Bibashani and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1207
•6 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/35
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA BIBASHANI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date6 December 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION – Sub-Class 309 (Provisional) Spouse Visa – decision to refuse grant of visa where visa applicant fails character test – association with individuals suspected to have been involved or are involved in criminal conduct – past and present general conduct – Ministerial Direction No. 21 – primary and other considerations – whether other considerations can outweigh primary considerations – visa applicant married to Australian resident – evidence of hardship which would be caused to visa applicant’s wife and her immediate family members lawfully resident in Australia – decision under review affirmed.
Migration Act 1958 ss 234, 235, 499, 501(1), 501(6)(b) and 501(6)(c)(ii)
Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487
Grabovica and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1103
Minister for Immigration and Multicultural Affairs v Chan [2001] FCA 1552
Hapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938
Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505REASONS FOR DECISION
6 December 2005 Senior Member R W Dunne 1. This is an application to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 24 January 2005 to refuse the grant of a Sub-Class 309 (Provisional) Spouse Visa to Nikolin Bibashani (“visa applicant”). The application for review was lodged by the visa applicant’s wife, Maria Bibashani (“applicant”). The T documents and the Supplementary T documents were tendered before the Tribunal and admitted as exhibits R1 and R2.
2. The visa applicant was refused a visa on the ground that he did not pass the character test under s 501 of the Migration Act 1958 (“Act”).
issues for the tribunal
3. In broad terms, a person does not pass the character test:
(a)if the person has or has had an association with someone who the Minister reasonably suspects has been or is involved in criminal conduct; or
(b)if, having regard to past and present conduct, the person is not of good character.
4. It was not conceded at the hearing that the visa applicant did not pass the character test.
5. The issues before the Tribunal are:
(a)whether the visa applicant passes the character test under s 501 of the Act; and
(b)if the visa applicant is found not to have passed the character test, whether the discretion under s 501(1) of the Act should be exercised in favour of the visa applicant, taking into account the considerations outlined in Ministerial Direction No. 21 (“Direction”) made by the Minister pursuant to s 499 of the Act.
background evidence
Evidence of the Applicant
6. A witness statement was tendered for the applicant by Mr Winter, counsel for the applicant (exhibit A2), and she also gave oral evidence. The statement was undated, but I am satisfied that it was made on or about the time it was filed with the Tribunal (11 July 2005).
7. The applicant was born on 25 October 1973. In April 1995 when she was 21 years of age, her father died suddenly as a result of a heart attack. He had, throughout his life, suffered from bi-polar affective disorder (manic depressive illness). Following her father’s death, it fell to the applicant to take responsibility for her immediate family. Her mother was incapable of doing so, as were her two sisters.
8. In 1998, following an accident while she was driving her late father’s motor vehicle, the applicant’s own bi-polar affective disorder began to emerge. Her evidence in her statement was that she suffered major depression, along with psychotic features and episodes that accompany the disorder, and she experienced a strong urge to suicide.
9. Her illness remained constant until she met the visa applicant at a Greek party in March 2001. In her statement, she said their relationship grew and he became liked by all the members of her family, both immediate and extended. They married in June 2001 in the presence of the members of her immediate family, including an uncle (George, who was a witness at the wedding) and Ceske Jakaj, a relative of the visa applicant.
10. The applicant gave evidence and was cross-examined by Mr Prince, counsel for the respondent, about her and her husband’s association with a number of people. She said that, early in 2002, she came to know a Tracy Lee Price. She also met Ms Price’s husband, Arjan Mile, at the same time. The visa applicant had known Mr Mile and had introduced the applicant to Ms Price and Mr Mile. The applicant said that she and her husband had heard that Mr Mile had engaged in some criminal activity and had spent time in gaol, but she did not know the details.
11. The applicant was then questioned about a Dode Jakaj, who she said was a distant cousin of her husband, and a Pashuk Jakaj, who she understood was related to Ceske Jakaj. The applicant said that she had heard of these men, but had not met them. Her husband had stayed with Dode and Pashuk for a month or so when he first came to Australia in March 2000.
12. The applicant said that, before her marriage to the visa applicant, they were living together in a house owned by Ceske Jakaj at Para Hills. The house was provided to them rent free, but with their knowledge that it contained growing marijuana plants. The plants were growing inside the house and in a garage in the back yard. They did not care for the plants – the owner of the house would take the plants and attend to their care. The applicant said that she and her husband were arrested as a result of their involvement with the marijuana plants, but she had not been convicted. When cross-examined about her involvement and her arrest, she said that she did not know she was doing anything wrong. At the time, the applicant was employed as an office clerk and her husband was not working.
