Bou Assi and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 276

DECISION AND REASONS FOR DECISION [2002] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1594

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Vivien Bou Assi
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley

Date23 April 2002
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ahangma Vidangage Baya Dushantha Jayaweera passes the character test pursuant to s 501(6) of the Migration Act 1958.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Visa application – subclass 309 spouse visa – character test – past and present criminal conduct and past and present general conduct – false statement on visa application in respect of criminal charges - discretion that Tribunal can apply when visa applicant is held to be not of good character under the MigrationAct 1958 – consideration of visa applicant's hardship and contrition - held discretion to be exercised in favour of the visa applicant.
Migration Act 1958 ss 499, 499(1) (2), 501, 501(1) (6), 501(6)(c)
Goldie and Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatani v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

23 April 2002 Mr R P Handley

This is an application by Vivien Bou Assi ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 4 October 2001 to refuse the grant of a subclass 309 spouse visa to the Applicant's spouse, Ahangma Vidangage Baya Dushantha Jayaweera ("the Visa Applicant").
At the hearing, the Applicant represented herself and the Respondent was represented by Nathan Cureton, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and in person by the Applicant, her mother, Mary Hatem, and Michael Ferguson.
BACKGROUND
The Applicant, Ms Bou Assi, was born in Brazil on 8 July 1977 and is aged 24. She was registered as an Australian citizen on 25 May 1994 as a result of her mother being Australian born, and arrived in Australia with her family on 17 June 1994. Ms Bou Assi commenced a bachelor degree in engineering and science at the University of Sydney in 1997.
The Visa Applicant, Mr Jayaweera was born in Sri Lanka on 26 February 1976 and is aged 26. He first came to Australia in 1994 to undertake a University Foundation Course at the University of New South Wales and then commenced a bachelor degree in medicine at the University of Sydney in 1995. He later transferred to a bachelor of science degree with a double major in medicine and chemistry. His family currently live in Singapore, where his father works.
Ms Bou Assi and Mr Jayaweera first met in late March 1998 when introduced by a friend. They began to meet to talk and have lunch together and, gradually, a more serious relationship developed. Mr Jayaweera had been granted a student visa permitting him to study in Australia. On 17 April 1999, Mr Jayaweera applied for a further student visa. Before that application had been determined, later in April 1999, Mr Jayaweera was involved in a motor vehicle accident when the car he was driving spun out of control, colliding with another vehicle and killing an elderly woman who was the occupant of that vehicle. Mr Jayaweera was also injured in the accident. When the police interviewed him after his release from hospital, he claimed he had not been driving the car. Mr Jayaweera did not at that time have a current driving licence. However, Mr Jayaweera later went to the police and told them that he had been the driver of the car. On 21 December 2000, he was found guilty of the following offences: making a false accusation, negligent driving causing grievous bodily harm, negligent driving causing death, and driving whilst a cancelled driver. Mr Jayaweera was sentenced to a three year good behaviour bond and to 200 hours of community service.
On 8 March 2000, the Department of Immigration and Multicultural Affairs ("the Department") sent Mr Jayaweera a letter notifying him of the refusal of his application for a student visa made on 17 April 1999. This was followed by a letter dated 26 July 2000 sent to Mr Jayaweera, again at his last notified address, advising him that he was not the holder of a valid visa and that he should contact the Department immediately. Mr Jayaweera claims that he never received these letters. On 5 October 2000, Ms Bou Assi and Mr Jayaweera were married in Sydney. Mr Jayaweera claims that after he was charged by the police in 1999, he was informed by the police, that they would obtain his passport from the Department so that a bridging visa could be issued to enable him to remain in Australia until the conclusion of the court proceedings. Mr Jayaweera claims, further, that after his conviction on 21 December 2000, he contacted the Department to obtain his passport. However, despite a number of requests by telephone, the Department failed to send him his passport. Therefore, on 22 February 2001, Mr Jayaweera attended the Department's Rockdale office where a departmental officer, Michael Ferguson, issued him with a Bridging Visa E, a condition of which was that he must depart Australia by 15 March 2001. Following this meeting with Mr Ferguson, Ms Bou Assi and Mr Jayaweera sought advice from a migration agent and, following this, lodged an application in the Federal Court. On 8 March 2001, an appointment was made for a directions hearing on 23 April 2001. The migration agent faxed Mr Ferguson an explanatory letter dated 8 March 2001 enclosing a copy of the Federal Court Notice.
On 15 March 2001, the migration agent contacted Mr Jayaweera to ask that he telephone Mr Ferguson. Ms Bou Assi claims that both she and Mr Jayaweera spoke to Mr Ferguson on the phone and arranged to go in to see him on the morning of 16 March 2001. At that meeting, Mr Ferguson said he would require a bond to secure the issue of a further bridging visa pending the resolution of the Federal Court application. When Ms Bou Assi and Mr Jayaweera were unable to meet Mr Ferguson's requirement for a bond, Mr Jayaweera was detained and taken to Villawood Detention Centre. Subsequently, Ms Bou Assi purchased an air ticket for her husband to fly to Singapore and he departed Australia on 21 March 2001.
