Choy and Minister for Immigration and Multicultural Affairs - [2001] AATA 962

DECISION AND REASONS FOR DECISION [2001] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1915

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Madhavan Choy
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date26 November 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Elizabeth Nirmalawati Choy passes the "character test" under s 501(1) of the Migration Act 1958.

..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – Spouse Visa – sponsor – character test – past and present general conduct – where Visa Applicant gave false and misleading information in various applications for grant of visa – where conditions of visitor visa breached - character test passed
Exercise of the discretion – balancing of primary and other considerations – protection of Australian community – seriousness and nature of the conduct – general deterrent effect of refusal of grant of visa – risk of recidivism - expectations of the Australian community – best interests of the children - degree of hardship to Visa Applicant's family

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Multicultural Affairs (1994) 19 AAR 148
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

26 November 2001 R P Handley

This is an application by Madhavan Choy ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 7 December 2000 to refuse the grant of a sub-class 309 spouse (provisional) visa to the Applicant's spouse, Elizabeth Nirmalawati Choy ("the Visa Applicant").
At the hearing, the Applicant was represented by Surendra Prasad, Solicitor, and the Respondent was represented by Zac Chami, Solicitor, of Clayton Utz, Lawyers. 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 in person by the Applicant, and by telephone by the Visa Applicant, Pinkie Choy, Vickie Choy, Micky Choy and David Whitehead.

Background

The Applicant, Mr Choy, was born in Fiji on 4 January 1943 and is aged 58. The Visa Applicant, Mrs Choy, was born in Fiji on 9 November 1949 and is aged 51. Both are of Indian descent. Mr and Mrs Choy started living together as husband and wife in 1974; they were married on 18 January 1999. They have three children: Vicky Choy, who was born on 2 July 1978 and is aged 23, Pinkie Choy who was born on 19 January 1980 and is aged 21, and Micky Choy who was born on 4 October 1982 and is aged 19.
Following the military coup in Fiji in 1987, Mr and Mrs Choy and their children travelled to Australia, arriving on 22 August 1987. They were granted visitor visas subject to a prohibition on employment without the written permission of an authorised officer (S3). Mrs Choy's visa was valid until 19 September 1987 but was extended to 22 December 1987. On 29 October 1987, Mr Choy lodged an application for resident status in Australia (S23) including his wife and three children, and both Mr and Mrs Choy lodged applications for permission to engage in employment in Australia. Mrs Choy worked for the Kings Cross Laundry and Linen Supply from 13 October 1987 (S2). Mrs Choy was later employed by the Sydney Tower Restaurant at Centrepoint as a full-time laundry supervisor from October 1989 to 15 October 1992 (S9). On 12 May 1988, Mr Choy's application for resident status in Australia was refused. Mr Choy was notified of this decision by letter dated 16 May 1988 (S16).
In 1990, Mr and Mrs Choy separated and Mrs Choy and their children commenced living separately from Mr Choy. On 30 October 1990, Mrs Choy lodged an application for permanent residence based on a de facto relationship with Dewa Naikar, who was an Australian resident known to Mrs Choy from Fiji. The application was made with the assistance of Leslie T Hardy, Migration Consultant of Oxford Street, Darlinghurst. On 24 August 1992, Hardy's Migration Consultants provided further documentary evidence to the Department of Immigration Local Government and Ethnic Affairs, including a statutory declaration purportedly from Mr Naikar, dated 20 August 1992, which stated "I still support the application of my spouse, Elizabeth Nirmalawati Phillip for permanent residence" (S7). By letter dated 20 August 1992, Mr Naikar, informed the Department that his de facto relationship with Mrs Choy ended in early March 1992.
On 16 October 1992, Mrs Choy was arrested under the provisions of the Migration Act 1958 ("the Act") as an illegal entrant. On that day, Mrs Choy also withdrew her application for permanent residence and was notified by the Department that she must arrange to depart from Australia (T19). On 21 October 1992, Mrs Choy was released from detention on giving a bank guarantee in favour of the Department for an amount of $5,000. In an undertaking given by Mrs Choy on that date, she agreed to cease work forthwith (T23). On 27 October 1992, Mrs Choy made a statement in which she admitted that she had not had a genuine de facto relationship with Mr Naikar and that the statutory declaration of 20 August 1992 purportedly by Mr Naikar (S6), had, in fact, been signed by a Filipino friend of hers.
On 15 November 1992, Mrs Choy and her three children left Australia and returned to Fiji. Mr Choy remained in Australia. He had lodged an application for permanent resident status on 25 September 1990, also with the assistance of Leslie T Hardy, Migration Consultant, on the basis of his marriage to Vimol Robinson on 21 September 1990. Ms Robinson was of Thai nationality and could not read or write in English. This marriage was subsequently dissolved on 15 September 1993 (T30). Mr Choy was granted resident status on 1994, became a permanent resident on 30 September 1998, and an Australian citizen on 16 November 1999. Since becoming a permanent resident, he has travelled to Fiji frequently to visit his wife and children. On 18 January 1999, Mr and Mrs Choy were married in Latoka, Fiji (T6).

