Chavez and Minister for Immigration and Multicultural Affairs
[2001] AATA 849
•11 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 849
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1472
GENERAL ADMINISTRATIVE DIVISION )
Re Marinka Chavez
Applicant
And Minister for Immigration & Multicultural Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date11 October 2001
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Mr Santos Chavez passes the character test referred to in s 501(1) of the Migration Act 1958.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general conduct – where Visa Applicant worked illegally in Australia – where Visa Applicant's previous application for permanent residence refused – whether false and misleading statements made in relation to application for grant of visa - protection of the Australian community – seriousness of the conduct – likelihood of recidivism - expectations of the Australian community – degree of hardship caused – genuineness of marriage
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: 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
Awa and Minister for Immigration and Multicultural Affairs [2001] AATA 504
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277
Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 139 ALR 84
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
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
Re Policarpio v Minister for Immigration and Mutlicultural Affairs [2001] AATA 658
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
REASONS FOR DECISION
Mr R P Handley
This is an application by Marinka Chavez ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 24 August 2000 to refuse the grant of a Sub-Class 309 Spouse (Provisional) and a Sub-Class 100 Spouse (Migrant) visa to the Applicant's spouse, Santos Chavez ("the Visa Applicant").
At the hearing, the Applicant was represented by G Mackey, of Counsel, and the Respondent by Leonard Leerdam, Solicitor of Sparke Helmore. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Dr Joanna Bakas, and in person by the Applicant, Milena Kimovic and Jeannette McCafferty.
BACKGROUNDThe Visa Applicant, Mr Chavez, was born in the Philippines on 20 March 1945 and is aged 56. He was married in May 1969 and lived with his wife in the Philippines until she died in May 1981. He has one son, who was born on 16 December 1969 and is aged 31, who lives with his own family in the United States.
On 25 May 1981, Mr Chavez arrived in Australia on a visitor's visa, which was valid until 25 June 1981. Mr Chavez was granted an extension of his visitor's visa until 23 August 1981 but, on that date, he did not depart Australia. Mr Chavez had obtained a job as a process worker at Buy-Weld at Caringbah about two weeks after arriving in Australia. He worked there until 1983 when the company became bankrupt. He then obtained employment as a contract worker before performing car detailing work in Parramatta until 1984, when he obtained work as a furniture assembler at Watts Furniture in Kirrawee until that company became bankrupt in 1990. Next he got a job as a furniture assembler at Compact Furniture at Caringbah until it became bankrupt in 1995.
From 1995 to 1997, Mr Chavez worked as a casual night packer at Franklins Big Fresh at Engadine. Between 1997 and 1999, he worked as a cleaner for Tempo Cleaning Services at Westfield Miranda Shopping Centre, and from 1999 as a cleaner at BP Caringbah and various other businesses, including restaurants in Cronulla, in an attempt to set up a cleaning business in the Sutherland Shire.
On 31 October 1995, Mr Chavez applied for permanent residence on the basis of being in a genuine and continuing de facto relationship with Lorenza Arao. On 15 November 1995, Mr Chavez lodged an application for a Bridging Visa C, admitting that he had worked without permission in order to support himself. On 5 January 1996, Mr Chavez's application for permanent residence was refused on the basis that he did not share a genuine and continuing de facto marriage with Ms Arao. This decision was confirmed by the Department of Immigration and Multicultural Affairs ("The Department") on 4 March 1996. The decision was also affirmed on a review by the Migration Internal Review Office on 20 November 1996 and by the Immigration Review Tribunal on 4 November 1997. Thereafter, Mr Chavez was granted further bridging visas on the basis of ministerial representations.
Mr Chavez met Marinka Chavez, then Marinka Kimovec, the Applicant, when they were both working as night fill packers at Franklins Big Fresh at Engadine in December 1995. Over the course of the next few months, Mr Chavez, and Miss Kimovec became close friends and in July 1996 Mr Chavez moved in to live with Ms Chavez at her home in Cronulla. They lived together in Cronulla until December 1999, first at Tullimbar Rd, and then from July 1998 at Mitchell Rd. In December 1999, they moved to the unit purchased by Ms Chavez at Willock Avenue, Miranda. They were married on 22 August 1998.
