Chand and Minister for Immigration and Multicultural Affairs
[2001] AATA 806
•24 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 806
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1541
GENERAL ADMINISTRATIVE DIVISION )
Re Mahesh Chand
Applicant
And Minister for Immigration & Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date24 September 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Ms Tiljani Chand passes the "character test" in s 501(1) of the Migration Act 1958.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general and criminal conduct – Visa Applicant gave false and misleading statement in application form for grant of visa – criminal conviction for supplying false statement - failure to disclose criminal conviction in subsequent application for visa – where failure to disclose conviction due to "genuine mistake" on part of the Visa Applicant
Validity of Ministerial Direction No. 17 – where Part 2 of Direction No. 17 constituted a fetter on the decision-maker's discretion - where Part 2 of Direction considered government policy and a guide to exercise of discretion – where Direction not binding on the decision-maker
WORDS AND PHRASES – "enduring moral qualities"
Acts Interpretation Act 1901: ss 46(1)(b)
Migration Act 1958: ss 81(1)(b), 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 17 – Visa Refusal and Cancellation under s 501
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648
Turini v Minister for Immigration and Ethnic Affairs [2001] FCA 822
Re Policarpio v Minister for Immigration and Mutlicultural Affairs [2001] AATA 658
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
REASONS FOR DECISION
Mr R P Handley
This is an application by Mahesh Chand (the "Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the "Respondent") made on 14 September 2000 to refuse the grant of a sub-class 309 – Spouse (Provisional) Visa to the Applicant's spouse, Ms Tilanjani Chand (the "Visa Applicant").
At the hearing, the Applicant was represented by Richard Lancaster, of Counsel, and the Respondent by Ritchie Hollands, Solicitor of the Department of Immigration and Multicultural Affairs. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals TribunalAct 1975 (the "T Documents"), together with the documents tendered by the parties. Oral evidence was given by the Applicant in person. The Visa Applicant, Rup Narayan, Shiu Prasad, Sarju Prasad and Pundit Vishnu Prasad Kashyap, all gave evidence by telephone.
BACKGROUNDMs Chand, who was born in Fiji on 11 June 1965 and is aged 36, arrived in Australia on 1 September 1988 holding a student visa which permitted her to remain in Australia until 31 January 1989. After the expiry of her visa, she remained in Australia and on 12 September 1989, she applied for Grant of Residence Status on the basis of her marriage to Colin Richardson in July 1989. On 23 April 1990, Ms Chand was granted a temporary resident visa. On 8 April 1991, Ms Chand, of her own volition attended the Bankstown office of the Department of Immigration and Multicultural Affairs (the "Department") and confessed that she had entered into a contrived marriage with Colin Richardson. At an interview on 16 April 1991, Ms Chand was placed on reporting conditions and signed an undertaking that she would cease employment. At that time, Ms Chand was working as a catering assistant at the Royal Prince Alfred Hospital. On 12 May 1991, Ms Chand lodged a second application for permanent residence on the basis that she was the de facto spouse of Joannes Brettschneider with whom she had been living since 11 April 1991.
On 23 September 1991, Ms Chand appeared at St. James Local Court and pleaded guilty to the charge of making a false statement to an officer in connection with an application for an entry permit permitting her to remain in Australia pursuant to s.81(1)(b) of the Migration Act 1958 (the "Act"). Ms Chand was convicted, fined $1,000.00 and placed on a good behaviour bond for two years. Both Ms Chand's applications for spouse visas were refused. On 8 May 1992, Ms Chand lodged a further application for a 903 visa to remain permanently in Australia on the basis of her relationship with Mr Brettschneider, which was a genuine one. This application was refused on 4 August 1993. On 10 December 1993, a delegate of the Minister wrote to Ms Chand's solicitor informing him that Ms Chand was an illegal entrant and was required to leave Australia without delay. Ms Chand complied with this direction and left Australia on 30 January 1994. On 7 July 1994, Ms Chand was married to the Applicant in a Hindu ceremony in Fiji. On 18 July 1994, Ms Chand lodged a third spouse visa application on the basis of her marriage to the Applicant. She sought a waiver of the two year ban which had been imposed in relation to her applying for migration to Australia which ceased on 30 January 1996. The application and waiver were refused.
