Fanchon and Minister for Immigration and Citizenship

[2008] AATA 20

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/2263

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		JOSEPH PHILIPPE GERARD FANCHON

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date9 January 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Mr G.L McDonald

Deputy President

MIGRATION ‑ visa applicant using false passport and false information to gain entry to Australia ‑ visa applicant found to have misled Refugee Review Tribunal – present and past conduct considered ‑ delay in immigration authorities taking action – strength of marriage considered in exercise of discretion

Migration Act 1958 ss 501(1), 501(6)(c)(ii), 501G(2)

REASONS FOR DECISION

9 January 2008 Mr G. L. McDonald, Deputy President    

1.      Mr Joseph Fanchon (the applicant) is applying for a review of a decision made by a delegate of the Minister for Immigration and Citizenship (the respondent).  The delegate refused to grant a spouse visa to Ms Geethani Sepalika Kahandawa Patirannehelage, the applicant’s wife (the visa applicant) on the basis of her past and present general conduct.  The delegate determined that the visa applicant was unable to satisfy the character test as set out in the Migration Act 1958 (the Act).  The delegate also refused to exercise the general discretion available under the Act in the visa applicant’s favour.  The Tribunal has decided to affirm the decision under review.

2. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and exhibits tendered during the hearing.  The visa applicant gave evidence by telephone from Sri Lanka through an interpreter.

BACKGROUND AND FACTS

3.      The Tribunal accepts the following facts as presented in the documents and the oral evidence.

4.      The applicant is an Australian citizen, having relocated to this country from Mauritius approximately 20 years ago.  His former wife and their two children, both of whom are now adults, also live in Australia.  He also has siblings who migrated to, and live in Australia.  He works full‑time at a pharmaceutical factory, and has done so for a period of 10 years.  He also undertakes other part‑time work.

5.      The visa applicant is a citizen of Sri Lanka.  In 1997, while she was still married, she had separated from her husband.  She and her husband have a son, Rangana Samaraweera, born on 14 November 1982.  In 1997 both the applicant and visa applicant were living alone and each was seeking company.  She and the applicant were introduced by a person who was then a mutual friend, Mr Nihal Salgadoe.  They began corresponding and telephoning each other.  Ultimately they decided to meet.  This was to occur by the visa applicant coming to Australia.

6.      The visa applicant required a passport issued by the Democratic Socialist Republic of Sri Lanka and a visa issued by the Australian government to enable her to come to Australia.  A passport in her name, Geethani Sepalika Kahandawa Patirannehelage was issued on 12 December 1996 and was valid for five years.  She then applied to the Australian High Commission in Colombo for a visitor’s visa.  The visa was refused.  On the apparent advice of Mr Salgadoe, and with his assistance, she then applied for another passport.  A second passport, in the name of Geethanjali Sepalika Rathnakara Mudiyanselage was issued to her on 7 January 1997, which was also valid for five years.  The name on the second passport is that of the visa applicant’s mother.

7.      The visa applicant used the second passport to apply for a temporary business entry visa to enter Australia.  The visa application falsely claimed that the visa applicant was intending to come to Australia to arrange tea imports from Sri Lanka, and nut and fruit exports to Sri Lanka.  In the application the visa applicant is described as a businessman (sic).  The visa applicant claimed that the second visa was arranged for her by Mr Salgadoe.  She said that she did not understand sufficient English to know the category of visa being sought and that she trusted Mr Salgadoe to do the right thing.  The visa applicant claimed to have made a substantial payment to Mr Salgadoe for his services in providing her with assistance.

8.      Mr Salgadoe arranged to travel with the visa applicant to Australia.  She claimed that if questioned by Australian officials on arrival, Mr Salgadoe instructed her to say that she was here on tea business.  On entry she was not challenged.  Mr Salgadoe took her first to a hotel and then to meet the applicant at his place of work.

9.      Both the applicant and the visa applicant stated that after the visa applicant arrived in Australia, Mr Salgadoe discouraged them from forming a close relationship.  The applicant maintained that this was because Mr Salgadoe described him as only a factory worker and wanted the visa applicant to form an attraction to somebody wealthier than the applicant.  The visa applicant thought Mr Salgadoe wanted to form a relationship with her.  Despite this discouragement, the applicant and visa applicant were attracted to each other and commenced living together.

