Chand and Minister for Immigration, Multicultural and Indigenous Affairs
[2002] AATA 340
•13 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 340
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1826
GENERAL ADMINISTRATIVE DIVISION )
Re NAVIN CHAND
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block
Date13 May 2002
PlaceSydney
Decision The decision under review is affirmed.
[SGD] J Block
Deputy President
CATCHWORDS
IMMIGRATION – parents visa – refused on character grounds
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Kim Tuan Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625
REASONS FOR DECISION
Deputy President J. Block
The decision under review in this matter is the refusal on 7 November 2000 of an application for a Parent (Migrant) (Class AX) category sub-class visa by Mr Jai (John) Chand (referred to in these reasons as the Visa Applicant) and in respect of which his son, the Applicant was the sponsor.
2(a) The Applicant was represented by Mr R. Turner of Yandel Wright Stell, lawyers, while the Respondent was represented by Mr M. Snell of Sparke Helmore, solicitors.
(b) The Tribunal had before it the T-documents and also supplementary T-documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:-Exhibit A1 is a bundle of character references by certain persons resident in Fiji and referable to the Visa Applicant.
Exhibit A2 is an outline of evidence by the Visa Applicant.
Exhibit A3 is a letter addressed "To Whom It May Concern" dated 21 May 2001 by the Visa Applicant.
Exhibit A4 is a bundle of correspondence between Yandel Wright Stell and Sparke Helmore.
3(a) Oral evidence was given by each of the Applicant, the Visa Applicant and the Visa Applicant's wife, Kala Wati. In the case of the Visa Applicant and his wife evidence was given by telephone link to Fiji.
(b) Because the supplementary T-documents are not numbered sequentially after the T-documents, references to them, when preceded by "T" refers to the T-documents (and to a numbered page in the T documents) while references to numbered pages in the supplementary T-documents are preceded by the letter "S".
4(a) Evidence was given over an extended period in particular by the Visa Applicant. This matter originally came before the Tribunal on 5 June 2001 (referred to as "the first day"). Mr Turner assured the Tribunal that he was satisfied that the Visa Applicant was fluent in English and that indeed English was his first language. The evidence in this context revealed that the Visa Applicant attended school in Fiji for a number of years and in which the medium of instruction was both English and Hindi. As the hearing progressed, the Tribunal became increasingly concerned about what it perceived as a possible inability on the part of the Visa Applicant to understand the questions properly. It is for this reason that, towards the end of the morning on the first day, it was decided that (with the concurrence of the representatives of both parties) it would be safer to obtain the assistance of an interpreter in the Hindi language. An interpreter in that language assisted during the afternoon of the first day; a different interpreter in the Hindi language assisted when the matter again came before the Tribunal on 21 January 2001 ("the second day"). The second day was also insufficient to complete the hearing, and the matter was heard and concluded on 18 April 2002 (referred to as "the third day"). The transcript is not numbered sequentially; accordingly references to the transcript when preceded by 5 refer to the transcript for the first day, and when preceded by 21 or 18 refer to the transcript for the second day or for the third day as the case may be. There were numerous references throughout the hearing to the alleged illiteracy of the Visa Applicant. Although it is not possible to describe the Visa Applicant as educated, it is also not possible to be satisfied that he is totally illiterate. There was evidence as to his taking a newspaper in Fiji; there was also evidence as to his being able to sign his name. It must be noted also in this context that the Visa Applicant did attend school for a few years. It is also relevant that when employed in Australia by Fleetservice, he achieved a position of some seniority and so much so that his continued employment by Fleetservice was sought by that firm.
(b) The Tribunal also cannot accept that the Visa Applicant is as deficient in the English language as he would have the Tribunal believe. It was his first language; it was one of the media of instruction at the school, which he attended, and leaving aside all other considerations, he lived and worked in this country for many years, and during which he used English constantly. Having regard to all of the evidence, the Tribunal considers that it is likely on a balance of probabilities that the Visa Applicant is comfortable in English and that the difficulties on the morning of the first day (and to which I have referred previously) arose from reluctance rather than a failure of understanding.
Each of the parties submitted Statements of Facts and Contentions. The Respondent's Statement of Facts and Contentions was in particular extremely helpful, including as it does a detailed chronology of relevant events. Accordingly:-
(a) The Respondent's Statement of Facts and Contentions is set out in full in these reasons as follows:"1 FACTS
1.1The Visa Applicant was born in Fiji on 21 November 1947 (T20 p.136). He works as a mechanic.
1.2The Visa Applicant and his wife, Kala Wati were married in Fiji on 7 January 1968 (T20 p.132). They have three (3) children: Navin Chand (the Review Applicant) born on 18 December 1968; Shashi Kala born on 8 February 1970; Kamni Kala born on 21 March 1975 (T20 p.126-131).
1.3In March 1986, the Visa Applicant sought a visitor's visa in Fiji. He claimed to wish to stay for 2 months to visit his cousin in Sydney (S1 p. 1).
1.4The Visa Applicant arrived at Sydney Airport on 18 April 1987, holding a visitor's visa valid for 2 months (T7 p. 74). He was granted an initial extension allowing him to remain until 18 July 1987. He applied for a further extension on 17 July 1987 and his visa was extended until 12 September 1987(T7 p.75; S18).
1.5In May 1987, a military coup occurred in Fiji.
1.6The Visa Applicant's family (his wife and three (3) children) arrived in Australia on transit visas on 3 September 1987 (S31-S33) accompanied by Mr. Peter Sundar.
1.7The Visa Applicant's visa expired on 12 September 1987 (T7 p. 71).