On 19 February 1996, after the two year ban had expired, Ms Chand lodged a fourth spouse visa application which was also refused. On 21 March 2000, Ms Chand lodged a fifth spouse visa application, which is the subject of the current proceedings. On 14 September 2000, this application was refused. The delegate, whilst recognising that Ms Chand's marriage and relationship with the Applicant appeared to be a genuine one, refused the application on the basis that Ms Chand did not pass the character test and was not satisfied that there were grounds for exercising the discretion to, nevertheless, permit Ms Chand to enter or remain in Australia. On 4 October 2000, the Applicant lodged an application for a review by this Tribunal.
RELEVANT LAW AND POLICYUnder s 501(1) of 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 sub-class 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 satisfies the Minister that the applicant passes the character test; or
(b) 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 MIMA (1999) 90 FCR 583). However, s499(2) states that s499(1) "does not empower either the Minister to give directions that would be inconsistent with this Act or the regulations".
On 16 June 1999, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 17, 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 the 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 Ms Chand is not of good character having regard to her past and present criminal conduct and her past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, she should be granted a visa.
EVIDENCEBoth the Applicant and Ms Chand described how they had met in 1989 through a friend Shiri Krisan. The Applicant attended Ms Chand's marriage to Colin Richardson, believing it to be a valid marriage at that time. After the wedding, Ms Chand and the Applicant met on a number of occasions and, after her conviction at St. James Local Court, Ms Chand told the Applicant that her marriage to Colin Richardson was a contrived one. Before she returned to Fiji in 1994, Ms Chand discussed her difficulties with Applicant. At that time, Ms Chand said that the Applicant's wife had left him and he and Ms Chand had spoken openly to one another, such that Ms Chand believed there was a good understanding between them and they were compatible. Therefore, before she returned to Fiji, Ms Chand proposed to the Applicant that they should marry. The Applicant said he would think about it and let her know. The Applicant said that at the time of the proposal, he and Ms Chand were "just friends" but he thought they were compatible. Sometime later, the Applicant agreed to marry Ms Chand and came to Fiji to speak with her parents. Following this, everyone agreed that they should marry. The Applicant and Ms Chand went to Nandi to meet a priest who subsequently conducted a Hindu marriage ceremony. Because they had both been married previously, this comprised the saying of religious prayers at the Guru's residence.
The Applicant, who was born on 1 April 1964 and is aged 37, was born in Fiji, but migrated to Australia where he was granted citizenship in December 1995. Currently, he runs a printing business in Phillip Street, Sydney with 9 employees. The Applicant hopes to expand his business once his personal life has been sorted out and he and his wife are living together. The Applicant says since they were married he has visited her several times a year in Fiji, but their separation most of the time is making their lives very difficult. In his statement (A1), he said he is lonely, is losing sleep, feels miserable, and has lost interest in things, including work, because he loves his wife and she loves him and they want to have children and be together as a family. The Applicant said he had considered returning to live in Fiji, but rejected this because the situation there is so unstable, particularly for those, like him, of Indian origin. Meanwhile, he also sends her money to assist with her financial support. He telephones here several times a day and has given her a mobile phone so that they can maintain regular contact.
Ms Chand explained how she originally came to Australia on a student visa to study a diploma in secretarial studies, which she completed. While she was in Sydney, she met a woman called Susan at Campsie Station. Susan told her that she could arrange a marriage of convenience for Ms Chand, so that she could stay in Australia. Ms Chand said she was young, inexperienced and wanted to stay in Australia and did not understand the implications of what she was getting herself into. Susan therefore arranged a marriage of convenience for her with Colin Richardson. Ms Chand paid Susan $500.00 initially and a further $7,000.00 after the wedding, some of which, Ms Chand thinks, was paid to Colin Richardson. On 12 September 1989, Ms Chand made her first spouse visa application relying on her marriage to Colin Richardson. Ms Chand thinks that this was the date of her marriage. At that time, she had been in Australia without permission for seven and a half months and was working as a catering assistant at the Royal Prince Alfred Hospital.