10.     On 26 May 1997 the visa applicant, with the assistance of solicitors recommended by Mr Salgadoe, applied for a Protection (Refugee) Visa.  On the refugee visa application form, the visa applicant admitted that she had entered Australia using a false passport.  In support of her refugee application, the visa applicant cited a number of incidents claiming her safety was in jeopardy and that she faced persecution if she returned to Sri Lanka.  According to the visa applicant’s evidence, the refugee application was prepared and lodged by the solicitor recommended by Mr Salgadoe and that again, because of her poor understanding of English, she was unaware of, or did not comprehend the nature of the assertions relied upon in support of the application.

11.     The refugee application was rejected.  The visa applicant engaged a new solicitor not associated with Mr Salgadoe and appealed to the Refugee Review Tribunal (RRT).  After a hearing, the RRT rejected her appeal and a further appeal was lodged with the Federal Court of Australia.  On 2 February 2001 by consent, the latter appeal was discontinued.  For the duration of the proceedings relating to the refugee application the visa applicant had been granted a bridging visa which was expressed to expire 28 days after the Federal Court appeal was decided (ie on 6 March 2001).  It was the visa applicant’s evidence to this Tribunal that for some years after the Federal Court proceedings had concluded, her solicitor continued to reassure her that her visa status was being progressed and that she had nothing to worry about.  This was not the case.

12.     In the period up until the Federal Court proceedings were discontinued, the applicant and visa applicant had continued to live together.  On 16 January 1999 they married.  The visa applicant secured employment and purchased a car.  Subsequently she and her husband jointly purchased a house and commenced repaying a mortgage.  

13.     During this period the visa applicant’s son came from Sri Lanka to Australia on a student visa to study accountancy.  He lived with the visa applicant and the applicant and has continued to live with the applicant after the visa applicant returned to Sri Lanka.

14.     On 20 September 2005 the visa applicant was apprehended at home by immigration officials on the basis that she held no visa which entitled her to remain in Australia.  She was questioned and detained until the applicant could arrange a bond for her release.  On 15 December 2005 she voluntarily returned to Sri Lanka.  Under cover of a letter dated 6 January 2006, through a migration agent, an application for a spouse visa in favour of the visa applicant was lodged with the Australian High Commission in Colombo.  It is the refusal to grant this visa application which is the subject of this appeal.

FINDINGS THE EVIDENCE

15.     The Tribunal is satisfied that the visa applicant knew and willingly participated in obtaining a false passport in the name of her mother for the visa applicant’s use.  The Tribunal is also satisfied that the false passport was to be used to obtain a visa for her to enter Australia on the false basis that she was to undertake an export and import business.  It may be true that Mr Salgadoe (and since he was not a witness, the Tribunal makes no express finding against him in this regard), both suggested and assisted in the process.  Nevertheless the visa applicant must have known that the passport was issued in her mother’s name and had given the information which was relied upon to obtain the passport.  The visa applicant must also have been aware that she was being advised to give false information to immigration officials if questioned on her entry into Australia and that this was necessary to substantiate the false information used to secure an entry visa.

16.     The Tribunal is also satisfied that the visa applicant connived in the preparation of untrue statements associated with her application for a refugee visa knowing that that information was also false and/or misleading.  In particular the reasons given in support of the decision of the RRT highlights a number of omissions of facts, later relied, on which supported her application from the documentation first lodged, the inclusion of further significant facts at or just prior to the hearing, that if, as claimed, the visa applicant was wanted by the police in Sri Lanka that she would have been issued with a passport in her own name and that it was implausible that she would have attempted to leave Sri Lanka utilising that passport. The RRT found:

…The tribunal…finds that the applicant’s [the visa applicant’s] claims are not plausible.  It finds that there are inconsistencies in her evidence and that she has attempted to exaggerate, progressively embellish and alter her claims to meet the circumstances as they have arisen.

It is not necessary to restate all of the findings of the RRT.  It is sufficient to sate that the tribunal accepts the reasoning of the RRT in which the RRT concluded that the visa applicant was not a credible witness.

17.     Like the RRT, the Tribunal is unable to accept the visa applicant’s sustained denials that she was unaware of the information allegedly prepared on her behalf and submitted to the RRT without her understanding what was being claimed on her behalf.  Initially this information was prepared by a solicitor referred to her by Mr Salgadoe and the implication which the tribunal was asked to draw was that either Mr Salgadoe provided false information upon which the solicitor relied on, or that the solicitor on his own initiative prepared false information.  However the preparation of the initial information and the subsequent addition of further information were carried out by a solicitor of the visa applicant’s own choosing.  That she either did not know of, or comprehend the contents of the information presented on her behalf throughout the review process up to and including the review by the RRT, before which she gave oral evidence, is implausible.  Additionally none of the circumstances upon which she relied in support of her refugee application were mentioned as causing her to be in danger since her return to Sri Lanka in December 2005 and the giving of her evidence to this Tribunal in December 2007, a period of 2 years.  These claims included that she feared being persecuted by the Sri Lankan authorities.  That the latter, and other claimed fears have transpired to be unfounded, serves to ratify the RRT’s findings as to the incredulity of her claims. 

