Chand and Minister for Immigration and Border Protection (Migration)

[2017] AATA 214

Chand and Minister for Immigration and Border Protection (Migration) [2017] AATA 214 (21 February 2017)

Division:MIGRATION & REFUGEE DIVISION

File Number:           2016/6551

Re:Ramesh Chand

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Professor R Deutsch, Deputy President

Date:21 February 2017

Place:Sydney

The decision under review is set aside and remitted to the Department of Immigration and Border Protection for re-determination.

...............................[sgd].........................................

Professor R Deutsch, Deputy President

CATCHWORDS

IMMIGRATION – partner visa refusal – failure to pass the character test - whether to exercise s 501(1) discretion to refuse on character grounds– protection of the Australian community – expectations of the Australian community – impact on family members - whether applicant would re-offend - applicant unlikely to repeat criminal behaviour – low tolerable risk to Australian community – adverse emotional and possible financial impacts on family if visa refusal - decision set aside and remitted

LEGISLATION

Migration Act 1958 (Cth), ss 499, 500, 501(1), (6), (7)

CASES

Jill Lachmaiya and will Department of Immigration and Ethnic Affairs 1994 AATA 27

Khorn and Minister for Immigration and Multicultural and Indigenous Affairs 2003 AATA 705

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Professor R Deutsch, Deputy President

21 February 2017

1. Pursuant to s 500(1)(b) of the Migration Act 1958 (the Act), Ramesh Chand (the Applicant) seeks review of a decision of a delegate of the Minister (the Delegate) dated 18 September 2016 to refuse to grant the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (‘Partner visa’) under s 501(1) of the Act.

2. The application is opposed by the Minister for Immigration and Border Protection (the Respondent).

BACKGROUND FACTS

1. The Applicant is a citizen of the Republic of Fiji. He is presently 45 years old. He first arrived in Australia on 16 November 1998 as the holder of a Tourist (Class TR) visa and departed Australia on 1 February 1999 before returning again on 29 October 2000 as the holder of a Tourist (Class TR) visa.

2. On 7 November 2000, he made an application for a Protection (subclass 866) visa.

3. On 29 November 2000, his Tourist (Class TR) visa ceased and the Bridging Visa A (‘BVA’) he was granted in association with his Tourist (Class TR) visa came into effect.

4. On 22 December 2000, the application for a Protection visa was refused and on 15 January 2001, the Applicant made an application to the Refugee Review Tribunal (RRT) for review of the decision to refuse his application for protection.

5. On 10 August 2001, the RRT affirmed the decision under review and on 31 August 2001, the Applicant sought the Minister’s intervention under s 417 of the Act.

6. On 18 September 2001, the Applicant’s BVA was granted in association with his application for Protection ceased.

7. On 8 November 2001, the Applicant made an application for a Bridging Visa E (‘BVE’). That application was refused on 19 November 2001. On 6 December 2001, the Applicant’s request for ministerial intervention was finalised with a determination of ‘guidelines not met’ and ‘power not considered’ and the Applicant remained in Australia unlawfully.

8. On 19 October 2004, as the Applicant was not the holder of a visa permitting him to remain in Australia lawfully, the Applicant was detained at Villawood Detention Centre. He was released from detention on 4 January 2005 on a bond of $20,000 and, as required, voluntarily departed Australia on 3 April 2005.

9. On 6 January 2006, the Applicant returned to Australia as the holder of a Tourist (Class TR) visa under the assumed identity of Umesh Kumar (DOB: 16 October 1971). The Tourist visa ceased on 16 February 2006 and on the same day the applicant applied for a Protection (subclass 866) visa under his assumed identity.  

10. The Applicant, under the assumed identity of Umesh Kumar, was granted a BVA in association with his application for protection.

11. On 28 March 2006, the application for protection was refused. The Applicant was incorrectly notified of the decision to refuse his application and on 9 January 2017, he was re­notified of the decision.

12. As a result of the re-notification of the protection visa refusal on 9 January 2017, the Applicant held a BVA under the assumed name of Umesh Kumar until the decision of the Department of Immigration and Border Protection (the Department) of 18 September 2016 to refuse his application for a Partner visa.

