicant had remained in Australia unlawfully following the expiration of his 6 month visitor visa on 24 April 1988, and that thereafter he remained in Australia for 3 years before making any attempt to regularise his unlawful status by lodging first an application for a protection visa and then an application for a December 1989 Temporary and Permanent Entry Permit based on his marriage to his first wife Ms Sharon Osman. Furthermore the visa applicant failed to depart from Australia following the finalisation of both visa applications by 4 January 1994 as was his obligation. The respondent submitted that the visa applicant remained in this country with full knowledge that he was an unlawful citizen for a further 4 years. At no point during this period did he make any attempt to come forward to the Department of his own volition. On contrary he took deliberate and dishonest steps to evade detection and removal from Australia. The visa applicant's presence in this country was only detected by reason of compliance action by the Department.
At all times when he was present within Australia without the protection of a valid visa, the applicant was an unlawful non-citizen and was liable to deportation. The respondent submits that this was not a situation where a breach of the law had occurred on one occasion only, it was rather a repeated and continuous breach over an extensive period of time ceasing only after detection and apprehension.
The respondent also submitted that the visa applicant by knowingly working without permission for a substantial part of the period during which he was unlawfully in this country committed offences pursuant to s.235(3) of the Act. If prosecuted to conviction the penalty for any such offence is a maximum fine of $10,000. I have no difficulty in accepting the submissions of the counsel for the respondent that, viewed as a whole, the visa applicant's conduct in overstaying his visas and working without permission constituted a very serious breach of Australian migration law, which in turn reflects most adversely upon his character.
Counsel for the respondent in dealing with the visa applicant's alleged failure to be truthful in dealing with the Department referred to Lachmaiya's case (supra) and the well known passage in that decision where Deputy President McMahon said:
"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 when dealing with the many reasons for coming to Australia. To lie consistently, is to subvert the administration and, in the context of the Act, to demonstrate that Mr. Lachmaiya is not a person of good repute or good character."
The misleading statements attributed to the visa applicant are those already referred to in answers to questions 31 and 32 during his post-apprehension interview by Mr. Sykes.
As the visa applicant had a relevant record of offending in Fiji and Australia, albeit not of particular seriousness or recency, and as his illegal work record was far more extensive than he indicated, these misleading answers, although not of themselves sufficient to justify an adverse character assessment must play a part in that overall process in my opinion.
The final matter requiring comment in relation to the character test is the visa applicant's conduct when confronted by departmental officers on 2 occasions. On the first occasion he escaped from their custody and thus committed an offence under s.491 of the Act. It is noted that the legislation provides for imprisonment for up to 2 years in respect of such conduct. On the occasion of his second apprehension, the visa applicant concedes that it is "probable" that he made some threat to at least one of the apprehending officers. He did not however assault any officers, he said (it is not claimed that he did). Such a threat may well have constituted an offence under Victorian domestic law, but I was not referred to any such provision. I take the view that the escape from custody was a serious matter viewed on its own, but that the threat was of little additional significance. Nonetheless both matters should be taken into account in assessing the character test issue.
In support of the visa applicant's claim that he is currently of good character, an impressive number of references, both by statutory declaration and personal letters numbering 20 in all, were included with his migration application made on 14 October 1998. As well as providing a statutory declaration in support of her husband's application, the review applicant gave sworn evidence during the course of the hearing before the Tribunal, as did her sister, Ms Jillian May. Their evidence and that of the visa applicant himself satisfies me that he is currently living an abstemious and hardworking life in Fiji. There is no suggestion that he conducts himself other than in a sober and lawful manner on all occasions at the present time. Nonetheless bearing in mind the provisions of s.501 of the Act and the Minister's Direction and taking account of the applicant's extensive disregard of the migration laws whilst resident in this country, I have concluded that in the relevant sense he has failed to show that he is of good character. I therefore turn to consider whether in the exercise of my discretion, notwithstanding his failure to pass the character test, a favourable determination should be made in the visa applicant's favour.
Counsel for the respondent made a number of preliminary submissions in respect of the effect of the Federal Court decisions in Aksu v Minister for Immigration and Multicultural Affairs (2001) FCA 514 (Dowsett J) and Ruhl v Minister for Immigration and Multicultural Affairs (2001) FCA 648 (Cooper J). The Tribunal is of course bound by the construction of Direction 17 adopted in both of these cases.
It was submitted that the comments of both Judges were obiter dicta and were not binding insofar as they suggested that the Minister's Direction as to the exercise of a discretion was ultra vires. Whilst I think that there is some merit in the argument advanced, I think it would be a bold step for a member of this Tribunal to take the view contended for.
There was, however, another argument which I think is compelling, viz that the offending parts of the Minister's Direction can be severed from the remainder of the Direction pursuant to s.46(1)(b) of the Acts Interpretation Act 1901. If so severed Direction 17 would become indistinguishable from Direction 9 which was upheld in Bustescu v Minister for Immigration and Multicultural Affairs (1999) FCA 1713 and Lau v Minister for Immigration and Multicultural Affairs (2000) FCA 698 (Full Court). In its severed form the Direction would be valid. The passages necessary to be severed to achieve this purpose are the penultimate sentence of paragraph 2.2 and that part of 2.1.7 which deals with other individual considerations being given less weight than maybe given to primary considerations.