On 13 April 1999, Mrs Choy lodged an application for a spouse visa to enable her to migrate to Australia with her three children (T36). On 29 February 2000, Mrs Choy was interviewed by David Whitehead, a Senior Migration Officer at the Australian High Commission in Suva, Fiji. On 28 September 2000, Mrs Choy applied for a sub-class 676, Visitor Visa which was refused on 29 September 2000. On 7 December 2000, Mr Whitehead, acting as a delegate of the Respondent, refused the grant of a spouse visa to Mrs Choy. On 21 December 2000, Mr Choy lodged an application for a review by the Tribunal.
RELEVANT LAW AND POLICY
Under 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 Ms Choy is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
ORAL EVIDENCE
Madhavan Choy
Mr Choy affirmed and adopted his three written statements dated 8 May 2001 (A1), 28 August 2001 (A2), and 24 September 2001 (A3). Mr Choy was cross-examined on each of his three statements. With regard to the first statement dated 8 May 2001 (A1), he said that his rights as a Fijian citizen have been extinguished as a result of his becoming an Australian citizen. However, he acknowledged, when it was pointed out to him, that he would be able to re-apply for Fijian citizenship under s 12(6) of the Fijian Constitution.
Mr Choy spoke about his being an active supporter of the National Federation Party, the government party which was overthrown in the military coup of 1987. With his first statement, Mr Choy submitted a reference from Jagannath Sami, the campaign manager for the Party in 1987 (A1, Annexure C). Mr Choy said that he applied for refugee status with the assistance of Parish Patience, Solicitors. Although his application was initially refused, he was granted resident status in 1994. He has visited Fiji on about 10 occasions to see his family, including last year when he took three weeks holiday to go to Fiji after his mother passed away.
In his statement, Mr Choy said that he suffers from acute depression as a result of the strain of long term separation from his wife and children. He was asked about the statement from Dr Richard Sippe, Psychiatrist, dated 17 April 2001, in which Dr Sippe makes a diagnosis of Major Depression. Mr Choy said he had been to see Dr Sippe in his office in Macquarie Street, on four or five occasions.
Mr Choy was asked about his application for permanent residence lodged on 25 September 1990 based on his marriage to Vimol Robinson. He said this had been arranged through Leslie T Hardy, Migration Consultant, who had filled out the application form (S13). Mr Choy agreed that the answers to questions 5 and 6, which enquired about previous applications to migrate to Australia, had been incorrectly answered "No". Mr Choy said the ticks to these boxes had been made by the agent. He said his marriage to Vimol Robinson had not been contrived, and he rejected the statement made by Ms Robinson to a Departmental Officer (S11) that she had just lived with Mr Choy as a favour. He said that Ms Robinson went with him when he met with Mr Hardy for completion of the applications forms and that Mr Hardy had explained the forms before Ms Robinson signed them.
Mr Choy was not aware that Ms Robinson had claimed that it was Mrs Choy who introduced Mr Choy to Ms Robinson. He said Ms Robinson had stayed with him for about a month when she had nowhere else to live. At that time, he had fully paid accommodation. He subsequently proposed to her and they were married. However, about 3 months after they married, her friends came round and she and they got drunk. She then left and went to Brisbane taking her clothes and many of his. She phoned him from Brisbane, asking him to send her money, which he did, and she returned to Sydney staying with him for another two and half weeks. Then she started going out by herself and disappeared. He last saw her about March 1991. Mr Choy said he was not aware of a summons being issued against Ms Robinson in relation to her allegedly entering into a contrived relationship with Mr Choy.
Mr Choy was asked about the original visitor visas on which he and his family had entered Australia in August 1987. He said they had sought an extension of the original visas in the hope that that the situation in Fiji would return to normal. He was aware that the visitor visa prohibited employment in Australia and said he did not work in breach of that condition. He was given permission to work when he first applied for refugee status on 29 October 1987. He was interviewed by a Sri Lankan woman, who told him he could work and that this would be confirmed by telephone. Mr Choy could not recall when he was notified of this confirmation by telephone.
Mr Choy was referred to a letter dated 16 May 1988 (S16) informing him that his application for resident status had been rejected. Mr Choy said he did not recall receiving this letter, nor the attached assessment report which also recommended that Mr Choy's application for permission to engage in employment be refused. Mr Choy was also asked about his application for permission to work dated 29 October 1987 (S26). He said he had not been working at that time, although he had received some training at the Plaza Hotel. However, he thought his wife might have been working part-time at the Kings Cross Laundry and Linen Supply. Mr Choy was referred to an enquiry which he made on 11 March 1998 concerning his application for permanent residence (S18). Mr Choy acknowledged that the form states "we are not working". He said he wanted to get written notification of permission to work because at that stage he only had verbal approval.