On 9 April 2001, Mr Jayaweera's application for a subclass 309 (provisional) class UF visa was received at the Department's office in Singapore. Mr Jayaweera was interviewed at the Australian High Commission in Colombo, Sri Lanka, on 25 Mary 2001 and again on 8 August 2001. On 4 October 2001, a delegate of the Respondent decided to refuse Mr Jayaweera's application for a subclass 309 visa. On 18 October 2001, Ms Bou Assi lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW
Under s 501(1) of the Migration Act 1958 ("the Act"), the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
Either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Jayaweera is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Vivien Bou Assi (the Applicant)
Ms Bou Assi said her mother was born in Melbourne of Lebanese background and subsequently married in Lebannon. After her marriage, she and her husband went to Brazil to work until the crisis in Brazil led them to come to Australia with their family in 1994. Ms Bou Assi commenced as a student at the University of Sydney in 1997 studying for a bachelor degree in engineering and science. She first saw her husband in an engineering class in 1997, but did not speak to him until late March 1998 when introduced to him by a friend. Thereafter, they began to talk and have lunch together and from April 1998 their relationship developed into a more serious one. Ms Bou Assi said she liked the fact that Mr Jayaweera was a person of integrity. He was hardworking, intelligent and got good marks. He was very caring towards her and used to collect her from her home and take her with him to the university. As their relationship developed, they fell in love. She told her parents about him and they accepted him as a good man. However, when Ms Bou Assi and Mr Jayaweera decided to inform Mr Jayaweera's parents, because Ms Bou Assi was of a different background, they refused to acknowledge Mr Jayaweera's and Ms Bou Assi's relationship. As a result, Mr Jayaweera rejected his parents and did not speak to them for six months. His parents' intention was to break up their relationship, and, even though they now appear to have accepted the marriage, Ms Bou Assi still has not spoken to them.
Ms Bou Assi said she and Mr Jayaweera were married in a simple ceremony in Sydney. Initially, she stayed with him in the rented house he had shared in Earlwood for several years. They worked to save enough money for a deposit so that they could rent a flat on their own and furnish it. Both she and Mr Jayaweera were studying from Monday to Friday and then working full-time on Saturday and Sunday. After they had found a flat to rent near where her parents live, they had to live with her parents for about a month whilst repairs were made to the flat. It was at this time that Mr Jayaweera was detained by the Department and thereafter left for Singapore. Ms Bou Assi said she had to move into the flat by herself. Because they had rented the flat for a year, she had to work full-time in order to pay the rent, and, with her husband being deported, she was unable to concentrate on studying. As a result, Ms Bou Assi failed all her subjects in 2001. Having discussed the matter the Dean of her faculty, she is now permitted to re-enrol this year to undertake the final year of her degree. She is now studying full-time and works at Grace Brothers at the weekends. She contacts her husband by phone everyday using phone cards, which cost $10 for 140 minutes.
Initially on leaving Australia, Mr Jayaweera flew to Singapore where his parents live. His parents are in Singapore by virtue of a business visa granted to his father. Mr Jayaweera can, therefore, only obtain a visitor visa. Because such a visitor visa is valid for only two weeks, and because this can only be extended for a further period of two weeks, her husband then has to leave Singapore and go elsewhere for two days before returning to Singapore and being granted another visitor visa. Moreover, with a visitor visa, Mr Jayaweera is unable to obtain work there.
Ms Bou Assi said her husband has had to travel to Sri Lanka to deal with his visa application. He has paid for the cost of his travel from money borrowed from members of his family. Having to be in Sri Lanka has been very difficult for Mr Jayaweera because he has no immediate family there, there is a war going on, and he has been unable to find employment. Ms Bou Assi said she could never go and live with her husband in Sri Lanka because she would not be accepted there.
Ms Bou Assi said she and her husband had decided to get married shortly before he was involved in the motor vehicle accident in April 1999. She was not in the car with him when the accident occurred, but she went to court with him on most of the occasions when his attendance was required. She said that the negligent driving charge had been dealt with before a judge alone. Mr Jayaweera was found guilty when he was unable to attend court when, as he stated in a letter to the court beforehand, he had to attend university in order to undertake his exams. Ms Bou Assi noted that the judge must have thought favourably towards her husband, given that her husband's community service was undertaken in a girl's High School. Her husband's parole report was also favourable towards him.
Ms Bou Assi said her husband was not speeding when he was involved in the accident. She said he was travelling at about 90 kph and it was raining heavily. He does not drink and no alcohol was found in his blood. He acknowledged that he had initially lied to the police. Her husband's Sri Lankan friend, who was the owner of the car and a passenger at the time, told her husband to tell the police that he (the friend) was driving the car. This was to enable the friend to be able to claim on his insurance. Her husband later went to the police and took full responsibility for lying. When her husband was charged, he was told that he had to stay in the country until the matter had been finalised and, in the meanwhile, to report regularly to Earlwood Police Station. Constable Harris told him that she would obtain her husband's passport from the Department and would notify the Department of the court case.
Ms Bou Assi said she was not aware at the time of completing her husband's application for a spouse visa that he had committed a criminal offence. She said she had filled out the application form while speaking to her husband on the phone and discussing the appropriate answers to be included. She told him to put "No" in answer to the question about whether he had any criminal convictions. They did not know his convictions were in respect of criminal offences: they thought a criminal offence involved purposely harming others. If she had known that Mr Jayaweera had committed a criminal offence, she would have answered "Yes" since she was aware that an Australian Federal Police Certificate would be obtained.
After the final court hearing on 21 December 2000, her husband was advised that he could go and collect his passport which had, they thought, been held by the Police. However, when Mr Jayaweera asked for the return of his passport, the police said they did not know where it was and that the Department probably still had it. Mr Jayaweera therefore contacted the Department who said they would send the passport to him. Eventually, after several requests by Mr Jayaweera for the Department to send his passport, he went in person to the Department and spoke with Mr Ferguson. At this time, Mr Jayaweera had no idea that he was in Australia illegally because he had never received the letters from the Department informing him of the refusal of his application for a student visa. Ms Bou Assi was unable to explain why her husband had not received these letters. She suggested that perhaps they might have been signed for by the old man who also lived in the same house as her husband in Earlwood and who sometimes did not give them their post.