13. The applicant’s further evidence was that, on the advice of a migration agent, she and her husband left Australia in 2004 and returned to Albania after having lodged application papers for a spouse visa in Greece. They were told that it would take 3 to 9 months before they would receive a response to the visa application. Arrangements were made to return to Australia on 17 August 2004, but this date could be changed if it became necessary. However, once in Albania, the applicant said she suffered a severe recurrence of her illness and no medical treatment was available. She became severely depressed and the visa applicant arranged for members of her family to travel to Albania. In October 2004, they escorted her back to Australia for treatment. The visa applicant remained in Albania. Since her return, it has been necessary for the levels of the applicant’s medication to be increased.
14. Mr Winter did not re-examine the applicant.
Evidence of the Visa Applicant
15. The evidence of the visa applicant was given in an undated written statement tendered to the Tribunal by Mr Winter (exhibit A3) and orally, by telephone hook-up to Albania, through an interpreter. Again, although the statement was undated, I am satisfied that it was made on or about the time it was filed with the Tribunal (11 July 2005).
16. The visa applicant was born in Albania on 23 March 1973. His evidence was that, in or about February 2000, he had to leave Albania due to his “particular circumstances”. When questioned on this, Mr Bibashani said there had been “family problems”, but that they no longer existed. He said that his circumstances became known to a Mr Nick Karas who told Mr Bibashani that, for a fee of US$12,000, he could arrange a visa for him to travel to Australia. He was told the visa would be quite valid, but that it was necessary to create a false history to enable it to be issued. Mr Bibashani paid Mr Karas his fee, which he had obtained from family members in Albania and a brother in Germany.
17. Based upon the T documents, the following is a chronology of events that took place in relation to Mr Bibashani’s various visa applications:
31.01.00 Visa applicant applies to visit Australia for tourism.
14.03.00Visa applicant lodges an application for a temporary business entry visa to Australia.
16.03.00Visa applicant granted a Subclass 456 visa to enter Australia. Visa expired on 16 April 2000 and limited stay in Australia to 20 days.
07.09.00Visa applicant unsuccessfully applies for a Bridging visa E.
12.09.00Visa applicant applies for protection visa.
12.09.00Visa applicant unsuccessfully applies for a Bridging visa E.
22.09.00Visa applicant successfully appeals the decision to refuse the grant of a Bridging visa E to the Migration Review Tribunal.
15.01.01Visa applicant is refused a protection visa by the delegate of the respondent.
Visa applicant applies for review by Refugee Review Tribunal.
04.06.03Refugee Review Tribunal affirms decision to refuse the grant of a protection visa.
31.07.03Visa applicant unsuccessfully applies to respondent to exercise her discretion under s 417 to substitute the Refugee Review Tribunal decision with a new decision granting the visa applicant a visa.
21.06.04Visa applicant applies for a spouse visa.
18. In cross-examination, Mr Prince referred to the tourism visa application that was made by or in the name of Mr Bibashani on 31 January 2000 (exhibit R1, pages 155-161). Mr Bibashani admitted that, in the application, he had made various false statements. He had set out qualifications he did not have, he stated that he was employed overseas by a company which was untrue, and that he was married and had a wife and children in Albania, which was also untrue. He also admitted that he lied to immigration officials about his employment in Australia, his qualifications and his family in Albania and provided the officials with false documentation relating to his employment with a company in Albania. He said that he had subsequently been requested to provide an application for a business entry visa as the stated purpose of his travel was not for tourism. He provided the application on 15 March 2000, which also contained false information about his family composition.
19. Mr Bibashani arrived in Australia on 27 March 2000 on a business visa, which expired on 16 April 2000. He admitted that, in not leaving Australia within the visa period, he had failed to comply with the visa conditions. He also admitted that he had been located and detained by immigration officials in September 2000, working in Adelaide in breach of his visa conditions. He said he knew he was not entitled to work, but had been forced to do so. When questioned at that time by the immigration officials, Mr Bibashani gave them a false name.
20. Mr Bibashani’s further evidence was that, when he first arrived in Australia, he lived with two extended family members, Dode Jakaj and Pashuk Jakaj, at Para Hills. The Tribunal notes that Dode Jakaj has a criminal conviction history which is detailed in the Supplementary T documents (exhibit R2, pages 265-266). In 2001 he was convicted of one count of producing a controlled substance and one count of taking part in the production of a controlled substance. In 2002 he was convicted of one count of producing a controlled substance. Pashuk Jakaj also has a criminal conviction history which is detailed in the Supplementary T documents (exhibit R2, pages 270-280). In 1996 he was convicted of one count of using an Australian passport issued to someone else, of aiding and abetting the commission of an offence, of one count of obtaining a passport by false statement, of one count of producing a controlled substance and of one count of possessing a controlled substance. In 2001 he was convicted of one count of producing a controlled substance and of one count of possessing a controlled substance, and in 2002 he was convicted of one count of taking part in the protection of a controlled substance.