Later, realising that what she had done was wrong, Ms Chand attended the Department's Bankstown office where, of her own volition, she made a statement confessing that she had entered into a contrived marriage. Meanwhile, at about the same time, she started living in a de facto relationship with Mr Brettschneider. This was a genuine relationship. Ms Chand pleaded guilty to the charges which were heard in the St. James Local Court. She also volunteered to assist in any investigation of those persons whom she knew were involved in immigration fraud. This was despite receiving threats of physical violence. Ms Chand said that she felt very sorry for what she had done. She said she was not as mature then as she is today.
In her statement (A2), Ms Chand said she and her husband are miserable because of their separation. They are desperate to start a family, but do not wish to live separately because they believe children need to be raised by both parents. Currently, Ms Chand is living in a rented flat on her own in Labasa and is working in a hardware store. Because she is of Indian background, she does not feel safe living in Fiji on her own. Both her parents and her in-laws are upset because she and her husband cannot live together.
With regard to her most recent application for a spouse visa, Ms Chand said that her husband completed the form and she signed it. She did not realise until she was interviewed by an immigration officer at the Australian High Commission that her husband had answered "No" to the question in the application form asking whether she had ever been convicted of a crime or offence. When asked about this by the immigration officer, she said that she had committed an offence in Australia and this was mentioned in her form (T32). In fact, it was not and, although she was not aware of this at the time, she accepts responsibility for the mistake. She said she is a good person, she has been punished already, and she is not trying to fool anyone.
A number of witnesses were called to attest to Ms Chand's good character. Mr Rup Narayan a high school teacher of Labasa, described how she is a hardworking, well respected woman who participates in prayers at the Duraga Temple. He said that he had met Ms Chand through the priest Guruja and came to know her as a regular worshipper who assists others with their problems. Mr Narayan said that Ms Chand had told him of her fabricated marriage. He said that, as a school teacher, he put this down to the sort of mistake that young people often make.
Mr Shiu Prasad (A4), an electrician with the Fiji Electricity Authority, also described how he had met Ms Chand through their priest Geruja. Mr Prasad said Ms Chand's current marriage is clearly a true and permanent one and that the separation from her husband is having a bad effect on her. He said such a separation is totally against her religion and she should be able to live together with her husband and raise a family. He said Ms Chand has a good public profile. He said only close family members and friends who worship with her know of the immigration problems she has experienced in Australia.
Mr Shiu Prasad (A5) of Labasa, a senior barrister and solicitor in Fiji and national vice-president of the Hindu Religious Organisation, one of the largest organisations in Fiji, said he had known Ms Chand's family for many years because he and her father were born in the same settlement. He said that Ms Chand told him of her marriage of convenience some years ago. He believed she had made a genuine mistake and was a fit and proper person, and of good character.
Pundit Kashyap (A8), a Hindu priest of Hoxton Park, NSW, told the Tribunal that he had known the Applicant for about 12 years and he had met Ms Chand in Australia before she had returned to Fiji. Pundit Kashyap also knew of Ms Chand's family in Fiji when she was very young. He said, however, that he was not aware of her marriage of convenience. Nevertheless, he said that because she was married to the Applicant, and he was of good character, she must also be.
