Dos Santos and Minister for Immigration and Multicultural and Ind Igenous Affairs

[2003] AATA 1156

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/556

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NISIA DOS SANTOS

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date19 November 2003

PlaceSydney

DecisionThe decision under review is affirmed.

[Sgd] R N J Purvis
  Deputy President

CATCHWORDS

IMMIGRATION - spouse visa - character test - Visa Applicant overstayed visitor’s visa - untrue particulars in application - application for protection visa refused – false statements in support of Refugee Review application and application to Minister – obtaining employment without permission – compounding of factors – deterrence of others who might be like minded - hardship of Review Applicant

LEGISLATION

Migration Act 1958 sections 234, 501

Ministerial Direction 21

CASE LAW

Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422

Goldie and Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321

Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Issa and Minister for immigration & Multicultural & Indigenous Affairs [2003] AATA 421

Jupp and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 458

REASONS FOR DECISION

19 November 2003            The Hon R N J Purvis Q.C., Deputy President   

the application

1. On 26 February 2003, a delegate for the Minister for Immigration, Multicultural and Indigenous Affairs (“the Respondent”) refused to grant a partner (provisional) class UF visa to Mr Elias Ferreira Dos Santos (“the Visa Applicant”). The ground upon which the refusal was based was that the Visa Applicant was not of good character within the meaning of section 501 of the Migration Act 1958 (“the Act”) and the available discretion should not be exercised in his favour.

2.      This is an application by Mrs Nisia Dos Santos (“the Review Applicant”), the wife of the Visa Applicant, seeking review by the Tribunal of the decision so made by the Respondent.

3.      In the reasons given for the refusal it was, amongst other matters, stated (T2, f12 - f17):

“…

27. Mr Dos Santos’s conduct falls within the scope of section 501(6)(c)(ii), in that he breached immigration law by:

·Making frivolous Protection Visa application to the Department.

·Working without permission.

·Remaining in Australia as an unlawful non-citizen.

·Not departing Australia after his application was finally determined.

…

34. Mr Dos Santos has committed a number of offences against the Migration Act. While the offences he has committed are perhaps on their own not of as serious a nature as those outlined above [para 2.6 Direction 21]. It is open to you to consider the nature of the offences in total, the premeditated nature of the offences and Mr Dos Santos’s deliberate action when he committed them.

35. Mr Dos Santos travelled to Australia as the holder of a visitor visa. Through his statements at interview it is evident that shortly after arrival he took significant steps to breach the conditions of his visa. By his own admission he commenced looking for work, investigating work opportunities and working conditions, shortly after his arrival and certainly prior to being granted permission to work. While he [sic] it is unclear if he actually did work while the holder of a visa subject to the no work condition, it is evident that Mr Dos Santos had little regard for the condition of his visa at this time.

36. Mr Dos Santos’s disregard for Immigration law is more significant when one considers his willingness to lodge a frivolous application for a Protection Visa for the sole purpose of providing him with permission to work and prolong his stay his stay [sic] in Australia. While he claims that he was unaware of what he had actually applied for, the fact remains that he willingly signed the documents and therefore is responsible for the statements made there in.

37…The sequence of events presented support the conclusion that the application for a Protection Visa was solely motivated by a desire to work, rather than a desire to seek protection.

38. If this is the case then it follows that this application was made solely for the purpose of prolonging his stay in Australia and consequently was not based on a genuine fear of persecution…

39. Mr Dos Santos’s breached Immigration law further by failing to depart Australia as required when his application was finally determined. Instead he choose to continue working without permission and to remain in Australia as an unlawful non-citizen.

40…Mr Dos Santos’s willingness to ignore the laws set by the government freely elected by the Australian community, to ensure that only those who should enter and remain in Australia do, is a very serious offence against the Migration Act.

41…His behaviour indicates that he considers himself outside the scope of the law of the country, that he has a general disregard for the authorities and considers that the laws and rules used by a nation to provide security and safety to all it’s community do not apply to him.