21. Mr Bibashani said he lived with Dode Jakaj and Pashuk Jakaj for about a month. However, under cross-examination, his recollection became uncertain and he admitted that he may have lived at Salisbury, after his arrival, for most of the remainder of the year. He said he left Salisbury and went to Para Hills, where he lived in a house owned by Ceske Jakaj. He said further that Ceske Jakaj was the older brother of Dode and Pashuk Jakaj. He said the applicant went to live with him in the house early in 2001, before their marriage. He admitted that marijuana plants were being grown in one room of the house and in a garage at the back. He also admitted that he had been found guilty of producing a controlled substance and possessing a controlled substance and was fined on both charges, without conviction. He had also been convicted of larceny of a watch band and had been fined, without conviction.
22. Mr Bibashani was then cross-examined on the visa application he had lodged in Greece in June 2004 (exhibit R1, pages 27-43). He was asked whether he had ever had a visa cancelled in Australia and said that he had. He was referred to the June 2004 visa application (exhibit R1, page 27) in which he had stated, in answer to a question, that he had not had a visa cancelled in Australia. When asked about the statement, Mr Bibashani said that the form had been completed for him and that he must have misunderstood the question.
23. Mr Prince also cross-examined Mr Bibashani about paragraphs 12 and 13 of his witness statement (exhibit A3), which read:
“I travelled to Adelaide to meet DODE JAKAJ and PASHUK JAKAJ. They provided me with accommodation and with advice but, at the same time, asked me for money and made a lot of promises to me which I began to realise would never eventuate – at least at their hands.
Not only did they take the greater part of my money but a number of my personal possessions. When I discovered this, I decided that I had to get away from them and make my own way.”
Mr Bibashani seemed to become confused about the questions that were asked of him in relation to paragraphs 12 and 13 of his statement. I accept that, due to distance and communication difficulties, he may have not fully understood the questions that were being put to him. I find that, in view of all the material before the Tribunal, no adverse conclusions should be drawn from Mr Bibashani’s answers to the questions.
24. Mr Bibashani was questioned further by Mr Prince on his relationship with Arjan Mile and his wife Tracy Lee Price. He admitted that he was aware that Mr Mile had some sort of criminal record, but that he was unaware of the nature of his criminal activity. The Tribunal notes that details of Mr Mile’s criminal conviction history, including convictions in 1997 of being knowingly concerned in the importation of a trafficable quantity of a prohibited import (heroin) and of possessing a falsified passport, are contained in the Supplementary T documents (exhibit R2, page 282). Mr Bibashani said that, although their wives were Australian, his relationship with Mr Mile was not a close one. When questioned about the contents of a statutory declaration made by Ms Price (exhibit R1, page 121), he said that he and his wife had socialised with Mr Mile and Ms Price, but not as frequently as Ms Price had stated in her declaration.
25. Mr Prince asked Mr Bibashani whether he was aware that Mr Karas knew his cousins, Dode and Pashuk Jakaj. He said that he only became aware of this after he arrived in Australia. He said he overheard a telephone conversation between his cousins and Mr Karas and, although his English was not good, he was able to determine that Mr Karas was on the phone to them. Mr Bibashani did not know whether Mr Karas had arranged for him to live with his cousins. He understood it was his family in Albania who had spoken to his cousins about accommodation when he arrived in Australia. He said he did not know whether Ceske Jakaj had a close relationship with Dode and Pashuk Jakaj. He had not had contact with Ceske Jakaj for several years.
26. Mr Bibashani said that he had married the applicant in Adelaide in June 2001 and that Ceske Jakaj had been present at the wedding, along with his wife’s family. Ceske Jakaj had been a witness at the wedding. Mr Bibashani had no children and had no business ties in Australia, nor did he have any other ties to the Australian community.