13. On 15 October 2012, the Applicant made an application for a Partner visa. That application was deemed invalid as a result of the 8503 “No Further Stay” condition attached to the Tourist (Class TR) visa used by the Applicant under the assumed name of Umesh Kumar to re-enter Australia on 9 January 2006.

14. On 19 October 2012 and 15 November 2012, the Applicant made an application to the Respondent for waiver of the No Further Stay condition.

15. On 3 December 2012, the Applicant’s request for waiver of the 8503 “No Further Stay” condition was approved.

16. On 18 December 2012, the Applicant lodged a valid application for a Partner visa, the subject of which is before the Tribunal for review. The application was made under the Applicant’s birth name of Ramesh Chand. At the time of application, the applicant disclosed his re-entry into Australia under the assumed name of Umesh Kumar.

The Applicant’s Criminal History

1. The Applicant’s Fijian Police clearance certificate indicates that he has been convicted in Fiji of one offence as follows:

   22 July 1994 – Embezzlement: Sentenced to 12 months imprisonment, suspended for 24 months.

2. His Australian Federal Police National Police Certificate indicates that the Applicant has not been convicted of any offence in Australia.

ISSUES

1. It is common ground that the Applicant fails the character test (as defined in s 501 (6) of the Act) as he has a substantial criminal record. Section 501(7) defines substantial criminal record as including circumstances where a person has been sentenced to death, or life imprisonment, or a term of imprisonment of 12 months or more. This also covers a sentence of a term of 12 months where the sentence is suspended for whatever reason.

2. The sole issue to be determined by this Tribunal comes down to this:

   Is the decision to exercise the discretion in s 501(1) to refuse the Applicant’s visa the preferable decision?

LEGISLATIVE REGIME AND THE RELEVANT DIRECTION

Section 501 of the Act

1. Under s 501(1) of the Act, the Minister (or a delegate) may refuse to grant a visa if the Applicant does not pass the character test prescribed by s 501(6) of the Act.

Ministerial Direction No. 65

1. Under s 499 of the Act, the Minister may give directions about the exercise of functions or powers under the Act.

2. The Minister has recently given directions in relation to visa refusals and cancellations under s 501 by way of Ministerial Direction No. 65 (the Direction).

3. Relevant to this case is that when decision makers are considering whether to exercise the s 501(1) discretion, regard must be had to the Direction.

4. Pursuant to the Direction, the s 501(1) decision is to be informed by the principles in paragraph 6.3 of the Direction (Principles), which are:

   1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

   4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.

   5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.

   7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen’s visa should be cancelled, or their visa application refused.

5. Informed by the Principles, the decision-maker must take into account the primary considerations in Part B of the Direction, in deciding whether to refuse a non-citizen’s visa. The relevant primary considerations in this case are:

(a)      Protection of the Australian community from criminal and other serious conduct

1. When considering the protection of the Australian community, decision makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal conduct by non-citizens. It should be noted that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. This factor involves consideration of the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in serious criminal conduct.

1. The nature and seriousness of the non-citizen’s conduct to date;

1. Pursuant to paragraph 11.1.1 of Part B of the Direction, when considering the nature and seriousness of the non­-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

   (d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   (e)The sentence imposed by the courts for a crime or crimes;

   (f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (g)The cumulative effect of repeated offending;

   (h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   (i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. Pursuant to paragraph 11.1.2(3) of Part B of the Direction, when considering the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, decision-makers must have regard to the following factors cumulatively:

   (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)     information and evidence from independent and authoritative sources on the likelihood of the non­citizen re-offending; and

   (ii)    evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

   (iii)    the duration of the intended stay in Australia.

(b)      Expectations of the Australian Community

1. When assessing this consideration, decision makers are directed to consider that the Australian community expects non-citizens to obey Australian laws while in Australia and where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

2. There are other considerations in Part B which also must be taken into account (where relevant). The only other Part B consideration of relevance in this case is the impact on Australian residents or citizens. That direction requires delegates to take into consideration the impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent Residents or people who have a right to remain in Australia indefinitely.