Both Ms Bou Assi and her husband were very upset when they found out that he was here illegally and was told to leave by the 15 March 2001. They thought it was unfair, so after speaking with Mr Ferguson, they consulted a migration agent who advised them to lodge an application in the Federal Court. They did this on 8 March 2001 and a Directions Hearing was arranged for 23 April 2001. The migration agent faxed a copy of the Federal Court notice to Mr Ferguson on 8 March 2001, and Mr Jayaweera and Ms Bou Assi expected that Mr Jayaweera's bridging visa would be renewed until the outcome of the Federal Court application had been determined. On 15 March 2001, the migration agent asked Mr Jayaweera to contact Mr Ferguson with a view to arranging for his visa to be renewed. Both Ms Bou Assi and Mr Jayaweera spoke to Mr Ferguson on the telephone on that day. Ms Bou Assi asked Mr Ferguson whether anything was wrong. He said nothing was wrong and he wanted to see them in order to discuss the renewal of Mr Jayaweera's visa pending the Federal Court application. Mr Bou Assi asked Mr Ferguson if they could go in that day to make arrangements for her husband's visa to be renewed, but Mr Ferguson said "No" and arranged for them to come in the next day.
Ms Bou Assi said on 16 March 2001, she and Mr Jayaweera and her father attended the Department's Rockdale office to see Mr Ferguson. Mr Ferguson initially asked for a $15,000 bond in order to issue Mr Jayaweera with a further bridging visa. After some discussion, Mr Ferguson agreed to reduce this to a $7,000 bond. However, Ms Bou Assi and Mr Jayaweera said they were unable to obtain such a bond and instead offered Mr Jayaweera's car and their other belongings by way of security. Mr Ferguson refused this offer. He said, in any event, it was no use making a Federal Court application and it was better to withdraw that application and for her husband to leave Australia. He said it would probably only take two to three months for them to make a successful application for a visa from overseas to enable Mr Jayaweera to return. Because Mr Jayaweera and Ms Bou Assi were unable to obtain the required bond, Mr Ferguson detained Mr Jayaweera and he was taken to Villawood Detention Centre where he was held for four days. Ms Bou Assi visited her husband at Villawood and he said he would rather leave the country than remain in detention. She therefore borrowed money from her mother and purchased a ticket for her husband to fly to Singapore.

Ms Bou Assi said she did not live with her husband until after their wedding. She moved in with him on approximately 10 October 2000 after the honeymoon. Not long thereafter, they made enquiries about Mr Jayaweera lodging an application for a spouse visa. However, because Mr Jayaweera's passport was being held by the police, they could not proceed with the application at that time. Thus, after the court case was finalised on 21 December 2000, they asked for the return of Mr Jayaweera's passport.
Ms Bou Assi said her husband has been very depressed as a result of the court cases and the elderly woman being killed in the car accident. He is very sorry for what happened and has personally apologised to the family of the deceased. Ms Bou Assi said her husband continued to be enrolled as full-time student throughout the year 2000. He wants to return to Sydney University to complete his degree.
Ms Bou Assi was asked about her family. She said her parents, brothers and sisters, plus two aunties on her mother's side and her grandmother, are all here in Australia.
Ahangama Vidangage Baya Dushanta Jayaweera (the Visa Applicant)
Mr Jayaweera said his parents live in Singapore where his father works in business and his two sisters are studying. In Sri Lanka, he has an aunt who is married with one child, living about one hour from Colombo. He stays with her when he is in Sri Lanka. His father also has a brother, who is a widower and very old, who lives in a remote area about two to three hours from Colombo. His father has a small house in Colombo but a couple are living there and looking after the house.
Mr Jayaweera said he first came to Australia in 1994 to undertake a university foundation course at the University of New South Wales. He successfully completed this course in 1994 and returned to Singapore to see his parents. He then applied to and was accepted into the University of New South Wales to undertake a medical degree but after a year, transferred to the University of Sydney to study for a double degree in medicine and chemistry. He said he has six months to go to finish his double degree.
Mr Jayaweera said he first met Ms Bou Assi in late 1998 when they were introduced by a friend. Ms Bou Assi was undertaking the same subject, Chemical Engineering. Thereafter, they used to talk and lunch together and their relationship developed from there. Ms Bou Assi lived in Harris Park, Parramatta and he lived a shared rented house in Earlwood. Mr Jayaweera collected Ms Bou Assi from Harris Park in his car and drove her into the University of Sydney where they often used to study together. When they told her parents of their relationship, they were very kind and understanding and accepted him into their family. However, his parents would not accept their relationship. Notwithstanding their disapproval, Mr Jayaweera and Ms Bou Assi were married in a registry office in George Street, Sydney, on 5 October 2000.
After the wedding, Ms Bou Assi moved in with Mr Jayaweera in his rented house in Earlwood and lived with him there until December 2000. This was to enable them to save enough money to rent their own apartment. They both studied Monday to Friday of every week and worked on Saturday and Sunday. Finally, they rented an apartment at Harris Park near where Ms Bou Assi's parents live, and they then stayed with her parents for just over a month while some renovations were being undertaken to the apartment. However, by the time he and Ms Bou Assi should have moved into the apartment, Mr Jayaweera had been detained and had left the country and so Ms Bou Assi had to move in by herself.