On 24 September 1998, Mr Chavez lodged an application for permanent residence as a special needs relative to his wife, Ms Chavez. Mr Chavez was also granted a bridging visa which expired on 3 November 1998. On 29 September 1998, Mr Chavez's application for permanent residence was refused.
On 22 November 2000, Mr Chavez was located by departmental compliance officers at Cronulla railway station and detained. Mr Chavez applied for a further bridging visa, but this was refused on 25 February 2000. This decision was affirmed by the Migration Review Tribunal on 2 March 2000. On 16 March 2000, Mr Chavez departed Australia and returned to the Philippines.
Mr Chavez lodged an application to migrate to Australia, sponsored by his wife, Ms Chavez, which was received by a departmental officer at the Australian Embassy in Manilla on 20 March 2000. On 24 August 2000, a delegate of the Respondent in Manilla decided to refuse Mr Chavez' application for a visa pursuant to s 501(l) of the Migration Act. On 19 September 2000, Ms Chavez lodged an applicant for review of this decision by the Administrative Appeals 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 satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Chavez is not of good character having regard to his past and present criminal conduct and his past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa and a sub-class 100 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, he should be granted a visa.
EVIDENCEMr Chavez said that when he came to Australia in 1981, his son was living with his relatives. His son now has his own family and lives in Minnesota in the United States. Mr Chavez's brother also lives in the United States. Mr Chavez said that he had considered going to the United States and when he was in Australia he enquired about obtaining a visa. He was told that he would have to go back to the Philippines in order to apply for a visa, so he decided it was better to stay in Australia. Ms Chavez told the Tribunal that her husband only has a few elderly relatives still living in the Philippines.
Mr Chavez acknowledged that when he came to Australia on a visitor's visa there was a condition in the visa that he could not work. He obtained work in the name of Robert Sanchez and a tax file number in that name through a taxation agent in Miranda to whom he produced his pay slip to establish his identity. Mr Chavez said that he had no contact with the Department after 1981.
Mr Chavez was referred to a statutory declaration, undated, but which appears to date from late February 2000. Mr Chavez said this was prepared for him by a migration agent because he is illiterate. He said that after he arrived in Australia, he just wanted to stay, and it was not his intention to stay only until he got married. He does not want to return to the Philippines because there is nothing there for him and he no longer has any immediate family there.
Mr Chavez was asked about his 1995 spouse application on the basis of his relationship with Lorenza Arao. He said that he met Mrs Arao in Cronulla in about 1992 and started living with her in 1993, although they did not have any sexual relations. It was not until after he lodged the application for permanent residence in October 1995, that he discovered that Ms Arao was a lesbian. Therefore, when his appeal was heard by the Immigration Appeal Review Tribunal, he informed the Tribunal that his relationship with Ms Arao had ended.
Mr Chavez said that his relationship with Ms Chavez developed through the first part of 1996. It became serious in about July 1996. He said that it was probably in early 1997 that they first discussed the possibility of marriage. He had told her in 1996 that he had a problem with the Department and that he had to attend for an interview. It was his solicitor, Koffi Osei, who advised him to lodge an application with the Immigration Review Tribunal for review of the Department's decision of 4 December 1996 to refuse his application for permanent residency.
Mr Chavez said that he can neither read nor write. He believes he has not done anything wrong but only wants to be with his wife whom he loves dearly. There is nothing for him in the Philippines and he is counting the time that he is separated from his wife.