1.8On 26 October 1988, the Visa Applicant, his wife and children applied for a further extension of their entry permits (S26-S33).
1.9Also on 26 October 1988, the Visa Applicant applied for Resident Status (S25). He included his wife and three (3) children on this application. On this application the Visa Applicant claimed that:
· His son and daughter had been assaulted prior to departing Fiji
· His wife had been robbed by ethnic Fijians prior to departing Fiji
· If his family returned to Fiji they would be subject to abuse, intimidation and discrimination due to their being ethnic Indians
1.10The Application for Resident Status was refused on 22 May 1989 (S36).
1.11The Visa Applicant was contacted twice by the Department (5 June 1989 and 11 July 1989) regarding departure arrangements (S37-S38).
1.12On 4 October 1990, the Visa Applicant made an Application for Refugee Status (T6). He included his wife and two (2) of his children (the Review Applicant and Kamni Kala) on this application. At the same time he applied for permission to work.
1.13On 23 January 1991, the Visa Applicant was notified that he had been refused permission to work (T9).
1.14On 3 September 1991, the Visa Applicant was arrested by the Australian Federal Police at his place of work and taken into immigration detention. He was found to be in possession of false passports and admitted that he had been working without permission (S43).
1.15On 4 September 1991, the Visa Applicant was interviewed at the Villawood Immigration Detention Centre (S44). In this interview he stated:
· His cousin, Peter Sundar, had taken his Fijian passport;
· He had an Australian passport in the possession of the police;
· He had been working as a mechanic and paid tax;
· He had $170,000 and $20,000 in bank accounts at Homebush and Rockdale;
· He believed himself to be an Australian citizen.
1.16On 5 September 1991, the Visa Applicant gave a statement to the Australian Federal Police (S71 p. 256). In this statement he stated that:
· His cousin had handled his applications;
· He had paid his cousin $20,000 and a week later was given two (2) citizenship certificates, one in his name and the other in his wife's name. On the reverse side of his wife's certificate was his daughter. Sundar brought the Review Applicant's certificate a few days later;
· He and his wife filled out applications for Australian passports on 6 August 1991 and received Australian passports a short time after;
1.17The Visa Applicant was released from immigration detention on 5 September 1991 after signing a reporting undertaking and a bank guarantee of $10,000 was lodged with the Commonwealth Bank, Villawood (S46).
1.18On 9 September 1991, the Visa Applicant made a statement to the Federal Police in relation to their investigations into Peter Sundar (S47 p. 174). In this statement he reiterated his claims that:
· He had given his family's Fijian passports to Peter Sundar
· Peter Sundar had handled his applications and obtained citizenship papers
· He had paid Peter Sundar $20,000 in cash on 18 June 1991
· He had obtained his and his wife's Australian passports with help from Peter Sundar
1.19On 11 September 1991, the Visa Applicant applied to remain permanently under concessions for persons illegally in Australia (S47). His wife and two (2) children were included on this application. He was nominated by Paul Knott, manager of Fleetserve, where the Visa Applicant says he had been employed from September 1989.
1.20On 19 September 1991, the Visa Applicant was advised that his application to remain permanently in Australia had been refused (S50). He was advised that on 16 November 1987 he had become an illegal entrant, and he was advised that he must arrange to depart Australia.
1.21On 27 September 1991, the Visa Applicant applied for permission to work as a motor mechanic fitter at Fleetserve (S52). On this Application he claimed to have less than $1000 and that he would be paid $470 per week. He said that his weekly rent and expenses totalled $375 and that he had three (3) dependants.
1.22On 11 October 1991, the Visa Applicant was notified that his application for refugee status had been refused.
1.23On 13 November 1991, the Visa Applicant was advised that the Federal Police had requested that he be permitted to remain in Australia to give evidence in the prosecution of Peter Sundar. He was advised that he would remain an illegal entrant but would be allowed to work for the time required by the Police (S56).
1.24On 16 December 1993, the Visa Applicant lodged an application to remain in Australia (Form 903) (S71). He indicated that he wished to be considered on the grounds that he was an "special need relative" in relation to his nominator son-in-law, Dorron Nicholas Kean.
1.25The nominator is married to the Visa Applicant's daughter, Sashi Kala Kean and they have one child.
1.26On 1 March 1994, the Visa Applicant was interviewed by a DIMA Compliance officer (S74). He was advised that his work permit would only be extended to 30 September 1994. He was also advised that his wife's permit would only be extended for one month as their children were no longer dependent.
1.27On 15 July 1994, the Visa Applicant was notified that his application to remain permanently in Australia was invalid and he was advised that he should make arrangements for immediate departure (S78).
1.28On 26 October 1994, DIMA was advised that the Visa Applicant's wife had undergone a surgical procedure and would be unable to travel until March 1995 (S82).
1.29On 16 November 1994, the Visa Applicant applied for a Bridging Visa E (S83).
1.30On 3 December 1994, the Visa Applicant was subject to a monitored departure from Australia (S84-S86).
1.31On 30 May 1995, the Visa Applicant lodged an application for a Subclass 103 (Parent) permanent entry visa in Suva. His application was sponsored by his son (the Review Applicant) (T20-T22).
1.32On 7 July 1995, the Applicant was notified by the Australian Embassy, Suva that he was restricted from re-entering Australia on the basis that he had previously been removed after being detected by Compliance action (T22). He was advised that this restriction could only be waived in compassionate or compelling circumstances.
1.33On 14 August 1995, the Visa Applicant wrote to the Australian Embassy, Suva that the restriction on re-entry should be waived (T24).