…

44. While this may be Mr Dos Santos’s state of mind in relation to these offences [his desire to remain in Australia], it suggests that if he were not to be granted a permanent visa as he now seeks to do, the risk of recidivism would be very high. In fact it would appear that the only restriction to Mr Dos Santos’s re-offending is his absence from Australia, and his current motivation to return to Australia permanently to be with his spouse.

…

47. To now grant Mr Dos Santos a visa may cause others to involve themselves in similar activities. This would pose a significant risk to the Australian community and be completely opposed to Australia’s Immigration policy…

…

57.Mr Dos Santos was in Australia for a significant period of time, in total amounting to 5 years and 2 months. It is accepted that during this period Mr Dos Santos would have developed ties to the Australian community, he met his spouse and her family, worked and may have developed other close friendships. However, the majority of Mr Dos Santos’s stay in Australia was as an unlawful non-citizen. He was at the time aware of his unlawful status and developed ties to the Australian community in the knowledge that his continued stay in Australia was to a large extent dependent on chance.

…

70. As outlined above Mr Dos Santos accepts little responsibility for his actions and in fact sees them to be insignificant. To some extend [sic] Mr Dos Santos’s statements suggest that his actions against the Migration Act were justified as they were in the first instance motivated by his desire to stay, his need to work and support himself, and finally by his desire to remain with his spouse.

71. It is submitted that any rehabilitation and recent good conduct which may have occurred is motivated by Mr Dos Santos’s desire to return to Australia, rather than any real change in his character.”

the hearing

4.      At the hearing of the application, the Review Applicant was represented by Mr Ray Turner, solicitor, senior associate with Yandell, Wright, Stell Lawyers, the Respondent by Mr Murray Allatt, solicitor with the Australian Government Solicitor.

5. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence marked T1 to T13 and S1 to S13. Documentary material was tendered on behalf of the Review Applicant as exhibits and marked accordingly, namely:

Exhibit No	Description	Date
A	Statement of Nisia Dos Santos	15 August 2003
B	Statement of Elias Ferreira Dos Santos	16 August 2003
C	Statement Fernanda Antonia Henriques	18 August 2003
D	Letter from Mr Turner to the Tribunal with attachments (statements Ari Luciano Lazzarotti, Elias Ferreira Dos Santos, Jurandi Albiro de Souza, maria Auxiliadora Carvalho de Souza, Parish Priest Pe Waldomiro Bronakowski, Jose Filipe de Freitas, Moises Yule de Oliveira; documents on Brazil “For Poorer and Poorer, “Too Rich, Too Poor”, “A Recipe for Brazil” and “Its War”)	17 October 2003
E	Letter from Mr Turner to the Tribunal with attachments (certificate Dr King Chen, letter from  Ms Donna Bridges of the “Smith Family”, reference from Ana Lopes, statutory declarations of Jorg Oliver Hofmann, Jose Ferdinando Soares de Freitas, Claudio Nino Minns, Gian Minns, Dianne De Oliveira, Carmen de Oliveira, Ferdinando de Freitas and Fernanda Soares Henriques)	29 August 2003
F	Application form for New Zealand “Residence Visa” by Elias Ferreira Dos Santos
G	Copies of Australian Taxation Office Notice of Assessment for the years ending 30 June 1999, 2000 and 2001 for Elias F Dos Santos
H	Letter from Mr Turner to the Tribunal including medical report of Dr D B Tran for Ms Dos Santos and DIMA Media Release, 30 May 1996 No 109.	22 October 2003

6.      The Review Applicant, Mrs Fernanda Henriques her mother, Mr Jose de Freites, her brother and the Visa Applicant gave evidence (the Visa Applicant by telephone connection from New Zealand) upon which they were cross-examined.

chronology of relevant events

1973, 30 July  Visa Applicant born in Brazil

1978, 7 February                Review Applicant born in Portugal

1996, 12 September           Review Applicant arrives in Australia with her parents and two brothers

1996, 25 October                Visa Applicant arrives in Australia on tourist visa

1997, 20 January                Visa Applicant lodges application for protection visa and is granted a bridging visa with permission to work