Mr Jayaweera described how a Sri Lankan friend, Janaka, had lived with him for a short time at Marrickville. Janaka used to drink a lot of alcohol and on one occasion tried to stab him with a screwdriver. Mr Jayaweera reported this incident to the police and the police told Janaka to leave the rented flat. Mr Jayaweera then moved to Earlwood. A while later, he met Janaka who asked Mr Jayaweera to forgive him. Then, at the time of the Easter holidays in April 1999, Janaka asked Mr Jayaweera to accompany him to Coffs Harbour in his car. Janaka told Mr Jayaweera to drive saying that he was too tired and could not drive any more. Mr Jayaweera said that he did not have a licence, but his friend persuaded him not to worry about this and to drive anyway. Mr Jayaweera said this was a stupid mistake. At that time, Mr Jayaweera had not driven a car for about six months, since the time he had worked as a valet parking attendant at the Renaissance Hotel at Circular Quay.
Driving north on the Freeway, it was raining hard and Mr Jayaweera lost control of the car when travelling at about 90 kph. The speed limit for this stretch of road near Gosford was 110 kph. When Mr Jayaweera lost control of the car, it veered onto the median strip and hit some concrete which caused it to flip and end up in the south bound lane colliding with a car. The next thing he can remember is waking up in Gosford Hospital and being told by a doctor that an old woman in the other car had died as a result of the accident. Mr Jayaweera said he was devastated by this news and, when the case came to court, he asked the forgiveness of the deceased woman's relatives in court.
After Mr Jayaweera was released from hospital, he went home where he was visited by the police who took a statement. Prior to this, he had been told by his friend, Janaka, that he must not admit to driving the car, otherwise Janaka would be unable to recover any insurance money for damage to the car as a result of its being driven by an unlicensed driver. Janaka threatened him that he must do as he was told and, because Janaka had previously threatened him, Mr Jayaweera was frightened and, therefore, lied to the police about the driver of the vehicle. Afterwards however, he decided he must tell the truth and went to see the police and spoke with Constable Harris. He explained what had really happened. She asked for his passport which he told her was with the Department because he had applied to extend his student visa about one week earlier. He was told to report to the police three times a week at Earlwood police station. Later, Constable Harris phoned saying that she had been unable to locate his passport and asking for his full name so that she could obtain the passport from the Department for the police to hold until the court case had been finalised. She told him that the police would notify the Department of the court case, so that they could grant some kind of bridging visa to enable him to remain in Australia in order to attend court.
Mr Jayaweera said he attended all the court hearings except for one when he had a laboratory exam. He said he had asked his Chemistry Professor for leave, but had been told that no special arrangements could be made for him. Mr Jayaweera explained this to his Legal Aid lawyer who asked that Mr Jayaweera send him a fax explaining why he would be unable to attend court on 19 October 2000. He did this on 17 October 2000 (A9). His lawyer said this was to enable him to hand the fax to the judge requesting an adjournment of his case. However, the judge refused to grant an adjournment and found him guilty in his absence. His lawyer contacted Mr Jayaweera to inform him of what had happened and to tell him that the police would arrest him for non-attendance. Mr Jayaweera therefore attended Gosford Court where the judge ordered him to see a probation and parole officer, Frank Rasoni, to enable Mr Rasoni to prepare a pre-sentence report. Mr Jayaweera and Ms Bou Assi met with Mr Rasoni at the Probation and Parole Service District Office at Hurstville and Mr Rasoni prepared a report dated 18 December 2000, which was provided to the judge before the sentencing hearing on 21 December 2000. At that hearing, Mr Jayaweera was sentenced to 200 hours community service which he undertook at the girls High School at Parramatta.
Mr Jayaweera said that while undertaking his community service, he contacted the police to obtain the return of his passport. The police said they did not have the passport and he therefore contacted the Department who confirmed they still had it. They told him that they would send it to him in the mail, but despite his phoning again to remind them of this, they still did not send him the passport. Eventually, he went with his wife to the Department's office in Rockdale to obtain his passport. There, he saw Michael Ferguson to whom he explained about his accident. Mr Ferguson told Mr Jayaweera that he was regarded as being in Australia unlawfully. Mr Jayaweera responded that he had applied for a student visa for 2000 and believed that the police had held his passport pending the determination of the court case. Mr Jayaweera asked for a couple of weeks to sort out his affairs and Mr Ferguson issued him with a Bridging Visa E valid until 15 March 2001.
Mr Jayaweera said he was very upset at this outcome because he had tried to do everything properly. As a result, after talking with his wife's family, and at their suggestion, he consulted a migration agent in Harris Park. The agent, Mr Bakari, suggested that Mr Jayaweera make a Federal Court application in respect of the refusal of his student visa, which he did on 8 March 2001. A Directions Hearing was arranged for 23 April 2001. Mr Bakari later phoned Ms Bou Assi and asked them to go into his office to discuss applying for an extension of Mr Jayaweera's visa to enable the determination of his Federal Court application. While there, Mr Bakari phoned Michael Ferguson in their presence. At Mr Ferguson's request, Mr Bakari then prepared an authority for Mr Bakari to act on Mr Jayaweera's behalf which Mr Jayaweera signed, and Mr Bakari then faxed this to Mr Ferguson. A few days later, Mr Bakari phoned Ms Bou Assi to say that Michael Ferguson had phoned to ask Mr Jayaweera to go in to see him about extending his visa for the Federal Court hearing. Ms Bou Assi then rang Mr Ferguson on 15 March 2001 and asked whether they should go in to see him immediately.Mr Ferguson said "Don't worry, I am busy now, but come in tomorrow so that I can give Mr Jayaweera a visa. It only takes five minutes."