Ms Chavez was asked about whether her parents knew of her relationship with Mr Chavez after they started living together in 1996. She said her parents were from Slovenia and expected her to marry a Catholic and preferably a Slovenian. She said that in 1997, Mr Chavez had on one occasion answered the phone when her father rang, so her father had probably been suspicious about their relationship. She did not tell her father about their relationship because he had had a heart attack in 1981 and had suffered from ischaemic heart disease since that date. Ms Chavez was afraid that if she had told him of the relationship he might have another heart attack, and when . she and Mr Chavez were married on the 22 August 1998 in Cronulla, Ms Chavez did not tell her family or friends because of that fear. Her father passed away after a heart attack on 16 October 1998. She received a small inheritance from her father which she used to help buy the unit which she bought in Miranda in December 1999. The unit was purchased in her name alone because of the inheritance from her father. She agreed with Mr Chavez that she would pay the mortgage if he would help by paying other bills.
Ms Chavez said that they had probably first discussed marriage in 1996, but she was not ready for such a commitment at that stage. The plans for their wedding were made in early 1998. Ms Chavez said that her husband did not tell her very much about his immigration problems because he didn't want her to worry and believed that he could handle the situation himself. She knew he was going to see a migration agent and was aware that if they got married this might be of some assistance to him. In 1997, Ms Chavez was not aware of his previous application for permanent residence based on his relationship with Ms Arao. However, Ms Chavez remembers him telling her that he had gone to the Immigration Review Tribunal and told them that his relationship with Ms Arao had ceased. In her statement (A2), Ms Chavez said that she first became aware that her husband had overstayed on a visitor visa when she went with him to Kaprock Migration Agency in September 1998. Kofi Osei, the migration agent, explained the problem Mr Chavez was having with the Department.
Ms Chavez said that she loves her husband and, having lived with him for over three and half years, misses him very much. In her statement (A2), Ms Chavez refers to the depression she has suffered since she and her husband have been separated and the financial problems she has had. Ms Chavez works as an enrolled nurse at Sutherland Hospital. Currently, she is also working as a cashier at Franklins Big Fresh at Engadine in order to try and meet her expenses. On some days, she works up to 17 hours a day. She went to the Philippines on two occasions – in March and June/July 2000 – and was very sick on both occasions. She said there was little work there and, if she was living there, she would have concerns for her safety as a Westerner. She would not want her children to be raised there.
Ms Chavez also provides support for her mother who is 74 years of age and lives by herself in Figtree, near Wollongong. Her mother suffers from cataracts, diabetes and is starting to loose her memory. She also has poor English skills. If Ms Chavez were to move to the Philippines, this would put an undue burden on her sister, Jeannette McCafferty. As it is, she and her sister share providing support for their mother – cleaning the house, taking her shopping, reading her bills and helping her to pay bills. They also recently painted part of the interior of the house.
Mrs Milena Kimovic, Ms Chavez's mother, confirmed the health problems from which she suffers that her daughter had described. She told how her daughters help to clean the house and do the shopping and, about 6 months ago, painted the walls in three rooms of the house. They also take her to medical appointments, for example at the Sydney Eye Hospital, when she needs to attend these. Mrs Kimovic said she had not had a chance to meet her daughter's husband, even though she knew about him, because he had had to return to the Philippines. She said she cannot bear her daughter's misery any more.
Ms Jeannette McCafferty, said she is two years younger than her sister. She is married with two children, aged three years old and ten years old and lives in Cronulla. Usually she visits her mother for a whole day at the weekend once a month. She recently took her mother to the Sydney Eye Hospital to have a cataract removed and a lens implant. However, she is not always available to help her mother in this way.
Ms McCafferty said she first met Mr Chavez in 1996 when he and Ms Chavez started living together. However, Ms McCafferty said she was not aware that Mr Chavez and her sister were a "couple" and she did not know that they were married until the third week of Mr Chavez's detention in March 2000. She thought her sister had not asked her to the wedding because she was scared that Ms McCafferty would tell her parents and that her father might have a heart attack if he found out. Her father had had a heart attack in 1981. He only wanted his children to marry Catholics because of his Slovenian Catholic background. Ms McCafferty said that she also had no idea about Mr Chavez's immigration problems until she found out about his detention.