1997, 8 April  Protection Visa refused

1997, 14 May  Visa Applicant’s bridging visa expires as does permission to work

1997, 19 May  Visa Applicant applies to Refugee Review Tribunal for review of decision refusing protection visa - application out of time

1997, 24 July  Visa Applicant advised by Refugee Review Tribunal that his application is out of time

1997, 13 August                 letter signed by Visa Applicant received by Refugee Review Tribunal

1997, 27 August                 Refugee Review Tribunal hands down decision, lack of jurisdiction to deal with application

1997, 23 September           letter signed by Visa Applicant to the Minister

1997, 23 October                letter from Minister to Visa Applicant indicating lack of power to consider Visa Applicant’s request

1998, February  Review Applicant and Visa Applicant meet

1999, November                 Visa Applicant informs Review Applicant of his migration status

2000, 21 September           Visa Applicant and Review Applicant become engaged

2001, 23 February              Visa Applicant and Review Applicant marry at Registry Office

2001, 9 June   Visa Applicant and Review Applicant celebrate marriage in a church

2001, 14 December            Visa Applicant departs Australia

2002, 4 January                  Visa Applicant lodges application for spouse visa in Brazil

2002, 23 May  Visa Applicant interviewed by officer of the Respondent in Brazil

2003, 26 February              decision of Respondent refusing visa

the issues for determination

7.      The issues for determination in these proceedings are:

1. Does the Visa Applicant pass the character test under section 501 (1) of the Act, that is, is he by reason of his past and present general conduct a person who is not of good character; and

2. If the Visa Applicant does not pass the character test should the decision of the Respondent be affirmed by an exercise of the residual discretion under section 501 (1) of the Act against the Visa Applicant or should the decision of the Respondent be set aside by the exercise of such residual discretion in favour of the Visa Applicant.

relevant legislation and direction

8. Section 234(1) of the Act provides:

"234 False Papers etc.

(1)A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

…

Penalty:     Imprisonment for 10 years or 1,000 penalty units, or both."

9. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.

10. By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.

"501 Refusal or cancellation of visa on character grounds

…

(6) For the purposes of this section, a person does not pass the character test if:

…

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; or

…"

11. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321 at 324 it was said:

"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."

12.     As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148; Issa and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 421.

13. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction 21 issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.

14.     Direction 21 as here relevant provides:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ... 

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).

…

Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

…

Subparagraph 501 (6)(c)(ii) - past and present general conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

…

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

…

1.11 General conduct also includes recent good conduct, any good acts of the non-citizen after reprehensible conduct are indications that the non-citizens character may have reformed. Thus both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed the discretion to refuse or cancel a visa is enlivened and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion.

PART 2 - EXERCISING THE DISCRETION

2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process, which takes into account all relevant considerations.

Primary Considerations

2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)  the protection of the Australian community, and members of the community;

(b)  the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or

children and the person under consideration, the best interests of the child or children.

Protection of the Australian Community

….

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:

…

(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

…

b. likelihood that the conduct may be repeated (including any risk of recidivism)

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.

…

c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

…

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.

…

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

…

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"

background to the refusal decision

15.     The Visa Applicant was born in Brazil. His immediate family still reside there. As a 23-year-old he arrived in Australia on 25 October 1996, on a tourist visa. At the time he had no English and only spoke and read Portuguese. He says that shortly after his arrival he became aware that his employment in Brazil was at risk and decided to seek to extend his stay in Australia. He was living with a Portuguese speaking friend Sergio, with whom he discussed his migration situation, the fact that he had lost his job in Brazil and his then desire to remain in the country and obtain employment. Sergio told him that he knew a “lawyer” who would be able to help him.

16.     The Visa Applicant met with the “lawyer”, accompanied it would seem by Sergio. He told him about his position, showed the “lawyer” his passport and noted particulars being recorded. He said in his oral evidence before the Tribunal that he told the “lawyer” he “wanted to stay in Australia on a lawful basis and do work”.. Arrangements were made for the Visa Applicant, Sergio and the “lawyer” to meet at the Rockdale office of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). Seemingly before such meeting the “lawyer” caused to be prepared a number of documents each of which was in due course signed by the Visa Applicant. The latter, however, says that he did not know their nature and thought that he was “signing papers to enable me to work”.. He does not recall signing any blank sheets of paper.