Mr Choy said that if his wife's visa application is refused, it would be very difficult for him to work in Fiji because of discrimination against Fijian Indians. He said their house in Lotaka has been attacked three times. All their neighbours are native Fijians. His mother has passed away and her land has been taken by native Fijians. His friends have moved to other countries. Mr Choy has no other income in Fiji, his wife and children are unemployed and they rely on financial support from him to survive. He sends them regular remittances.
Elizabeth Nirmalawati Choy
Mrs Choy affirmed her statement of 28 August 2001 (A4). She acknowledged that she arrived in Australia on 22 August 1987 and was granted a one month visitor visa including a condition that she would not work. On 17 September 1987, she applied for an extension of her visitor visa which was granted until 22 December 1987, also with a prohibition on working. She agreed that on application for the visitor visa, she made a declaration "that I have not, and will not engage in either paid or unpaid employment in Australia", and "I will depart Australia at the expiry of my authorised stay and will not seek to settle in Australia". Mrs Choy said she and her family did travel to Canberra for a holiday early on during their stay in Australia.
Mrs Choy confirmed that she and her family had fled Fiji after her husband had been detained by the Fijian Army after the military coup. The only visa they could obtain to come to Australia was a visitor visa. Mrs Choy acknowledged that she started work at the Kings Cross Laundry and Linen Supply on 13 October 1987 in breach of the condition in her visa that she would not work. She was asked whether she had been working in Fiji immediately before coming to Australia, but said she could not remember (S25). Mrs Choy said a few months after she arrived in Australia in 1987, she started a second part-time job at the Kings Cross Private Hotel for a few hours a week. It was there that she met Vimol Robinson. When Mrs Choy applied for permission to work in Australia on 29 October 1987 (S26), she was told by the Departmental Officer that she could start looking for work and she would be formally notified of permission later. Mrs Choy said she was not, however, subsequently given written permission to work.
Mrs Choy said that she separated from Mr Choy sometime in 1990 and, when she met Mr Naikar, they were living separately. Her application to migrate to Australia sponsored by Mr Naikar was made with the assistance of Hardy's Migration Consultants. She recalled that Mr Hardy had filled out the form and she had just signed. She could not remember the declaration at the end of the form by which she declared that she did not enter into a de facto relationship in order to become eligible to stay permanently in Australia. She acknowledged that she and Mr Naikar were not "living together". He was, however, coming and going from her house and having meals there. He did this two or three times a week for some months. Mrs Choy apologised for having lied about her relationship with Mr Naikar and making the application. She agreed it was based on untrue facts. The photographs of her and her children with Mr Naikar and a copy of a joint bank account were submitted with her application on the advice of Mr Hardy.
When Mrs Choy received the Department's letter dated 7 July 1992 (S5) requesting various additional declarations, including a statutory declaration from her sponsor confirming his continuing support for her application, she went to Mr Naikar's house in Arncliffe and asked him to sign a statutory declaration that they were living together. He refused, because he was already married. Because she was desperate, she therefore asked a Filipino friend to sign the purported declaration in Mr Naikar's name (S6).
Mrs Choy was arrested on 16 October 1992 and detained at Villawood detention centre. She was taken before a magistrate who ordered her detention for up to seven days in order for enquiries to be made. Mrs Choy could not remember the interview with Departmental Officers on 19 October 1992. She only remembers that a lawyer attended to bail her out. However, while she was at the detention centre, she did complete an application for refugee status with the assistance of Hardy's Migration Consultants.
Mrs Choy was asked about the statement she made on 27 October 1992 (T26) and, in particular, about the $25,000 which she said Mr Naikar suggested she should give him from her poker machine winnings, so that he could obtain a forged Australian citizenship certificate for her. Mrs Choy said she told her husband about this before she was arrested and detained.
Mrs Choy said when she left Australia on 15 November 1992, she did so voluntarily and she co-operated with the Australian immigration authorities. When she was detained by Departmental officers on 16 October 1992, she told one of the officers that she wanted to return to Fiji. The officer told her to go to the Department's office in Bankstown and make the necessary arrangements when she was released from detention. She did so, reporting to the Department every three days. Mrs Choy was asked about a letter dated 16 October 1992 (T19) requiring that she must arrange to depart from Australia. Mrs Choy said she did not remember this letter. She denied that she was deported from Australia. She said she went to the airport without being accompanied by any Departmental officers, having paid her own airfare back to Fiji. Mrs Choy was asked about an undertaking she gave on her release from detention on 22 October 1992 (T23). In this undertaking, she said she would depart Australia, even though she had a refugee application pending at that time being handled by Mr Hardy.

