D'Mellow and Minister for Immigration and Multicultural and Indig Enous Affairs
[2004] AATA 120
•10 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 120
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1056
GENERAL ADMINISTRATIVE DIVISION ) Re ELBERT D'MELLOW Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date10 February 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr J Block, Deputy President
CATCHWORDS
Overstay of visitor’s visa - illegal work in breach of visa’s conditions over an extended period -- untruthful evidence before the Tribunal—Direction 21 and exercise of the discretion – decision affirmed
Migration Act 1958
Foreign Acquisitions and Takeovers Act 1975
Migration Direction 21
REASONS FOR DECISION
10 February 2004 Mr J Block, Deputy President PART A – INTRODUCTION AND GENERAL
1. The decision under review is the refusal dated 23 May 2003 by a delegate of the Minister of Immigration and Multicultural Affairs (as he then was) of an application for a Skilled Australian Sponsored (Subclass 138) Visa applied for by Mr Errol D’Mello (“the Visa Applicant”); that application was sponsored by Mr Elbert D’Mellow who is the Visa Applicant’s brother and who is referred to as “the Applicant”. (I was advised that there is no reason in particular for the slight difference in spelling of the surnames of the Applicant and the Visa Applicant respectively).
2. The Applicant was represented by Mr Michael Jones, solicitor, while the Respondent was represented by Mr Ishan Muthalib of Blake Dawson Waldron, solicitors. The Tribunal had before it the T-documents and also supplementary T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.. Because the supplementary T-documents were not numbered sequentially after the T-documents, references preceded by “T” refer to numbered pages in the T‑documents while references preceded by “S” refer to numbered pages in the supplementary T-documents.
3. The Tribunal also had before it two exhibits as follows:-
· Exhibit R1 is a letter by the Department of Immigration and Ethnic Affairs (“the Department”) addressed to the Visa Applicant at 8 Dawkins Place Ambarvale NSW (the residence of the Applicant and referred to in these reasons as the “residence”) dated 14 May 1996 together with an accompanying note endorsed “Return to Sender”.
· Exhibit R2 is the Visa Applicant’s application for a bridging visa dated 3 July 2000.
4. The Respondent’s Statement of Facts and Contentions dated 5 November 2003 contains the usual helpful chronological summary of relevant events; that summary, contained in clause 3 of that statement is set out in these reasons as follows:
“Date
Event
Reference
14/03/66
The visa applicant was born in India.
Tp36
--/02/93-/08/94
The visa applicant lived and worked in Saudi Arabia
Tp42
28 /06/ 94
The visa applicant is granted a subclass 673 Close Family Visitor (Short Stay) visa valid for 1 month's stay.
Tp96
23/07/94
The visa applicant arrived in Australia and is able to lawfully remain in Australia until 23 August 1994.
Tp95
11/08/94
The visa applicant seeks an extension of his Visitor visa and is granted a subclass 670 Tourist (Short Stay) visa and is able to lawfully remain in Australia until 30 September 1994.
Tp95
30/09/94
The visa applicant deliberately fails to depart Australia at the expiration of his Tourist visa.
01/10/94 3/08/00
The period the visa applicant remained an unlawful non-citizen.
14/06/96
Departmental officers visit the visa applicant's last known residential address and leave a letter informing him to contact the department to discuss his immigration status. The visa applicant does not contact the department.
Sp1
26/07/00
The visa applicant is taken into immigration detention after found working illegally.
04/08/00
The visa applicant is granted a Bridging visa E (BVE) and is able to lawfully remain until 12 August 2000.
Tp94
11/08/00
The visa applicant seeks an extension of his BVE and is granted an extension to 18 August 2000 with work rights.
Tp94
18/08/00
The visa applicant departs Australia for India.
Tp93
24/04/01
The visa applicant lodges a sub class 138 Skilled –Australian Sponsored visa application.
Tp31 –89
20/05/02
Notice of Intention to Refuse under s501 of the Act sent to the visa applicant.
Tp98 –99
23/05/03
The visa application is refused on character grounds by a delegate.
Tp7-12
07/07/03
An Application for review is lodged with the Tribunal.
Tp3-6”
5. As a matter of balance the contents of the Applicant’s Statement of Facts and Contentions, dated 3 November 2003, under the head of Facts (Clauses 1-5 inclusive only) is included as follows:
“Facts
1.The visa applicant is an Indian citizen who came to Australia to visit relatives on 23 July 1994. He was initially granted entry for one month, with an extension until 30 September 1994. He did not leave Australia on the expiry of that extension.
2.The visa applicant was detained as an unlawful non-citizen on 27 July 2000. He admitted to having worked illegally during his stay in Australia and claimed that he had been in a de facto relationship with an Australian citizen. He was granted a BVE on the basis of having made acceptable arrangements to depart, and he left Australia voluntarily on 18 August 2000. The BVE granted to Mr D'Mello permitted him to work until his departure.
3.On 24 April 2001 Mr D'Mello applied for a visa to migrate to Australia under the skilled migration program, supported by a sponsorship from his brother, the present review applicant. The application was lodged at the Australian Consulate General in Mumbai and was subsequently transferred to the Australian Embassy in Bangkok.
4.On or about 23 May 2003 a delegate of the respondent Minister decided to refuse the visa pursuant to s 501(1) of the Migration Act 1958 on the grounds that Mr D'Mello did not pass the "character test" in subsection (6) of that section. The stated reason for failing the test was subparagraph 501(6)(c)(ii).
5.Pursuant to s 494C(4)(b) of the Act, Mr D'Mello is taken to have received notice of the decision 21 days after its date, being 13 June 2003. The present application for review was lodged on 30 June 2003. The review applicant is the visa applicant's brother and was his sponsor in relation to the visa application.”
6. The Tribunal was furnished with an outline of evidence to be given by or on behalf of the Applicant dated 21 December 2003; that document reads in full as follows:
“Outline of evidence from witnesses
The following is an outline of the evidence that will be given at the hearing by the applicant and his witnesses:
Errol D'Mello (visa applicant)
1.Mr D'Mello will rely substantially on the statement made to the Australian Consulate-General in Mumbai, which is to be found at T 106-112.
2.The visa applicant admits his wrongdoing in overstaying his visa by a substantial period of time, and working without permission. He understands the gravity of the contraventions in that they undermine the effectiveness of Australia's immigration program as well as community confidence in the proper administration of the law.
3.He is aware that he has no adequate excuse for his actions. He can only seek to explain what he did on the basis that he became caught up in a series of events which each made his position worse, to the point where he became psychologically incapable of confronting the situation.
4.He did make attempts to get appropriate advice to regularise his status, but unfortunately they did not result in any application being lodged.