Dr Joanna Bakas, Consultant Psychiatrist – had prepared a report on Ms Chavez dated 12 March 2001 (A1). At the time of preparing the report, Dr Bakas said that she had seen Ms Chavez on four occasions and that she has seen her on a further four occasions since that time, most recently on the 30 July 2001. Dr Bakas said the anti-depressant which she has prescribed for Ms Chavez is Citalopram.
Dr Bakas said that based on the history she had obtained from Ms Chavez, the condition from which she is suffering is a major depressive disorder, related to her husband's immigration problems. Dr Bakas said that when she first saw Ms Chavez, she was having some suicidal thoughts, but she has promised to contact Dr Bakas if she feels like this again. Dr Bakas said that hospital appointments for Ms Chavez had been unnecessary and, apart from medication, she is trying to help Ms Chavez develop coping strategies, even though she remains distressed. However, Dr Bakas said that if it was likely that Mr Chavez would not be granted a visa, she would be arranging an urgent appointment with Ms Chavez because of Dr Bakas' concern that Ms Chavez might do something impulsive.
FINDINGSThere is no dispute and the Tribunal finds that the relationship between Mr and Ms Chavez is a genuine and loving one of husband and wife. They lived together for a period of three and a half years and have the emotional co-dependence that one would expect from such a relationship.
Mr Chavez's previous wife died in May 1981 before he came to Australia. He has one son by that marriage, born on 16 December 1969 and now aged 31, who lives with his family in the United States. Mr Chavez has no close family in the Philippines apart from some elderly distant relatives.
There is no dispute that Mr Chavez worked in Australia illegally between 1981 and 1995 when, on 31 October 1995, he applied for a spouse visa. However, Mr Chavez has not been prosecuted in relation to any offence committed in the period between 1981 and 1995 and, since 1995, he has been trying to regularise his position in Australia by obtaining an appropriate visa. His application for a spouse visa in 1995 was based on his relationship with Lorenza Arao. The Tribunal accepts Mr Chavez's evidence that at the time he made the application this was a close and genuine relationship. The Immigration Review Tribunal found sufficient material to enable the Tribunal to conclude that at the time of the application for the spouse visa "there was a genuine and continuing de facto relationship between the Visa Applicant and Ms Arao". However, it is clear that in the period following the lodging of the application, the relationship ran into difficulties, particularly, when Mr Chavez discovered that Ms Arao was a lesbian. At the time of the Immigration Review Tribunal hearing on 16 September 1997, Mr Chavez informed the Tribunal that the relationship had ended. This is in accordance with Mr Chavez's evidence that when it was clear that the relationship was at an end, he determined that he should inform the Immigration Refugee Review Tribunal that his application for a visa could no longer proceed on the basis on which it was founded (T38, p 237).
The Respondent points to false statements made by Mr Chavez. However, the Tribunal finds that Mr Chavez is illiterate, andhis evidence suggests that although he has reasonable spoken English, he has very limited ability to read in English. The Tribunal accepts Mr Chavez's evidence that with regard to the regularisation of his position in Australia, he relied on the advice of the migration agent who acted on his behalf. The agent completed application forms and statements for Mr Chavez which he signed. The Tribunal finds that Mr Chavez did not intentionally make any false statement in any of these documents.
With regard to Mr Chavez's moral qualities, the Tribunal notes the comment made by the Immigration Review Tribunal about Mr Chavez (T38, p 237):
he struck me as being an honest and simple man; quite unable to deal with the prospect of possibly having to leave Australia after so many years here.
Although Mr Chavez gave his evidence by telephone from the Philippines, the impression he made on the Tribunal was similar to that he made on the Immigration Review Tribunal. He was emotional about his desire to be reunited with his wife so that they can continue their relationship and so that his life can proceed. The Tribunal has no doubt about his expressed intention to lead a good and moral life in Australia with his family and to be a law-abiding citizen. The Tribunal finds that there would be significant hardship both to Mr and Mrs Chavez should a visa not be granted to Mr Chavez. The Tribunal notes the following comment made by the Immigration Review Tribunal.