Mrs Choy was referred to her spouse migration application lodged on 13 April 1999 (T36). She was asked about her answers to Question 70, which asked whether she had ever "been excluded from or asked to leave any country (including Australia)?". She said she ticked "No" to this question because it had been her decision to voluntarily leave Australia, of which she informed the Department. Mrs Choy was also referred to her application for a visitor visa lodged on 28 August 2000 (R1). She said that her daughter had completed this form for her and agreed that she had made a mistake in answering question E3, which asked whether she had ever breached any visa conditions.
Pinkie Poonam Choy (A7)
Ms Choy confirmed that she is now 21 years of age and has been unemployed since leaving school. She has been unable to find work in Fiji and is reliant upon her father for financial support. In 1998, she worked for her mother's business for a couple of weeks, helping out, but was not paid for this. Ms Choy has completed a computer course and has applied, unsuccessfully, to the University of the South Pacific. She may re-apply for admission in the next academic year.
Vickie Ravim Choy (A5)
Ms Choy, who is 23 years of age, said she lives with her mother. She is unemployed and is financially supported by her father. In the past, she has helped her mother out at the real estate agency, but was not paid for this work. Ms Choy has not undertaken any TAFE courses. She said she has not seen a psychologist and does not suffer from a mental condition.
Micky Shiva Choy (A6)
Mr Choy, who is 19 years of age, said he is unemployed and lives with his mother. He is financially supported by his father. He left school last year and has been unsuccessful in finding a job because of his lack of qualifications. He has applied to the Fiji Institute of Technology to study automotive engineering. Mr Choy said he had not consulted a psychologist and does not suffer from a mental condition.
David Whitehead (T40)
Mr Whitehead said he had commenced employment with the Department in February 1993 and has worked in a number of policy areas. He commenced his posting to Suva on 25 February 1999.
In the statement of reasons for his decision refusing Mrs Choy a visa (T2), Mr Whitehead said Ms Choy left Australia on 15 November 1992 "under a supervised departure arrangement". Mr Whitehead explained this meant that Mrs Choy had been released from the detention centre on the basis that she would leave Australia. Mr Whitehead confirmed he had interviewed Mrs Choy at the Australian High Commission in Suva on 29 February 2000 and that he made his handwritten notes on the interview (T40) during the course of the interview. Mr Whitehead said it was clear that Mrs Choy did not want to discuss her 1990 application for permanent residence. He understood Mrs Choy to be saying that her relationship with Mr Naikar was purely for the purpose of helping her out in relation to regularising her status in Australia.
After Mr Whitehead asked Mrs Choy whether she had been deported from Australia, to which she answered "No", he then asked her whether she had been told to leave and, again she answered "No". He asked whether the Department had advised that she would have to leave, and she answered "No" once again. Similarly, Mr Whitehead had noted that in Mrs Choy's application for a visitor visa for Australia lodged on 28 August 2000 (R1), she also ticked "No" to question E3, which included a question asking whether she had been in Australia and not complied with visa conditions. Mr Whitehead said his view was that Mrs Choy is continuing to mislead the Department in terms of the information she is providing. He pointed out that between 15,000 and 20,000 applications for visas to visit Australia are lodged every year in Fiji and, therefore, the Department relies heavily on the honesty of the applicants in completing the applications forms. In cross-examination, Mr Whitehead was asked about the undertaking which Mrs Choy signed on her release from detention on 22 October 1992 (T23). He agreed that the undertaking does not say that she was asked to leave the country. The additional condition of release states that Mrs Choy will depart Australia with her children if her application [for a protection visa] is rejected.
Mr Whitehead agreed that he had made his decision dated 7 December 2000 on the basis that Mr Choy was a Fiji national, although, in fact, he had become an Australian citizen on 16 November 1999. By becoming an Australian citizen, Mr Choy lost his Fiji citizenship. Mr Whitehead agreed that had he known this, it might have affected the complexion of his decision. Mr Whitehead was also asked the basis on which Mr Choy was allowed to remain in Australia. Mr Whitehead said, having now looked at the Department's case record for Mr Choy, it appears Mr Choy had been granted the refugee status following a "Grant of Resident Status" reconsideration. Mr Whitehead acknowledged that, at the time of his decision, he was not aware of this, and had he known that Mr Choy had been granted refugee status, he would have considered why Mrs Choy had not been included in that application.
In relation to the character test, Mr Whitehead said he had regard to Direction No. 17, and considered whether there were any the counterveiling factors. He did not regard the effect of the coups in 1987 and 2000 as being a relevant factor that had any bearing on his consideration of the character test.
Mr Whitehead said he had no knowledge of the application for a change of status visa and permission to work, lodged by Mrs Choy on 29 October 1987. He agreed that the case record for Mrs Choy provided by the Department's Canberra office was probably incomplete and did not contain all the relevant information. Mr Whitehead acknowledged that he did not know whether Mrs Choy overstayed or not. He said that when making his decision, he did have regard to the fact that his refusal of a visa to Mrs Choy would keep spouses in a genuine relationship apart and would be distressing for both parties