5.He will also give evidence that, even if not legally entitled to do so, he was able to obtain gainful and worthwhile employment in Australia which was of considerable benefit to his employers. He will also attest to his otherwise good record of compliance with Australian laws and the lesson he has learned regarding the need to confront his responsibilities in all areas of his life.
6.Mr D'Mello will confirm that he is sorry for what he has done and has no intention of disregarding the law in future.
Elbert D'Mellow (review applicant)
7.Mr D'Mellow arrived in Australia after his brother. He came as a student with his wife and their first child. The family, now with four children and one more to come, are now permanent residents.
8.He did not have a clear idea of his brother's immigration status at that time. However, he did see mail coming to him from an immigration adviser and was of the belief that something was being done.
9.Mr D'Mellow will give evidence of his brother's character in general and of the effect on him of an earlier unhappy relationship in India which he believes may have made it difficult for him to contemplate returning to that country at the time of his arrival in Australia.
Mona D'Mellow
10.Mrs D'Mellow is the wife of the review applicant. She will give evidence of the early period of her and her family's life in Australia and the assistance provided by the visa applicant, as well as the closeness of the relationship between her children and their uncle.
Joann Hutson
11.Ms Hutson was involved in a long-term de facto relationship with the visa applicant during the latter part of his stay in Australia and will confirm his evidence concerning his state of mind and attempts to find a way out of his situation.
John Palumbo
12. Mr Palumbo is a close friend of the visa applicant who will give evidence concerning his character in general.”
7. It may be noted that in the event the Applicant did not call Mrs Mona D’Mellow, who is his wife.
8. In respect of the Visa Applicant reference is made to his statement (T106 – T112) which is headed “Down Under Six Years”; a part of that statement, commencing with T106 and ending at the end of the first paragraph on T109, is included in these reasons as follows:-
“I was residing in the Kingdom of Saudi Arabia on a work permit (residency Visa), employed permanently with Saudi Consolidated Engineering Company as a Computer Programmer. As my annual leave was due I had decided to visit my friends living in the South East Asian region (Singapore and Philippines) and since I was travelling close to Australia, I thought of visiting my Aunt and Cousins living in Australia, as I had not seen them for over Twenty years. I thus obtained tourists visa for Singapore, Philippines and Australia.
I arrived in Australia on 23rd July 1994 as the first leg of my tour and had planned to remain in Australia for a maximum of 15 to 20 days before departing for the Philippines and Singapore. On arrival in Australia my Aunt and Cousins received me at the airport. During my first week in Australia (Sydney) my cousins and I travelled extensively throughout Sydney and visited most of the famous tourist spots in and around Sydney. During my second week I travelled up North of Australia heading towards Queensland (Brisbane) as I had a few cousins living there. While travelling around Australia I had made a lot of friends in Sydney and Queensland.
When in Queensland I lived with my cousins and their families. During my stay in Queensland I met a girl (Mel), we got along very well and soon became good friends and started seeing one another on a regular basis. While in Queensland my Visitors visa was nearing expiry and I quickly contacted my company in Saudi Arabia and requested them to extend my vacation for another Thirty days and they granted me the same, hence I decide to extend my Australian Visitors Visa. On August 11 1994 I visited the Australian Consulate in Brisbane and requested for an extension on my visitors visa, during my conversation with the officer in charge, the officer asked me if I had a girlfriend in Australia, I very honestly replied to the officer then, that I was seeing someone for the past ten days but was not sure of the relationship at that moment and that I had planned to travel to Melbourne, Adelaide and Perth, I was then granted an extension to remain in Australia until 30 September 1994..
Mel and myself then started travelling on our own and our relationship started to mature. A few weeks later we then travelled back to Sydney, during our extensive travel around Australia we found it difficult carrying foreign currency and at time got stranded for cash (local currency) as we were unable to change foreign currency at odd hours of the day. Hence we decided that I should have a bank account as it would make it easier for us to get cash as and when required. We approached the Bank (Commonwealth Bank of Australia) and requested them to open an account for me, the staff at the counter then requested me to produce some identification and my Tax File Number and I then produced my passport with a valid Australian visitors visa, I also informed them that I did not have a Tax File Number at the moment, I was then requested to give it to them as soon as I was able to obtain a Tax File Number and was thus given a bank account. I then approached the Australian Tax Office at Penrith and requested for a Tax File Number for Bank purposes, I was then asked to fill in a form and had to present my original Passport with a valid Visa and my Birth Certificate which I then reproduced and it was checked and verified, I was then advised that I would receive the Tax File Number in the mail which I later received and then passed on to the Bank. Thus the Bank Account made it convenient for us to travel around Australia.
As days went by my vacation was nearing its end and I was preparing to leave Australia and return to my Job in Saudi Arabia. I also informed my friend in Singapore and the Philippines that I would not be able to visit them as I had to return to my job immediately as my vacation could not be extended further.
It was a sad moment in our life, as we had to leave each other after a few months, as I had to return back to Saudi Arabia. A few days before my departure Mel requested me to stay back and I was unable to resist the offer, but I insisted that I had to go back or else I would lose my job in Saudi Arabia. My mates then approached me and asked me how I could do such a thing and just leave like that, I felt the guilt and there was a strong feeling for Mel too. I was then confused and did not know what decision to take, whether to leave or just stay back and take the risk of losing my job in Saudi Arabia. I was then encouraged by my mates to stay back and that nothing would happen if I didn’t leave. In a confused state of mind and I stayed back and missed my flight to return to Saudi Arabia.
Our relationship matured and resulted in a serious relationship and we decided to get married and have our own family. I was then under the pressure of getting employed in order to get married and start a family, hence I went looking for a job. Some of my mates informed me that there were a few part time jobs available at Big W in Miranda and that I should approach the manager. A friend and I approached the manager and made inquiries about the jobs available, I was then interviewed and during the interview I informed the manager that I was an IT professional and knew nothing about the Retail Industry but was willing to do any kind of a job available. At the end of the interview I was offered a job and was requested to start the next day. The next day when I showed up for work, I was informed that there was a job available and it required someone with the knowledge of Computers but it would be available only after a few days and that I would be kept in mind for the job. I started work at Big W and for the first few days I was asked to work with one of the experienced staff that would explain to me the nature of the Retail Industry. After a week at Big W the manager the keeping in mind that I was an IT Professional offered me the job of a Price Auditor, as it required someone with IT skills. After six months at the job I was offered a permanent position as a Price Auditor as I had been excellent at my work and had achieved astounding results and was told that such results had never been achieved before at that Store and the percentage of accuracy was nearly perfect (99 % accuracy). I was unable to take up the permanent offer as my travel expenses to and from the place of work was very high and at the end of the week the wages were not sufficient enough to pay our bills and other expenses as the pay scale was very low. This put a tremendous strain on our relationship and I found it hard to continue with the job. I then approached the Manager and explained to him my situation and requested him to give me some more hours of work as the wages was not sufficient or else I would not be able to continue for a longer period, he was unable to do so at that time but asked me to hang in there and that he would try and get me transferred to the IT department.