Although the visa applicant was not represented by counsel and thus the submissions by counsel for the respondent were not subject to critical scrutiny by an opposing party, I am satisfied by the argument advanced that the appropriate severance should be undertaken to retain the validity of the greater part of the Direction by the Minister as to the exercise of discretion. I also accept the submission that whether or not the Direction is valid, it constitutes a solemn declaration of government policy which should at least be taken into account and be given due weight, subject of course to the preservation of my unfettered individual discretion under s.501(2). I have taken the consistent view in decisions delivered both before and since the judgments in Aksu and Ruhl that my unfettered discretion may be exercised in coming to a conclusion in matters of this kind.
In considering the protection and the expectations of the Australian community as required by the primary considerations listed in the Minister's Direction, it is relevant to state, as I have already stated in dealing with the character issue, that the visa applicant committed serious offences against the Migration Act. The Migration Act is plainly legislation designed to protect the Australian community from unauthorised and uncontrolled migration to this country. Overstaying and working when not authorised are significant offences. To ensure the effectiveness of these defences against unauthorised entry, the question of general deterrence is, in my assessment, a matter of considerable importance. The material before me suggests that the Fijian community is a close knit community, and if it were to become generally known that members of that community who gain entry to Australia and then overstay and/or work when not permitted to do so will be refused re-entry when their offences become known, I am confident that a generally deterrent message would be sent to intending visitors from that community. I am also satisfied that properly informed members of the Australian community would expect that someone who has behaved in the past as the visa applicant has behaved, by coming here and deciding to stay on without authority and seeking work under an assumed name, would not normally be permitted to return.
The review applicant submits that there is little likelihood of her husband repeating his conduct if he is re-admitted to this country. On the basis that he is re-admitted as a permanent resident, there is obviously substance to this submission. His presence here will no longer be unlawful and it may be assumed that he will be permitted to work during his residency in this country. On the other hand there may be occasions when he is required to make disclosure of matters to the Department and, on the basis of his past history, there is a suspicion that he may not make full and accurate disclosure of information which he sees as being contrary to his best interests.
The applicants do not have any children and accordingly the third primary consideration mentioned in the Minister's Direction is irrelevant for present purposes. Nonetheless family considerations must be taken into account in respect of other matters. The review applicant does not claim to be pregnant, and indeed asserts that one of the reasons why her husband should be permitted to re-enter Australia is that she could then gain assistance from the IVF program so that they may start a family. She submits that no such program is available in Fiji. The visa applicant told me in evidence that she is employed by the Melbourne Specialised Support Agency and that she performs the role of teacher for young people with disabilities. At present she is under contract to work for the Autism Association. She is currently undergoing training which will enable her to obtain a Certificate of Proficiency and later, hopefully, a Diploma. She has had about 8 years experience in teaching young disabled people. She also told me that on the basis of information from friends in Fiji she believed it would difficult for her to obtain employment in Fiji if she were to travel to that country to resume cohabitation with her husband. Since their separation in 1996, she has visited him on several occasions and there is no reason to anticipate that she would have difficulty satisfying the migration authorities in that country of her suitability to be admitted as a long term resident and to seek employment there.
The visa applicant is currently employed rebuilding the Fijian parliament complex following the failed coup last year. He was unable to tell me how long this job is likely to take, nor was I given any details of employment difficulties which he may have experienced after returning to Fiji. His employment record in Australia suggests that he is regarded as a very desirable employee, and I think it may be assumed that he would similarly regarded in Fiji. I am prepared to assume however that work may not be readily available on a long term basis in that country, and it is also plain that the Fijian wages are very much less than comparable wages in Australia. On the basis of the information contained in his migration application, it seems obvious that his immediate family all reside in Fiji, and it is also plain from the material before me that the review applicant is well regarded by his family and has a long association with people of Fijian origin from which it may be inferred that she is familiar with their culture and customs. In her role as advocate for the visa applicant, Mrs. Baleilevuka presented a strong argument for her husband's admission to this country. She referred inter alia to the decision of Deputy President B M Forrest in Radovanovic and Minister for Immigration and Multicultural Affairs (2000) AATA 146 (25 February 200). In that case some issues which arose were similar to the issues which have arisen in the present matter. However there were a number of issues which distinguished that case from the present, and, in any event, I have long held the view that it is unproductive to try and compare factual issues which have given rise to the exercise of a discretion in one case with superficially similar factual issues which may arise in another.
It is not without significance that at all times during the development of their relationship, their subsequent cohabitation, and marriage, the review applicant has been fully aware of her husband's status as an illegal immigrant and unauthorised worker whilst living in this country. Their marriage took place after he had returned to Fiji. I have no reason to doubt that theirs is a genuine and loving relationship, but she took the risk that he may not be re-admitted to Australia when the marriage took place. Whilst having some sympathy for her position this is not a sufficient basis for exercising my discretion in the visa applicant's favour. In my opinion the decision now under review should be affirmed and I so direct.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright Q.C., (Deputy President)
Signed: ...............K L Miller......................................
Personal AssistantDate/s of Hearing 27 June 2001
Date of Decision 20 July 2001
Counsel for the Applicant -
Solicitor for the Applicant -
Counsel for the Respondent Mr S Law
Solicitor for the Respondent Aust. Government Solicitor
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