SUBMISSIONS
the applicant

Mr Prasad, for the Applicant, said there was no satisfactory evidence that Mrs Choy had overstayed her visa. She entered Australia legally on a visitor visa which was extended prior to the expiry of that visa, and she made an application for a change of status visa which was acknowledged by the Department on 9 October 1987 (A4, Annexure A). This application meant that Mrs Choy and her family were lawfully in Australia until a determination was made on that application. Mr Prasad noted that Mrs Choy's application to remain permanently in Australia, lodged on 30 October 1990, had not been determined at the time that she was detained on 16 October 1992, and it was only when she withdrew that application on that date that her right to stay in Australia came to an end. However, while in detention, Mrs Choy lodged an application for a protection visa. Thus, Mr Prasad contended that for the whole period that Mrs Choy was in Australia, she was here lawfully: initially, as a result her visitor visa and later because one application or another was always pending.
Mr Prasad said Mrs Choy was not deported from Australia although the letter dated 16 October 1992 (T19) required her to arrange to depart from Australia. This letter was superseded by her application for refugee status, following which she gave an undertaking to leave Australia if her application was rejected (T23). Thus, Mr Prasad submitted that Mrs Choy did not give incorrect answers or misleading information in relation to her being asked to leave Australia.
With regard to Mrs Choy's relationship with Mr Naikar, Mr Prasad noted that in her application lodged on 29 October 1990 (T9), she did not state that Mr Naikar was her de facto partner. Rather, it was Mr Naikar who stated this in that part of the application form completed by the nominator. Thus, Mr Whitehead's statement in his decision that Mrs Choy had lodged an application claiming to be in a de facto relationship was not true. Mr Prasad noted that in Mr Naikar's subsequent statements, dated 20 August 1992 (T13) and 26 October 1992 (T24), he continued to refer to a de facto relationship, which in the earlier letter he said ended in early March 1992, and in the later letter he said never existed, although acknowledging that he and Mrs Choy did have a relationship. Mr Prasad said Mrs Choy's only misconduct was when she procured and submitted the statutory declaration dated 20 August 1992 (S6), purportedly made by Mr Naikar, which she admits is a bogus document. Mr Prasad noted that the Migration Agent, Mr Hardy, had also witnessed the bogus document purportedly signed by Mr Naikar (S6).
Mrs Choy concedes this is a serious matter for which she has apologised and expressed her regret. This was an isolated incident due to the desperate circumstances in which she perceived herself to be. Otherwise, her conduct has been exemplary: she has been a good mother to her three children, she has worked to support her family and is well-regarded. Mr Prasad said references filed on Mrs Choy's behalf show that her overall conduct in Fiji and during her stay in Australia has been of honesty and integrity. She had just one lapse when submitting a bogus document due to her desperation at the thought of having to return to the hostile atmosphere in Fiji. Mr Prasad said this isolated act of misconduct does not justify classing her as a person "not of good character" and requested that the Tribunal set aside the decision under review and substitute a new decision that she is of good character. With regard to the statement by Vimol Robinson, Mr Prasad said Mr and Mrs Choy's evidence on oath should be preferred to this statement of an illiterate woman. Mr Prasad also noted that Mr Naikar's evidence takes the form of an untested written statement.
Mr Prasad said that Mr Whitehead, in making his decision, had erroneously assumed that Mr Choy was a Fiji national, when he had in fact been an Australian citizen for more than a year and had, thereby, lost his Fiji citizenship.
Mr Prasad submitted that the expectations of the Australian community in these circumstances would be that an Australian citizen should not be permanently deprived of the company and consort of his wife and children, or that his wife and children be compelled to live separately in a racially hostile atmosphere in another country. He said the Australian community believes in a "fair go" and expects the immigration laws to be administered fairly and humanely. He noted that Mrs Choy and the three children are all currently unemployed and being financially supported by Mr Choy from Australia.
Mr Prasad noted that Mr Choy was given refugee status in 1994. He said that under the principle of family unity recognised under the Refugee Convention, if the head of a family meets the criteria for recognition as a refugee, that person's dependants are normally granted refugee status. Mr Prasad said this is something that Mr Whitehead should have taken into account when exercising his discretion.
The Respondent
Mr Chami, for the Respondent, refuted Mr Prasad's contention that Mrs Choy's submission of the bogus document was just a one-off incident. He said her claim for permanent residence based on her relationship with Mr Naikar could not have been Mr Naikar's idea because he was already a permanent resident and had nothing to gain. Mr Chami noted that when she needed a statutory declaration from Mr Naikar confirming that he still supported her application for permanent residence based on their relationship, she went to his house to ask him to sign the declaration, but he refused. According to Mr Naikar, she told him that she would "put him behind bars for signing the earlier migration papers if he did not sign this one" (T 24). When this did not work for Mrs Choy, she got a Filipino friend to sign a false declaration which she submitted purporting it to have been made by Mr Naikar. He also noted that although Mrs Choy stated she won $25,000.00 in a poker machine in 1989 (A 4), she did not disclose this in the record of interview when she was in detention on 19 October 1992 (T 21).
Mr Chami noted that in her application for permanent residence dated 29 October 1990, Mrs Choy had in any event signed the declaration that she "did not marry or enter a de facto/common-law relationship to become eligible for permanent stay in Australia" and, that all information supplied on the information form was correct in every detail (T9, p54). Mr Chami noted Mrs Choy's statement of 27 October 1992 (T26) in which she acknowledged that she had asked Mr Naikar "if he can help me out he said "yes", to lodge an application in de facto relationship" (sic). Mr Chami said it was clear that Mrs Choy had initiated the application.