27. Mr Winter did not re-examine the visa applicant.
Evidence of Dr Lavender
28. A witness statement was tendered by Mr Winter for Dr Anthony Lavender (exhibit A1), who since March 2005 has been involved in managing the applicant in the treatment of her bi-polar affective disorder. Much of Dr Lavender’s statement and his oral evidence before the Tribunal related to the applicant’s travel to Albania, to the death of her father and to her marriage to the visa applicant. He said that the applicant had been deeply depressed after her father’s death and that a significantly high measure of medication was necessary, together with other psycho-therapy. Her last episode had occurred in August 2004, however, suicide was always a possibility. He also said that, when treated effectively, bi-polar affective disorder could be managed and he would continue to maintain his treatment of the applicant. In relation to her travel to Albania and the lack of psychiatric facilities there, he said that he had only heard this from friends and on the information provided by the applicant.
Evidence of Family Members
29. Witness statements were tendered by Mr Winter for Maria Scerri, a first cousin of the applicant, and for the applicant’s sister, Helen Harkotsikas. The witnesses also, in turn, gave oral evidence. The thrust of their evidence was as to the good character, honesty and utmost integrity of the visa applicant. However, when cross-examined by Mr Prince, both witnesses acknowledged that they did not believe a person who lied, who had falsified documents, who had breached visa conditions, who had produced controlled substances and who had committed criminal offences was a person of the utmost integrity. The witnesses said they had been previously unaware of the visa applicant’s criminal activities or that he might have associated with persons involved in criminal activities. They had only become aware of these matters as a result of the respondent’s statement of facts and contentions.
legislation
30. S 501(1) of the Act provides as follows:
“(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
31. Relevantly, ss 501(6)(b) and (c)(ii) of the Act provide in effect that a person does not pass the character test if:
·the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
·having regard to the person’s past and present general conduct, the person is not of good character.
does the visa applicant pass the character test?
32. Turning first to s 501(6)(b), it requires a consideration of whether Mr Bibashani had (or has) an association with another person, group or organisation. It then asks whether that person, group or organisation has been (or is) involved in criminal conduct.
33. The Direction addresses the expression “association” in s 501(6)(b) when, in paragraph 1.5, it says:
“The meaning of ‘association’ for the purposes of the Character Test encompasses a very wide range of relationships including having an ‘alliance’ or a ‘link’ or ‘connection’ with a person, a group or an organised body that is involved in criminal activities. ‘Association’ does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a)the degree and frequency of association the non-citizen had or has with the individual, group or organisation;
(b)the duration of the association; and
(c)the nature of the association.”
34. It was Mr Winter’s submission that the words “the nature of the association” in paragraph 1.5(c) of the Direction suggest that the association of the person under consideration may, in certain circumstances, be innocent and one must have regard to the intent behind the association. In support of his submission, Mr Winter referred to the decision of Deputy President Purvis QC in Chan and Minister for Immigration and Multicultural Affairs [2001] AATA 487 where at [17] and [36] he said:
“The word ‘association’ in the present context encompasses persons associated, connected or combined with a common purpose, or having a community of ideas, where one of the associates is reasonably suspected of having been, or being, involved in criminal conduct. The reasonably believed association, connection, combination, community of ideas of the one must then have a nexus with the reasonably believed involvement of the other, in criminal conduct. It is necessary for there to be a reasonable belief in the existence of the nexus. This in the context of section 501(6) of the Act.
…
It was submitted on the basis of the above facts that, if a person has family ties to a person who is connected to a group or organisation that is involved in criminal activities, then the person having the family tie will not pass the character test. It is the opinion of the Tribunal that this is not a correct statement of the law. The existence or otherwise of the association will depend upon the particular circumstances of each case and whether or not the connection, combination, community of ideas, common purpose directly, or indirectly, results in establishing a criminal association.”
35. Mr Winter also referred to the decision of Grabovica and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1103 where, at [25] Deputy President R P Handley said:
“The Tribunal considers that Mr Zivko Grabovica’s attachment to the Military Post in Prijedor, having regard to its duration, degree and frequency, does not establish a sufficient association to support a finding that Mr Zivko Grabovica does not pass the character test. There is no evidence that Mr Zivko Grabovica’s ‘enduring moral qualities’ are so deficient to show it is for the public good to refuse his application for a visa (see Goldie (supra) and Re Msumba (supra)).”
36. In relation to Chan (supra), Mr Prince reminded the Tribunal that the decision of Deputy President Purvis QC had been set aside in the Federal Court by Emmett J in Minister for Immigration and Multicultural Affairs v Chan [2001] FCA 1552, when at [7] and [9] he said:
“The Tribunal considered that it was necessary that there be some nexus between the visa holder and the criminal conduct of the person with whom the visa holder was associated. However, I do not consider that the language of s 501(6)(b) justifies such a limitation. There is nothing in the paragraph itself to limit the association in that way. Rather, the scheme of the provision is to confer upon the Minister a discretion under s 501(2) to cancel a visa if certain pre-requisites are satisfied. The first pre-requisite is that the Minister reasonably suspects that the person does not pass the character test and the second is that the person does not satisfy the Minister that the person passes the character test.
