Cabrera and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1353
•17 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1353
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/362
GENERAL ADMINISTRATIVE DIVISION ) Re IRENE CABRERA
Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date17 December 2004
PlaceMelbourne
Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.
…………………………….
Deputy President
CATCHWORDS
Immigration – spouse visa – refusal of visa on character grounds – past criminal conduct – inaccurate and misleading answers – term of imprisonment of one year or more – fails character test – exercise of discretion under s501 of the Act – best interests of children – children Australian citizens – compassionate claim of Australian partner – degree of hardship to family members – rehabilitation of visa applicant – discretion exercised in favour of visa applicant – decision to refuse set aside.
Migration Act 1958 – ss499, 501
Ministerial Direction 21
Wan and Minister for Immigration and Multicultural Affairs [2001] FCA 568
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Goldie and Minister for Immigration and Multicultural Affairs [1999] FCA 1277
REASONS FOR DECISION
17 December 2004 The Hon R J Groom (Deputy President) 1. This is an application by Irene Tolentino Cabrera (“the review applicant”) for the review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) refusing, pursuant to s501 of the Migration Act 1958 (“the Act”) to grant the applicant’s husband Hossein Afshin Azar (“the visa applicant”) a spouse visa.
2. The hearing of the application was held at Melbourne on 21 October 2004. The applicant was represented by Mr Greg Hughan and the respondent by Mr Michael Brereton.
3. A number of documents were tendered in evidence, including the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, and witness statements by both the review applicant and the visa applicant.
4. The review applicant was born in the Philippines and is now resident in Australia. She became an Australian citizen on 17 July 1996. The visa applicant was born in Iran and is presently living in the Philippines. He is a permanent resident of that country.
5. The review applicant and the visa applicant were married in the Philippines in June 1997. There is no evidence before the Tribunal suggesting this marriage is other than genuine. There are 2 children of the marriage, Hassan Afshin Azar born in Iran on 17 November 1997 and Hamed Afshin Azar born in the Philippines on 11 September 2000. Both sons are Australian citizens. The visa applicant was previously married in Iran in 1984 and has one child of that marriage. That child, born in 1986, was in the custody of his mother in Iran during his infancy. The earlier marriage, an arranged marriage, ended in divorce in 1989.
6. The review applicant was previously married to Robert Donker-Curtis, who was, at the time, a permanent resident of Australia. The review applicant came to Australia to reside with him, but that marriage proved unsuccessful. The review applicant separated from her then husband and I infer from the evidence that that marriage was subsequently dissolved.
7. I find the following additional facts as set out in this and subsequent paragraphs:
(a)The visa applicant was born in Iran on 22 February 1954 and is now 50 years of age. The review applicant is now 33 years of age having been born in the Philippines on 18 May 1971.
(b)The visa applicant was an oil tanker driver during the Iran-Iraq war and regularly drove oil tankers to the war front. During this period he became involved with drugs and was convicted, or charged with, the following offences in Iran:
(i)In 1982 he was convicted of “addiction to narcotics” and sentenced to 3 months imprisonment.
(ii)In 1987 he was arrested and held in custody for 4 days on charges of “addiction” and released “after leaving written commitment of not committing again”.
(iii)In 1988 he was convicted of possession of 3.5 grams of heroin and was sentenced to one year and 3 days imprisonment and 70 lashes.
(iv)In 1990 the visa applicant was convicted of possession of heroin and opium and sentenced to one year’s imprisonment and also fined.
(c)I find on the evidence that the visa applicant was not involved in drug trafficking or dealing and that the drugs in his possession were for his personal use only. I also find that the visa applicant has not been involved with illicit drugs since the last of the abovementioned offences.
(d)Because of the drug problems and other difficulties the visa applicant experienced in Iran he decided to leave Iran to travel to Japan to find work and make a fresh start. He applied for a visitor visa. He obtained regular work in the construction industry in Japan but overstayed his visa in breach of that country’s laws.
(e)In about April 1995 the visa applicant was involved in a car accident in Japan. His then girlfriend, who was a passenger in the vehicle at the time, was seriously injured and lost a kidney as a result. The visa applicant fractured his shoulder in the accident and also lost the top of a finger.
(f)In about August 1996 the review applicant and the visa applicant met in Japan and started going out together. The applicants fell in love soon after they met and began to contemplate a serious relationship and the possibility of marriage.