1.34On 14 September 1995, a decision was taken to refuse the Subclass 103 (Parent) visa (T32). The Visa Applicant was notified of this on 25 September 1995 and also advised that he had an outstanding debt of $295.81 to the Commonwealth (T32).
1.35The Visa Applicant applied to MIRO for review of the decision on 29 November 1995 (T34). MIRO affirmed the primary decision on 15 October 1997 (T36).
1.36On 14 October 1998, the Visa Applicant applied for permanent entry on a Parent (Migrant) (Class AX) category subclass 103 visa. This application was made in Fiji. His son (the Review Applicant) again sponsored his application (T38).
1.37The Visa Applicant was notified on 21 June 2000 that his application may be refused on the basis that he was not of good character and he was advised that he should respond to this within 49 days (T51).
1.38On 7 November 2000, the Visa Applicant was notified that he failed to meet public interest criteria 4001 in schedule 4 of the Migration Regulations and that his visa had been refused in accordance with s. 501 of the Migration Act (T55).
2. LEGISLATION
In order to be granted a subclass 103 Parent Visa, Mr Chand must satisfy the relevant public interest criteria, including Item 4001 of Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under section 501 of the Migration Act 1958 to refuse to grant a Visa.
(i) Migration Act 1958, Section 501
2.1 Section 501 of the Act provides as follows:(1) The Minister may refuse to grant a visa to a person, if the person does not satisfy the Minister that the person passes the character test.
Character Test
(6) For the purposes of this section, a person does not pass the "character test" if:
(a) the person has a substantial criminal record (as defined by subsection (7); or(b)the person had, or has had, an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) 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; or(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) Engage in criminal conduct in Australia; or
(ii) Harass, molest, intimidate or stalk another person in Australia; or
(iii) Vilify a segment of the Australian community; or
(iv) Incite discord in the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence, threatening harm to, that community or segment, or in any other way.
Otherwise the person passes the "character test.
(ii) Migration Regulations 1994, Schedule 4 ("Public Interest Criteria and Related Provisions Part 1 – Public Interest Criteria"), Item 4001
2.1 Item 4001 is a mandatory criterion for the grant of Sub-Class 103 Parent Visa. Item 4001 provides as follows:
4001(1) Either:
(a)the Applicant satisfies the Minister that the Applicant passes the character test; or
(b)the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the Applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the Applicant despite reasonably suspecting that the Applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the Applicant despite not being satisfied that the Applicant passes the character test.
POLICY
(i) Ministerial Direction No 17
2.3 Ministerial Direction No 17 ("Visa refusal and cancellation under section 501 of the Migration Act" – "The Ministerial Direction") was issued on 16 June 1999 under Section 499 of the Act. Section 499 of the Act empowers the Minister to give policy directions, which the Respondent contends are binding on the Tribunal. The Ministerial Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act.
(ii) Migration Series Instruction No 254
2.4 Migration Series Instruction No 254 ("The character requirement: Visa Refusal and Cancellation under Section 501 – "MSI 254") was issued on 20 September 1999 and provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act.
The Character Test
2.5 Non-citizens who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test.
2.6 Paragraph 1.9 of the Ministerial Direction provides that – in considering whether a non-citizen is not of good character against sub-paragraph 501(6)(c)(ii) – decision-makers should consider the following matters – and where they are relevant – would – in the absence of any countervailing factors – constitute a failure to pass the character test:(a)Whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
* engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
* continual evasion or non-payment of debt;
* continual disregard as to payments of family maintenance;
* involvement in activities such as organised crime, terrorism, drug-related activities, political extremism, extortion, white collar crime, fraud, breaches of immigration law; or
* involvement in war crimes or crimes against humanity.(b)Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)Whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined by sub-section 5(1) of the Act, about the non-citizen's character or conduct or both;
(d) Whether the non-citizen has been removed deported from Australia.
2.8The Respondent submits that Mr Chand does not pass the character test by reason of his involvement in activities indicating contempt or disregard for Australia's Immigration Law.
2.9 The Respondent submits that Mr Chand:
* overstayed his original Temporary Entry Permit;
* assisted others to breach Australia's migration law – his family's entry into Australia was illegal. On his own evidence he arranged for this to happen;
* worked illegally in Australia;
* purchased citizenship certificates for $20,000;
* provided false or misleading information to the Department in relation to his application for permission to work;
* was the subject of a supervised departure.2.9 Paragraph 1.7 of the Ministerial Direction also provides that, in reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct. In his current application, the Visa Applicant failed to declare that he had ever been "required to leave any country" or that he had ever "had an application for entry to Australia refused". The Respondent submits that the past conduct of the Visa Applicant is the best indicator of their future conduct. In our view the whole of the evidence is only consistent with the fact that the Visa Applicant, having been refused visas and desperate to remain in Australia, paid his cousin for the citizenship certificates. His explanation that he trusted his cousin completely does not sit well with the fact that he had been in the country for four years, he had received correspondence from the Department on previous applications and had never at any stage applied for citizenship but only for permanent residency. It strains credibility that the Applicant had no knowledge and understanding of his conduct in the purchase of these fraudulent certificates. The Applicant accepts no responsibility for his part and blames his cousin completely.
2.11The Respondent submits that Mr Chand's past and recent general conduct demonstrates a blatant disregard for Australian Immigration Laws, and as such, he does not pass the character test pursuant to section 501(6)(c)(ii).
3. THE DISCRETION
A direction was given by the Minister under s. 499 of the Act on 16 June 1999 and is entitled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction). Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal in that they must be given due consideration: Rokabatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238.