…
It may be a relevant consideration that the visa holder had no knowledge of the criminal conduct of the other person. It may be a relevant consideration that the visa holder did not knowingly take a benefit from the proceeds of the associate’s criminal conduct. Those matters, however, are matters for consideration upon the exercise of the discretion if the discretion arises. They are not matters to be taken into account in determining whether or not the discretion arises, namely, whether or not the person has had an association with someone else whom the Minister reasonably suspects has been involved in criminal conduct.”
37. I also take into account as relevant the comments of Deputy President Forgie in ReHapugoda and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 330, when she said at [54]:
“… In s 501(6)(b) Parliament has chosen to provide that a person does not pass the character test based solely on an association a person ‘has had’ with a person whom the Minister reasonably suspects ‘has been … involved in criminal conduct’. That is so without regard to the currency of the person’s present association or the person’s conduct generally.”
38. There is evidence before me that Dode Jakaj, Pashuk Jakaj and Ceske Jakaj had all been involved in criminal conduct. The same could be said about Arjan Mile. I consider that, on the evidence before me, the visa applicant has had a sufficient association with these men, having regard to its duration, degree and frequency, to support a finding that the visa applicant does not pass the character test.
39. Turning next to s 501(6)(c)(ii), it requires a consideration of whether, having regard to the visa applicant’s past and present general conduct, he is not of good character.
40. The Direction addresses the “past and present general conduct” ground in paragraph 1.9, when it says:
“In considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt or disregard, for the law or for human rights. This could include, but need not be limited to:
·…
·…
·…
·involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
·…
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in sub-section 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)…
(e)…”
41. Mr Winter submitted that the words “good character” were important in the consideration of s 501(6)(c)(ii). The visa applicant’s past and present general conduct was important in determining whether or not he is not of good character. In particular, Mr Winter referred to paragraph 1.9 of the Direction and emphasised the words “in the absence of any countervailing factors”, which he submitted qualified the various matters that decision-makers should consider constituted a failure to pass the character test. Mr Winter acknowledged that the matters referred to in paragraph 1.9 were all very serious matters. However, he submitted that it was important to look at the visa applicant’s conduct in terms of his overall situation at the material time. The immigration offences arose out of the visa applicant’s initial transgression, that is, obtaining a false visa attached to his passport. There was no attempt to hide his identity, but there was an attempt to mislead as to his reasons for entering Australia. Everything followed from that and the visa applicant was thereafter obliged to maintain the deception and did so, in fact, contrary to law. Nevertheless, Mr Winter submitted that the Tribunal should look to the entire background of the matter and, in particular, the fact that the visa applicant was at the material time in genuine fear for his life. Mr Winter further submitted that the visa applicant had expressed contrition and that he had ultimately observed the laws of Australia. Having regard to these facts and the background by reference to which he had entered Australia, albeit illegally, it was possible for the Tribunal to determine that the visa applicant was not of bad character.
42. In considering the visa applicant’s past and present general conduct for the purposes of s 501(6)(c)(ii), the evidence before the Tribunal is that the visa applicant:
(a)provided false and misleading information in connection with his application for a tourist visa**;
(b)provided false and misleading information in his application for a business entry visa**;
(c)provided false and misleading information in his application for a spouse visa**;
(d)presented false papers to immigration officials on his arrival in Australia on 27 March 2000**;
(e)breached Australia’s migration laws by overstaying on his business entry visa;
(f)breached Australia’s migration laws by working in Australia as an unlawful non-citizen, prima facie in breach of s 235 of the Act; and
(g)engaged in criminal activity whilst residing in Australia and was found guilty of offences involving the production and possession of controlled substances.
** The Tribunal notes that this conduct is prima facie in breach of s 234 of the Act, which imposes a penalty of imprisonment for up to 10 years or 1,000 penalty units, or both.