17.     The documents were lodged with the Rockdale office of the Department after which the Visa Applicant together with the “lawyer” and Sergio proceeded to the Taxation Department were the Visa Applicant obtained a Tax File Number.

18.     The documents so lodged with the Department comprised a protection visa application and accompanying material. There was not a declaration as to an interpreter having been used. In a statement accompanying the application the following appeared (S2, f24):

“APPLICATION STATEMENT

In 1994, I joint my friend Jorge Saboungi Sleiman as a business partner in Corumba which is a city in the state of Mato Grosso Brazil. We ran a small pub called Al Kalifa there. The city is located at the border between Brazil and Bolivia. I worked there for about two years.

In recent years Corumba became one of the entrance cities for cocaine smuggling in Brazil. The cocaine comes from Bolivia to Corumba and then to Rio de Janeiro, Sao Paulo and other cities of the country. For this reason, Corumba has become a city of evil and the drug dealers is [sic] taking over the city gradually. For the same reason, there are more and more political corruption in Corumba city.

Soon after I joint into the business, our pub became quite popular in Corumba and drug dealers started to attend our pub from time to time. I even sow [sic] those Mafia had meeting with military officers and policemen in our pub quite often. We worried about our business and were afraid to do any thing to stop this.

In late 1995 We [sic] were told that some body [sic] wanted to buy off our pub. We knew it was the Mafia. We refused their offer and reported to the local police. On the 24^th, June 1996, my partner’s fiancee was kidnapped by the Mafia so that to force us to give up our pub. I and my partner went to Sao Paulo and reported our situation and what we knew about the Mafia. While we were staying in Sao Paulo on August 1996, we were told by the police that they detained a number of those Mafia members but still couldn’t find my fiancee.

At Sao Paulo, one month before we left Brazil, we made a phone call to one of our friends in Corumba who worked for us in our pub. We were told that our pub was closed down by the local police and our friend saw a threatening letter in our pub stated those Mafia would give us a lesson if we go back to Corumba. Then I and my partner decided to escape to Australia instead of going back to Corumba. Because we were scared of the Mafia and we knew that the police can’t protect us.

Applicant:  (Applicant’s signature) 07/05/97”

19.     The application for refugee status was refused. The Visa Applicant applied to the Refugee Review Tribunal for review of the decision stating in his said application (S6, f41):

“I’m still getting phone calls and warnings from them Mafia and my [sic] has been threatened as well they have moved to another state in Brazil and even though they still after me and my family.”

20.      The handwriting in the review application is quite different to that in the protection visa application. As above noted, the Visa Applicant had signed both applications. By then however, the time in which the Visa Applicant could make an application for review to the Tribunal had lapsed and the Tribunal was without jurisdiction.

21.     The Visa Applicant signed a letter received by the Refuge Review Tribunal on 13 August 1997 in which it was stated (S9, f46):

“I regret to say that the letter from the Department of Immigration and Multicultural Affairs reached my neighbour’s letter box and it took me 15 days to get the letter.

I cannot go back to Brazil because my family has been threatened and the drug dealers want to kill me.

I would like to ask you to consider my application for review and inform you I have moved to 47 Hercules St Dulwich Hill NSW 2203.

Yours sincerely

(Visa Applicant’s signature)

Elias Ferreira Dos Santos”

22.     The Visa Applicant then applied to the Minister for an exercise of his discretion but to no avail; the Refugee Review Tribunal not having made a decision the Minister was unable to do so.  In a letter signed by the Visa Applicant, addressed to the Minister and received by his office on the 29 September 1997 it was stated (S11, f52):

“With all due respect I am writing to you to request that you consider granting me a Protection Visa (Refugee) in AUSTRALIA, on the bases [sic] of strong Humanitarian Grounds.

My case was rejected by the Department of Imigration [sic] and Multicultural Affairs on the 8^th of April 1997.