FINDINGSThere is no dispute that Ms Chand entered into a contrived marriage in 1989 in order to obtain a spouse visa to enable her to remain permanently in Australia. However, on 8 April 1991, Ms Chand attended the Department's Bankstown Office and confessed to the contrived marriage of her own volition. In doing so, she knew that such a disclosure would be fatal to her application for a spouse visa. Ms Chand co-operated with the Department in providing information about the immigration scam. She was subsequently charged and convicted of the offence of making a false statement and was fined $1,000.00 and placed on a good behaviour bond for two years. Ms Chand has shown remorse for her actions which she attributes to her immaturity at the time. The Tribunal notes that from the expiry of her student visa on the 31 January 1989 until her application for a spouse visa on the 12 September 1989, Ms Chand was in Australia illegally. After Ms Chand's confession in April 1991, she was placed on reporting conditions and gave an undertaking to cease her employment.
At about the same time as her voluntary confession, Ms Chand lodged a second spouse visa application in respect of her then de facto partner Mr Brettschneider. When this application was refused, she subsequently lodged an application for a 903 visa on compassionate grounds (T17). When that application was refused Ms Chand complied with a requirement that she leave Australia and returned to Fiji on 30 January 1994.
On 7 July 1994, Ms Chand married the Applicant in a Hindu ceremony in Fiji. She had known the Applicant since 1989 and they had become friends, developing a mutual understanding. Despite initial misgivings, the Department does not now dispute and the Tribunal accepts that the relationship between Ms Chand and the Applicant is a genuine one of husband and wife. On 18 July 1994, Ms Chand lodged a third spouse visa application on the basis of her marriage to the Applicant. She applied for a waiver of the two year ban that had been applied, but this was refused. After the expiry of the two year ban, on 19 February 1996, Ms Chand lodged a fourth application for a spouse visa, again on the basis of her marriage to the Applicant. This application was also refused.
On 21 March 2000, Ms Chand lodged a fifth spouse visa application. The Tribunal accepts Ms Chand's evidence that the application form was completed by her husband and that she did not check the form before signing, and was not therefore aware that her husband had ticked "No" to a question asking whether she had been convicted of a crime or offence (T32). The Tribunal notes that Ms Chand had revealed her past conviction in respect of the contrived marriage in her 1996 visa application (S20 and S21). On 2 August 2000, Ms Chand was interviewed by an immigration officer at the Australian High Commission in Suva concerning her visa application (T37). The Tribunal notes that in the officer's record of interview, when he asked her whether she had been convicted of an offence, she replied "Yes, it's in my application". It seems clear that the Applicant did genuinely believe that this information had been given in her application form and, therefore, the Tribunal accepts that the failure to answer the question about any previous crimes or offences was a genuine mistake.
Ms Chand has been living in Fiji since returning there on 31 January 1994. She has lived separately from her husband since their marriage on 7 July 1994. The Applicant, who is an Australian citizen, runs a printing business and lives in Sydney. Both the Applicant and Ms Chand gave evidence of the hardship which both are suffering as a result of their separation. The Applicant gave evidence that he had travelled to Fiji over 20 times since their marriage and that he maintains contact on a daily basis with Ms Chand by telephone. They both gave evidence of their desire to have children and to live together as a family. They also both pointed to the uncertain political situation in Fiji, particularly for those of Indian origin.
A number of witnesses gave telephone evidence as to Ms Chand's good character and others swore affidavits. The Tribunal finds that there is no evidence to show that Ms Chand is not currently of good character. Indeed, with the exception of the incident in March 2000, all the other evidence suggests that she is of good character. The March 2000 incident concerning the visa application form is explained by Ms Chand's carelessness in not checking the application form which was completed for her by her husband. The only other incidents involving any blameworthy conduct by Ms Chand relate to the period between late January 1989, when her student visa expired, and April 1991 when she made a voluntary admission of her contrived marriage. She then fully accepted the consequences of her misconduct and has expressed contrition and remorse ever since.