Our relationship then started to slide downward and finally we mutually agreed that we should go our separate ways as it would not work out and that I could not keep working and living illegally in Australia and hence we decided to go our own ways, Mel then returned to Queensland where her parents lived and I decided that I would leave Australia for good, after a few days Mel requested me to stay and that she was still in Love with me and that we could work things out. I told her that I had decided to leave and that I would try and get my job back in Saudi Arabia and that it would be difficult for us to keep the relationship alive, as we would be far apart. Our relationship thus ended and I gave up my job. I once again decided to leave Australia but was not in a position to do so as I was unable to come up with the funds required to leave/travel out of Australia.
A few months later I met up with an old mate, whom I had not met for a very long time and we decided to go out and have a few drinks, during our conversation he asked me about Mel and was surprised to hear that we had separated. While we were at the club he met a few of his girl friends and introduced me to them. After a few days my mate called me and told me that one of the girls (Karen) we met the other day, liked me and was interested in getting to know me and would like to go out with me, I quickly told him that I was not interested at that moment but he insisted that we at least meet again and we did so, as Karen and myself got to know each other very well we also became very good friends, I told Karen that I was not legally in Australia and that I was not interested in a relationship and explained to her how it all happened and that I had decided to leave Australia.”
PART B – THE EVIDENCE OF THE APPLICANT
9. The Applicant said that he originally came to Australia as a visitor in 1989. However cross-examination revealed that in fact he came to Australia as a tourist in April 1990 and departed in April 1991. He was able to stay in Australia for a year as a tourist in consequence of certain visa applications made at the time; the nature of those applications were not detailed and are not relevant.
10. After returning to India and after working in, inter alia, Saudi Arabia, the Applicant returned to Australia, accompanied by his wife and daughter, as a student, in 1995. Again cross-examination revealed some slight inaccuracy as regards dates; the Applicant and his family in fact arrived in Australia in February 1996. The Applicant now has four children with another to be born in the near future. He is an Australian citizen.
11. The Applicant qualified in India first as an accountant and then obtained training in computer technology, in particular in the United States of America, with IBM. He applied in fact for permanent residence in Australia as a skilled migrant; that application was denied on the basis that certain of his qualifications were not recognised. It was for that reason that he returned to Australia as a student in order to obtain further training, and took a computer course at the University of Western Sydney. His evidence was that he completed a three year course in two and a half years, and now works in Australia in the computer industry.
12. The Applicant is the eldest of five siblings, and being four boys and one girl. The Visa Applicant is the next eldest and there is an 18 month age gap between them. Of the other siblings reference was made to Eustace, another brother, who although permanently resident in Australia spends much of his time, as an employee of United Emirate Airlines, outside Australia, and in particular in Dubai.
13. The Applicant referred to a close relationship between him and the Visa Applicant. In fact the evidence revealed that the relationship is not nearly as close as was suggested. The Visa Applicant was secretive as to a number of important aspects concerning himself. The relationship between them can, on the evidence before me, best be described as one in which the Applicant was always available to help the Visa Applicant in case of need, but where the Visa Applicant did not disclose, and the Applicant did not intrude, on aspects of the Visa Applicant’s personal life. Communications between them when they were in different countries were rare.
14. I do not think that I need to deal in great detail with the evidence of the Applicant; it is not his character, which is in issue. It is for this reason I deal in particular with those aspects of his relationship with the Visa Applicant, which are relevant. I consider that the evidence of the Applicant was in broad terms honest. There were however aspects of it which were exaggerated and perhaps inaccurate, and which will be referred to in more detail later in these reasons.
15. In 1992 the Applicant was working in the area of computer technology in Saudi Arabia. He received a call from his home in India to the effect that the Visa Applicant had broken down and was suicidal, because his girlfriend (“Michelle”) of seven years had, at the insistence of her family married someone else who was better placed financially. (Subsequent evidence indicated that in fact Michelle married that someone else in 1991). The Applicant considered whether he should fly to India to help the Visa Applicant, but in the result this did not occur. The Applicant procured a visa and also employment for the Visa Applicant in Saudi Arabia with Saudi Consolidated Engineering Company (“the Saudi Company”) where he was himself employed in a senior position. The Visa Applicant arrived in Saudi Arabia, for this purpose, in 1992 or 1993. In fact, the evidence indicated that the latter year was correct and the Visa Applicant started work with the Saudi Company in February 1993.
16. In July 1994, the Visa Applicant went to Australia on holiday. In his evidence in chief, the Applicant at first referred to a holiday period of one month and which could be extended on the basis that any extended period would be without pay. Various holiday destinations had been considered and including Singapore, the Philippines and Australia. The Visa Applicant was doing well in Saudi Arabia and had recently, prior to his departure on holiday, received a very substantial pay rise from the Saudi Company.
17. The Visa Applicant did not return to Saudi Arabia. The Applicant was not concerned and made no attempt to find out why this was so. He did not receive any communications from his brother which did not surprise him; telephone conversations between them were very rare indeed; he said that he disliked using the telephone. The Applicant’s family has extensive family connections in Australia. A sister of the Applicant’s father married an Australian (Richard Booth) and settled in Australia; their nine children have families and so that there is a large network of cousins scattered throughout Australia, and who would be available to look after the Visa Applicant.
18. It became clear that the Applicant did not regard his stay in Saudi Arabia as being of a permanent nature; he described living conditions as difficult; in particular travel was restricted; he referred also to the manner in which living conditions for women in Saudi Arabia are restricted. He said that he held a senior position in the Saudi Company and so that his brother’s defection would not reflect to his discredit. He had little doubt that he could, if so desired, assist his brother by procuring his return to Saudi Arabia and to the Saudi Company even though the Visa Applicant’s visa for Saudi Arabia had expired. In particular in this context the Applicant in lengthy and detailed evidence made no mention whatever of any request by his brother to him to obtain an extension of the original holiday period.
19. The Applicant said, as I have indicated, that he came to Australia in 1995 although in fact he arrived in February 1996; throughout this case all witnesses except Mr Palumbo had difficulties with dates. When the Applicant arrived in Australia in 1996, the Visa Applicant was also still in Australia. The Visa Applicant said that he had a girlfriend; mention was made in this context of Brisbane. The Visa Applicant said that he had not “closed out” his job in Saudi Arabia but that he was working on an Australian visa.
20. The reference to a girlfriend in Brisbane may have been a slip of the tongue and might have been intended as a reference to Jo-ann Hutson (“Jo-ann”) who became the Visa Applicant’s girlfriend.