On the 27^th of August 1997, I was rejected by Refugees Review Tribunal. Unfortunately, the Tribunal was not satisfied with my claim. Although i believe that i have solid grounds of persecution for which to request a Protection Visa.

I strongly believe that i am a refugee because i left my home country, Brazil due to the persecution I suffered after I denied selling my Pub to drug dealers in Corumba City.

I am sending you a copy of my application Statement made to the DIMA office, so this could help crariffy [sic] my case.

In recent years my home Country became an International route for Drug smmuglers [sic] from Bolivia and Columbia. It is impossible for me to return and not be found, because many important people knew that I have left the Country and I gave a statement to the Police involving them, as for my life is in danger.

I strongly feel that my claim for refugee status is genuine, and my desire to remain in AUSTRALIA is very strong.

I am a very hard working person and have a true commitment to continue to the Welfare of this Wonderfull [sic] and Blessed Country.

I deppley [sic] Appeal to your sense of humanaty [sic] and fairness to assist me in my very genuine desire to obtain Refugee Status in AUSTRALIA.

YOURS FAITHFULLY,

(Visa Applicant’s signature)

ELIAS FERREIRA DOS SANTOS”

23.     The Visa Applicant said in his evidence that he signed documents on only one occasion and that he did not recall any document being blank. The Tribunal notes and finds that the dates noted in the letter received on the 29 September 1997 would belie this evidence. The two rejection dates could hardly have been known in January 1997 when the Protection Visa was lodged.

24.     Each of the representations made by the Visa Applicant in his initial application, his review application and in his Ministerial application was false. There was not any truth in any of them. The sole motivation for his making the allegations and/or signing the documents was to prolong his stay in Australia. He was well aware that in the absence of such an application being made he would be required to leave Australia.

25.     On expiration of the Bridging Visa 28 days from the refusal to grant the protection visa, the permission to work granted to the Visa Applicant at the time he applied for such visa expired. Thereafter, any work undertaken by him was illegal. He did in fact work illegally in the building industry continuously from May 1997 until his departure from Australia in December 2001.

26.     The Review Applicant had with her parents and other members of her family arrived in Australia in September 1996. She first met the Visa Applicant, he then being a friend of her brother Jose, in February 1998. A relationship developed. In late 1999, the Review Applicant and her parents were arranging a return trip to Portugal. She asked the Visa Applicant to accompany her. It was then that he revealed to her his illegal migration status saying that if he left Australia he would on this account be unable to return. The Review Applicant told her brother this, but not her parents. The latter did not become aware of their prospective son-in-law’s status until shortly before the wedding of their daughter and the Visa Applicant in February 2001.

27.     It was not until December 2001 that the Visa Applicant approached the Respondent and informed an officer of his intent to leave Australia and make application for a visa offshore. He did so leave on the 14 December 2001 and made his application in Brasilia, Brazil on 4 January 2002.

28.     The Review Applicant has travelled to Brazil to spend time with her husband and his family.  She has also travelled to New Zealand where the Visa Applicant is now living, he having made application there for permanent residence.

the character issue

29.     The Respondent contends that the Visa Applicant, by reason of his past and present general conduct, is a person who is not of good character. It is maintained that the Visa Applicant has shown contempt or disregard for the law, including immigration law, by providing a bogus document and/or making a false or misleading statement in connection with his visa application. Further, he should have departed Australia by the latest 25 January 1997 instead of which he remained until his departure in 2001. The application made by the Visa Applicant for a protection visa was false, submitted by him for the sole purpose of prolonging his stay in Australia. It is further maintained, on behalf of the Respondent, that the Visa Applicant knew, whatever the nature of his application may have been (and in this connection he says that he was not aware that it was a protection visa application) that it nevertheless contained false claims. Further, he received communications from the Respondent advising him of the refusal of his application and from the Minister to a like effect. Letters were written, signed by him, communicating with the Respondent and the office of the Minister, in each case perpetuating his false representations.

30.     The Visa Applicant worked in Australia without having a legitimate right to do so up until the time of his departure, a period it is said of no less than four and a half years.