The Respondent contends that this remains the case notwithstanding the Federal Court's decision in Aksu v MIMA [2001] FCA 514, against which the Minister has appealed. Justice Dowsett in that case did not challenge the power of the Government to issue a guiding policy, but rather commented that Direction 17 in particular went beyond merely operating as a guide in the way described above, instead operating as a fetter on the discretion (paragraph 24).
It is contended that the remarks of Justice Dowsett in Aksu concerning the validity of Direction 17 are obiter dicta. This is because the decision turned on the fact that a submission was made to the Minister stating that he was bound to follow Direction 17, even though he was not. Importantly, the fact that the Minister considered himself bound was an error of law irrespective of whether the Direction was a fetter or a guide. Hence, Justice Dowsett's conclusion on the validity of the Direction was unnecessary to the result of the case.
The Direction requires that other relevant relevant considerations should be given less weight than primary considerations. There are powerful considerations which justify the Minister adopting a guiding policy (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641), and pursuant to subsection 499 (2A), the Tribunal must comply with such direction. The Respondent contends that this does not preclude the Tribunal from considering the particular circumstances of an individual case (Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713). Nor does it prevent the Tribunal from balancing a number of factors while still having due regard to the importance placed by the Government on the primary factors (Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698.
Paragraph 2.1 of the Ministerial Direction provides that, in exercising the discretion whether to refuse the Application, regard must be had to the following primary and other considerations:
Paragraph 2.2 of the Ministerial Direction further provides that a weighing system is to be used whereby no individual considerations can be more important than a primary consideration, but a primary consideration cannot be conclusive in deciding whether to exercise the discretion to refuse a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balance process that takes into account all relevant considerations.4. Primary Considerations
4.1 The Protection of the Australian community and Members of the Community
A primary objective of Direction 17 is to protect the Australian community from crime. The Visa Applicant has consistently breached Australia's Immigration Laws. He has overstayed since 1987, obtained false and fraudulent citizenship certificates and worked without permission during most of that time.
(a) The Likelihood that the Conduct may be repeatedMr Chand's conduct occurred in the context of attempting to remain in Australia. The Respondent submits that he would have no need to repeat that specific type of conduct if he were to be granted a visa to remain permanently in Australia. However, the Respondent contends that Mr Chand's disregard for Australia's laws in the immigration context suggests that he may be likely to abuse other Australian laws and administrative processes in the future. Accordingly, the Respondent submits that there is a likelihood that similar conduct may be repeated.
(b)Whether Visa Refusal or Cancellation may prevent or Discourage Similar Conduct (General Deterrents)
The Respondent submits that Mr Chand's purchase of the citizenship certificates are an example of the many ways that people wilfully abuse Australia's migration system. The refusal of his parent visa will act as a general deterrent to prospective Visa Applicants who seek to overstay their visas and work without permission, and engage in fraudulent activity.
4.2 Expectations of the Australian Community
The Respondent submits that the Australian community would expect situations where a Visa Applicant had purchased a fraudulent citizenship certificate, provided false information and overstayed whilst working illegally to be dealt with appropriately.
The Respondent submits that Mr Chand has shown a disregard for Australia's laws and, as such, as breached the trust of the Australian community. The Respondent submits that, in the Australian community's eyes, in these circumstances, the appropriate resolution is to be reject that person's subsequent applications for residence in Australia.4.3 Best Interests of the Child
The Respondent submits that this consideration is not relevant, as there are no minor children of Mr Chand or his spouse.
4.4 Other Considerations
Paragraph 2.17 of the Ministerial Direction provides that, where relevant, other factors such as the following should be taken into account; however, those factors should be given less individual weight than that given to the primary considerations. The Respondent acknowledges that a refusal decision will be distressing for both Mr & Mrs Chand. The Respondent acknowledges that he gave evidence in the case against his cousin Peter Sundar. However, the Respondent notes that the Visa Applicant has been out of Australia since 1994. The Respondent acknowledges that Mr Chand has many family members in Australia, however, notes that none have given evidence before this Tribunal. The Respondent contends that distress caused to the Visa Applicant is not sufficient to outweigh the primary consideration.
4.5 Other International Obligations
There are no international obligations relevant to this case.
4.6 The Respondent submits that the decision under review should be affirmed.
4.7 SummaryIn summary, it is submitted that the facts of this case are exceptional and that the Tribunal's decision carries some importance, especially in relation to the integrity of Australia's Migration Laws. The Visa Applicant has lived in Australian in breach of its laws for a number of years. If the Tribunal's discretion is exercised in favour of the Applicant, it may actually encourage illegal immigration on the basis that such persons are able to live and work in Australia, avoid detection, only to return as sponsored migrants. It is submitted that the factors against the exercise of the discretion vastly outweigh those in favour."
(b) The Applicant's Statement of Facts and Contentions is also set out in full in these reasons as follows:
"FACTS
1.Mr John Chai Chand (JCC) arrived in Australia on 18 April 1987 holding a visitor visa valid until 12 September 1987.
2.JCC applied for permanent residence on 26 October 1988. This application was refused on 22 May 1989.
3.JCC applied for Refugee Status on 4 October 1990. This application was refused on 14 October 1991.
4.JCC sought the assistance of his cousin to obtain an Australian permanent residence visa.
5.JCC is illiterate and trusted his cousin completely in all his dealings with the Department of Immigration and Multicultural Affairs (DIMA), as it is now known, and its predecessors.
6. His cousin charged him $20,000.00 to obtain Australian permanent residence.
7.Rather than providing a permanent residence visa, his cousin provided him with a Certificate of Australian Citizenship. JCC was assured by his cousin that the Certificate was genuine.
8.The apparent authenticity of this certificate was further enhanced when it was accepted in an application for an Australian passport in August 1991.