THE APPLICANT’S CONTENTIONS

1. The Applicant has emphasised a number of key aspects as outlined below.

2. First, the Applicant has resided in Australia for a cumulative period of over 20 years. During this time, the Applicant has not been convicted of any offences in Australia or elsewhere and for the most part has been law abiding, and has not caused or threatened harm to any individuals or the Australian community.

3. Secondly, the Applicant’s conviction for embezzlement in his native Fiji in July 1994 is not of a serious nature especially when assessed against individuals who commit violent and/or sexual crimes, murder and other forms of violence against people, terrorist activity and the production, importation and distribution of illicit drugs (etc...) therefore does not warrant refusal of entry into Australia.

4. Thirdly, the Applicant has not committed an offence or crime of such a serious nature including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, thus the general expectation to forfeit the privilege of remaining in Australia does not apply to the applicant.

5. Fourthly, the Applicant’s conviction for embezzlement, his conduct in gaining re-entry into Australia under an assumed identity and his periods of unlawful residence in Australia did not cause such harm that it can be said that if it were repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In such circumstances, the countervailing circumstances discussed below justify the grant of the subject visa.

6. Fifthly, the Applicant has participated in, and made positive contributions to, the Australian community during his 20 plus years of residence in Australia. Therefore, Australia can afford to attribute a high level of tolerance towards the applicant.

7. Sixthly, his previous instances of poor behaviour were long ago and he has demonstrated compliant behaviour for many years. Thus,

• the Applicant’s conviction for embezzlement occurred 22 years ago and he has not committed any offence since then; and

• his re-entry into Australia under an assumed identity occurred more than 10 years ago and he has resided lawfully in Australia since February 2006.

1. Seventhly, the impact visa refusal will have on his immediate family members in Australia is significant.

2. The Applicant resides with his Australia permanent resident spouse of 25 years and his two Australian citizen sons in Sydney, NSW and the evidence provided indicate that theirs is a close knit family.

3. The Applicant’s spouse and children have provided evidence to the effect that the Applicant is responsible for the family’s financial and welfare needs. The evidence also suggests that the Applicant’s spouse and children will suffer emotional hardship if the Applicant’s visa is refused. It is evident from the evidence provided that the Applicant provides invaluable spousal and parental support to his family.

4. Undoubtedly, a visa refusal will have an adverse emotional and psychological impact on the Applicant’s immediate family who are Australian permanent residents and Australian citizens. The claimed impact on the Applicant’s family outweighs any countervailing factors favouring visa refusal.

5. Eighthly, the Applicant has taken full responsibility for his conviction and his immigration conduct and has expressed remorse for his behaviour.

THE RESPONDENT’S CONTENTIONS

1. Not unexpectedly, the Respondent takes a somewhat different view of the relevant facts and circumstances and the application of Direction 65.

2. First, the Respondent acknowledges that the Applicant was convicted of his only criminal offence over 20 years ago and that he has no other recorded convictions or disclosable Court outcomes in Fiji or elsewhere.

3. Secondly, the Respondent notes that the Applicant has a serious and extensive history of immigration misconduct in Australia comprising of:

(a)knowingly, and on two separate occasions, overstaying his Australian visa and remaining in Australia as an unlawful non-citizen;

(b)knowingly working in Australia illegally, including deliberately working in Australia illegally in contravention of the condition imposed on his Australian visa;

(c)knowingly entering Australia under a false identity;

(d)knowingly using a false identity to make an application for Australian visa; and

(e)not disclosing prior criminal offending to the Respondent.

1. The Respondent contends that the Applicant’s extensive history of immigration misconduct in Australia is very serious, particularly in circumstances where the Applicant knowingly engaged in such immigration misconduct in order to deliberately mislead the Respondent and to obtain the privilege of unlawful presence in Australia.

2. Thirdly, the Respondent notes that despite being aware that he was in Australia unlawfully, the Applicant did not make any attempt to regularise his immigration status in order to remain in Australia lawfully.