Listening to Mr Chavez for only a short time makes it clear that he is totally ill suited for adapting to a way of life which he left some 16 years ago. I say this, not only because of the differences in the way of life, work opportunities, between Australia and the Philippines, but also because of the brittleness and lack of resilience shown by Mr Chavez even during the course of the one hour hearing.
The Tribunal notes that Ms Chavez is currently being treated by a psychiatrist, Dr Bakas, for a major depressive disorder which Dr Bakas attributes to the problems associated with Mr Chavez's immigration. Dr Bakas gave evidence that she was concerned that Ms Chavez might act impulsively should her husband be denied a visa. The Tribunal also notes Ms Chavez's evidence that it would not be feasible for her to live with her husband in the Philippines, both for reasons of her health and also because of her established work and family background in Australia. Ms Chavez provides physical and emotional support for her elderly mother who lives alone in Wollongong.
DISCUSSION OF LAWBoth 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, Mr Mackey, for the Applicant, referred the Tribunal to Brennan J's decision in Drake (supra) in support of his argument that if the Direction is invalid for fettering the discretion of the decision-maker, the Direction must also be regarded as invalid, if considered merely as policy. Mr Leerdam, for the Respondent, submitted that Direction No. 17 is valid and capable of being applied in this case. However, even if invalid, he contended that the Direction represents government policy to which the Tribunal should have regard in making a decision.
Mr Mackey, contended that the approach adopted by Deputy President Block in Awa and Minister for Immigration and Multicultural Affairs [2001] AATA 504 (8 June 2001) was incorrect and that the Tribunal should follow the decision of Drummond J in Jahnke (supra). Mr Mackey referred the Tribunal to Drummond J's judgment, where he stated (at 21):
There may be cases in which evaluation and circumstances relevant to the first two (or even to all three) primary considerations may, with varying degrees of cogency, favour visa cancellation, but one or more non-primary considerations may so strongly favour non-cancellation as properly to be regarded as requiring that result; yet the decision maker, who is bound by or who as Minister voluntary applied the direction would be prevented by the fetter on the statutory discretion contained in para 2.2 of the policy from declining to cancel the visa…
Mr Mackey noted that in Jahnke (supra), Drummond J stated (at 17) that there may be cases "involving a person convicted of a most serious crime or a person with a long criminal history" where the discretion may still be exercised. The discretionary power requires that the seriousness of the criminal conduct must be reviewed in the context of all the relevant circumstances of the case.
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 Acts 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 Mr Chavez, by reason of his past and present general conduct is a person who is not of good character and is therefore a person who does not pass the character test in s 501(1), by virtue of the application of s 501 (6)(c).
The Respondent points to the fact that after his arrival in Australia in 1981, Mr Chavez was working illegally within two weeks. The Respondent also noted that even though Mr Chavez's relationship with Ms Arao came to an end at least by 1995, Mr Chavez still continued with the appeal to the Immigration Review Tribunal. Thus, he used the review process to prolong his stay in Australia.
Mr Mackey, maintained that Mr Chavez does pass the character test. With regard to Mr Chavez's past conduct, he referred to para 1.8 of Direction No. 17 noting that Mr Chavez has not been charged or convicted of any criminal offence in relation to his being in Australia between 1981 and 1995 without a proper visa. With regard to paragraph 1.9 of the Direction, Mr Mackey contended that none of the matters mentioned there had any relevance in Mr Chavez's case and, in particular, submitted that Mr Chavez had not made a false or misleading statement in connection with his application for the grant of a visa (paragraph 1.9(b)).
