Dixon and Minister for Immigration and Multicultural Affairs - [2001] AATA 751

DECISION AND REASONS FOR DECISION [2001] AATA 751

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1511

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Frances Dixon
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr S P Estcourt Q.C., (Deputy President)

Date31 August 2001
PlaceSydney

Decision      The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa the subject of the application for review should not be refused under s.501 of the Migration Act 1958.
  [Sgd S P Estcourt]
  Deputy President
CATCHWORDS
Immigration - Refusal of visa on character grounds - lengthy illegal overstaying of visas -working without permission for several years - false and misleading statements in visa applications - exercise of discretion to permit visa - best interests of children - decision to refuse set aside.
Migration Act 1958 – s.501
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 (14 September 1999)
Re Narendra and Department of Immigration and Multicultural Affairs (2201) AATA 670 (26 July 2001)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

REASONS FOR DECISION

31 August 2001 Mr S P Estcourt Q.C., (Deputy President)

Frances Thora Dixon is a 32 year-old Aboriginal Australian of the Dungghutti tribe. Demesi Taebo Maleau is a Fijian of 45 years of age. These two are a deeply devoted couple. They live with each other in Wellington in New Zealand.
Latonia Navosa, aged 14, Joanna Navosa, aged 13, Isoa (Jackson) Navosa, aged 11, and Emosi Navosa, aged 8, are the four children of Frances Dixon. They regard Mr Maleau as their father. They live with their grandmother in Kempsie in New South Wales.
Ms Dixon and her children became separated two years ago when she accompanied Mr Maleau to New Zealand after he was required to leave Australia consequent upon the refusal of his application for a protection visa.
This appeal is against a further refusal by the Minister, this time, to grant Mr Maleau a spouse visa on the ground that he was not of good character within the meaning of s.501 of the Migration Act 1958 ("the Act").
Mr Maleau first came to Australia on 14 February 1989 on a single entry visitor visa permitting a stay of one month, but not permitting him to work.
He financed his return air ticket to Australia with some assistance from his parents during his long service leave from his employment in Fiji.
He says he intended to leave Australia and return to Fiji on the expiration of his visa, but it is readily apparent that about two weeks after his arrival, he allowed his cousin to find him work at a nearby factory.
He knew he wasn't allowed to work in Australia and he knew it was wrong to do so. He was motivated by a desire to earn money for his family in Fiji.
Mr Maleau did not apply for a further visa when his visitor visa expired and so his stay in Australia became illegal on 14 March 1989.
On 19 January 1990, 10 months after his arrival in Australia, Mr Maleau lodged an application for Grant of Refugee Status, which was refused on 28 April 1992.
He says that he did not know he had applied for refugee status because he simply asked his migration agent, (who charged him an exorbitant sum), to arrange for permanent residency. It is clear however that Mr Maleau signed the application and as he reads and speaks English well, he should be taken to have understood the nature of the application.
The application for refugee status contains no false or exaggerated claims. On the contrary it commenced quite naively:
"The main reason for being here is for the future of my kids. My parents are getting
old and I am the only one who supports them...".
Mr Maleau's counsel, Mr Ramrakha, described Mr Maleau as an economic refugee and that is certainly reflected in the application. Nonetheless, properly understood, the application was baseless and Mr Maleau must have understood that after it was refused.
Between March 1989, when Mr Maleau's stay in Australia became illegal and September 1992, he worked illegally as a factory cleaner, a fork lift driver and a machine operator, he paid tax and never sought government benefits, but he did not of course tell his employers that he was an unlawful non – citizen.
In March 1994 Mr Maleau met Ms Dixon and they commenced to live together two weeks after that. At that time Mr Maleau was not working and he did not tell Ms Dixon about his illegal status until about four to five months after they first met.
Ms Dixon's evidence was that she didn't ask Mr Maleau about his immigration status until after she knew they were going to continue on as a couple. She said that was about four to five months after they met. She said that before she "committed to him", she was aware that he had been declined permanent residence in Australia.
Ms Dixon, who obviously had some experience with immigration matters, as her first husband was from Fiji and was illegally in Australia when she met him in 1986, more or less took charge of Mr Maleau's attempts to stay legally in this country.
These attempts consisted of two further applications for protection visas, an appeal to the Refugee Review Tribunal, an application for ministerial intervention and a number of applications for bridging visas.
With the exception of the grant of bridging visas all those attempts were unsuccessful and all appear to have been motivated by a desire to buy time in order to find a way for Mr Maleau to be able to stay legally in Australia.
In summary, in the almost 10 years from his entry to Australia in February 1989 to his departure for New Zealand in October 1998 Mr Maleau held illegal status by means of bridging visas for less than two years.
After meeting Ms Dixon in March 1994, Mr Maleau returned to work between March 1995 and May 1996 as a car parts cleaner, and between September 1997 and September 1998, and probably beyond, as a telephone recycler.
As with his earlier work in Australia, all his employment was illegal with the exception of a period between about September 1995 and October 1996, which was covered by a bridging, visa C, which permitted work.
In addition to his illegal overstays and his illegal work, Mr Maleau made false and misleading statements to migration authorities in that, in a number of visa applications, when asked how he had supported himself, he stated he was supported by relatives, close friends or by his de facto wife.
No doubt, these lies were necessary in order to conceal the fact of his illegal employment, the consequences of which would have been all too apparent to him, having been arrested for working illegally and released on reporting conditions by the Department of Immigration on 16 September 1992.
Under s.501(1) of the Act, a visa applicant must satisfy the Minister that he or she passes the character test. Activities and conduct, which preclude an applicant from passing the test, are set forth in s.501(6). In the present case it is contended that the visa applicant fails to pass the test by reason of his "past and present general conduct".
The meaning of "good character" as used in s.501 of the Act was explained by the Full Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 (14 September 1999) Unreported at paras 5-7. There, Spender, Drummond and Mansfield JJ said:
"the concept of good character in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant 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".
This Tribunal has held on many, many occasions that illegal overstays, working illegally and making false or misleading statements to migration authorities are activities which will, in the absence of countervailing factors, and notwithstanding expressions of remorse, cause an applicant to fail the character test. A recent example is my own decision in Re Narendra and Department of Immigration and Multicultural Affairs [2001] AATA 670 (26 July 2001).
Serious offences by applicants against the Migration Act are regarded as very serious, the making of false or misleading statements, probably more so than illegal overstays or working illegally. As Deputy President Mc Mahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @155-156:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making a 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."
I am more than satisfied that Mr Maleau's past general conduct renders him not of good character for the purposes of s.501 of the Act, notwithstanding the subjective evaluation of the numerous persons who provided glowing character references on his behalf.
The exercise of the residual discretion under s.501 of the Act to grant a visa in the face of bad character is guided by Ministerial Direction No 17 and/or No 21 which requires the Tribunal to adopt a balancing process between 3 "primary considerations" and a number of "other considerations".
The three primary considerations 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 relationship between a child or children and the person under consideration, the best interests of the child or children.