As a result, Mr Jayaweera, his wife and father-in-law, went in to see Mr Ferguson on the morning of 16 March 2001 at the Department's Rockdale office. Mr Ferguson invited them in and asked why Mr Jayaweera had lodged an application in the Federal Court. Mr Jayaweera explained that he had since seen a migration agent who had advised this course of action. Mr Ferguson told Mr Jayaweera that there was no point in his making such an application. He said Mr Jayaweera had no option but to leave the country, and in the meantime, Mr Jayaweera would be detained. Ms Bou Assi begged Mr Ferguson not to do this. He therefore went out to discuss this with others in his office and then came back and said that he would issue a visa if Mr Jayaweera could provide the Department with a bond for $15,000. After Ms Bou Assi pleaded with him, he agreed to reduce the bond to $7,000. However, Mr Jayaweera said he and his wife had no means of raising such a bond and so Mr Ferguson detained him, and Ms Bou Assi and his father-in-law left. Mr Jayaweera said Mr Ferguson and another officer subsequently abused him about being in Australia and then he was taken to Villawood n Detention Centre. His wife came to visit him there and Mr Jayaweera told her that he had decided that it would be better if he left the country. His wife therefore bought him a ticket and he flew to Singapore.
Mr Jayaweera said Singapore will only issue him with a visitor visa valid for two weeks, which can be extended for another two weeks. Thereafter, he has to leave the country for at least two days before he can return to Singapore and apply for another visitor visa. Usually, he travels to Malaysia for two days to enable him to do this. However, after arriving back in Singapore in March 2001 and lodging his spouse visa application there, his file was transferred to Sri Lanka. Consequently he went back to Colombo whilst his application was being processed. During this time he stayed with his aunt and her family. In November 2001, his visa application having been refused in October 2001, Mr Jayaweera returned to Singapore. He said the situation in Colombo is "unbelievably dangerous". He was unable to find a job in Sri Lanka, in part because he has no qualifications yet, with six months study remaining to finish his degree.
In cross-examination, Mr Jayaweera was asked about his conviction. He said at the first hearing in the District Court, he had pleaded not guilty to a charge of dangerous driving and was found not guilty by the jury. Mr Jayaweera noted that he had told the judge and jury why he had lied to the police and about his being threatened by his friend. Then, after the hearing, he was charged with negligent driving. On this occasion, the judge found him guilty of the offence when he did not attend because he was doing his laboratory exam, as he explained in a fax to his Legal Aid lawyer, who had sought an adjournment from the Court. Mr Jayaweera explained that he did not seek to appeal against this decision because he did not want to go through it all over again. Mr Jayaweera asked that he should be forgiven for causing the accident, which he had not intended. All he wants is to be a loyal and dedicated husband and citizen. Everyday, he prays for the forgiveness of the woman who was killed in the accident.
Mr Jayaweera said the consequences of his action have also been extremely difficult for his wife. He knew that he had committed an offence, but did not know it was a criminal offence. He and his wife had completed his spouse visa application form together, with his wife actually filling in the form in Sydney whilst he was speaking with her on the phone from Singapore. In answer to Question No. 67, which asked whether he had ever been convicted of a criminal offence, he answered "No" because he did not know that a car accident was considered to be a criminal offence. He discussed this with his wife before answering the question and they concluded that he had not committed a criminal offence because they thought that such an offence requires that the person committing the offence cause the harm intentionally. Mr Jayaweera said there was no advantage to his answering "No" to this question, given that he was aware that the Department would obtain a certificate from the Australian Federal Police setting out any convictions.
Mr Jayaweera said he applied for an extension of his student visa about one week before the car accident in April 1999. He was at that time living in Earlwood where he had lived for some years. Mr Jayaweera denied that he had ever received a letter of refusal of that visa application by letter dated 8 March 2000. Mr Jayaweera said he continued to be a full-time student throughout 2000 and did not contact the Department again until after his sentencing on 21 December 2000. At first, he contacted the police, and then when they told him that they did not hold his passport, he contacted the Department. He rang the Department on a number occasions over a period of about a month and they said they would send him his passport by mail. When they did not do so, he went into the Department and saw Mr Ferguson. It was then Mr Jayaweera discovered for the first time that his application for a student visa had been refused.
Mary Hatem
Ms Hatem, who is Ms Bou Assi's mother, said she has known Mr Jayaweera for approximately four years. She said he radiates kindness, respect, and loyalty and he has been caring, loving and considerate towards her daughter and the whole of her family. Ms Hatem says she loves him dearly and Mr Jayaweera has become a part of her family. She gave an example of an occasion when she was suffering shoulder and tendon problems when he had prepared fresh juice and sandwiches for her because he believed this might be something she would like. Ms Hatem said Mr Jayaweera is very hardworking and she admires him for his integrity. She believes he would be an asset to the Australian community. Mr Jayaweera told her how frustrating his court case was and how much he regretted what he had done.
Ms Hatem said Mr Jayaweera's departing Australia had put a lot of pressure on her family and, in particular had caused her daughter physical and mental distress. This has impacted adversely on her daughter's studies and those of her other son. Ms Hatem said it has been very difficult for her daughter dealing with the Australian High Commission in Sri Lanka. Her daughter works seven days a week and she and her husband have needed to help her out.

Michael Ferguson

Mr Ferguson said he is currently based at the Department's office in Pitt Street in the section dealing with requests for Ministerial intervention. Prior to this, he worked in the compliance section in various locations and remembered Mr Jayawerra coming to his attention in about March 2001. He recalled interviewing Mr Jayaweera and Mr Jayaweera agreeing that he would depart Australia, and t it was on this basis that Mr Ferguson granted him a bridging visa. Mr Ferguson also remembered having interviewed Mr Jayaweera on a second occasion after he had made an application to the Federal Court. Mr Ferguson could not recall there being any involvement by a migration agent, nor did he have any specific recollection of a telephone conversation with either Ms Bou Assi or Mr Jayaweera on 15 March 2001.