31.     The Tribunal does not accept that the Visa Applicant was unaware of the nature of the allegations made in the statement appended to the protection visa application, the application to the Refugee Review Tribunal and the letter to the Minister. He signed each of them. He had discussed his position with his friend Sergio and the “lawyer”.. He had contrary to his evidence signed the relevant documents on different dates and maintained his false allegations, up until and including his letter to the Minister. He by then well knew that he was in Australia illegally, yet he continued so until December 2001.

32.     The Visa Applicant had, when making his protection visa application, obtained a bridging visa allowing him to work. He knew or should have known that on refusal of his application he was not only unable to remain in Australia but unable to work. He remained and did work.

33.     A number of his friends and relations have had their testimonials or references tendered in evidence. They generally speak well of him and testify to work he carried out in Australia and his attachment to family. No one of the exhibits, however, makes reference to the protection visa application and only a few to the illegal residence in Australia or working without permission. Yet these other matters are pivotal to the assessment of his character. Even in the application for migration to Australia by a partner, signed by the Visa Applicant on 26 December 2001, he falsely stated that he had not been refused a visa in Australia, had not held a bridging visa and had not left any country to avoid being removed or deported.

34. It was contended on behalf of the Applicant that he had not acted in breach of section 234 of the Act in that the section requires knowledge of the wrongdoing. This is not so. The Act clearly places upon a person making application for a visa or a further visa the obligations contained in section 234(1)(a) and (c). Such subsections not only relate to a person who presents a document but also to a person who causes a document to be presented which is false or misleading in a material particular. It is only subsection 234(1)(b) that requires knowledge as a prerequisite to liability for committing an offence. In the present application, the Visa Applicant caused the documents to be presented to an officer of the Respondent, including the Minister.

35.     The Tribunal however does not accept the denials by the Visa Applicant, which have been maintained by him and on his behalf even up until the hearing. The latter can only adversely reflect upon his past and more particularly his present conduct. The Tribunal is satisfied that the Visa Applicant is not of good character.

discretionary considerations

36.     The matters to be considered in the exercise of the discretion vested in the Tribunal once a finding on character has been made are earlier identified in these reasons.

37.     The Visa Applicant says that his sole purpose for retaining the “lawyer” and signing the papers put before him was so that he could remain in Australia and obtain employment. This may well be true but it does not excuse the means whereby he sought to achieve this end. It may be, as he said, that when Sergio informed him that his application had been refused and that he was then in the country illegally he became angry at as he had been told that “the lawyer was good and everything was under control”. The Visa Applicant was, however, the architect of his own misfortune. He had originally applied for and obtained a visitor’s visa. He well realised that he was endeavouring to avail himself of a mechanism, to obtain something to which he was otherwise not entitled. He was prepared to use whatever means were available to remain in Australia and work.

38.     The Visa Applicant says that he was afraid to confront the Respondent for fear of being detained at the Villawood Detention Centre. He could of his own volition have left Australia much earlier. He says that his love and affection for the Review Applicant “overtook his responsibility to depart Australia”.. He now expresses regret for his conduct. He has maintained his innocence, placing blame upon his friend, Sergio and the “lawyer”.

39.     The Tribunal, as already noted, is satisfied that the Visa Applicant was aware of the falsity of the matters set forth in the documents presented by him to the migration authorities in support of his protection visa application and subsequent entreaties. He may not have been aware of all of the details of the falsity but he was aware of the fact that the document and subsequent representations were not genuine and were incorrect. The Tribunal is also satisfied that the Visa Applicant knew of the falsity of the statements contained in the protection visa application. The matters contained in and set forth in his application and subsequent correspondence are such as to mislead and were intended to mislead the Respondent. The Visa Applicant is not relieved of his primary responsibility by contending even be it the case, which the Tribunal does not accept, that it was Sergio or the “lawyer” who made the allegations and not he himself. He signed the various documentation and even be it he could not read English should have ensured that the writing was translated to him and was correct before it was presented to the Respondent. The Visa Applicant, even at the hearing, displayed an attitude of not accepting responsibility for the information that was presented to the authorities in support of his application for a protection visa. He cannot disclaim this primary responsibility.