Mr Chami said there are other examples of false information provided by Mrs Choy. In her recent application for a visitor visa dated 28 August 2000 (R1), she stated she had never breached visa conditions. In her application for migration dated 13 April 1999 (T36), she answered "No" to the question had she been "asked to leave any country (including Australia)?" Mr Chami said it was clear from the letter dated 16 October 1992 (T19), that the Department had asked Mrs Choy to depart Australia. The possibility of her being deported was referred to in a notice provided to her on 16 October 1992 (T17), and was implicit in the Notice issued by a magistrate authorising her detention, also dated 16 October 1992 (T20). In a record of interview dated 19 October 1992 (T21, p102), Mrs Choy acknowledged that the question of the exercise of the Minister's power to order her deportation had been referred to the Minister. Mr Chami submitted that Mrs Choy knew she had been asked to leave Australia. Also, her passport was held as a condition of her release and only returned to her on 13 November 1992 prior to her departure on 15 November 1992 (T27). Mr Chami contended that her departure was a monitored departure: in other words, checks would be made to ensure that she had left the country as promised.
Mr Chami noted that, in 1990, both Mr and Mrs Choy applied separately for permanent residence on the basis of other relationships. Mr Chami submitted that they both entered into contrived relationships with the applications being handled by Mr Hardy. Mr Chami noted discrepancies between Mr Choy's evidence and that contained in Vimol Robinson's statement (S11), in which she stated she had never lived with Mr Choy. Mr Chami contended there was an elaborate scheme to enable both Mr and Mrs Choy to remain in Australia. He noted that Vimol Robinson had lodged a statutory declaration for Mrs Choy declaring the genuiness of Mrs Choy's relationship with Mr Naikar. Mrs Choy had also submitted photographs of herself with Mr Naikar in order to substantiate that relationship.
Mr Chami said Mrs Choy had started working illegally soon after her arrival in Australia in 1987 and then stated she was not working when seeking permission to work on 29 October 1987 (S27).
With regard to Mr Prasad's contention that because Mr Choy was granted refugee status, special consideration should be given to enabling him to maintain the unity of his family, Mr Chami noted that Mr Choy did not include his wife and children in his refugee application because he and his wife were separated at that time and they did not formally marry until 18 January 1999. He said the application under consideration in this matter was a spouse application and not an application for refugee status.
With regard to the exercise of the discretion under Direction No. 21, Mr Chami noted that Mrs Choy had lied and made misleading statements on a number of occasions. Such misconduct should be regarded seriously and people in the community should be aware of the need to be truthful. Mr Chami also noted that a warrant had been issued for the arrest of Vimol Robinson based on her having entered into a contrived marriage with Mr Choy. That warrant has not been satisfied (S14 and S15).
Finally, with regard to the statements submitted in evidence, Mr Chami noted that the three statements of Mr and Mrs Choy's children (A5, A6 and A7), mirrored one another, each claiming to be suffering from depression. In evidence, two of the three children, said, however, that they had never consulted a doctor about being depressed and agreed that they did not have a mental condition. Mr Chami said that they two older children had also not revealed previously that they had "helped out" their mother in her real estate business before this closed. Mr Chami noted that he had been unable to cross-examine Dr Sippe (A8). Mr Chami noted that if Mr Choy was indeed depressed, this had not affected his ability to work, nor to return to Fiji on approximately ten occasions in recent years.
FINDINGS
Mr and Mrs Choy and their children arrived in Australia on 22 August 1987. From 13 October 1987, Mrs Choy worked at the Kings Cross Laundry and Linen Supply (S2) in breach of the condition in her visitor visa that she would not work. However, on 29 October 1987, she applied for permission to work, although stating on that application that she was "looking for a job" and not revealing that she was already working. She, thereby, gave false information to the Department. Nevertheless, from that time until she departed Australia, Mrs Choy's working appears to have been covered by one or other of a number of applications for residence. She made an application for change of status on 29 October 1987 (A4, Annexure A); she made an application for permanent residence on the basis of her de facto relationship with Mr Naikar on 30 October 1990 (T9); and an application for refugee status on or about 19 October 1990 (T21). The Tribunal finds that as a result these ongoing applications, Mrs Choy was not unlawfully in Australia at any time.
The Tribunal finds that Mrs Choy's application for permanent residence based on her de facto relationship with Mr Naikar sought to mislead the Department. As she later acknowledged, she did not have have a de facto relationship with Mr Naikar. When asked by letter dated 7 July 1992 (S5) to provide a statutory declaration from her nominator, Mr Naikar, Mrs Choy supplied a bogus declaration purporting to be made by Mr Naikar but, in fact, signed by a Filipino friend of hers. Mrs Choy acknowledges that this was a bogus document.
The Tribunal finds that Mr and Mrs Choy and their children came to Australia following the military coup in Fiji in 1987 following which there was significant discrimination against Fijian Indians. The Tribunal finds that Mrs Choy had a genuine fear of persecution in Fiji and came to Australia seeking to secure a safe home for her family. The Tribunal accepts that she worked, initially unlawfully, in order to provide financial support for her family. The Tribunal also finds that her application for permanent residence in October 1990 was motivated by her desire to remain in Australia and avoid returning to Fiji. The Tribunal also notes the second military coup in Fiji in 2000 and the ongoing discrimination against Fijian Indians, including after the recent parliamentary elections (A1, Annexure L).
The Tribunal finds that Mrs Choy perceives she was not asked to leave Australia in October 1992 after her detention, but that this was something she agreed to do voluntarily should her application for refugee status be rejected. She perceives that when she departed Australia for Fiji on 15 November 1992, she did so of her own volition, having purchased her air ticket. Her perception was not in fact correct: the file documentation indicates she was asked to leave Australia and her departure was a "supervised departure" in that the Department checked to ensure she did leave the country as she had promised.