43. In his submission, Mr Winter noted that the words “good character” rarely appeared in the Act. Nevertheless, the expression has been considered on a number of occasions and, in particular, by Deputy President Forgie in Re Hapugoda (supra). The Deputy President cited several earlier decisions, including that of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where, in considering the provisions of the Act dealing with the giving of false information, he said at pages 155-156:
“… These are overall requirements important in the administration of immigration procedures. 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, as Mr Lachmaiya has over a period of years, 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. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
44. Having considered all the evidence before the Tribunal and the submissions of both Mr Winter and Mr Prince, I find that the visa applicant also fails to pass the character test pursuant to s 501(6)(c)(ii) of the Act.
consideration of ministerial direction no. 21
45. I now turn to consider the exercise of the discretion. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion not to cancel the visa, the Tribunal must take the Direction into account, as a guide to making its decision. The Direction is an instrument made by the Minister pursuant to s 499 of the Act for the guidance of decision-makers in making decisions to refuse or cancel a visa under s 501. Part 2 of the Direction relates to the exercise of the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. The Direction provides in paragraph 2.2 that decision-makers must have due regard to the importance placed by the Government on three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. The Tribunal will address the relevant considerations in the Direction in turn.
46. The three primary considerations in the Direction are as follows:
(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.
First Primary Consideration - Protection of the Australian Community
47. In reference to the protection of the Australian community from criminal or other reprehensible conduct and of lessening the risk of crime and disorder to the Australian community, the Direction identifies three factors relevant to an assessment of the level of risk to the community of allowing a non-citizen to enter (or re-enter) Australia.
48. Seriousness and Nature of the Conduct. The first of these three factors is the seriousness and nature of the conduct (paragraph 2.5(a) of the Direction). As to this, paragraph 2.6 includes a detailed list of examples of offences which are considered by the Government to be very serious. It is also necessary to take into account any relevant mitigating factors (paragraph 2.8(a)). Of particular significance in relation to the seriousness and nature of the visa applicant’s conduct, I must have regard (in paragraph 2.6) to:
“(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs:
·persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people;”
“(c)serious crimes against the Migration Act 1958, including, but not limited to, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;”
49. The majority of offences committed by the visa applicant are those involving crimes against the Act and, as they largely involve presenting false or forged documents or making a false or misleading statement in connection with entry into Australia, they are considered to be “very serious” within paragraph 2.6(c) of the Direction. The visa applicant was found guilty in 2001 of producing and possessing a controlled substance, which is also considered by the Government to be very serious (paragraph 2.6(a) of the Direction). The visa applicant has admitted committing all these offences, which commenced in January/February 2000 with the making and lodging of the tourist visa application and continued until the making of the spouse visa application in June 2004.
50. In considering any relevant mitigating factors, Mr Winter submitted that the immigration offences arose out of the visa applicant obtaining the false visa attached to his actual passport. There was no attempt to hide his identity, but there was an attempt to mislead in relation to his reasons for entering Australia. Everything followed from that and the visa applicant was obliged to maintain the deception which arose out of genuine fear for his life. The visa applicant’s conduct was illegal, but as was suggested by Mr Winter, the fact that it was done does not necessarily mean that the visa applicant is a person of bad character.
51. Likelihood of Repetition of the Conduct, and Risk of Recidivism. The second of the three factors referred to paragraph 2.5 of the Direction is the likelihood that the conduct of the visa applicant may be repeated, including any risk of recidivism (paragraph 2.5(b)). According to paragraph 2.10 of the Direction, it is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. It was Mr Winter’s submission that the visa applicant’s spouse visa application would only result in a provisional visa which would be subject to a 2 year period and could be revoked upon non-compliance with various conditions. It was not itself a permanent visa, but could lead to permanency. If the visa applicant committed any other offences or was in any way unacceptable in Australia, his spouse visa could be cancelled. I accept that these are relevant matters, but they must be taken into account along with all the other matters to be addressed in the Direction in considering the exercise of the discretion.
52. The nature and extent of the visa applicant’s offences against the Act have been mentioned (paragraph 42 above). As has been submitted by the respondent in its statement of facts and contentions, Australian residents routinely provide information to regulatory authorities in order for the processing of applications for permissions, licences or benefits. The visa applicant has shown that he is prepared to provide false information in order to further an application for a benefit, namely a visa to enter Australia, and a continuing willingness to breach immigration laws to suit his own purposes. It is indicative of a propensity on the part of the visa applicant to provide false or misleading statements in circumstances where he considers it necessary or appropriate to do so. I also take into account again the pertinent comments of Deputy President McMahon in Re Lachmaiya (supra) at paragraph 43 above.
53. Taking the whole of the visa applicant’s conduct into account, the Tribunal is of the view that there is a real risk that this conduct may be repeated in the future.