DISCUSSION OF THE LAW
Both parties made submissions on the validity and application of Direction No. 17 Visa Refusal and Cancellation under Section 501. The parties agreed that the Tribunal is a body having functions or powers under the Act – by virtue of the power to review decisions under s 500: Rokobatini (supra) However, the Applicant submitted that the Direction is invalid and of no effect because it goes beyond the power conferred by s499(1) of the Act. Section 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". In particular, the Applicant argued that the Direction impermissibly purports to fetter the discretion conferred by s 501 of the Act and the Regulations. It was argued that severance of the offending paragraphs of the Direction was not possible because they are integral to the Direction. By contrast, the Respondent contended that the Direction is valid or, alternatively, any invalid portions can be severed in accordance with s 46(1) (b) of the ActsInterpretation Act 1901.
There have been a number of recent Federal Court decisions on the validity of Direction No. 17. In Aksu v. Minister for Immigration and Multicultural Affairs [2001] FCA 514 (4 May 2001), Dowsett J found the Direction to be invalid because it seeks to fetter the exercise of discretion - by prescribing that some factors (the "primary considerations") can have more weight than others – and is therefore inconsistent with the decision-maker's power to refuse or cancel a visa under s 501 of the Act. The Tribunal notes, however, that Part 1 of the Direction which concerns the application of the character test, was not relevant in that decision and the inconsistencies identified by Dowsett J were in relation to the considerations affecting the exercise of the discretion in Part 2 of the Direction.
Aksu (supra) was followed in Ruhl v the Minister for Immigration and Multicultural Affairs [2001] FCA 648 (1 June 2001). Cooper J agreed with Dowsett J that Direction No. 17 operates to limit the exercise of discretion in a way that is inconsistent with s 501 of the Act.
However, in Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 (29 June 2001), Whitlam J expressed his opinion that the decision in Aksu (supra) was wrong and that Direction No. 17 was a valid direction under s 499(1) of the Act with which the Tribunal was bound to comply.
Then, in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 (6 July 2001), Stone J said that, in her opinion, both Aksu (supra) and Ruhl (supra) are correct in their interpretation of Direction No. 17.
Finally, in Jahnke vMinister for Immigration and Multicultural Affairs [2001] FCA 897 (12 July 2001), Drummond J, whilst not agreeing with all of Dowsett J's reasoning in Asku (supra), said, nevertheless, at paragraph 18:
Paragraphs 2.2 and 2.17 of the Direction impose an unlawful fetter because they lay down a general rule that, in no case, can a non primary consideration telling against cancellation of a person's visa under section 501 be given more weight than any of the three primary considerations, no matter how powerfully that non-primary consideration may favour allowing the particular person to retain the visa
Drummond J's discussion was directed at Part 2 of the Direction with Part 1 not being in contention.
Thus, a number of recent authorities state that Direction No. 17 is invalid, although they are principally concerned with the fetter which arises in Part 2 of the Direction and not with regard to the guidance provided in Part 1 as to the application to the "character test". The Tribunal notes that in Turini (supra), Whitlam J specifically held Part 1 of the Direction to be a valid exercise of power under s 499(1) of the Act.
The Tribunal also had regard to a recent decision by Deputy President J Block RePolicarpio and Minister for Immigration and Multicultural Affairs [2001] AATA 658 (19 July 2001) . Having discussed the recent Federal Court decisions, Deputy President Block said that in his view the Direction was binding on him. However, he said that even if the Direction is not binding, it unquestionably sets out the applicable policy. He referred to Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, where Brennan J stated at 640 – 641:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion which is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies, which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to a purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute……Also, it would be inconsistent with the (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases……..The Minister must decide each of the cases…….on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, the policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of a power…
Thus, Deputy President Block concluded that whilst he was of the view that the Minister's direction is binding on the Tribunal, even if it is not, it is a clear statement of policy to which he should have regard.
In the present case, the Respondent contended that even if portions of part 2 of the Direction are contrary to the rule against the fettering of a discretion, then the offending portions should be severed by application of s 46(1)(b) of the Acts Interpretation Act 1901 which permits an instrument to be read and construed as a valid instrument to the extent that it is not in excess of power. By contrast, the Applicant submitted that the offending paragraphs could not be severed because they are integral to the scheme of Part 2 of the Direction.