In the light of Mrs Choy's perception of the above events, the Tribunal finds that she did not intend to mislead the Department when, in her application for migration lodged on 13 April 1999 (T36), she answered "No" to Question 70, which asked whether she had ever been "excluded from or asked to leave any country (including Australia)?" The Tribunal notes that her answer to that question is consistent with the answers that she gave to questions put to her by David Whitehead, the Senior Migration Officer who interviewed her at the Australian High Commission in Suva on 29 February 2000 (T40). The Tribunal also accepts Mrs Choy's explanation that it was her daughter who completed her application for a visitor visa, lodged on 28 August 2000 (R1), and that in answering Question E3, she did not intentionally seek to mislead the Department by answering "No" to a question which asked whether she had every been deported or asked to leave, or had ever been in Australia and breached visa conditions. Nevertheless, Mrs Choy must ultimately be responsible for whether the information in that application is correct.
It appears that Mr Choy's application for refugee status was finally accepted in 1994, at a time when he was separated from his wife. He later became a permanent resident on 30 September 1998 and an Australian citizen on 16 November 1999. The Tribunal notes that under s 14(1) of the Fijian Constitution (A1, Annexure B), Mr Choy forfeited his Fijian citizenship on acquiring Australian citizenship. However, pursuant to s 12(6) of the Constitution, he would be able to apply for citizenship by registration if he renounced his Australian citizenship. The Tribunal notes that Mr Choy has been employed by the Boulevard Hotel in Sydney as the Chief Steward since 22 March 1994 (A1, Annexure G). After Mrs Choy returned to Fiji, she operated a real estate business until this was closed in 2000, following the second military coup. Since that time, Mrs Choy and her three children have all been unemployed and are financially dependent upon Mr Choy who has supported them with money sent from Australia.
There is no dispute that the marital relationship between Mr and Mrs Choy is a genuine one. The Tribunal notes that Mr Choy has visited Fiji on approximately ten occasions over the past few years in order to visit his family. Mrs Choy left Australia almost nine years ago. The Tribunal accepts Mr Choy's evidence that he is depressed at the physical separation from his family but does not want to return to Fiji because of the on-going discrimination against Fijian Indians.
APPLICATION OF THE LAW
The Respondent contends that Mrs Choy, by reason of her 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 s501(6)(c) of the Act. The Respondent contends that Mrs Choy worked unlawfully in Australia, made false and misleading statements, and submitted an application for permanent residence in October 1990 based on a contrived relationship, and later sought to support that relationship by submitting a bogus document.
By contrast, the Applicant, although acknowledging that Mrs Choy made false statements in relation to her 1990 application for permanent residence and submitted a bogus document in order to support that application, contends, nevertheless, that Mrs Choy is of good character and that her misconduct in the period 1990 to 1992, was motivated by her fear of returning to Fiji.
The application of the "character test" in s 501(6)(c) is by reference firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at 324, the Full Federal Court said
The concept of "good character" in s501 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 for entry's character in the sense of his or her enduring 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry.
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
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 highest 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 must also have regard to Part 1 of Direction No. 21 as a guide to the application of the "character test". Paragraph 1.9 of Part 1 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the particular case, where those matters would in the absence of any countervailing factors, constitute a failure to pass the "character test". Of relevance in the present case is paragraph 1.9(b) which directs the decision-maker to consider:
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 or false or misleading declaration.
The Tribunal has found that Mrs Choy worked unlawfully for a short period in October 1987 and submitted an application for permanent residence based on a contrived relationship. The Tribunal notes that this application appears to have been made with the knowing assistance of Hardy's Migration Agents. Mrs Choy made false and misleading statements in that application and supported the application with a bogus declaration purportedly made by Mr Naikar in August 1992. However, in the Tribunal's opinion, there were countervailing factors, in that Mrs Choy and her family left Fiji after the military coup in 1987 believing they would be subject to persecution. The Tribunal notes Mr Choy was subsequently granted refugee status in 1994. The Tribunal has found Mrs Choy had a genuine fear of persecution because of her Indian descent and that her fear was the motivation behind her misconduct.
As to the other misleading statements upon which the Respondent relies, the Tribunal has found that Mrs Choy did not consider that she was asked to leave the country: her perception is that she left voluntarily. She therefore answered questions in visa applications forms in 1999 and 2000 accordingly. The only other false and misleading statement for which Mrs Choy is responsible is that in her application for a visitor visa in August 2000 when she stated she had not been in breach of any visa conditions. The Tribunal accepts her explanation that this was an oversight on her part even though she must accept responsibility for it. Mrs Choy has apologised for her misconduct.
The Tribunal notes the references from her two employers in Sydney, Kings Cross Laundry and Linen Supply and Sydney Tower Restaurants, which attest to her good character. Two annexures to Mr Choy's statement of 8 May 2001 also support this (A1, Annexures J and K). The Tribunal also notes that it is now nine years since Mrs Choy departed Australia.
The Tribunal concludes that Mrs Choy is of good character sufficient to meet the standard described in re Goldie (supra) and re Msumba (supra). However, even if Mrs Choy were not to pass the character test, the Tribunal would exercise the discretion in s 501(1) not to refuse the grant a visa. Part 2 of Direction No. 21 states that a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out in paragraphs 2.3 to 2.16 and the other considerations are set out in paragraphs 2.17 to 2.24.
The three primary considerations to which the decision-maker should have regard are:
(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.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