54. General deterrents. The third of the three factors relevant to an assessment of the level of risk to the community is general deterrents, that is, whether the refusal of the visa may prevent or discourage offences by other persons (paragraph 2.5(c) of the Direction). Of course, any deterrents would depend on the publicity given to the refusal of the visa. In the present matter, if the visa applicant’s visa is refused, that would presumably become known to friends or acquaintances of Mr Bibashani, particularly those in the Albanian community in South Australia and in Albania itself. If a “black market” for Australian visas has developed (or is developing) in Albania, the need to maintain a visible probability of sanctions is imperative. In this regard, I note the reference by Deputy President Walker in Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 938 at [33] to recent criminology and social science research which indicates that general deterrence is a more important factor in influencing crime rate than was sometimes previously believed.
55. The consequences for the visa applicant if his visa is refused will be severe, but due to the circumstances leading to the making of the tourist visa application and the grant of the business entry visa based on the false and misleading statements in the application, the refusal of the visa applicant’s spouse visa would seem appropriate.
56. Arguably, general deterrents against conduct of the kind engaged in by the visa applicant in the offences he has committed against the Act can only be served by refusing the spouse visa. Having had regard to all of the factors relevant to the first primary consideration, the Tribunal considers that this consideration would indicate that the visa should be refused.
Second Primary Consideration – Expectations of the Australian Community
57. The second primary consideration appears from its terms to require the decision-maker to formulate the expectations of the Australian community both objectively, and also with reference to the particular person involved in the relevant determination. There would undoubtedly be a range of views in the community on the circumstances in which a visa for a non-citizen should be granted or cancelled. This was recognised by Deputy President Forrest in Re Afoa and Minister for Immigration and Multicultural Affairs [1999] AATA 82 when he made the following comments in relation to how community expectations should be assessed in deportation cases:
“Community expectation will of course mean different things to different people. I think the phrase ‘community expectation’ is meant to reflect the view of the community as represented by the objective bystander. It is not an assessment reflecting his or her social or personal values simply in response to the question, Do you think non-citizens who commit serious crimes of violence should be deported? but instead requires a dispassionate response when all of the relevant facts and circumstances have been examined.”
The Tribunal also takes into account Deputy President McMahon’s comment in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34], that there would also be a general expectation in the community that the Act will be administered fairly and humanely.
58. The Australian community can reasonably expect any non-citizens to be law-abiding citizens. Mr Prince drew attention to the conduct engaged in by the visa applicant in seeking to obtain his tourism visa, including the offences that were clearly in breach of specific provisions of the Act. Mr Prince argued that this conduct of the visa applicant, in clear breach of Australia’s immigration laws, is not something that the Australian community would expect from non-citizens. Against those submissions, Mr Winter submitted again that, having regard to the circumstances in which the visa applicant departed Albania in 2000, the average Australian would comprehend why he did it and that the option he chose was understandable.
59. I have taken all the relevant evidence and submissions into account. If I am able to put it in the words of paragraph 2.12 of the Direction, the nature of the character concerns or offences are such that the Australian community would expect that the visa applicant would not be granted a visa. In my view, the second primary consideration would dictate that the visa applicant’s visa should be refused.
Third Primary Consideration – Best Interests of a Child or Children
60. As Mr Bibashani has no children, this consideration is not relevant.
Other Considerations
61. The Tribunal now refers to such of the other considerations included in paragraph 2.17 of the Direction as are relevant to the present matter. In doing so, the Tribunal takes into account the preface to paragraph 2.17, which reads as follows:
“2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations …” (emphasis added).
This preface is then followed by a list of some eleven examples of other considerations. These are not exhaustive, because the preface says that the other considerations may “include” those matters.
62. Mr Winter pointed to the use of the word “generally” in paragraph 2.17 and referred the Tribunal to the analysis of Deputy President Jarvis in Re Wineti and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 505 at [54]. In that analysis the Deputy President concluded that:
“… whilst Direction No. 21 provides guidance as to the relative weight to be given to various considerations, the discretion conferred by s 501 is unfettered, so that in the particular circumstances of a matter any one factor may outweigh any other possibly relevant factor; in particular, one of the ‘other considerations’ may outweigh a primary consideration if the facts of a particular matter warrant this result.”
63. I now examine the relevance of the following “other considerations” to the present matter that were put to me by Mr Winter:
(a) The extent of disruption to the non-citizen’s family, business and other ties to the Australian community. I accept that there will be some disruption to the visa applicant’s family if he is not permitted to return to Australia. The medical condition of the applicant is obviously an important consideration for the Tribunal to take into account, but this must be done when weighing the exercise of the discretion to decide whether or not the visa applicant should be permitted to enter Australia.