(g)The visa applicant’s former girlfriend lodged a complaint against him in relation to the car accident mentioned above. He was interviewed by Japanese police who then arrested him for overstaying his visa. The visa applicant was convicted of migration offences in December 1996 and a prison sentence of 2 years and 6 months was imposed. That sentence was suspended on condition that the visa applicant left Japan immediately.
(h)Shortly after that sentence was imposed the visa applicant and the review applicant travelled together to Iran. Whilst in Iran the review applicant became pregnant. The couple then decided to travel to the Philippines and were married there in June 1997. The certificate of marriage was backdated to 3 January 1997 because the applicants believed the review applicant could suffer serious penalties in Iran if the Iranian authorities became aware that the review applicant had become pregnant to the visa applicant whilst they were not married. Although that action appears on the face of it to indicate dishonesty, I accept the evidence that such a change to a certificate is not uncommon in the Philippines and is not considered to be as wrongful in that society as it would be in Australia.
(i)In August 1997 the applicants returned to Iran where their eldest son, Hassan Afshin Azar was born on 17 November 1997.
(j)In February 1998, in Iran, the review applicant assisted the visa applicant to compete a spouse visa application form to enable the visa applicant to migrate to Australia and to reside here with the review applicant and their son Hassan. The review applicant is the sponsor of that visa application. Some answers to questions in the application form were inaccurate and misleading.
(k)Except for a few months in 1999 when the review applicant and Hassan travelled to Australia, the applicants lived together with Hassan in Iran and later in the Philippines until January 2000.
(l)In January 2000 the review applicant came to Australia with Hassan but soon after found she was again pregnant. She then travelled to Iran to be with the visa applicant. Both applicants then returned with Hassan to the Philippines where their second son Hamed was born in September 2000.
(m)The applicants and their two sons then lived together in the Philippines until June 2003 when the review applicant again returned to Australia to arrange schooling for Hassan and Hamed.
(n)The review applicant returned to the Philippines with the two children to spend a few months in late 2003 and early 2004 with the visa applicant.
(o)On 24 December 2003 the visa applicant was notified that his visa application had been refused on the ground that he did not pass the character test.
(p)At present the review applicant is residing in Australia with the two children and is wholly dependent upon social security payments. The visa applicant is living alone in the Philippines and is operating a grocery store in that country.
Section 501 and Direction 21
8. Pursuant to s501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record within the meaning of s501(7) of the Act.
9. Under s501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment for 12 months or more.
10. It is clear from the evidence in this application that the visa applicant does not pass the character test as he has been sentenced to a term of imprisonment of 12 months or more. This was properly conceded by the visa applicant in both paragraph 3 of the “Applicant’s Statement of Facts and Contentions” and at the hearing.
11. The Tribunal has a residual discretion under s501 of the Act to nevertheless grant a visa in the face of bad character. Ministerial Direction No 21, issued under s499 of the Act, requires the Tribunal to adopt a balancing approach between three “primary considerations” and a number of “other considerations”.
12. The three primary considerations are:
(a)the protection of the Australian community and members of the community;
(b)the expectation of the Australian community; and
(c)and all other cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
I consider all three of these primary considerations to be relevant in this application.
Protection of the Australian Community
13. The first of the primary considerations, namely the protection of the Australian community, involves, under Direction 21, a consideration of:
(a)The seriousness and nature of the conduct .
(b)The likelihood that the conduct may be repeated; and
(c)The likelihood that the visa refusal would prevent like offences by other persons.
14. The visa applicant has clearly been involved in serious criminal and other misconduct, including drug offences in Iran and overstaying his visa in Japan. In addition he has provided inaccurate and misleading answers to questions in his visa application.
15. The fact that the visa applicant was sentenced to and served prison sentences in Iran for drug offences in the 1980’s and early 1990’s and was also sentenced in 1996 in Japan to 2 years, 6 months imprisonment for a visa violation indicates a disregard for the law. Having said that¸ the Tribunal recognises that in order to assess the seriousness of the wrongdoing, it is necessary to carefully consider the circumstances in which the offences were committed.
16. The drug offences were committed when the visa applicant was working as a tanker driver transporting fuel to the war front during the Iran/Iraq war. Drugs were readily available at the time and obviously the visa applicant was working in a dangerous and stressful environment. His brother, a pilot, had already been killed in the war.