18.     Further the Tribunal is unable to accept the visa applicant’s claim that her solicitor did not inform her that the appeal lodged with the Federal Court was discontinued and continued to reassure her that the visa application was progressing.  This is presumably a reference to her refugee visa application.  Again the visa applicant asserts that her solicitor not only did not inform her that her appeal to the Federal Court from the decision of the RRT had been discontinued, but allegedly actively misled her as to her then current visa status.  The Tribunal is unable to accept that both solicitors prepared and submitted material on her behalf knowing it to be false, failed to obtain or act in accordance with her instructions and in the case of the second solicitor failed to discuss with her and obtain her consent to the withdrawal of the Federal Court appeal and then falsely reassured her that she had a lawful entitlement to remain in Australia.  The Tribunal is satisfied that the visa applicant knew that she had no visa which authorised her to remain in Australia from a time prior to the withdrawal of the Federal Court appeal.

THE MINISTERIAL DIRECTION

19.     In considering whether a person satisfies the good character test, s 501(6)(c)(ii) of the Act requires the decision‑maker to have regard to past and present general conduct.  The terms of Ministerial Direction (Nº 21) – Visa refusal and cancellation under section 501 of the Migration Act 1958 (the Ministerial Direction) must also be considered.  The Ministerial Direction is binding on all administrative decision‑makers including this Tribunal.  Clause 1.9 provides that the following matters constitute a failure to pass the character test:

(a)breaches of immigration law; and 

(b)whether the non citizen has, in connection with any application for the grant of a visa …. provided a bogus document or made a false or misleading statement. 

Sub clause 1.11 of the Ministerial Direction provides:

General conduct also includes recent good conduct.  Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed.  Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s 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.

THE RESULT ARISING FROM THE FINDINGS

20.     It follows from the Tribunal’s findings that the visa applicant is unable to satisfy the good character test as the result of her past conduct.  The visa applicant provided misleading information to obtain a false passport and visa in order to enter Australia.  She also provided misleading information in writing and orally to the RRT to obtain a refugee visa.  The visa applicant’s present conduct also indicates that she is not of good character.  She attempted to mislead this Tribunal by denying that she was aware of the contents of her business visa application and the supporting documents which set out misleading claims in relation to her refugee visa application.  She also maintained that her solicitor informed her that progress was being with her visa application when that was not the case.  Shortly after arriving in Australia, the visa applicant admitted in her application for a refugee visa that she had previously relied on a false passport.  However, this does not counterbalance her previous and present bad conduct.  It follows that the visa applicant fails the good character test as the result of her past and present general conduct.

21.     If the application is to succeed it must be as the result of the exercise of the general discretion contained in s 501(1) of the Act.  The exercise of that discretion is also governed by the Ministerial Direction.

22.     Relevantly the part of the Ministerial Direction which applies to the exercise of the general discretion is as follows:

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

(a)the protection of the Australian community, and members of that 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.

Most of the matters nominated in subsequent clauses deal with criminal conduct and clause 2.6(c) includes:

serious crimes against the Migration Act 1958, including, but not limited to, …presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;.

In its written submissions, the respondent appears to refer to this clause as being relevant for the Tribunal to consider (at paragraphs 56‑57).

23.     The Ministerial Direction lacks clarity.  Clauses 2.1, 2.2, 2.2 and 2.5 are worded in such a way that they may be applied to all of the nominated circumstances which would lead to a person failing the good character test.  However, clauses 2.4, 2.6, 2.7, 2.8, 2.9, 2.10 and 2.11, when read in context, are all referable to one circumstance, that being the consequences of a person not meeting the test as the result of engaging in criminal conduct.  Since the visa applicant has not been prosecuted, convicted and sentenced to a term of imprisonment exceeding 1 year, the Tribunal does not agree with the respondent’s submission that clause 2.6 is applicable (if that submission in fact relies on clause 2.6).  However the Tribunal must consider the elements set out in cls 2.3, 2.5 and 2.12 (the latter also is stated to apply to both criminal and general conduct).