21. The Applicant thought that when he arrived in Australia the Visa Applicant was working and probably as an independent consultant. He referred also to the Visa Applicant’s employment by Big W and subsequently and in October 1996 with Go-Lo.
22. After coming to Australia in 1996 the Applicant commenced his studies and obtained accommodation in Sydney. He said that the Visa Applicant moved in with him about three months later. His exact words were that “he then sort of moved in with us”.. That description was in its way accurate. The evidence revealed that the Visa Applicant moved around in peripatetic fashion sometimes staying with one cousin and sometimes with another. It became clear that the Visa Applicant treated the Applicant’s home as being in the nature of a hotel to which he could come and go as he pleased. He kept his clothes there and the Applicant’s residence was his designated residential address but he stayed there when it suited him to do so. (The Visa Applicant’s own evidence was to the effect that he spent about one half of his time at the Applicant’s home).
23. The Applicant said that post addressed to the Visa Applicant would be accumulated for him. He said in particular that no member of his family would have returned a communication from the Department. (Exhibit R1).
24. The Applicant was sure that when he arrived in Australia in February 1996, the Visa Applicant was working but he did not know where. He inferred that the Visa Applicant was working because he was always away from the residence (when he was staying there) throughout each day.
25. In cross-examination the Applicant said that the Visa Applicant’s holiday period in Australia from the outset was one and a half months. (In this regard it differed slightly from the evidence first given). He was asked whether after one and a half months had expired he heard from the Visa Applicant. His answer was that there were no conversations of any kind between him and the Visa Applicant after the Visa Applicant left for Australia and before he, the Applicant arrived in Australia.
26. The Applicant said that he had discussed Australia with the Visa Applicant. Indeed he had so liked Australia during his earlier visit as a tourist that he had been, as he put it, an unofficial ambassador in Saudi Arabia “selling Australia” to various persons. He said also that there were so many cousins in Australia that going to Australia or going to India had become similar. Moreover there was communication between the Australian and Indian branches of the family in particular because of visits by the Australian branch to India.
27. The Applicant repeated that after his brother left for Australia in July 1994 for one and a half months leave he did not hear from him but that he was not concerned. He did not think that the Visa Applicant ever finally resigned from his job with the Saudi Company; he simply did not return. He said also that there was no discussion in this regard with his parents in India.
28. The Applicant was asked when he first knew that his brother was an illegal non-resident of Australia. He said that he knew only when the Visa Applicant was detained in 2000. He had suspicions previously but did not know in “black and white”. He said that “I was in a touchy situation”.
29. Further cross-examination of the Applicant has led me to conclude that the relationship between the two brothers (the Applicant and the Visa Applicant) was close only in the sense that the Applicant would help the Visa Applicant when help was needed but not in any other way. He was asked whether he expected the Tribunal to believe that he was not interested in or concerned as to the Visa Applicant’s visa status and he answered “concern for status – concern for life itself and life is more important. We have to help refugees – truth is more important. This was my brother – I had to help him”.
30. I do not think I need to go into detail as to the alleged bond between the Visa Applicant and the Applicant’s children. (A contention to this effect is contained in the Applicant’s Statement of Facts and Contentions). The Applicant said that the Visa Applicant stayed with the children on occasions to enable him and his wife to go shopping, and that he sometimes bought clothes for them, and moreover that he sometimes bought food. However the evidence revealed that the Visa Applicant’s assistance was slight; he may have sat with the children on infrequent occasions, and it would appear that he occasionally contributed $100 for food but he paid no rent. The assistance came in the main in the reverse direction. The Applicant provided board and lodging on demand and received no rent; when the Visa Applicant was detained, the Applicant provided a bond of $20,000 to procure the Visa Applicant’s release from Villawood. The Applicant also, and except to the extent of $1,000, paid the Visa Applicant’s outstanding tax obligations, after the Visa Applicant finally left Australia.
31. The Applicant said that as Catholics his family and he did not approve of couples living together before marriage. Jo-ann in her evidence said that her own family felt much the same way. However the Visa Applicant and Jo-ann shared a bedroom at the Applicant’s home and at her parents’ home (where she, a divorcee with two daughters, resides), on alternative weekends.
32. I have said that the Applicant’s evidence was acceptable and honest except only in certain respects and where it was exaggerated. The statement as to his brother’s breakdown and suicidal feelings cannot be accepted at face value. After Michelle’s defection in India in 1991, the Visa Applicant worked for two employers (in succession) in India for nearly two years before going to Saudi Arabia in February 1993. The Applicant’s evidence as to his brother’s bond with his children (and the fact that the children ask where their uncle is) also cannot be accepted at face value. The Visa Applicant’s help to the Applicant and his family was clearly minimal. It is relevant that the Visa Applicant during his lengthy evidence never once mentioned the Applicant’s children or any bond of any nature with the Applicant and his family or any member of it. As to the Applicant’s knowledge of the Visa Applicant’s status, I think it likely that he knew rather more than he cared to reveal, and if his knowledge was confined to suspicion, that suspicion was rather stronger than was indicated.
33. The Applicant was asked if he could explain why the Visa Applicant should have behaved in so odd a fashion, in that he lived and worked illegally in Australia for a number of years, and when it was open for him to apply for residence in Australia properly and legally, and perhaps in the manner in which the Applicant had done, and bearing in mind in this context that the Visa Applicant is an educated man and with skills not dissimilar from those of the Applicant. (It would seem that computer skills continue to be in demand) He could not advance any rational explanation and indeed the Visa Applicant himself when asked much the same question answered that he was unstable. As to what is meant by the term “unstable” is unclear, more particularly as there was no medical evidence of any kind before me.
34. The Applicant spoke also of Eustace another brother who, as I have indicated, is also a resident of Australia. Subsequent evidence revealed that Eustace, as an employee of United Emirate Airlines, is able to procure cheap air tickets and indeed did so for the Visa Applicant when he finally departed Australia after his detention by the Department.
PART C – THE VISA APPLICANT – THE EVIDENCE IN CHIEF
35. The Visa Applicant currently lives in Bombay although he gave evidence by telephone link to Dubai where he is currently working on an assignment.
36. The Visa Applicant was asked why he overstayed his tourist visa. He said that he extended his tourist visa because he liked Australia and had become attached to a girl, Melody Tocano (“Melody”) whom he had met in Brisbane. When his extended visitors’ visa was running out, Melody asked him to stay and “I fell for it and stayed illegally”.
37. After arriving in Australia, the Visa Applicant (who had come to Australia with US$7,000 in cash and travellers cheques) travelled around Australia staying with various cousins. He met Melody in Brisbane some two weeks after his arrival. In fact when extending his tourist visa, he was asked, so he said he had a girlfriend. His original tourist visa was issued for one month and it was extended for one month. He said that he was then ready to leave and go back to Saudi Arabia but Melody and his friends said “stay and you don’t need an extension. And I stayed. It just happened”.