9.On 11 September 1991, JCC applied for Australian permanent residence. This application was refused on 17 September 1991.
10.On 16 December 1994, JCC applied for Australian permanent residence. This application was deemed ineligible on 14 July 1994.
11. JCC made a voluntary departure on 3 December 1994.
12.At the time that JCC departed the Migration Act 1958 provided for an exclusion period of 3 years.
13. JCC rendered significant assistance to the Australian Federal Police and the Courts in relation to the fraudulent conduct of his cousin and others.
14. JCC has not been convicted of any criminal offence.
CONTENTIONS1. JCC passes the character test, as he is not now a person of bad character.
2.The Australian community will not be placed in any danger if JCC is granted a visa.
3. There is not apparent deterrent effect in granting a visa to JCC
4. The Australian community would not expect that a person in JCC's circumstances would be refused a visa."
The Tribunal notes that the Respondent's Statement of Facts and Contentions contains one minor typographical error in that, in Clause 1.15, the reference to $170,000 should be corrected to read $17,000.
6(a) The T-documents and the supplementary T-documents in this matter are very lengthy indeed; the T-documents consist of 271 pages, whereas the supplementary T-documents consist of 314 pages. The size arises in part at least from the fact that the Applicant made a large number of applications, of one sort or another, in respect of his persistent efforts to obtain residency status in Australia. The Tribunal does not consider it necessary to deal with all of them, accepting as it does, as contended by Mr Turner, that a person is entitled to make as many applications as he is legally permitted to do, but provided, naturally, that the grounds relied on are valid and truthful. The Tribunal intends to focus on the applications referred to in clauses 1.9 and 1.2 of the Respondent's Statement of Facts and Contentions, and also, but to a lesser extent, on his "special need relative" application referred to in clause 1.24 of the Respondent's Statement of Facts and Contentions.
(b) On 26 October 1988 the Visa Applicant applied for resident status for himself, his wife and his three children (Supplementary T-documents 25). That application included statutory declarations by each of the Visa Applicant, his wife and his daughter describing the situation in Fiji in terms which indicate in the clearest possible tones that this application is aptly categorised as a refugee application; (see in particular Supplementary T-documents 255 pages 70 to 81 (inclusive)). S25 page 81 includes a statement reading:
"…I am more than aware that I have lodged the application after my current visa has expired and hence I am in Australia illegally."
It is unnecessary, in the view of the Tribunal, to get into detail as to the allegations of fear and violence contained in those statutory declarations.
(c) An application for refugee status was later made on 4 October 1990, (see T7). It also contains details of the grounds relied upon; see pages 55 to 59 inclusive of T7. The applications referred to in the two preceding subclauses are collectively referred to as the refugee applications. Those applications were refused, but not on the basis that the claims made were untruthful. In fact, and as set out later in these reasons, the grounds and facts in question were concocted (so the Visa Applicant alleged) by Peter Sundar ("Sundar").
(d) Sundar, who is a cousin of the Visa Applicant, figured largely in the evidence. The fact that he was not called to give evidence is entirely understandable given that he was prosecuted (in connection with forged citizenship documents) and convicted, in part at least because of evidence given by the Visa Applicant. Although in respect of his numerous applications (of various types) the Visa Applicant used the services of various advisers, Sundar was (so he testified) constantly involved up to the stage of his prosecution. Sundar came to Australia in 1997 with members of the Visa Applicant's family; he subsequently set up a migration advisory source (under the name of Sincerity Migration Services); he also owned a restaurant and was a marriage counsellor.
The evidence revealed that the Visa Applicant when he first came to Australia brought with him an amount of $4,000. (Differing figures were referred to in evidence on other occasions but it seems clear that he brought a sum of money, which was larger than might have been thought necessary for a short stay of two months with a cousin in Sydney.) His explanation that he would need this amount to buy presents for numerous persons on his return to Fiji cannot be accepted. It is much more likely having regard to all of the evidence, that the Visa Applicant always intended to remain in Australia. The Visa Applicant's three children are all now resident in Australia. Mr Snell advised the Tribunal that he would not be pursuing certain allegations in the T-documents as to how this was achieved, and it is unnecessary for the Tribunal to be concerned with or to deal with them.
The Visa Applicant's evidence was that in respect of his refugee applications he merely signed where he was told to sign, Sundar having completed all of the necessary papers and having in particular inserted all of the grounds upon which the applications were made. In fact those grounds were fictitious; see in particular 21TS, 28 reading as follows:
"THE INTERPRETER: When he brought the refugee forms he filled them up and then he asked me to sign them and I signed them.
THE D.PRESIDENT: But who told him what to put in the refugee application?
THE INTERPRETER: What you're asking is what he should write in the papers?
THE D.PRESIDENT: Well, how did he know, for example, that there had been various incidents affecting your family, how did he know about all of them?
THE INTERPRETER: Where? Where did they happen?
THE D.PRESIDENT: In Fiji.
THE INTERPRETER: That time we were staying in Australia the papers were filled in Australia.
THE D.PRESIDENT: Let me try and make this absolutely clear. He, Mr Chand, applied for a protection visa. He did so on the basis of a number of incidents which had taken place in Fiji. How did Peter Sunda know about them?
THE INTERPRETER: At that time there was a coup in Fiji and Mr Peter Sunda said that if you go back to Fiji you will have problems so then he – I don't know what he wrote, but he then filled the form and that's all I think.
THE D.PRESIDENT: And you don't even know that was in the form was true?
THE INTERPRETER: Yes, that's correct. I'm not very educated so I didn't know he wrote – whatever he wrote, whether he wrote right or wrong I didn't tell him, he wrote himself."