In the Tribunal's view, Mr Chavez does pass the character test. The Tribunal notes the comment made about the character test by Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 (8 February 2000):
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the higher standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277)
The Tribunal recognises the long period from 1981 to 1995 during which Mr Chavez was in Australia without a proper visa, but, despite this, the Tribunal notes his attempts to regularise his position in Australia since that time. Indeed, all the other evidence points to his being a person of moral integrity. The Tribunal does not accept that Mr Chavez made false and misleading statements intentionally, but rather, remembering that he is illiterate, relied on a migration agent who set out his visa application and on the agent's advice on how to utilise the review system.
Even if Mr Chavez were to fail the character test, in the Tribunal's view the discretion in s 501(1) should be exercised in his favour to grant a visa.
With regard to the exercise of the discretion, Mr Mackey for the Applicant, contended that the protection of the Australian community from the action of criminals, referred to paragraph to 2.4 of the Direction, does not apply in this case, because it assumes that a person has been convicted of a criminal offence. He said this is not the case with Mr Chavez. In any event, the examples of offences listed in paragraph 2.6 are principally very serious offences, and while paragraph (c) refers to serious crimes against the Migration Act, the reference there is to offences of which a person has been convicted.
With regard to the expectations of the Australian community (para 2.12), Mr Mackey pointed out that Mr Chavez always worked and paid taxes whilst in Australia, and submitted that with a strong supportive family, all the indications are that he will be a model citizen in the future. With respect to other considerations (para 2.17), Mr Mackey pointed to Mr Chavez's genuine marital relationship, his family background in Australia and the degree of hardship which would be caused to Mr and Ms Chavez should a visa not be granted.
Mr Leerdam, whilst recognising that Mr and Ms Chavez's relationship is a genuine one and that hardship would be caused to Mrs Chavez should her husband not be granted a visa, submitted, nevertheless, that there had been serious unlawful conduct by Mr Chavez which should be given weight as a primary consideration in this case. Mr Leerdam referred to the case of Awa (supra) where it is clear that Deputy President Block gave weight to the unlawful conduct of the visa applicant and not to whether he had been convicted of particular offences.
The Tribunal had regard to the considerations referred to in Part 2 of the Directions. Firstly, with respect to the protection of the Australian community, whilst recognising that Mr Chavez was in Australia unlawfully between 1981 and 1995, the Tribunal sees little likelihood of that conduct being repeated. The Tribunal notes that Mr Chavez has sought to regularise his position since 1995, and that the alleged false or misleading statements pointed to by the Respondent were made unintentionally on the advice of a migration agent. The Tribunal does not consider that visa refusal would act as any significant general deterrent in respect of others.
Secondly, with respect to expectations of the Australian community, in the Tribunal's view, given Mr Chavez's otherwise law-abiding conduct as part of the Australian community for 19 years, and with the other circumstances of his relationship with his wife and family in mind, the Australian community would expect the grant of a visa in this case. The third primary consideration, the best interests of the child, is not relevant in this case. With respect to other considerations (para 2.17), the other relevant considerations are as follows:
The already significant disruption which Mr Chavez's separation from his wife and family have caused;
The genuine marriage that he has with an Australian citizen;
The significant hardship which would be caused both to Mr Chavez and his wife in Australia if a visa is not granted.
There are no other international obligations relevant in this case.
Because in the Tribunal's view, Mr Chavez passes the character test and in any event should have the discretion to grant a visa exercised in his favour, the decision under review is set aside and the matter is remitted to the Respondent with the fettering of discretion.
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. 17, 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. In the present case, the Tribunal has applied Part 2 of the Direction as if it were guide to the exercise of its discretion and not binding on the Tribunal. The Tribunal has adopted a balancing process when considering both primary and other considerations, and thus, in this way, the Tribunal's application of Part 2 of the Direction is in accordance with the modification to paragraph 2.17 by Direction No. 21.
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Mr Chavez passes the character test under s 501(1) of the Migration Act 1958.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 22 August 2001
Date of Decision 11 October 2001
Solicitors for the Applicant Mr G Mackay & Mr A Hackworthy, Tzovaras Legal
Solicitor for the Respondent Mr L Leerdam, Sparke Helmore
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