3. Fourthly, despite being made expressly aware on multiple occasions that he was not permitted to work in Australia as a condition of his visa, it is clear that the Applicant deliberately chose to breach the conditions of his visa and work in Australia illegally. In particular, the Respondent notes that:

   (a)  on his own admission, the Applicant admits to working as a courier driver since 2011;

   (b)  his curriculum vitae states that he worked at Allied Express is a courier driver from April 2011 to November 2016;

   (c)  in her statement dated 19 January 2017, the Applicant’s wife states that

   “My husband was [sic] taken on full financial responsibility for our family and has done so since the day we got married.”

   (d)  In a reference by one of the Applicant’s two sons dated 27 August 2016, it is stated that since arriving in Australia in December 2000

   “not a day has passed where my dad has failed to work and provide financial support for the family”

   (e)  in a reference by another son also dated 27 August 2016, it is similarly stated that

   “I have known my dad to be working since his arrival in Australia in 2002 til today”

   (f)    in three further references provided by relatives and all dated 31 August 2016, each relative makes the statement that

   “I have known Ramesh Chand to be working since his arrival in Australia in 2000 til today.”

1. The Applicant was only granted permission to work in Australia on 14 February 2013. The Respondent contends that the Applicant’s immigration misconduct in deliberately and boldly continuing to work illegally in Australia, despite being made expressly aware on multiple occasions that he was not permitted to work in Australia as a condition of his visa demonstrates a blatant disrespect for the laws of Australia.

2. The Respondent contends that the first primary consideration being protection of the Australian community from criminal or other serious conduct strongly favours a decision to affirm the decision to refuse to grant the Applicant a Partner visa.

3. Fifthly, the Respondent contends that the Applicant’s repeated and deliberate history of immigration misconduct when considered cumulatively establishes a repeated pattern of disregard and disrespect for Australian laws and Australia’s important institutions. The Respondent contends that the Australian community would expect that a person who is engaged in this type of immigration misconduct should expect to forfeit the privilege of being granted an Australian visa.

4. Sixthly, the Respondent acknowledges that the Applicant’s family members would be negatively impacted by a decision to refuse to grant Mr Chand the relevant visa.

5. The Respondent notes that there would be nothing to prevent the Applicant’s immediate family from relocating to Fiji with the Applicant.

THE TRIBUNAL’S ASSESSMENT

1. This is a difficult case, not least of all because there is only one criminal conviction recorded against the name of the Applicant and that conviction arose some 22 years ago in a foreign country in relation to an offence of embezzlement involving what could only be described as a small amount of money. That is not to suggest that that conviction is unimportant but the context in which it arose and the time that has elapsed without further conviction are important.

2. Far more troubling is the Applicant’s immigration record since arriving in Australia which could only be described as very poor at best. The Applicant has engaged in a continuous and coordinated attempt to ensure he remains in Australia by lying, seemingly without compunction at the time, to the relevant authorities and even adopting a false identity.

3. Such immigration misconduct has been viewed very seriously particularly by this Tribunal in a number of cases.

4. Thus, in Khorn and Minister for Immigration and Multicultural and Indigenous Affairs 2003 AATA 705 at 74 Deputy President Handley stated:

   “… the Tribunal considers that Mr Bun’s breaches of Australia’s immigration laws and in particular his use of a false identity, his lodging false documents, and his making false and misleading statements should be regarded as very serious misconduct. A person’s truthfulness in the immigration process is of paramount importance”

5. Further, in Jill Lachmaiya and will Department of Immigration and Ethnic Affairs 1994 AATA 27 at 35, Deputy President McMahon noted as follows:

   “The observance of truth in dealing with officials and migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in Visa applications… Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”

6. At the hearing a number of witnesses were called and gave evidence including, in particular, the Applicant himself and his wife.

7. I found both the Applicant and his wife to be credible witnesses who appeared to be under a great deal of stress in relation to these proceedings.

8. The Applicant expressed contrition and remorse for the actions which he had taken and I believe that those expressions were genuine and honest.