(b) Genuine marriage to, or de-facto or interdependent relationship with, an Australian citizen or permanent resident. In looking at the first factor, there can be no suggestion, as far as I am concerned, that the marriage between the applicant and the visa applicant in June 2001 was not genuine. In looking at the second factor, Mr Winter reminded me, by reference to paragraph 2.17(b), that “decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship”. In this regard, there is no evidence that the applicant actually turned her mind to whether or not the visa applicant was of good character at the time of entering into or establishing their relationship. However, she was familiar with the circumstances and the position Mr Bibashani found himself in in Australia. She lived with him at Para Hills before their marriage and, although she said she was unaware they were doing anything wrong, she was aware of the growing marijuana plants in the house and she was also aware that he had been convicted of producing and possessing a controlled substance.
(c) The degree of hardship which would be caused to immediate family members residing in Australia and whether it was possible to travel overseas to visit the non-citizen if he was not allowed into Australia. Mr Winter submitted that, because of her medical condition, the applicant depended on her husband for her “continuance of life”. The force of this submission is perhaps open to question, given the medical treatment that is available to the applicant and the fact that Dr Lavender has said that he continues to be involved in the ongoing management of her condition. With regard to any financial hardship, it would appear from the evidence that Ms Bibashani was actually supporting her husband financially. As to possible travel overseas, although the situation would not be ideal and appropriate medical arrangements would have to be made for her, there would seem on the evidence to be no reason why the applicant would not be able to travel to Albania or elsewhere overseas to visit her husband if she wished to do so.
(d) Any evidence of rehabilitation and any recent good conduct. There was no evidence put before the Tribunal in relation to this consideration.
(e) Whether the application is for a temporary visa or a permanent visa. Mr Winter made the point that the application in question was for a temporary visa and, as such and if something went wrong, it should be viewed differently from a permanent visa application.
(f) The purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances. Again, there was no evidence put before the Tribunal in relation to this consideration.
(g) The fact that the non-citizen has been formally advised in the past by an officer of the respondent about s 501 implications. As I understand it, Mr Winter’s submission was that the visa applicant should have been formally advised by an officer of the respondent of possible s 501 implications. It seems to me that, having regard to the nature and timing of the visa applicant’s conduct in applying for the tourism and business entry visas in January and March 2000, there was little opportunity for the respondent to formally advise the visa applicant of anything about possible s 501 implications.
64. Ultimately, it was Mr Winter’s submission that all relevant matters under the head of “other considerations” had been canvassed before the Tribunal. He said that the visa applicant’s case involved a very significant matter to be taken into account, that is, the health of the applicant. He said further that the visa applicant had been accepted by the applicant’s family and that there would be some injury to them, emotional injury at least, should he not be permitted to return to Australia. The applicant would be in significant danger as far as her health was concerned if she attempted to live in Albania with her husband. He submitted that there was evidence of this from the applicant, from the visa applicant and also from Dr Lavender. It would be dangerous for the applicant to go to Albania, deprived of her immediate family and medical support. In summary, Mr Winter’s submission was this – although the primary considerations are relevant and the Tribunal may determine that the visa applicant has failed, nevertheless, the gravity of the applicant’s situation is such as to warrant a visa being granted to the visa applicant to temporarily enter Australia. In giving consideration to Mr Winter’s submission regarding a temporary visa, in my view, faced with the visa applicant’s conduct in applying for a tourism visa, in applying for and obtaining a business entry visa and in seeking a spouse visa, a decision-maker and this Tribunal would be inclined to refuse a temporary entry visa in any event.
conclusion
65. The Tribunal has had careful regard to the considerations set out in the Direction and the importance placed by the Government on the three primary considerations in the Direction. The refusal of Mr Bibashani’s visa would assist in the protection of the Australian community. The nature and extent of the offences committed by him against the Act cannot be ignored. The offences are clearly of the kind regarded by the Government as very serious.
decision
66. The marriage of Mr Bibashani and Mrs Bibashani may be disrupted if the visa is refused, and Mrs Bibashani may well suffer some hardship by reason of her health problems if she moves to Albania. These matters invoke sympathy and merit compassionate consideration. Nevertheless, as in similar cases in the past, they stem from choices freely made by the parties in full knowledge of the facts and of the risks involved. They do not outweigh the two primary considerations discussed above. In my view, the decision under review should be affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ...........J Coulthard ..........................................
AssociateDates of Hearing 19/20 September 2005
Date of Decision 6 December 2005
Counsel for the Applicant Mr P Winter
Solicitor for the Applicant Winters Lawyers
Counsel for the Respondent Mr R Prince
Solicitor for the Respondent AGS
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