With regard to the interview, which took place on 16 March 2001, Mr Ferguson said he would have shown Mr Jayaweera to an interview room. They then discussed his Federal Court application, why he had misrepresented himself at the first interview about leaving Australia by 15 March 2001, and why he had not subsequently complied with that undertaking. Mr Ferguson said he would have required Mr Jayaweera to provide a compliance bond before issuing him with a bridging visa and recalled that he had asked Mr Jayaweera for a $7,000 bond. Mr Jayaweera indicated that he had a car which he was prepared to use as security but Mr Ferguson said this was not acceptable and the bond had to take the form of a Comonwealth Bank bond. Mr Jayaweera said he was unable to provide such a bond.
Mr Ferguson said it was not his practice to discuss Federal Court applications or the chances of a person succeeding with an application when the person came in to seek the issue of a bridging visa. The fact that a person applies to the Federal Court is not something which Mr Ferguson would take into account in making his decision about the issue of such a visa.
SUBMISSIONS
Respondent
Mr Cureton, for the Respondent, submitted that Mr Jayaweera does not pass the character test pursuant to s 501(6)(c) of the Act as a result both of his past and present criminal conduct and his past and present general conduct. First, with regard to criminal conduct, Mr Cureton drew attention to Mr Jayaweera's criminal convictions set out in the Police Certificate provided by the Australian Federal Police dated 29 June 2001 (T25). Mr Cureton noted that Mr Jayaweera had made a false and misleading statement with regard to his convictions by stating in answer to Question 67 on his application for a spouse visa, that he had never been convicted of a crime or offence (T p166). Mr Jayaweera gave evidence that he viewed his convictions as being non-criminal in nature. However, the respondent submits that Mr Jayaweera and Ms Bou Assi sought to mislead the Department and Mr Jayaweera's explanation should not be accepted. Mr Jayaweera was tried before a criminal court having been arrested and charged and, at the conclusion of the hearing, he was sentenced. Mr Cureton said Mr Jayaweera's attitude towards the offences of which he was convicted seems to be that they all related to him driving without a licence: this indicates that Mr Jayaweera is seeking to avoid responsibility for the outcome.

With regard to Mr Jayaweera's application for a student visa in April 1999, Mr Cureton said the evidence is that Mr Jayaweera did not approach the Department about this application until February 2001. This is notwithstanding a refusal letter dated 8 March 2000 (T p74) and a follow-up letter dated 26 July 2000 (T p73) being sent to Mr Jayaweera at his address in Earlwood. Mr Cureton said the Respondent contends that Mr Jayaweera was aware of the refusal of his application for a student visa but failed to do anything about it. Nevertheless, Mr Cureton accepted that there may have been some confusion caused by Mr Jayaweera's on-going criminal case and conflicting messages sent by police.
Mr Cureton noted that Mr Jayaweera had breached the bridging visa issued to him by Mr Ferguson on 22 February 2001 when he did not depart Australia by 15 March 2001 (T p65). Mr Cureton said Mr Jayaweera had lied to the Tribunal when he claimed that Mr Ferguson had said to him, on 15 March 2001, that he should come in to see him so that his visa could be extended. Mr Ferguson's evidence was that this was something he would never had said. Moreover, Mr Ferguson denied that he ever made the comments attributed to him by Mr Jayaweera about Mr Jayaweera's application to the Federal Court. Mr Cureton said all of this supports a finding that Mr Jayaweera does not pass the character test pursuant to s 501(6)(c) of the Act.
With regard to the exercise of the Minister's discretion in s 501(1) of the Act, Mr Cureton submitted that with regard to the first of the primary considerations to which decision-makers are directed by Direction No. 21, namely the Protection of the Australian Community, the incident in which Mr Jayaweera was involved was of a very serious nature. It involved negligent driving and lying to a police officer. Moreover, the fact that he sought to mislead the Department by not disclosing his convictions is considered to be very serious, constituting, as is stated in paragraph 2.6(c) of Direction No. 21, the making of a false or misleading statement in connection with entry or stay in Australia. Indeed, as the Tribunal has recognised in cases such as Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, immigration malpractice should be treated as very serious.
Mr Cureton contended that there is a significant risk that Mr Jayaweera may re-offend. He noted, in particular, that Mr Jayaweera has failed to accept responsibility for his actions which is an indication that he may engage in such conduct again. Such a risk is unacceptable. Mr Cureton also noted that Mr Jayaweera has a history of lying, both to the police in respect of his negligent driving and to the Department in relation to his criminal convictions. With regard to general deterrence, the message to potential applicants from the refusal of a visa is that lying on application forms is unacceptable.
With regard to the second of the primary considerations, the Expectations of the Australian Community, Mr Cureton submitted that the Australian community would expect that someone who has engaged in such misleading conduct and who is potentially a threat to the Australian community, should not be granted a visa.
With regard to the Other Considerations to which decision-makers are referred by Direction No. 21, Mr Cureton said while it is clear that the relationship between Mr Jayaweera and Ms Bou Assi is a genuine one, nevertheless, the hardship to both of them is limited to emotional hardship only. Moreover, Ms Bou Assi must have been aware, when assisting her husband to complete Question 67 on his spouse visa application, that when ticking the answer "No" he was making a false and misleading representation to the Department. Mr Cureton contended that Ms Bou Assi lied in evidence to the Tribunal about her understanding of what constitutes a criminal offence. He submitted that the protection of the Australian community, in particular, far outweighs any hardship to Mr Jayaweera, Ms Bou Assi and Ms Bou Assi's family and, therefore, the discretion in s 501(1) should not be exercised in Mr Jayaweera's favour.