38. The relationship with Melody lasted until March 1995. It broke up at that time and Melody (who had moved to Sydney from Queensland) returned to Queensland. He said that he did nothing to regularise his position. He said also “I tried to get legal advice but I didn’t have the finance to get anything under way”.
39. The Visa Applicant’s evidence was lengthy and it was at times in my view untruthful. It was in particular untruthful as regards money. He had come to Australia, as I have indicated, with US$7,000 in cash and travellers cheques and being approximately one half in each. He stayed with cousins, or after his brother’s arrival, with his brother. He said that he started work in September 1995 with Big W, a year after his visa expired, because he had no money and needed to obtain money to buy an air ticket in order to depart Australia. He said that this was so because his original return air ticket had expired. The cost of an air ticket would have been about A$1500. He said that he asked his cousins for money but none of them would assist him. He did not ask the Applicant or his parents for financial assistance. And he did not ask Eustace who could have obtained a cheap air ticket for him and indeed did so when he eventually departed Australia in 2000.
40. Subsequent evidence revealed that after the Visa Applicant met Jo-ann, they bought vacant land in southern NSW (“the land”) at a cost of either $62,000 or $65,000. (The evidence as to the precise purchase price varied). The land was bought in his and Jo-ann’s name. They borrowed $25,000 from Commonwealth Bank of Australia (“CBA”) on mortgage. He said that he and Jo-ann contributed the remaining $40,000. Jo-ann in her evidence said that the Visa Applicant provided the whole cash amount needed (inclusive of duty and costs) and in addition paid all of the mortgage instalments which fell due thereafter, and until he left Australia. Jo-ann said also that when the Visa Applicant departed Australia he left $10,000 with her to enable her to continue payments under the mortgage. The Visa Applicant’s evidence was that he worked part-time for Big W and, after he left Big W, full-time (and in a responsible position) for Go-Lo. He said that at the time he was detained he was earning $40,000 per annum before tax at Go-Lo although he had previously earned considerably less. (Such an amount appears to be low for a responsible employee about whom Go- Lo was concerned to such an extent that it supported his application after his detention for a bridging visa to enable him to complete outstanding work for Go-Lo). There was no documentary evidence before me as to his earnings from Go-Lo or any other company. In addition, and according to Jo-ann, it was the Visa Applicant who paid the fees of David Coots and Grant Williams of Immigration Centre at Strathfield when they were consulted in late 1999 or early 2000.
41. The Visa Applicant’s evidence that he had to stay in Australia (illegally) and work (illegally) to purchase an air ticket and without which he could not leave Australia was clearly untruthful. There was no evidence from any of his cousins as to his approaching them for assistance. The Applicant’s evidence demonstrated that he was always willing to help. Eustace could have provided a ticket. And although according to his evidence, he only started work in September 1995, he had always apparently stayed with one relation or another. But his evidence was that “I had to get a job because I had no money”.
42. The Visa Applicant said that he could not go back to India because “memories haunted me”.. This reference was to Michelle who married someone else in 1991. However, and in Australia alone, an intimate relationship with Melody was followed by an intimate relationship with Jo-ann and someone called Karen figures somehow in between those relationships. The Visa Applicant used this reason as a basis for not returning to India on various occasions. It must be remembered that the Visa Applicant is a skilled and educated man in a country which needs and can use his skills and that if Bombay (big as it is) was in any way embarrassing for him (which is doubtful) there were numerous other possible cities. The real reason emerged later in his evidence; salary levels are much lower in India. His evidence as to the 1991 break-up with Michelle and its disastrous effect on him cannot be accepted as truthful. His evidence indicates that in fact he was motivated by economic considerations to stay in Australia. Saudi Arabia was apparently perceived as a place where substantial and lightly-taxed earnings can be derived but not as a place of permanent residence.
43. The Visa Applicant matriculated in India in 1984, he obtained a B Comm. degree in 1989 from the University of New Delhi at its Bombay campus and thereafter obtained computing and other qualifications from the Aptech Institute which is affiliated to the National Computing Centre in the United Kingdom, and from Siddharth College which is affiliated to the University of Bombay. He first worked for Stardust Distributors in Bombay as a computer programmer (for 18 months) and then for the Popular Institute of Computer and Business Management (also in Bombay) for 13 months and ending in February 1993 when he departed for Saudi Arabia.
44. The Visa Applicant said that he first started working at Go-Lo at a salary, of $400 per week before tax, but that his salary subsequently increased to about $800 per week (again before tax). He said that it was difficult for him to leave Go-Lo at the time of his detention because he was busy with a complex computer programme involving all of Go-Lo’s 50 branches; that project had, according to his evidence, commenced in 1999.
45. On the first day of a two day hearing the Visa Applicant said that his relationship with Jo-ann, which commenced at the beginning of 1997, is still close “but not that close and we communicate on a regular basis”. On the second day his evidence as to his relationship with Jo-ann was markedly different.
46. When asked for an explanation as to why he simply remained in Australia illegally and worked illegally for so extended a period, his answer was that “I was in love with girls and I didn’t think about immigration status”. When asked whether things would have continued in the same way if he had not been detained, his answer was “I had plans – I was on the verge – I had not bought the ticket. I tried to borrow the money from cousins and they said that they can’t give me money”.. When asked about Jo-ann he said, “I do feel for her but I don’t feel committed to her”.
47. The Applicant had given evidence that after the Visa Applicant left Australia in 2000, he personally had to pay an Australian tax bill in respect of tax owing by the Visa Applicant amounting to thousands of dollars, and where the Visa Applicant had left $1000 only with him for this purpose. The Visa Applicant said that this arose from the fact that he had filled in the tax forms incorrectly; (it would appear although there was no clear evidence to this effect, that this may have arisen from the fact that the rates of tax for non-residents and residents differ and in particular because non-residents receive no tax-free threshold). There was no documentary evidence before me as to what exactly he earned and when. As previously indicated, his end salary of $40,000 per annum before tax with Go- Lo does not appear to be apposite for a person in a position as responsible as that described. However on a salary of $40,000, it might perhaps be anticipated that PAYE deductions would have been such that the difference would not have been substantial.
48. As to the land, the Visa Applicant said that the price paid was $65,000; (Jo-ann said that the price was $62,000 although her statutory declaration at T113 refers to a price of $65000). Nevertheless with costs, and including costs of the mortgage, the cash amount needed was probably at least $40,000. He said “so we paid $40,000 and legal costs – this was money Jo-ann and I had – we had put it aside in the bank”. He said also that Jo-ann is currently selling her half of the land to the Applicant for $10,000.
PART D – THE EVIDENCE OF THE VISA APPLICANT UNDER CROSS-EXAMINATION
49. The Visa Applicant said that he went to Saudi Arabia in February 1993 to have a better life and to forget the breakdown of his relationship with Michelle by which he was badly affected. (I have previously indicated that the relationship with Michelle ended in 1991).