The Tribunal refers also to 21TS 45 lines 10 to 25 reading as follows:
"THE INTERPRETER: The Fiji application that was filled, it was done by Peter, I don't know.
MR TURNER: But you signed the application, didn't you?
THE INTERPRETER: Yes, he would bring me the papers he wanted me to sign and would sign them.
MR TURNER: In the application it says that your wife was bashed and beaten by Fijians after the coup, is that correct?
THE INTERPRETER: I don't know what he wrote.
MR TURNER: No, I am asking whether it's true that he wrote it. After the coup in Fiji, was your wife bashed and beaten by Fijians?
THE INTERPRETER: When there was a coup at that time a lot of stones at that were thrown, but I don't know whether she was beaten or not."
The Tribunal further refers to T21TS47 and 48 as follows:
"MR SNELL: You signed a statutory declaration which included the following declarations:
That I have read or had read to me the entire form 306 including the notes for the Applicant and that I fully understand its meaning. Further …(reads)… in Australia as at the date of this statutory declaration.
Now, was that true or not true?
THE INTERPRETER: No, this was not true.
MR SNELL: You signed a statement which you knew to be submitted to the Immigration Department in relation to a serious matter without taking any care whatever to determine the accuracy of what was recorded in the statement. Is that what you are telling us?
THE INTERPRETER: Yes, that's correct, because I was not that educated and whenever Peter Sunda would come he would bring the papers and just tell me to sign here and I would sign and he would take the papers.
MR SNELL: What would have been wrong with you asking him what you were signing?
THE INTERPRETER: I would ask him every time you know that was I signing, but every time he would say, you don't worry, I am a very straight person, I am doing this work for you, and you are crazy and you don't know anything. Just let me do my work.
MR SNELL: You agree that that paragraph which I read you is utterly inconsistent with the evidence which you just have to Mr Turner about your wife not being assaulted?
THE INTERPRETER: He is asking me to repeat.
MR SNELL: I will repeat the question if it helps. Mr Turner, a moment ago asked you a question about whether your wife had been assaulted and as I understand your answer to that question, you denied that she had been assaulted, do you agree?
THE INTERPRETER: Yes.
MR SNELL: What I am suggesting to you is, that you were prepared to submit documentations to the department in relation to serious matters being completely indifferent to the truth or otherwise of what was contained in them?
THE INTERPRETER: Yes, that's true but I didn't write all those, I just signed, Peter wrote them.
MR SNELL: I understand Peter wrote them, but you would agree with me that you were completely indifferent to the truth or otherwise of the contents?
THE INTERPRETER: That's true, I was not aware what he was writing, I was just signing, just believing him.
MR SNELL: In fact what I want to suggest to you is that the whole of your evidence before this Tribunal can similarly be described as evidence of you being prepared to say or do anything which you think will advance your application before this Tribunal?
THE INTERPRETER: You are asking it's true or not?
MR SNELL: I am suggesting to you that in your evidence here today and on a previous occasion you have been prepared to say anything, whether true or untrue, to advance your application and that you have been indifferent to the facts in giving your evidence before the Tribunal?
THE INTERPRETER: Yes.
MR SNELL: I don't have a further questions."
It is clear enough that (by way of one example only) the Visa Applicant would have been aware of assaults on his wife by Fijians if this had occurred. The fact is that the refugee applications were untruthful; even if the Visa Applicant was as illiterate as he contends (and the Tribunal doubts whether this is so) it does not seem likely that he could have been entirely and totally unaware of all of their content. It is much more likely that he knew or was at least aware of what was being claimed on his behalf. The Tribunal refers in this connection to the decision of Deputy President McDonald in Kim Tuan Luong and Minister for Immigration and Multicultural Affairs [1999] AATA 625 and in particular Clause 18 of that decision which reads as follows:
"In this case both the Applicant and Visa Applicant signed the declaration at the end of the visa application form, certifying the contents, including those as to any previous criminal record of the Visa Applicant, were true and correct. Given the Visa Applicant's criminal record the information provided in the visa application form is clearly incorrect. It is not a satisfactory answer for Visa Applicant to tell the Tribunal that he "trusted" Mr Nguyen to answer the questions accurately. If, as in this case, a Visa Applicant seeks to rely on a friend, migration agent or any other person to assist in the completion of the form, then the Visa Applicant must take responsibility if the form is not accurately completed."
9(a) The "special need relative" application appears at S70. The Visa Applicant sought the right to remain in Australia on the basis that he was needed to care for a grandson. His nominator's son-in-law Darren Nicholas Keen who said (S70 p238) "I need him more than ever to help raise my son" sponsored his application.
(b) The evidence revealed that the child is cared for perfectly adequately by Ms Keen; the Visa Applicant said that his presence in Australia would free his daughter to go to work. That application was at best ingenuous, and probably misleading in so far as it sought to allege that there was a "special need".
10(a) The application for a visa, the refusal of which was the subject of this hearing appears at T38. Page 234 contains a number of questions as to character, including:
"Have you…
been removed or deported from any country (including Australia)?
left any country to avoid being removed or deported?
Been excluded from or asked to leave any country (including Australia)?"
(b) All of these questions were answered "no". In fact the Visa Applicant was, as the evidence demonstrated, obliged to leave Australia and his departure was supervised. He would have been forced to leave much sooner but for the fact that he was allowed to remain in Australia to give evidence against Sundar. Those answers were not truthful; the fact that the form was accompanied by a letter dated 9 September 1998 written by Andrew Maguire, which refers to the supervised departure mitigates, but does not exculpate, the fact that the answers were false.