Applicant
Ms Bou Assi said her husband is of "good character". At the time of the accident, he had not been drinking, he was not speeding, and the accident was caused by his loosing control of the car in adverse conditions caused by rain. Initially, he made a false statement to the police because he was afraid as a result of the threats made by his friend and because he was in shock. When he came to his senses, he confessed what had really happened to the police. Her husband takes fully responsibility for what occurred and is very sorry for what happened. The accident has had a significant effect on him and continues to do so. Ms Bou Assi referred the Tribunal to the report of a psychologist, Joshua Switzer, dated 25 June 1999 (A3), where Mr Switzer detailed the effects of the aftermath of the accident on Mr Jayaweera, including symptoms consistent with depression. Ms Bou Assi also referred the Tribunal to the pre-sentence report prepared by Frank Rasoni, dated 18 December 2001 (R1).
Ms Bou Assi said there is no possibility of her husband re-offending. He is a hardworking man, who having studied five days a week, then worked full-time at the weekends. Mr Rasoni's report (R1) indicates that Mr Jayaweera has no inclination to be involved in any criminal activity. That report also indicates Mr Jayaweera acknowledges that what he did was wrong. Mr Rasoni states: "Mr Jayaweera does not appear as a person who is criminally inclined and in need of intervention by this service or any other agency".
With regard to the false and misleading statements alleged by the Respondent, Ms Bou Assi said the answer given to Question 67 of Mr Jayaweera's application for a spouse visa (T p62) was as a result of pure ignorance on their part and with no intention to mislead. Ms Bou Assi said they did not know that her husband had committed a criminal offence and had nothing to gain by saying that he had not done so, since they were aware that the Department would, in any event, seek a copy of the Police Certificate.
With regard to her husband staying in Australia after his application for a student visa had been refused on 8 March 2000, Ms Bou Assi said Mr Jayaweera had no idea that he was in Australia illegally. He had been told by the police that they would obtain his passport from the Department and would notify the Department of his prosecution with a view to obtaining permission for him to stay in the country pending the determination of his court case. Ms Bou Assi noted that Mr Jayaweera had to report to the police station three times a week and was not permitted to leave the country during the period before the conclusion of the court case. She also noted that her husband was enrolled as a full-time student throughout the year 2000. As soon as the court case was finalised, Mr Jayaweera called the Department when he discovered that his passport had never been held by the police. When the Department did not, as they said they would, send him his passport in the post, he went to the Department's Rockdale office to collect it which was when he discovered, at an interview with Mr Ferguson, that he was in Australia illegally.
With regard to Mr Jayaweera's application for a bridging visa, Ms Bou Assi said her husband's application to the Federal Court was lodged on 8 March 2001, before the expiry of the bridging visa. She and her husband were mislead by Mr Ferguson who at the interview on 16 March 2001, advised that there was no point in Mr Jayaweera applying to the Federal Court and that it would be better for him to leave the country and submit a spouse application from overseas.
Referring to Direction No. 21 and the exercise of the Minister's discretion, Ms Bou Assi submitted that her husband is no threat to the Australian community as the report by Mr Rasoni (R1) confirms. Her husband has taken full responsibility for his actions in relation to the motor vehicle accident. He is an educated man who will be an asset to the Australian community.
Ms Bou Assi said she and her husband have suffered and are suffering significant hardship. Her health has suffered, her studies have suffered with the result that she failed her subjects last year and also could not attend an exam yesterday, and she cannot cope financially. She is suffering emotionally as a result of not having seen her husband for over a year. Her husband is suffering because he does not now have a country to go to. He has no home in Sri Lanka because his parents are living in Singapore. In any event, the war is on-going in Sri Lanka and there is no employment for him there. However, Mr Jayaweera is unable to obtain a long term visa for Singapore and has to keep going to Malaysia in order to be able to return to Singapore and obtain a further visitor visa. He is also not able to obtain employment in Singapore. Morever, his parents do not approve of his marriage to her. Mr Jayaweera wants to return to Australia so that he can be with her, finish his education and be a good citizen.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Jayaweera passes the "character test" having regard to his past and present criminal conduct and past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Jayaweera does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.8 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present criminal conduct, should take into consideration the following:
(a)       the nature, severity and frequency of the offence/s;
(b)       how long ago the offence/s were committed;
(c)       the non-citizen's record since the offence/s were committed including:

any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of continued or blatant disregard/contempt for the law; and
(d)any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents.

Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are sub-paragraphs 1.9(a), (b) and (c). Paragraph 1.9(a) directs the decision-maker to consider whether the non-citizen has been involved in activities indicating contempt, or disregard for the law or for human rights, including breaches of Immigration Law. Paragraph 1.9(b) directs decision-makers to consider whether a non-citizen has "in connection for the application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement". Paragraph 1.9 (c) directs decision-makers to consider whether the non-citizen has ever made a false or misleading declaration about the non-citizen's character or conduct or both.
The impression made by Mr Jayaweera on the Tribunal, which is supported by Ms Bou Assi's evidence, is that he is a sincere young man who made a terrible mistake when he agreed to drive his friend's car as an unlicensed driver. Then, whilst driving, he lost control of the car in adverse conditions injurying himself and causing the death of an elderly occupant in the other car involved in the collision. The Tribunal finds that Mr Jayaweera is genuinely remorseful for his conduct and accepts responsibility for what happened. The Tribunal notes that Mr Jayaweera was convicted of negligent driving causing death and negligent driving causing grievous bodily harm in respect of this accident. He was also convicted of making a false accusation in respect his having initially lied to the police about who was driving the car. The Tribunal accepts Mr Jayaweera's evidence that he lied to the police because he had been threatened by his friend and because he was in shock. However, having reflected on his conduct, he realised that what he had done was wrong and therefore confessed to the police that he was in fact the driver of the car.