50. He said that he had heard much about Australia and decided to visit in June 1994. He said that he wanted to see his cousins whom he had not seen for some time. He in fact planned to go first to Bombay and then to Singapore, the Philippines and then go on to Australia. However and after three or four days in Bombay he decided to bypass Singapore and the Philippines and went straight to Australia.
51. The Visa Applicant admitted that he applied for a tourist visa and that he knew that it prohibited him from working in Australia. At a subsequent point in his cross-examination, the Visa Applicant admitted that he had previously (and unsuccessfully) applied for tourist visas to Australia on a “couple of occasions”. I am prepared to accept that “couple” in this context probably means two. The Visa Applicant’s evidence was that he applied initially only for one month’s leave from the Saudi Company. However and subsequently and while in Australia, he telephoned his brother the Applicant in Saudi Arabia to ask him to obtain an extension of one month on the basis that half would be paid and half unpaid. He said that he phoned his brother, the Applicant, and at the Applicant’s request sent him a fax. In the light of the Applicant’s evidence, this evidence cannot be accepted. It will be remembered that the Applicant said that there was no such communication and the alleged fax was not before the Tribunal.
52. At the end of September 1994 and as previously indicated Melody and friends told him not to leave. He said, “I didn’t depart because I was falling for Melody and Melody and our common friends told me not to leave. I fell for it. The girl sweet-talked me into it. I can't explain it – its something which just happened at the time. I don’t know how to explain it, I don’t know why I did it. I was unstable”. He said at a later stage of his evidence that nobody forced him to stay but that he was influenced by his friends.
53. When asked whether he contacted his brother he said that he did but that his brother was not regular about responding. He said that he did not tell either the Applicant or his parents that he would not be returning to Saudi Arabia.
54. The Visa Applicant said that apart from Go-Lo and Big W he also did some work without pay for Viscount Caravans.
55. The Visa Applicant was then referred to his lengthy statement entitled “Down Under Six Years” which appears at T106-T112 and a part of which has been quoted earlier in these reasons. He said that it contained a number of “mistakes” which arose from the fact that it was prepared in a hurry. (He did not explain why it had to be prepared at speed). In particular he said that it placed the Melody relationship in the wrong time period. Although Melody figures largely in that statement as someone to whom marriage was a real possibility, she was mentioned in oral evidence in the main only in relation to his staying on in Australia after his extended visitor’s visa expired. In his oral evidence before the Tribunal her referred in this context only to the possibility of marriage with Jo-ann.
56. While with Melody he decided to open a bank account. He said that he did so to facilitate cash drawings while in Australia (he did not explain why travellers cheques did not suffice). At the insistence of the bank he applied for a TFN. Both applications were made at a point in time before his tourist visa had expired. It is possible that in applying for a TFN he described himself as a resident but his TFN application was not before the Tribunal.
57. It was then put to him that he stayed in Australia even after the relationship with Melody ended in March 1995 and suggested that if he were serious about leaving Australia at that time he could have done so. He said “It’s not that easy to find employment and I had spent all the money”.. That statement cannot be accepted at its face value. He started work at Go-Lo at a low after tax salary, which eventually rose to $40000 before tax. Earnings of the nature specified by him would not account for the substantial amounts of cash which he was able to accumulate; I refer in this context to $40000 for the land, $10000 left with Jo-ann for mortgage payments, and $1000 left with his brother for outstanding tax (leaving aside fees paid to Mr. Williams). CBA granted a mortgage on vacant land; it is not likely that it would have done so if it were not satisfied with the Visa Applicant’s financial credentials. And even if (however unlikely this is) there was a time when he could not afford an air ticket out of Australia, that time must have been brief indeed because the cash accumulations to which I have referred were much more than ample for this purpose. He departed Australia in 2000 only after he had been detained and had no option. His evidence as to financial matters was in my view largely fictitious; it is likely on the balance of probabilities that he always had the means and/or the family resources necessary to enable him to depart Australia. He did not do so because he did not want to do so. His earnings in Australia were higher than they would have been in India and there were of course various romantic relationships.
58. The Visa Applicant referred to other “mistakes” in his statement, and in particular as to when the break-up with Melody took place; he said in addition that the last paragraph on page 2 is incorrect, in that there was no decision to marry but merely discussion of marriage. Karen was not mentioned during his oral evidence, although she is referred to in the written statement.
59. The Visa Applicant’s evidence was (as I have indicated) that he spent roughly half of his time in the Applicant’s home.
PART E – THE EVIDENCE OF MR JOHN PALUMBO
60. On the second day of the hearing the evidence of Mr Palumbo was interposed, and similarly the evidence of Jo-ann was interposed. This was done in particular because 10am Sydney time is equivalent to 3am Dubai time and so that it was thought preferable to delay the resumption of the Visa Applicant’s cross-examination until a later hour.
61. Mr Palumbo gave a character reference for the Visa Applicant and which appears at T125. It is silent as to the Visa Applicant’s conduct giving rise to this case.
62. Mr Palumbo said that he did not know that the Visa Applicant was not legally resident in Australia and that he worked illegally in Australia until he heard of the Visa Applicant’s detention. When asked what he thought might have lead to the detention he answered, “I didn’t know his immigration status. I know now. I understand that after five years of being in this country he was supposed to apply to be a citizen or resident but didn’t do so”.
63. In cross-examination, Mr Palumbo admitted that his contact with the Visa Applicant had been limited and that he did not know of the Visa Applicant’s immigration misconduct but that it would not change his attitude that the Visa Applicant is a person of good character. I should here note that the evidence of Mr Palumbo is referred to in brief terms as a matter of completeness, and bearing in mind that in his closing submissions Mr Jones agreed that the Visa Applicant did not pass the character test. (At the commencement of the hearing Mr Jones had indicated that a contention that the Visa Applicant did pass the character test would not be strongly pressed). Mr Palumbo’s relationship with the Visa Applicant was not on his evidence that of a close friend.
PART F – THE EVIDENCE OF JO-ANN HUTSON (“JO-ANN”)
64. Jo-ann is a divorcee who has two daughters now aged 14 and 10. She met the Visa Applicant when they were both working for Go-Lo in either 1997 or 1998. She thought that they started going out together about a month after the Visa Applicant joined Go-Lo and which would have occurred in the middle of 1998.
65. She said that she did not live with the Visa Applicant but that they spent the weekends together and alternatively at the Applicant’s home and the home of her parents. She said that they did not live together because they wanted to get married having decided to do so in 1999; (as to when they decided to marry is unclear because the dates furnished by Jo-ann and the Visa Applicant differed markedly).