There was on the first day some debate as to questions asked of the Visa Applicant by the investigating authorities at the time of his arrest, and in particular as to whether an interpreter should have been obtained, and moreover the order of placement of certain questions. This was not pursued in argument by either party and the Tribunal does not believe that it need to delve into these aspects; the Tribunal notes though that in the light of all of the evidence it does not consider that it is likely that an interpreter was required.
12(a) When one analyses all of the evidence as a whole, one is driven to the conclusion that the Visa Applicant was extremely anxious to remain in Australia, and that he was prepared to take any steps of whatever nature, whether or not justified or grounded, in order to achieve his desired object.
(b) Sundar furnished the Visa Applicant and his wife with forged citizenship certificates. The Tribunal is prepared to accept that the forged citizenship certificates may have been procured without the assistance of the Visa Applicant; the Tribunal however does not accept that the Visa Applicant was as innocent a party as he seeks to allege. It must be remembered that the forged certificates were procured some years after the Visa Applicant had come to Australia and after repeated attempts to gain residency status had failed; there was a cost of $20,000 paid in cash, where $20,000 was an enormous amount of money to the Visa Applicant. The Visa Applicant's evidence was that Sundar furnished the forged certificates and demanded $20,000 paid in cash alleging that he had worked on the affairs of the Visa Applicant for 4 years and that other people had to be paid. Without further ado and without protest that amount was paid in bank notes. Why did the Visa Applicant not refuse to pay so enormous a sum? Sundar could not have sued; there was no suggestion that Sundar would or could have resorted to violence.
13(a) It is in the context of money, earnings and savings that the Visa Applicant's evidence was particularly unacceptable.
(b) The Visa Applicant said during the first hearing day that he earned about $470.00 per week from Fleetserve and out of which he was obliged to pay rent and to support his family. He said also that this amount bore tax. However, according to his evidence, he also performed periodic cleaning work for a Fijian friend and for which from time to time he received small untaxed sums. His evidence was that his wife did not work at all and that these were his only sources of income.
(c) As the hearing progressed, his evidence altered markedly; there were very substantial inconsistencies in his evidence on the second day as compared with his evidence on the first day. In the first place the amount earned from Fleetserve increased (substantially); in addition, the Visa Applicant gave evidence (but only on the second day) as to other and additional financial resources, and in particular earnings by his wife from a Sundar-owned restaurant where she performed chef services, and casual maintenance work during weekends by him on machinery. Reference was also made to contributions by his son. Indeed, and as the transcripts for the second and third days indicate, much of the evidence turned on how it was possible for the Visa Applicant to build up capital sums in bank accounts amounting to nearly $40,000.
(d) The Tribunal does not believe that it is necessarily for it to traverse the evidence and in particular the cross-examination on this subject in great detail. Much of the cross-examination turned on the Visa Applicant's evidence (increasingly unreliable) as to how those sums could have been generated. That evidence in this area regarded as a whole cannot be categorised otherwise than as untruthful. Put succinctly, on the Visa Applicant's evidence (and on any version of it) it was not possible to accumulate so much money. The Tribunal refers in this context to 21T20 where the following exchange took place:
"THE INTERPRETER: Yes, that's correct that she did work, do any permanent work or continued work till then, but she used to work sometimes like in a week, maybe two or three days a week.
MR SNELL: Mr Chand, are you just making this up as you go along?
THE INTERPRETER: No, I didn't tell you this before, but when you asked me just now what other source of income you had and I said this.
MR SNELL: You just remembered now, did you?
THE INTERPRETER: I'm telling you the truth. My wife did not work full-time.
MR SNELL: Your wife is there with you now, is she?
THE INTERPRETER: Yes.
MR SNELL: So if your solicitor wanted to lead any evidence from her about that work she'd be able to give evidence today, would she?
THE INTERPRETER: Yes, she can.
THE D.PRESIDENT: Madam interpreter, please explain to the witness that this is his evidence and he is not supposed to be consulting his wife. This was mentioned on the previous occasions when quite plainly his wife was speaking in the background. It would be best if she were to leave the room while he's giving evidence, it that's possible?"
(e) On at least two occasions during the course of the Visa Applicant's evidence, and on each of the first day and also the second day, the Tribunal heard a female voice in the background; the Visa Applicant was warned that he should not be prompted by his wife and that eventually (and probably belatedly) she was asked to leave the room. Her presence with him during the whole of his evidence must have the result that the Tribunal should view with suspicion her evidence late on the second day as to her earnings from the Sundar-owned restaurant. There is a basic conflict as to her alleged earnings; at first the evidence was that she did not work and the belated evidence as to earnings from Sundar's restaurant was very much of an afterthought.
(f) The financial evidence is all the more unacceptable in the light of the failure of the Visa Applicant to produce any bank statements, which would have supported his claims. The evidence before the Tribunal was that the Visa Applicant and his wife ran combined accounts. Towards the end of the second day, the Visa Applicant was invited to obtain bank statements from the banks by way of confirmation on his evidence. However, and on the third hearing day, the Tribunal was informed simply that it had not proved possible (despite the lapse of nearly three months between the second and third hearing days) to obtain any statements whatever from the banks concerned; the Tribunal was also told that no summons to produce had been served on the banks. The failure on the part of the Applicant and the Visa Applicant to produce any bank statements of whatever nature in support of the evidence, where those bank statements would have been readily obtainable, must give rise to a negative inference as to the truthfulness of the Visa Applicant's evidence as to the moneys earned and banked. The TribunaI again refers in this context to 21T48 lines 25 to 30 and particularly the somewhat surprising affirmative answer in response to Mr Snell's question at lines 24 to 27.