17. The Tribunal accepts that the visa applicant’s drug taking was substantially contributed to by the extremely stressful and hostile circumstances prevailing at the time. One cannot equate the use of illicit drugs in, for example, urban Australia, with the personal use of drugs in these dramatically different circumstances. The seriousness of the offences is significantly discounted by those particular circumstances
18. The evidence is that the visa applicant overstayed his Japanese visa. He was arrested in October 1996 following a civil complaint from his former girlfriend. This arose out of the motor vehicle accident referred to in 7(e) above. The visa applicant said of his arrest in Japan:
“I attended two hearings at the court. There was an interpreter at both hearings but I was not exactly sure of what was going on. At the end of the second hearing, the judge told that because my ex-girlfriend had withdrawn her complaint, he would free me, but because I did not have a visa he would hand me over to the immigration authorities. He said that I would have to leave Japan and could not return for three years. He said that if I came back to Japan within that time, I would be jailed for three years. I was told that my only crime was not having a visa, so Irene arranged a ticket for me and I left Japan.”
19. Although visa overstays generally disclose a degree of dishonesty and must be treated seriously, as indeed the visa applicant’s overstay was by the Japanese authorities in threatening deportation and imposing a prison sentence, it does not necessarily indicate that the visa applicant is of genuine bad character particularly as part of his motivation was to make a fresh start and overcome the drug problems he had in Iran. He said of his move to Japan:
“… I realized that I needed to leave Iran in order to overcome my addiction and to get away from the people that I knew there. Therefore I applied for a visitor visa to travel to Japan. When I was in Japan I realized it would be better for me to stay away from Iran and so I overstayed my visitor visa there and over the following years worked in the construction industry in Japan. I have never used drugs again.”
That motivation, of course, cannot completely excuse his clear breach of the relevant Japanese laws.
20. I now turn to the wrong answers given in the visa applicant’s application for a spouse visa. The visa applicant ticked “no” in response to the question “Have you … be convicted of a crime or offence in any country …?” The visa applicant also ticked “no” to the question “Have you … been excluded from or asked to leave any country …?” In addition, and surprisingly, the visa applicant ticked “yes” to the question “Have you … committed, or been involved in the commission of war crimes or crimes against humanity or human rights?”
21. The review applicant assisted the visa applicant to fill out the application forms for the spouse visa application. She said in her witness statement of 15 September 2004 which was tendered in evidence as follows:
“I found the application form to be very confusing and it was difficult to get the information from Hossein to fill in the form. At that time my English was not good. My first language is Tagalog. At that time I communicated with Hossein mainly in a mixture of Persian and Japanese. So I would ask him a question which I had translated from English to either Persian or Japanese and then he would answer me in those languages. I then filled out the answer on the form in English. Looking back on it now it is clear that I made some mistakes in the form but those mistakes were not deliberate. At no time did we try to deceive the Australian authorities about Hossein’s background and the problems that he has had in the past.”
22. Although the review applicant assisted the visa applicant to complete the form and answer the questions the visa applicant did sign the declaration at the end of the document declaring that the information supplied was “… complete, true and up to date in every detail.” He is responsible for the accuracy or otherwise of the information provided. The importance of honest answers in such forms was well expressed in Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155-6 as follows:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”
23. The visa applicant in this current matter is not as culpable as the applicant in Lachmaiya in the sense that the deception in that case was extraordinary and involved a whole series of false statements and forged documents, however the point is well made in Lachmaiya that there is a constant reliance by migration authorities on the basic honesty, decency, and sincerity of applicants and therefore evidence of dishonesty must be treated very seriously. Indeed in Direction 21 at paragraph 2.6(c) it is noted that it is the government’s view that making a false statement in a visa application form is a serious offence.
24. In addition s234 of the Act provides substantial penalties for the offence of making a false statement in a visa application. The maximum penalty under this section is imprisonment for 10 years or 1,000 penalty units, or both.
25. The Tribunal finds that the “yes” answer to the war crimes question is important and does support the contention that the questions were not fully understood by the visa applicant and perhaps also by the review applicant. After all, war crimes and crimes against humanity are extremely serious crimes under international law. It is most surprising that he would answer “yes” to that question when in fact there is no evidence that the visa applicant had committed any type of war crime. His answer to that question does tend to support the claimed confusion and in the Tribunal’s view reduces the seriousness of the visa applicant’s conduct in providing other inaccurate answers.
26. There is no doubt the answers given were inaccurate and misleading. One possible explanation which could be inferred from the evidence is that by answering “yes” to the war crimes question the visa applicant may have intended to disclose in a general way the offences he had committed during a period of war. It appears the visa applicant was not as frank as he may have been in regard to the overstay in Japan. But there may also have been some confusion in his mind as to exactly what penalty the Japanese authorities had actually imposed upon him.