66. Jo-ann said that the land was bought for $62,000 and that they borrowed $25,000 from CBA, and that the Visa Applicant conducted all relevant negotiations with CBA. She said that the Visa Applicant paid all of the money needed because he had “a fair bit saved”.. She said that they had a joint bank account but that it was the Visa Applicant who paid the mortgage instalments. Jo-ann said also that she and the Visa Applicant intended to build a house on the land; (the Visa Applicant said that the land was bought conditionally on an undertaking to build a house on it but that he was probably mistaken).
67. It seems clear enough that the Visa Applicant did not tell the vendor of the property or any solicitor acting for him that as a non-resident he was not entitled to buy residential property in Australia and in doing so breached the Foreign Acquisitions and the Takeovers Act 1975 (“FATA”).
68. Jo-ann said that she assumed that the Visa Applicant was in Australia legally. He did not tell her that he was illegally in Australia until they became engaged. This came as something of a shock to her. Equally she did not know that he was not entitled to work in Australia. She said that she was upset that he had not told her earlier. He told her that he didn’t like Saudi Arabia and came here and “just stayed”.
69. Jo-ann agreed that she has contracted to sell her one half of the land to the Applicant for $10,000.
70. When asked what she thought of the Visa Applicant’s behaviour, Jo-ann said, “he did not rob the bank and he didn’t murder anyone. He was trying to make a better life for himself”. Put in other words she did not view his conduct in a serious light.
71. She said that she and the Visa Applicant became engaged in late 1999 or early 2000. They went to see Grant Williams who asked them about their relationship. The Visa Applicant alone dealt with Grant Williams and paid Grant Williams his fees. She said also that although they were not engaged at present the situation would be reviewed when he returns to Australia. She said furthermore that she did not know why there was no spouse visa (or similar visa) application. She was satisfied however that they were not living together in a de facto relationship because her parents would not have approved. They did not want to get married while his immigration status was uncertain.
72. Jo-ann only became aware that the Visa Applicant would have to leave Australia when he was detained, and this caused her to become emotional. She said that at first after departing Australia he rang or emailed her daily, but this now occurred about two or three times a week. She believes that the relationship is not completely over and still has hopes for its future. She said also that her daughters need a male presence in their lives and that their grandfather (with whom they live) does not fulfil this need because he spoils them.
73. Jo-ann believes that the Visa Applicant is not currently working and that he is (unsuccessfully) looking for work. He has not told her that he has been gainfully employed ever since he left Australia. When asked whether she knew if the Visa Applicant was earning a salary in India she said “not that I know of”. She also said that she believed that he is currently in Dubai as a visitor and staying with family.
74. As regards phone calls she said that she last heard from the Visa Applicant at Christmas in 2003 and before that in May 2003, on a birthday occasion.
75. It was put to Jo-ann that T81 indicates that the Visa Applicant has been in employment since October 2000. She said that he had told her that he is still looking for work.. The date on which they met and became engaged was a matter of some uncertainty. She had said that they met in either 1997 or 1998. When asked whether she was sure she said that “I am not crash hot on dates”.. T113 is a statutory declaration by Jo-ann to the affect that they became friends in May 1997 and romantically involved in October 1997. When this was put to her, her answer was “this could be – I don’t know the exact dates”.
76. As to when they became engaged was also a matter of some uncertainty. She was sure that it occurred on the steps of the Opera House but was not sure in which year that occurred. (The Visa Applicant, when his cross-examination resumed, said that he was sure that the year was 1999 and that it occurred at the beginning of the year, on 26 January 1999, which is Australia Day in Australia and Republic Day in India.) His evidence did not accord with her evidence and which would suggest that they became engaged at a much later time.
77. Jo-ann was referred to T110 in which the Visa Applicant said that he made several attempts to tell her of his illegal status but that she thought that he was joking. She said that she did not remember exactly what had occurred. When asked about the date of her engagement she thought that it occurred in either late 1999 or early 2000.
PART G – THE CROSS-EXAMINATION OF THE VISA APPLICANT RESUMED AND CONCLUDED
78. When the Visa Applicant’s cross-examination resumed he gave entirely different evidence as to the state of his relationship with Jo-ann. He said that communications now occur once a week or once a fortnight. He agreed that he had not told Jo-ann of the fact that he had obtained employment since leaving Australia. When asked why he said simply that he had not told her and when asked why not, he said, “after I left Australia things were getting bad between us. We had our ups and downs. I didn't tell her I was working but not where. We had both gone our own ways and in any event it wouldn’t matter to her.”
79. When pressed as to the position with Jo-ann he said that “things were getting bad between us. I expected her to do more. I sent her nasty emails about following up with solicitors to the effect that she wasn’t interested. She was upset because I was saying things. I was falling apart emotionally.”
80. The Visa Applicant said also that he did not complete a fiancee visa application because he wanted to get back to Australia on his own merits. He said also that he disclosed his illegal status to her prior to the engagement and indeed that the engagement occurred, as indicated previously, on Australia Day 1999. The Visa Applicant denied that he ever received any correspondence from the Department at his brother’s home or that he returned any marked “Return to Sender” (Exhibit R1).
81. S5 (and following pages) contain the record of an interview between the Visa Applicant and the Department after his detention. The questions and answers in respect of questions 8, 17 and 18 are as follows:-
“8. Is there any reason why you cannot depart Australia?
Because I have a de-facto relationship. Joann Hutson.
…
17.Why did you remain in Australia after your visa expired or when your application was finalised?
- Because I like the place.
-I have family in Australia (cousins etc.)
-I don’t like living in India
-I have a girlfriend that way I want to stay. And we have been planning marriage.
…
18. Is there anything that you would like to tell me? Yes/No
-We wanted to buy a house before living together.
-I am employable and can get a job because of my qualifications.”
82. In Exhibit R2 the Visa Applicant’s answer to question 14 may have been more accurate; that question and answer was as follows:-
“14.Why did you not depart Australia before the expiry of your visa or after your application was refused?
I liked the country and I found work easily.”
83. As to the involvement of Mr Williams the Visa Applicant complained that he, Mr Williams took no interest in the matter. He did not know why Mr Williams called on Go-Lo then did not in fact see them. Mr Howard came into the matter after he was detained because he was not satisfied with Mr. Williams’ service.
84. The Visa Applicant was asked why the Applicant had thought that he had a job when he, the Applicant first came to Australia. His answer was “he must have thought that because I was away a lot and he might have thought that I was at work”.
85. T79 is a certificate by the Saudi Company, which states that the Visa Applicant was employed from February 1993 to July 1994. It was put to the Visa Applicant that he left for Australia intending from the outset to remain in Australia and that his brother, the Applicant had not heard from him. His answer was that the Applicant probably did not remember.
86. The Visa Applicant was unclear as to why there should have been a bill for further tax; however the evidence of the Applicant had been that the Visa Applicant left $1,000 with him for this purpose.