40.     The Tribunal is to consider the seriousness of the adverse conduct of the Visa Applicant. It is contended, on behalf of the Review Applicant, that the conduct should not be viewed as serious in that what he did was so done at the suggestion of a “lawyer”, and that he could be expected to “repose trust and confidence as to legitimacy of the suggestion made to him”. Thus, there should not be seen a deficiency in the Visa Applicant’s “enduring moral qualities” such as to make it for public good to refuse him entry.  The Tribunal is satisfied that the Visa Applicant well knew what he was causing to be done, namely lodging an application made on a false premise or premises to obtain for him a period of residence in Australia during which he could work. He was not merely naive and foolish. He was aware of the initial application being made and of the review application and letter to the Minister.

41. The false statements and application made by and on behalf of the Visa Applicant are to be seen as serious. Section 234 of the Act makes the provision of false and/or misleading information an offence. The severity of the penalty, which may be imposed, is indicative of the seriousness with which Parliament views conduct of this kind. It is not open to the Respondent and the Refugee Review Tribunal to do other than duly consider applications made to it, as a consequence of which, and when such applications are based on falsities, delay is caused to the consideration of applications that may well be genuine.

42. It was submitted on behalf of the Respondent that it was “ludicrous” for it to be suggested that the friend Sergio would not have communicated the nature of the application to the Visa Applicant from its inception. It is hardly likely that a person in the position of the Visa Applicant would not seek to understand the nature of the document that he was about to sign. Any plea of total ignorance or recklessness should not be accepted. There was no evidence of a scam. As already noted, the letters contain information that would not or could not have been known to the author of the document until about the date they bear. It was submitted that the Tribunal should not be in doubt, having in mind the nature of the correspondence referred to earlier in these reasons that the Visa Applicant was aware of the material contained in them. Accordingly, within the meaning of Direction 21 paragraph 1.9(a) the Visa Applicant, by reason of the falsities associated with the protection visa application and consequent breaches of the Act associated with the provision of bogus documents, had engaged in serious misconduct. The Tribunal accepts these submissions.

43.     The Tribunal is not satisfied that the Visa Applicant’s conduct was “just irresponsible”.. He knew or ought to have known what he was causing to happen.

44.     The Visa Applicant has clearly demonstrated a willingness to make false statements and present bogus applications to the Respondent and the Refugee Review Tribunal.  The Visa Applicant has demonstrated a preparedness to act in breach of the law to enable his objective to be achieved. It may well be that if granted a visa the Visa Applicant would not engage again in conduct the like of that perpetrated by him. However, the propensity shown by him to endeavour to mislead and act in breach of Australia’s legislative prescriptions does not all bode well for his complying with the law in the future.

45.     It was submitted, on behalf of the Applicant, that if the Visa Applicant be refused the visa this would “send a wrong message to others who have already overstayed in the community, that should they depart Australia to apply to come back through the proper channels or should they decide to do the right thing, they will not be allowed back in because they will be deemed not of good character”..  The Tribunal does not accept this submission. If the conduct of the Visa Applicant only related to his overstaying his visa, different considerations might well apply. However, in the present case this is not the situation. There are the matters pertaining to the protection visa application, as well as his working over a relatively lengthy period of time without permission. The Tribunal does not see the situation as disclosed by the evidence before it, as being one where it is open to the Visa Applicant to categorise himself as a person who has “thought to redeem themselves after some infractions in the past”.

46.     The deterrent effect of a refusal to grant a visa in circumstances, the like of those presented in this application is that it may well deter those who may be minded to make false statements in support of migration applications.  There is, as has been mentioned in other decisions of the Tribunal, a clear obligation upon persons applying for a visa to be honest and truthful in their applications. The responsibility rests on the applicant to disclose material that is not false and/or does not misrepresent a situation. If a person does otherwise then they inevitably bear the consequences of their actions. Applicants, like the Visa Applicant, are to be deterred from concealing the truth for the purpose of obtaining an advantage to which they would otherwise not be entitled. There is a risk to the community, if a visa be granted to the Visa Applicant, having in mind the seriousness and nature of his misconduct, in that he may act contrary to the law. There is a perceived need to prevent and discourage similar conduct on the part of others. The Tribunal does not accept as being applicable to the circumstances of the present application the contention that the Australian community would “take a humane and compassionate view of people who despite some infractions have sought to do the right thing rather than concealing in the community” as submitted on behalf of the Review Applicant. The Tribunal does not accept that the Visa Applicant “did the right thing” or that he sought so to do.