27. Although the inaccurate answers, the drug offences and the visa overstay are all, on the face of them, quite serious acts of wrongdoing, after considering all of the evidence, including the content and nature of the applicants’ evidence, I am not persuaded that those incidents establish that the visa applicant is “a person whose lack of good character is such that it is for the public good to refuse entry to Australia” as expressed by Spender, Drummond and Mansfield JJ in Goldie and Minister for Immigration and Multicultural Affairs [1999] FCA 1277.
28. The second element in the first of the “primary considerations” is the likelihood that the conduct may be repeated. I do not consider this to be a significant issue in this application. The visa applicant has rehabilitated himself as far as illicit drugs are concerned and I would consider the risk of his further involvement in crime to be extremely low. A report from the National Bureau of Criminology in the Philippines dated 1 July 2004 states in respect to the visa applicant that there is “… no derogatory record”. Also in light of the history of this application I would expect both applicants to be careful in providing all relevant information to any authorities in the future.
29. I must also consider the issue of general deterrence which is the third element in the first “primary consideration”. This can be an important consideration. A decision not to grant a visa in circumstances where an applicant has committed offences or has not been frank and honest in disclosing prior convictions would send out a clear message to others. The Tribunal does not consider in all of the circumstances of this case that this is a significant consideration when weighed up against other matters that the Tribunal must take into account.
The Expectations of the Australian Community
30. The second primary consideration is “the expectation of the Australian community”. This is always a difficult judgment to make particularly as evidence is not advanced to indicate how the average fair-minded Australian citizen might view particular conduct. My judgment is that fair-minded members of the Australian community would be concerned about the visa applicant’s drug offences, even though they occurred some years ago and would also be concerned about his failure to disclose his offences in the initial application for a visa. But equally there would the countervailing concern for the interests of the children of the marriage and what should be done to protect their future. I suspect also that the community might be concerned about matters such as the likelihood of the visa applicant obtaining work and other practical matters. Any judgment about the expectations of the Australian community cannot of itself determine the outcome of this application. It is but one primary consideration that must be carefully weighed against the other primary considerations as well as other relevant considerations.
The Best Interests of the Children
31. The third of the primary consideration is the need to consider the best interests of the two children of the marriage, Hassan Afshin Azar now aged 7 years and Hamed Afshin Azar now aged 4 years, who are both presently living with the review applicant in Australia. As mentioned above the visa applicant has a child from his earlier marriage, however that child has been in the lawful custody of his first wife for many years and is now 18 years and therefore is not relevant under this primary consideration.
32. Direction 21 provides relevantly as follows:
2.13This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.
2.14Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.
2.15In general terms, the child’s best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the non-citizen, include, but are not limited to:
(a)any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
2.16When considering the best interests of the child, decision-makers should have regard to the following:
(a)the nature of the relationship between the child and the non-citizen;
(b)the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c)the age of the child;
(d)whether the child is an Australian citizen or permanent resident;
(e)the likely effect that any separation from the non-citizen would have on the child;
(f)the impact of the non-citizen’s prior conduct on the child;
(g)the time (if any) that the child has spent in Australia;
(h)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.
33. There is no evidence before the Tribunal that the children in this case have been in any sense abused or neglected by the visa applicant or that they have suffered or experienced any physical or emotional trauma arising from any conduct of the visa applicant, including conduct in his earlier life.
34. I find on the material before me that the visa applicant has a genuine fatherly interest in the welfare and upbringing of his children and is interested and caring towards them and keeps in regular contact with both his sons.
35. The visa applicant said of his children:
“My sons, Hassan and Hamed, lived with me almost all of the time from their births, until they went to Australia with Irene in June 2003. They came back to the Philippines to live with me over the summer holidays in 2003-2004 and then returned to Australia. I miss them both a great deal. I send them text messages and we speak on the phone three or four times a day. My sons’ birthdays are 11 September and 17 November. Their birthdays this year will be the second of theirs that I have missed. They are my existence.
My wife and children mean everything to me. It is very important for me to be with my sons. They need their father and they do not understand why I can’t be with them. They always ask me why I can’t be with them. I do not want my sons to grow up under the bad government in Iran or in the poverty of the Philippines. I want my children to grow up in a civilized country where they are able to go to university so they can progress in their lives.”