THE TRIBUNAL'S APPROACH TO DIRECTION NO. 17
Having reviewed the above authorities, the Tribunal decided that it was appropriate to treat the two parts of the Direction separately. Part 1 provides guidance to decision makers on the application of the character test in s 501(1) of the Act. The Tribunal does not accept the Applicant's submission that paragraphs 1.9, 1.10 and 1.11 of the Direction fetter the exercise of the discretion. Such a submission was rejected by Whitlam J in Turini (supra) at para 23, and does not appear to have been argued in the other recent Federal Court decisions referred to above.
Secondly, with regard to Part 2 of the Direction, which addresses the situation where a non-citizen does not pass the character test but a decision maker is, nevertheless, required to exercise his or her discretion as to whether to refuse or cancel a visa. In the Tribunal's view, the clear weight of authority is that Part 2 of the Direction is invalid by reason of the attempt to fetter the exercise of discretion. However, to the extent that Part 2 represents the Government's policy with respect to the refusal or cancellation of visas, the Tribunal's view is that it should take into account such policy without fettering its discretion by giving pre-eminent weight to particular considerations. The Tribunal is not inclined to attempt the severance of objectionable parts of Part 2 of the Direction. It might, however, be argued that by treating Part 1 of the Direction as valid and Part 2 as invalid, the Tribunal is recognising a broader application of severance and the reading or construing of an instrument in accordance with s 46(1)(b) of the Act's Interpretation Act 1901.
In summary, in the present case, the Tribunal intends to adopt the following approach to Direction No 17. Firstly, the application of the "character test" in s 501(6)(c) will be made by reference to a discussion of what is meant by "good character" noting, for example, Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277, where, 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's entry's character in the sense of his or her 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…
Part 1 of Direction No. 17, which is binding on the Tribunal, will also be used as a guide. In this regard, the Tribunal also notes the Full Federal Court decision in Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 139 ALR 84 at 94 where Lee J emphasised that "a reference to the enduring moral qualities of a person…is an objective assessment apt to be proved as a fact".
Secondly, if the Tribunal decides that, in its view, the Visa Applicant does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal will have regard to Part 2 of the Direction as a guide to the exercise of its discretion as if this were government policy and not a binding Direction. The Tribunal will disregard the instruction in Part 2 that the decision-maker should give greater weight to some considerations than to others on the basis that this constitutes a fetter on the decision-maker's discretion.
APPLICATION OF THE LAW
The Respondent contends that Ms Chand does not pass the character test by virtue of 501(6)(c) based on the following general and criminal conduct:
(a)making a false claim in her spouse application lodged on 12 September 1989;
(b)being convicted of supplying a false statement to the Department on 23 September 1991;
(c)failing to disclose her conviction for supplying a false statement in her application for a spouse 309 visa on 21 March 2000;
(d)working without permission whilst in Australia in breach of the Migration Act, and, her undertaking given on 16 April 1991; and
(e)staying in Australia whilst an unlawful non-citizen.
The Tribunal notes that four of the five matters identified by the Respondent relate to the period September 1989 to April 1991; the last matter identified relates to the most recent application for a spouse visa.
The Tribunal had regard to Ms Chand's "enduring moral qualities" (Goldie (supra)) and also to Part 1 of Direction No. 17. With regard to the latter, the Tribunal notes that paragraph 1.7 states that "Decision makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and and recent good conduct". In relation to sub-section 501(6)(c)(i), past and present criminal conduct, paragraph 1.8 of the Direction provides that decision-makers should take into consideration the nature, severity and frequency of the offence/s, how long ago the offence/s were committed, non-citizen's record since the offence/s were committed, and any mitigating circumstances.