Mr Jayaweera was sentenced to a three year good behaviour bond and 200 hours of community service in respect of the offences of which he was convicted. The pre-sentence report dated 21 December 2000 prepared by Frank Rasoni (R1) indicates Mr Rasoni did not consider Mr Jayaweera a threat to the Australian community. In the Tribunal's view, there is no risk of Mr Jayaweera repeating any such offences and there is no indication of any disregard or contempt by him for the law. With regard to the matters raised in paragraph 1.9 of Part 1 of Direction No. 21, in the Tribunal's view the breaches of Australia's immigration law committed by Mr Jayaweera were inadvertent. They arose out of the circumstances in which Mr Jayaweera was required to remain in Australia pending his court case, during which time he was required to report to Earlwood police station three times a week.
The Tribunal accepts Mr Jayaweera's evidence that he was told by a New South Wales police officer that the police would notify the Department of the court proceedings against Mr Jayaweera, and would obtain his passport from them having made arrangements for some sort of bridging visa to be issued to Mr Jayaweera in relation to the period prior to the determination of his court case. The Tribunal accepts Mr Jayaweera's evidence that after he was sentenced on 21 December 2000, he contacted the New South Wales Police with regard to the return of his passport and, when he was informed by the police that they did not have his passport, he thereupon contacted the Department. This led in due course to his visiting the Department's Rockdale office and to his being interviewed by Mr Ferguson on 22 February 2001. The Tribunal finds Mr Jayaweera's explanation perfectly credible and accepts that he was not aware of the decision made on 8 March 2000 to refuse his application for a student visa.
With regard to Mr Jayaweera's statement in his spouse visa application (T p62) that he had not been convicted of a crime or offence, the Tribunal accepts his and Ms Bou Assi's explanation that they were not aware that Mr Jayaweera had committed a criminal offence. While to some, such an explanation might seem implausible, the Tribunal notes the public attitude towards driving offences which seems to be that many of these offences are not regarded in the same category as other criminal offences. The Tribunal also notes that a Police Certificate was submitted by Mr Jayaweera in support of his application. Both his evidence and that of Ms Bou Assi was that they were aware that this Police Certificate would contain details of his convictions and, therefore, they had nothing to gain by intentionally making a false or misleading statement by answering "No" in answer to Question 67 of the spouse visa application form.
In relation to Mr Jayaweera's not complying with the original terms of the Bridging Visa E granted by Mr Ferguson on 22 February 2001, the Tribunal accepts Mr Jayaweera's and Ms Bou Assi's explanation that they sought independent advice after the interview with Mr Ferguson because they were upset about the outcome. This advice, from a migration agent, was that Mr Jayaweera should make an application to the Federal Court in respect of the refusal of his student visa. The Tribunal notes that the migration agent notified Mr Ferguson of Mr Jayaweera's application by fax on 8 March 2001 (A1). The Tribunal also notes that Ms Bou Assi and Mr Jayaweera contacted Mr Ferguson on 15 March 2001, when requested to do so by the migration agent, and- offered to go in to see Mr Ferguson that day to make arrangements in relation to Mr Jayaweera's bridging visa. In the Tribunal's view, Mr Jayaweera's and Ms Bou Assi's conduct in relation to the bridging visa was perfectly proper and reasonable in the circumstances.
In conclusion, the Tribunal is not satisfied having regard to Mr Jayaweera's past and present criminal conduct and his past and present general conduct that his enduring moral qualities are so deficient as to show that it is for the public good to refuse entry (Goldie (supra)), and the Tribunal is not satisfied that he is not of good character. Pursuant to s 501(6), he therefore passes the character test.
The Tribunal notes that even if it were to find that Mr Jayaweera does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No. 21, in the Tribunal's opinion, neither the Protection nor the Expectations of the Australian Community require that Mr Jayaweera be excluded from Australia. The Tribunal notes the report prepared by the University of Sydney Psychologist, Mr Switzer, dated 25 June 1999 (A3), in relation to the effect on Mr Jayaweera of the accident and its aftermath, and also the Pre-sentence Report prepared by Mr Rasoni, dated 18 December 2001 (R1), which indicate Mr Jayaweera's remorse after the accident, that he accepts responsibility for what occurred, and that he is not a person who is "criminally inclined". Mr Jayaweera accepts that he made a dreadful and serious mistake which led to the death of an elderly woman in an accident and resulted in his conviction on four charges and to his being sentenced to a three year good behaviour bond and 200 hours of community service.
While the Tribunal recognises that Mr Jayaweera has also made a false statement in answer to Question 67 of his spouse visa application, the Tribunal considers that this was not done intentionally and is not a breach of trust such that the Australian community would expect that he be refused a visa. There is no other evidence of misconduct by Mr Jayaweera and, in the Tribunal's view, he poses no risk to the Australian community. Indeed, in future, he may well be an asset to the Australian community once he has completed his education at the University of Sydney. Mr Rasoni (R1) noted that Mr Jayaweera has "his sight set on an academic future and has had to overcome significant obstacles".

In terms of Other Considerations, the Tribunal accepts that significant hardship is being caused to Mr Jayaweera and Ms Bou Assi as a result of their separation. This has adversely affected their studies, and they have obviously suffered emotional and financial hardship which, in turn, has affected their families.
The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Mr Jayaweera passes the character test pursuant to s 501(6) of the Act.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 March 2002
Date of Decision  23 April 2002
Representative for the Applicant              Self-represented
Representative for the Respondent        Mr N Cureton, Solicitor