36. The Tribunal is satisfied on the evidence before it that the review applicant is a very dedicated mother and that both applicants desire to provide their children with the best upbringing that they can, and in particular want them to have the benefits of a sound education. They both believe Australia can provide the two boys with the best opportunities for their future development and prospects.
37. As is stated in paragraph 2.15 of Direction 21 in general terms the best interests of a child will be served if the child remains with its parents.
38. The evidence does not indicate any legal obstacle to the review applicant returning to the Philippines with the two boys so that the whole family would then be united in that country. The review applicant has a large extended family there able to provide some support. However one of the potential problems highlighted in the evidence is the fact that the visa applicant’s grocery shop is not particularly successful and therefore there may be financial difficulties for the family, including the children if they return to the Philippines.
39. The Tribunal must consider the impact on the review applicant, an Australian citizen and the two children, also both Australian citizens, if they are required to return to the Philippines for the purpose of family reunion. Australian citizens normally enjoy a relatively good standard of living and have certain rights and entitlements which accompany that citizenship. They should not be lightly encouraged to leave Australia and forego those benefits, unless there are strong reasons for doing so. If the review applicant and the two children were required to return to the Philippines, I find that despite some family support there, they would face significant disadvantages compared with their current circumstances in Australia. If the family went together to Iran, they would face even more significant difficulties.
40. As was observed by the Full Federal Court in Wan and Minister for Immigration and Multicultural Affairs [2001] FCA 568 in the context of assessing the best interests of a child, an important consideration is:
“The fact that the children, as citizens of Australia, would be deprived of a country of their own and their mother’s citizenship, ‘and of its protection and support, socially, culturally and medically, and in the many other ways evoked by but not confined to, the broad concept of lifestyle’ (Vaitaiki, per Burchett J at 614).” (emphasis added)
41. It is noted that in addition to the primary consideration concerning the best interests of the children in Direction 21, Australia ratified the United Nations Convention on the Rights of the Child on 17 December 1990. Article 3 of the Convention provides:
“In all actions concerning children, whether undertaken by public or private, social or welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
42. The Convention is consistent with the requirements of Direction 21, which the Tribunal must have due regard to and be guided by.
43. I find on all the material before the Tribunal, that the best interests of the children will be served if they are able to live in Australia as a family unit and have the regular support, guidance and influence of both their mother and father. The Tribunal must weigh that and other findings against all other relevant considerations under Direction 21.
44. As far as “other considerations” as set out in Direction 21 are concerned clearly there will be hardship on the review applicant and the children of the marriage if the visa applicant is unable to obtain the visa he seeks. I take into account the circumstances under which the relationship between the review applicant and the visa applicant was established and the other requirements of Direction 21. There is also, as previously mentioned, evidence of rehabilitation and present good conduct by the visa applicant which must be taken fully into account. The Tribunal takes all those matters and all other relevant considerations into account in reaching its determination.
Conclusion
45. Although there is evidence of serious past offences by the visa applicant and a failure by him to accurately answer questions in the visa application forms, the Tribunal finds that the visa applicant, despite technically failing the character test as set out in the relevant legislation, is not a person lacking in good character. He has rehabilitated himself from prior drug use and has not committed any offences for a significant number of years. The Tribunal finds he is most unlikely to be involved in future criminal conduct should he settle in Australia with his family.
46. The Tribunal finds that the most significant of the primary considerations in this case is “the best interests of the children”. It finds on all of the evidence the best interests of the children will be served if their father is able to join them in Australia. That primary consideration in this case outweighs the other primary considerations which the Tribunal has given due weight to. The importance of the family unit and the compassionate claims of the review applicant and the two children, all Australian citizens, weigh heavily in the Tribunal ‘s mind in arriving at the final result of this application.
47. This matter has been given a great deal of careful consideration by the Tribunal as it does involve serious past criminal activity and misconduct by the visa applicant. The Tribunal has had the advantage of hearing evidence of both applicants, assessing the sincerity of their intentions and carefully weighing up all of the material before it.
48. On balance, the Tribunal has decided in this case to exercise the residual discretion in s501 of the Act in favour of the visa applicant.
49. The decision under review is therefore set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 21 October 2004
Date of Decision 17 December 2004
Counsel for the Applicant Mr Greg HughanSolicitor for the Applicant Mr Charles Powles (Refugee and Immigration Legal Centre Inc)
Counsel for the Respondent Mr Michael Brereton
Solicitor for the Respondent Australian Government Solicitor
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