A consideration of the first of the primary considerations, namely the protection of the Australian community, involves, under Direction No 17 and/or No 21, a consideration of:
(a) The seriousness and nature of the conduct.
(b) The likelihood that the conduct might be repeated; and

(c)The likelihood that the visa refusal would prevent like offences by other persons.

The Australian Government, according to Direction No 17 and/or No. 21, regards serious offences against the Migration Act as very serious. That is not surprising.
Even were it possible, (and it is not in my view), to characterise Mr Maleau's illegal overstays and illegal work in Australia as other than serious misconduct, it cannot be overlooked that in other applications for visas he made false statements to migration officials in order to allow him to stay in Australia.
Section 234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement or to furnish a document containing a false or misleading statement.
That a breach of s.234 of the Act is a serious offence is clear from the penalty provided by the section, namely 10 years imprisonment or a fine of $110,000 or both.
It is unlikely that the visa applicant would repeat the conduct given that his application is now for a permanent visa, however the remaining consideration of general deterrence is relevant. If the visa applicant is refused entry because of his breaches of this country's migration laws, others may be less minded to do so.
As to the expectations of the Australian community, it must be trite to say that the community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
The Australian community would not expect that false statements and illegal overstays and illegal work in Australia would be rewarded with the grant of a visa, after the non-citizen had been both apprehended and deported.
It is the third of the primary considerations, which in my view is decisive in this case. The best interests of the children, Latonia,J oanna, Jackson and Emosi.
I accept the uncontradicted expert evidence of Dr Jane Phillips, a very experienced psychologist, who has been, amongst other things, assisting Ms Dixon and Mr Maleau manage some of the highest levels of stress she has ever seen, that:

(a) It is appropriate and understandable that Ms Dixon should support her husband by being with him in New Zealand given that the children are well cared for by their grandmother in Australia and given Ms Dixon would not see the situation as permanent.
(b) The two boys, the only two of the four children she has observed with Mr Maleau clearly love him, regard him as their father and are very close to him.
(c)Her observations of Mr Maleau and the boys are what she would expect of a family.
(d) That Mr Maleau is a genuine, stable and honest person.

I also accept Latonia's evidence:
(a)      That she thinks about being separated from her mother every day.
(b)      That she misses both her mother and Mr Maleau greatly.
(c)       That she cries for both of them.
(d)      That she wants them to come back.
(e)      That she often doesn't go to sleep at night because she misses them both.
(f)       That missing them affects her school work.
(g)      That Emosi has said to her that he loves dad (Mr Maleau) and misses him.
(h)      That she embraces her aboriginal culture.

That she wouldn't feel comfortable living outside Australia; and

(j) That when they were all together they used to play football and go swimming and do heaps of things, but now that has all changed.

I infer that all the four children would feel exactly the same, although, not unreasonably, they did not give evidence.
I have no doubt that the four children are well-cared for, Latonia and Joanna attend Mirriwinni Gardens, an aboriginal boarding school and stay with their grandmother during school holidays. Jackson attends West Kempsie Public School and Emosi attends Greenhill School. They both live with their grandmother.
That they are well cared for however is not a complete answer. In my view their best interests lie with them being with their mother and with their "dad", together, as a family, as they were from March 1994 until October 1999. Five years is a very long time in the life of a young child.
It is true, as before, when Mr Maleau and Ms Dixon moved from Kempsie to Sydney so Mr Maleau could find work, that only Jackson would immediately go to live with the couple in Sydney, but the only reason for leaving the girls in boarding school is that they are doing well there and they like it there, and the only reason for leaving Emosi at Greenhill School and living with his grandmother is that he suffers from Neurofibromatosis and is a shy little boy who is learning, but slowly, at Greenhill.
Emosi is not the only child with a genetic disorder. Latonia was born with congenital heart disease and has had four cardiac operations and will eventually need further surgery.
The emotional needs of these four children, particularly Latonia and Emosi, will be best met by Mr Maleau and Ms Dixon returning to Australia to live, thus enabling them to be together as a family as their needs dictate. Whilst it is possible, I do not find that it is likely, that Ms Dixon would leave Mr Maleau and return to Australia if this appeal were unsuccessful. Even were she to do so, that is only half a solution to the childrens' problem.
Alternatively, even were it economically possible, the best interests of the children would not be served by them being up rooted to live in New Zealand or Fiji. They ought to be able to grow up in the country of their birth, with their culture, their mum and "dad", their extended family and their friends and schoolmates.
In my judgment, the best interests of the children in this case outweigh the other primary considerations. Mr Maleau's conduct although serious is confined to bad character in an immigration sense, and neither that conduct nor the usual expectations of the Australian community in cases of immigration malpractice supervene in the unusual circumstances of this case.
For these reasons the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa, the subject of the application for review, should not be refused under s.501 of the Act.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt Q.C., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  22 August 2001
Date of Decision  31 August 2001
Counsel for the Applicant        Mrs A Cotter Moros and Mr K Ramrakha
Solicitor for the Applicant         Ramrakha Jenkins
Counsel for the Respondent    Mr N Cureton
Solicitor for the Respondent    Blake Dawson Waldron