Examples of what the Government views as serious offences are set out in paragraph 2.6. These include in subparagraph (c) serious crimes under the Migration Act, which in turn, include presenting false or forged documents or making false or misleading statements. The Respondent pointed to a number of decisions emphasising the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:
…the observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia…
The Tribunal's findings with regard to Mrs Choy's having made false and misleading statements and having submitted a bogus statutory declaration by Mr Naikar, are set out above. The Tribunal found some of the claims made by the Respondent are supported by the evidence while others are not, and that Mrs Choy was motivated by her genuine fear of persecution in Fiji and the need to provide financial support for her family.
Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. The Tribunal does not accept that Mrs Choy's conduct has demonstrated that future offences will be committed. It notes that nine years have passed since the principal misconduct in August 1992. With regard to general deterrence, whilst the Tribunal recognises that people should be deterred from making false or misleading statements for the purposes of obtaining visas, the fact of Mrs Choy's exclusion from Australia for a period of nine years should be sufficient deterrence.
The second primary consideration is the expectations of the Australian community. In the Tribunal's view, the risk of Mrs Choy not obeying Australian laws if she is granted a visa is negligible. The Australian community is likely to be of the view that Mrs Choy has been sufficiently punished for her misconduct and that she should be allowed to live with her husband, who is an Australian citizen, in Australia.
The third primary consideration is the best interests of the child or children of the visa applicant. However, where children are aged 18 years or more, their interests are not to be regarded as a primary consideration but rather as an other consideration, under paragraph 2.17 of the Direction. Paragraph 2.17 states that "when considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant". These other considerations may include the extent of disruption to the non-citizen's family, whether the non-citizen has a marriage relationship with an Australian citizen, and the degree of hardship caused to immediate family members.
In the present case, there is ample evidence of disruption to the Choy family by reason of Mr Choy being in Australia and Mrs Choy and the children being in Fiji. There is no dispute as to the genuineness of the marriage relationship between Mr and Mrs Choy, and the Tribunal is satisfied that there is hardship both to Mr Choy and Mrs Choy by reason of their separation. In conclusion, a balancing of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should be exercised in Mrs Choy's favour.
Thus, the decision under review should be set aside and the matter remitted to the Respondent for reconsideration with the direction that Elizabeth Nirmalawati Choy passes the character test under s 501(1) of the Act.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  2 & 3 October 2001
Date of Decision  26 November 2001
Solicitor for the Applicant         Mr N Prasad, Global Australian Immigration and Education Pty Ltd

Solicitor for the Respondent Mr Z Chami, Clayton Utz Lawyers