PART H – THE CHARACTER TEST AND THE EVIDENCE
87. As I have indicated Mr Jones conceded (in my view correctly) that the Visa Applicant did not pass the character test. The evidence of Mr Palumbo was thus of little relevance and in any event and, given his lack of knowledge of the Visa Applicant’s conduct, of little assistance. The Visa Applicant does not appear to have behaved truthfully towards a number of persons and including the Applicant, Jo-ann, Big W, Go- Lo, the vendor of the land and CBA. Had he told Big W and Go- Lo that he was illegally in Australia he would not have been employed by either of them. Had he disclosed his illegal status in Australia he could not have purchased the land since to do so breached FATA. However I do not intend to regard the breach of FATA in a serious light even though the relevant authority might take a different view. The Visa Applicant tended to blame others for his predicament; this applied in particular in respect of Melody at the time when the tourist visa expired; that evidence did not reflect well on him.
88. I find on the balance of probabilities that on the evidence before me, the Visa Applicant came to Australia in order to stay in Australia and his evidence to the contrary was not truthful. Australia was very much in the thoughts of the Visa Applicant and his family. So much is clear from the evidence of the Applicant, the fact that Eustace is a resident of Australia, and the fact that the Visa Applicant had previously (and on more than one occasion) sought unsuccessfully to obtain a tourist visa. In my view, the Applicant, whose evidence was, as I have said, by and large truthful would surely have remembered a telephone call from the Visa Applicant asking him to seek an extension of his leave from the Saudi Company even though this occurred some considerable time ago. T79 makes it clear that his employment ended in July 1994. Mr Jones urged me to take the view that a leave period thereafter might have been omitted by the Saudi Company. I accept that this is possible but do not think that this makes any significant difference. The Visa Applicant is an educated and a skilled man. His attempt to blame Melody and friends for the fact that he stayed in Australia was as unworthy as it was untruthful. A grown and educated man does not so easily do what he knows to be wrong. That evidence reflects on his character. His evidence as to financial matters was, as I have indicated, unacceptable.
89. The Tribunal does not know why the Visa Applicant behaved as he did. The Visa Applicant said that he was unstable; the Tribunal does not know what this means and as set out earlier, there was no medical evidence before me. His attempts to blame much of his predicament on the break up with Michelle cannot be accepted. Had the Visa Applicant dealt with the question of Australian residence as the Applicant did he would by now be an Australian citizen. Why then did he act so dishonestly and in his own worst interests? I do not know. It is to be noted that the Visa Applicant is quite remarkably circumspect about confidences to anyone about anything. The Visa Applicant seems to have told nobody about his status and “nobody” in this context includes his brother, the Applicant. As to Jo-ann, he could not even tell her that he has been working in India and Dubai since his departure from Australia. Mr Jones asked me to find that the Visa Applicant “dug himself a hole” and then “could not find his way out”.. Even if this is so it does not appear to me to be relevant. But in the end result, it is not for me to analyse motives, a person who behaves so dishonestly cannot expect to pass the character test, and Mr Jones concession in this regard was correctly made.
PART I – DIRECTION No.21 – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 (“THE DIRECTION”)
90. In this Part I, references to numbered clauses refer to numbered clauses in the Direction.
91. The primary considerations pursuant to clause 2.3 of the Direction are as follows:-
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
92. Clause 2.3 must be read with clause 2.5 which provides:-
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk or recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
93. The evidence establishes that the Visa Applicant treated the Australian immigration system as if it did not apply to him. He behaved in all respects as if he were a resident. This lead to a breach of FATA and perhaps (although there is no clear evidence to this effect), to breaches of tax legislation. It would seem that the Visa Applicant behaved in this fashion in order to obtain residence in Australia and if granted this right would not in my view be likely to re-offend. That said, and although I take the view that recidivism is unlikely, it cannot in the light of his dishonest conduct over a long period be discounted entirely.
94. For much the same reason I would be inclined to the view that the Visa Applicant does not constitute a threat to Australia. Once granted a visa he would, as I have said, have no need to re-offend. But it is again necessary for me to note however that his conduct has been so persistently dishonest over so extended a period that one cannot be certain.
95. Australian expectations in this case would be such that he should not be granted a visa. Mr Jones argued in this context that there might be differing views. This may be so but the majority view would in my view be that behaviour such as this should not be rewarded by the grant of a visa.
96. Mr Jones argued that behaviour such as this is so irrational that there is no relevant deterrent effect. I do not think that such a contention is sound. However I propose to confine my remarks to a statement that to reward behaviour such as this with a visa would be regarded in my view with (justified) surprise and would send entirely the wrong message. The Visa Applicant stayed and worked illegally in Australia for a lengthy period and then departed only after he was forced to do so. Having left Australia, because he was compelled to do so he within a very short period submitted the visa application, which is relevant in this matter.
97. I do not agree with Mr Muthalib’s contention that clause 2.6(c) is, because it is expressed as inclusive, sufficiently wide to encompass breaches of section 235 of the Migration Act 1958 (“the Act”) as well as breaches of section 234 of the Act. To accept that contention would be to disregard the fact that the penalties provided for breaches of section 234 and section 235 of the Act differ significantly.
98. However there have in my view, on the balance of probabilities, been breaches of section 234 of the Act. The Visa Applicant’s statement, a part of which has been quoted earlier in these reasons, was incorrect in significant respects. Most importantly of all, his evidence before me was in important areas untruthful and untruthful evidence before this Tribunal must be regarded as serious. As I have indicated I propose to disregard the breaches of FATA and (possibly) tax legislation.
99. As to clause 2.17 there is no perceivable hardship to anyone other than the Visa Applicant himself. Mr Jones correctly accepted that hardship is “not a great issue”. Jo-ann may feel that there is hardship to her, but the Visa Applicant says that their relationship is over, and on his clear evidence this appears to be so and her own hopes appear to be optimistic in the extreme. His failure to tell her that he is working and has been working ever since he left Australia must be regarded as significant in this context; if he does not trust her enough to inform her as to so significant a fact is surely indicative of the fact that this relationship has no future. There was moreover no acceptable evidence before me as to any significant bond between the Visa Applicant and the Applicant and his family or any member of it. Put in summary form, there are significant factors under the Direction against the Visa Applicant but nothing in his favour by way of counter- balance.
100. This then is a case where the circumstances are such that the exercise of the discretion in favour of the Visa Applicant would not be justified. This being so the decision under review must be affirmed.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President
Signed: A. Krilis
AssociateDate/s of Hearing 21 January 2004
Date of Decision 10 February 2004
Counsel for the Applicant
Solicitor for the Applicant Mr Michael Jones
Counsel for the Respondent
Solicitor for the Respondent Mr Ishan Muthalib
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