47.     As submitted on behalf of the Respondent, the Tribunal accepts that the seriousness of the conduct engaged in by the Visa Applicant is such that it would be the expectation of the Australian community that his application for a visa should be refused. If the “middle of the road, reasonable member of the Australian community who does not hold extreme views one way or the other” (see Jupp and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 458) was informed of the evidence in this application, he or she would expect the application to be refused. The community would expect that untruthful applicants be not permitted to obtain a benefit by deception. It is not the expectation of the Australian community that a person who makes false statements in connection with a visa application should be permitted to re-enter Australia. Indeed there may well be apprehension that if an applicant does not face up to the truth or actuality of misconduct in the past then he or she may well engage in like conduct in the future.

48.     It was submitted, on behalf of the Review Applicant, having in mind her relationship and the presence of members of her family residing lawfully in Australia and the degree of dependence of her mother on her, that both she and her mother as well as the family will experience extreme hardship if she be forced to live in Brazil or in Portugal. There is even a possibility that she may be able to live in New Zealand.

49.     The Review Applicant migrated to Australia with her parents and two of her brothers, there joining three brothers who had arrived at an earlier time. She had left school at age 14 years and, apart from working in a supermarket and doing a flower decoration course, has not worked or obtained further training in Portugal or Australia. If she has to live in Brazil she said that it would be difficult but she “would be able to obtain employment”.. The Visa Applicant also anticipates difficulty in obtaining employment in Brazil, whereas he had minimal difficulty in Australia and New Zealand.

50.     The Review Applicant has permanent residence in Australia. The evidence before the Tribunal is to the effect that the Review Applicant’s family is close-knit, coming together frequently. All of her immediate family is in this country but for an uncle and brother still in Portugal.

51.     There is little room for doubt that if the subject visa be not granted, the Review Applicant will leave Australia to be with her husband in New Zealand if he there obtains residence. She has permanent residence rights in the country by reason of her Australian residency, or alternatively in Brazil living with or nearby to the family of her husband, his father, mother, sister and two brothers.

52.     There is evidence before the Tribunal as to the economic, employment, educational and health situation in Brazil, being other than in Australia. Apart from the emotional hardship that the Review Applicant and her family would experience if she would leave Australia, she said that she would be disadvantaged in the above mentioned respects. The Tribunal accepts this to be so.

53.     The Review Applicant is understandably experiencing anxiety and depression as a consequence of the separation from her husband. The Tribunal accepts the genuineness of the relationship between them.

54.     Having considered the various matters earlier detailed in these reasons the primary considerations as detailed in the Minister’s Direction 21 and the other matters required to be also taken into account, the Tribunal is satisfied that the discretion available to it should not be exercised in favour of the Visa Applicant. His conduct was of a serious nature. His overstaying his visa was compounded by his obtaining employment when he knew that he was not authorised to do so. There is a likelihood of his repeating the misconduct. The protection of the Australian community, the deterring of others from seeking to engage in like conduct and the expectations of the community all warrant appropriate attention being given to them.

55.     The conduct of the Visa Applicant cannot be excused by reason of the intervention of and association with other persons. Even if one of them be a “lawyer”, this cannot excuse a person who participates in a scheme devised by reason of false representations, to obtain a benefit not otherwise available.

56.     The Tribunal is satisfied that having found the Visa Applicant to not be of good character, the discretion should not be exercised in his favour.

57.     For this reasons the decision under review is affirmed.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed:         A. Krilis
  Associate

Date/s of Hearing  23 and 24 October 2004
Date of Decision  19 November 2003
Solicitor for the Applicant          Mr R Turner
Solicitor for the Respondent     Mr M Allatt