In respect of sub-section 501(6)(c)(ii), past and present general conduct, decision-makers should consider the following: whether the non-citizen has been involved in activities indicating contempt or disregard for the law or for human rights; whether or not the non-citizen has provided a bogus document or made a false or misleading statement; whether the non-citizen has been removed/deported from Australia or from another country; or, whether the non-citizen has been dishonourably discharged from the armed forces. Under paragraph 1.10, regard must also be had to pending charges and prosecutions, which have resulted in an acquittal or where no conviction has been recorded. Paragraph 1.11 states:
General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizens character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens character."
The Tribunal has found above that Ms Chand acknowledged her criminal conduct in entering into a contrived marriage and making a consequent false statement. She has accepted the consequences, and, in the period since, has constantly expressed remorse and contrition for her misconduct. It is now almost 10 years since she was convicted of supplying a false statement to the Department. Her working without permission whilst in Australia and staying in Australia whilst an unlawful non-citizen, all relate to the same sequence of events and period of time. The Respondent does not seek to adduce any evidence on an alleged breach of her undertaking given on 16 April 1991 to cease employment or work forthwith, and not seek or undertake any form of employment or work without the written permission of authorised departmental officer. Thus, the Respondent did not seek to rely on this. The Tribunal also notes that Ms Chand co-operated fully with the Department in all respects after her voluntary admission of the contrived marriage in April 1991.
The only later evidence adduced by the Respondent which might point to Ms Chand not being of good character, is that in relation to the completion of her most recent visa application form in March 2000. The Tribunal has found, above, that Ms Chand did not herself complete the visa application form but instead relied on her husband doing this, and signed the form when he had done so. Although she accepts responsibility for the mistake, she states that she had no intention to deceive. Indeed, at the interview with the migration officer at the Australian High Commission in Suva, Ms Chand expressed surprise when told that she had not ticked "Yes" to the question on the application form "Have you ever been convicted of a crime or offence in any country". Her response to the immigration officer was "Yes, it's in my application". The Tribunal accepts Ms Chand's explanation, noting that in all previous applications she properly declared the offence of which she was convicted in 1991.
With regard to Ms Chand's general conduct in relation to the period since she left Australia in January 1994, there is no evidence to suggest that she has been anything other than a person of moral integrity, and her character witnesses all attest to this fact. In the Tribunal's view, there is ample evidence of rehabilitation and good conduct since Ms Chand was convicted of the offence in 1991 and the Tribunal is not persuaded that she is not of "good character". Indeed, all the evidence points to Ms Chand being of good character. Having come to this conclusion, it is unnecessary for this Tribunal to otherwise consider the exercise of the decision-makers discretion under s 501(1).
POST SCRIPTUM – DIRECTION NO. 21
After drafting this Statement of Reasons, the Tribunal became aware that 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 – which revoked and replaced Direction No. 17. The new Direction No. 21 is a minor modification of the wording of Direction No 21, involving amendments to paragraphs 2.2, 2.17, 2.19 and the addition of a new para 2.21. The Tribunal is bound by the new Direction from the date that it was made.
The modifications to paragraphs 2.2. and 2.17 are those which are of significance in terms of the criticisms directed at Part 2 of Direction No. 17 in recent Federal Court decisions. The sentence:
Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa
has been omitted from Direction No 21. Also, in paragraph 2.17, the word "generally" has been added to the second sentence which now reads:
It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than to the primary considerations (Tribunal's emphasis)
In the present case, where the Tribunal has made its decision by reference to Part 1 of Direction No. 17, the modifications in Direction No. 21 do not affect the Tribunal's decision.
The changes to Part 2 of the Direction appear to address the concern expressed by the Federal Court in, for example, Aksu (supra) and Ruhl (supra) about the fettering of discretion. It was not necessary to apply Part 2 of the Direction in this case.
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Ms Chand passes the character test under s 501(1) of the Migration Act 1958.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 8 & 9 August 2001
Date of Decision 24 September 2001
Counsel for the Applicant Mr R Lancaster
Solicitor for the Applicant Mr N Dobbie, Parish PatienceSolicitor for the Respondent Mr R Hollands, Dept of Immigration and Multicultural Affairs
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