Oral evidence was given by the Applicant as to contributions by him to the family finances. It must be noted that the Applicant was present throughout the days upon which his father and mother had given evidence. Even if his evidence is accepted in full, it does not constitute evidence which would support the substantial financial accumulations referred to previously in these reasons. It may be noted that the Applicant's evidence was that he too was an illegal non-citizen of Australia for a period.
Mr Turner asked me to place emphasis on the fact that the Visa Applicant gave evidence against Sundar (leading to Sundar being convicted and sentenced to a term of imprisonment) and in consequence of which the Visa Applicant was commended. Mr Turner asked me to draw an inference to the effect that because the Visa Applicant was not himself prosecuted he must necessarily have been innocent of any wrongdoing as regards the forged passport. This is not a contention, which can be accepted. As between Sundar and the Visa Applicant, Sundar was plainly the major participant. That the authorities chose to accept assistance from the Visa Applicant in order to convict Sundar is hardly surprising. There was no evidence before me as to any indemnity; there was however a very substantial benefit for the Visa Applicant in that it enabled him to stay in Australia for a further lengthy period, to work legally, and to make further applications.
16(a) What then are the offences committed by the Visa Applicant? It was conceded that as an illegal non-citizen he worked illegally in Australia for a lengthy period and thus in breach of s. 235 of the Migration Act 1958. It was also conceded that he derived income, which was not reported for taxation purposes, although the amount involved in this context, and also the exact source or sources, was never clarified.
(b) It is likely on the balance of probabilities that the Visa Applicant has been guilty of breaches of s. 234 of the Migration Act 1958. I do not accept that he was altogether unaware of the fact that his refugee applications were untruthful, but in any event, he must take responsibility for them. His special need relative application was false; there were false answers in his most recent application and his evidence before me (particularly in relation to financial matters) was untruthful. As set out later in these Reasons, the Tribunal does not consider that the forged citizenship documents should not be held against the Visa Applicant.
17(a) At the beginning of the first day Mr Turner informed the Tribunal that this case turned entirely on character and that there were no other issues, and so that the Applicant would succeed if the Visa Applicant passed the character test but not otherwise.
(b) I was asked to accept that the character references referred to in Exhibit A1 constituted evidence of good character. All of these references have this factor in common; they are very brief and they do not address or even refer to the conduct of the Visa Applicant while in Australia. An examination of them reveals that they say very little which is in any way useful or of assistance to the Tribunal.I find then that the Visa Applicant does not pass the character test. Despite the assertion by Mr Turner that this case should be decided on the question of character I consider it desirable to consider the relevant direction under s. 499 of the Migration Act 1958, and being "Visa Refusal and Cancellation under s. 501 of the Migration Act 1958"; Direction No. 21 (and referred to hence forth as Direction 21). In this Clause 16, Clause references should be construed as references to numbered Clauses in Direction 21.
(a) Clause 2.3 provides that the primary considerations are:"In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children."
(b) Clause 2.3 must be considered in conjunction with Clause 2.5 which provides:
"The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
I consider having regard to Clause 1.9 read until Clause 2.6 that the Visa Applicant's offences must be classed as serious. I refer in particular in this context to the fourth dot point of Clause 1.9 reading as follows:
"Involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law;"
Mr Turner asked to read Direction 21 in the light of and subject to section 234 of the Migration Act 1958 and pursuant to which a false or misleading statement must be material. I contend that his argument has substance but that in any event the Applicant's false and misleading statements were material within section 234.
(c) I do not believe having regard to Clause 2.5(b) that there is any real risk of recidivism; if granted a visa, the Visa Applicant would have no need to re-offend.
(d) As to the expectations of the Australia community, and see Clause 2.3(b), I consider that the community would expect that a Visa Applicant who has transgressed Australian immigration law so repeatedly and over so lengthy a period would not be rewarded with the grant of a visa. Numerous cases have confirmed that it is important that the integrity of the Australian immigration system be maintained. (I think it relevant to note in this context that it may be possible to draw a distinction between what actually occurred in relation to forged citizenship certificates and a hypothetical situation, and pursuant to which the forged citizenship certificates were presented to the Visa Applicant by Sundar a short time after his arrival in Australia and before he had made any of his numerous and unsuccessful applications for residency. In the latter case, it might have been possible for me to accept the total innocence of the Visa Applicant in relation to the forged citizenship documents. But the true position on the evidence as a whole appears to be different. The certificates were received years after his arrival, after the failure of a number of applications, including false refugee applications, and after illegal work in Australia as an illegal non-citizen for an extended period. It is against this factual matrix that it is difficult to accept his protestations of total innocence in relation to the forged documents. However, and as Mr Turner contended, suspicion is not probative and the Tribunal considers it proper that it does not take into account, against the Visa Applicant, the fact that there were forged citizenship documents).
(e) As to hardship (and see Clause 2.17) I accept that for the Visa Applicant and his wife to have to live in Fiji away from their children (and grandchildren) now resident in Australia, must be hard. But there is evidence of visits to Fiji which is after all not far in point of airtime, and the hardship factor does not (on balance) even remotely outweigh the primarily and adverse considerations.
This is not, in the view of the Tribunal, a case for the exercise of the discretion in favour of the Visa Applicant and in all the circumstances the decision under review must be affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block
Signed: .....................................................................................
AssociateDate/s of Hearing 5 June 2001, 21 January 2002, 18 April 2002
Date of Decision 13 May 2002
Solicitor for the Applicant Mr R Turner
Solicitor for the Respondent Mr M Snell
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