9. In assessing the primary considerations I make the following specific observations:

10. The first primary consideration which I need to take into account is the protection of the Australian community from criminal or other serious conduct and in doing so I must have regard to both;

(a)the nature and seriousness of the conduct; and

(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

1. The emphasis in considering this primary consideration is on protection of the Australian community. Whilst this concept is readily understood in relation to crimes such as those which involve violence or sexually deviant behaviour it is more difficult in a case of this kind.

2. In particular, the Applicant gave evidence to the effect that much of his poor immigration behaviour related to his desire to protect his family and the continuing behaviour was to ensure that he was around and able to protect them both financially and otherwise.

3. In circumstances such as these it seems difficult to understand what is the precise nature of the protection of the Australian community that needs to be guarded.

4. In terms of his criminal behaviour which amounted to embezzlement involving a small sum of money, as I have already mentioned this offence took place 22 years ago and there has been no repetition either here or elsewhere. The nature and seriousness of the behaviour which gave rise to the criminal conviction is not, in my view, at the serious end of the criminal scale and the likelihood of it being repeated is remote.

5. In terms of his immigration behaviour there is no doubt that the behaviour in question is serious and is symptomatic of somebody who historically has had no regard to the immigration laws of this country. This is manifested in a number of ways including his use of a false identity, his ongoing behaviour in working while on a visa which specifically prohibited working and his failure to disclose his criminal offending.

6. In relation to the question, as to whether he is likely to repeat this behaviour, it is important that the Applicant has now sought and obtained legal representation and his legal representatives wrote to the Department on 2 May 2013 to inform the Department that the Applicant had been convicted of embezzlement on 22 July 1994. This does not in any way excuse the Applicant’s prior conduct but it does suggest that going forward he is unlikely to repeat his prior appalling behaviour.

7. In relation to the third primary consideration being the expectations of the Australian community there is no doubt an expectation that non-citizens should obey Australian laws while in Australia.

8. However, the passage which makes reference to this expectation in paragraph 11.3 of Part B of the Determination goes on to say that

   “Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa”

9. Here, the character concerns lie essentially in the Applicant’s ongoing immigration behaviour which has involved lies and deception over a lengthy period of time. While such lies and deception can never be ignored, I am satisfied having regard to what both the Applicant and his wife have put to me, by the Applicant’s behaviour in now seeking legal advice, and carrying through with providing all relevant details to the immigration authorities that it is unlikely that he will seek to mislead the immigration authorities in the future.

10. In the circumstances I believe that the Australian community would accept that the Applicant represents a tolerable risk having regard to all the relevant circumstances.

11. In relation to the other considerations which I am required to take into account it is acknowledged by the Respondent that the Applicant’s family members would be negatively impacted by a decision to refuse to grant the Applicant the relevant visa. Whilst they could relocate to Fiji as suggested by the Respondent, the practicalities of doing so after having spent over 20 years in Australia, having raised and educated their two sons here and having clearly established their network of social contacts in Australia would be daunting, if not overwhelming.

DECISION

1. With some hesitation, having regard to the fact that:

• the only criminal offence occurred 22 years ago;

• the criminal offence in question could not be described as being at the serious end of criminal activity;

• there has been no further criminal convictions in the ensuing 22 years;

• there have been no criminal offences recorded against the Applicant’s name in Australia;

• there is a low probability of the Applicant engaging in criminal activity in the future;

• the Applicant and his wife of many years standing have both given evidence expressing contrition and remorse;

• the Applicant is in my view not likely to again engage in behaviour which amounts to attempts to lie to and deceive the Department;

• there is a low risk to the Australian community; and

• there would be adverse emotional and possible financial impacts if there was a visa refusal on the applicant’s Australian citizen and permanent resident family members;

the decision under review is set aside and remitted to the Department for re-determination.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

............................[sgd].............................

Associate

Dated: 21 February 2017

Date of hearing:	13 February 2017
Solicitors for the Applicant:	Mr C Levingston, Christopher Levingston & Associates
Solicitors for the Respondent:	Ms R Noronha, Clayton Utz