24.     The Australian community has laws which govern the entry of non‑citizens into Australia.  Those laws are designed to protect the community and its members from undesirable people settling in Australia.  That protection is undermined by those who seek to enter by using false and misleading documents and give false and misleading evidence to Australian departments and tribunals.  The Australian community expects those seeking to enter and remain in Australia to do so honestly. As the result of the above findings, the Tribunal is satisfied that the visa applicant fails the first two of the primary considerations nominated in clause 2.3.  The third primary consideration relates to the best interests of any child.  The Ministerial Direction restricts that consideration to a child under the age of 18.  The visa applicant’s son is over the age of 18 and hence his interests in his mother being granted a visa will be considered under clauses 2.17‑2.24.

25.     Clause 2.17 of the Ministerial Direction requires a decision maker to consider any disruption to the non‑citizen’s family and marriage when a visa is refused.  In this respect, the Tribunal is satisfied that the applicant is the person who stands to be most adversely affected.  According to his evidence, he has been led into this situation not knowing, until after the events outlined, that the visa applicant remained in Australia unlawfully after the Federal Court appeal was discontinued.  The evidence of the applicant satisfies the Tribunal that he has formed a genuine attachment to the visa applicant and that this finds expression in his marriage to her, the lifestyle they were pursuing together up to December 2005 and in him continuing to care for her son in the period post December 2005 when the visa applicant returned to Sri Lanka.  The applicant’s sister and son gave evidence supporting the applicant’s commitment to the marriage and the distress which the separation from the visa applicant is causing him. 

26.     The Tribunal accepts the applicant’s evidence that it would be financially and emotionally impracticable for him to move to Sri Lanka.  Aside from any inherent danger arising in moving to a country disrupted by civil unrest, the applicant has insufficient resources, including the value of his assets and superannuation, to permit him to retire to Sri Lanka and live comfortably.  He is also hampered by a lack of skills which he could utilise to obtain work even if, which was unclear, he was permitted to work in Sri Lanka.  Additionally he has his two children and a grandchild living in Australia from whom he does not wish to be parted.  The Tribunal is satisfied that prior to his marriage to the visa applicant, the applicant was unaware that her character was a matter of concern to the Australian immigration authorities.  The applicant’s evidence, which the Tribunal accepts, was that it was not until after the visa applicant returned to Sri Lanka that he became fully aware of her actions.  The Tribunal accepts that the visa applicant participated in the family life of the applicant, worked while in Australia, paid taxes and was making a contribution to the joint purchase of a house.  The visa applicant has been unable to secure work in Sri Lanka and consequently the applicant is deprived not only of her presence, but also of her financial contribution to their developing lifestyle.

27.     The Tribunal is also satisfied that the visa applicant regards her commitment to the marriage as being strong and ongoing.  When giving her evidence she stressed the hope that if she had engaged in wrongdoing, it would be outweighed by the fact of her marriage to the applicant.  The Tribunal notes that the Ministerial Direction quotes the following provision from the International Covenant on Civil and Political Rights:

The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.

28.     Clause 2.17(j) of the Ministerial Direction requires consideration of any significant compassionate circumstances.  This provision constitutes a clear recognition of the importance of compassion, when considering other considerations, including the effect of any adverse finding on a genuine marriage.

29.     It follows from what is stated in the two preceding paragraphs that the Ministerial Direction requires that consideration be given to both the institution of marriage and the individual circumstances of the particular marriage.

30.     The Tribunal also notes that the visa applicant’s son wants to remain in Australia after completing his accountancy studies.  If this occurs he will miss the ongoing presence of his mother, as was the case during his childhood where he was placed with his paternal grandparents.  The little contact he had with his mother during his childhood was sporadic and clandestine in nature.  To an extent his evidence is speculative and despite his anticipation of being granted a more permanent visa, the outcome is unknown and will be for at least a year while he completes his study.  Consequently his presence in Australia does not constitute a compelling point in favour of the granting of a visa.

31.     The Ministerial Direction does not require a finding that where a person is unable to satisfy any of the three primary considerations that, despite any other circumstances, the application will not succeed.  It expressly requires that an overall balance be reached.  That balance must, as a foremost consideration, take into account the best interests of the Australian community.  In this case that is reflected in posing the following question: should the discretion be exercised to grant a visa to the visa applicant who fails the character test, in the interests of the maintenance of a genuine marriage with an Australian citizen? The third introductory paragraph of the preamble to the Ministerial Direction provides that the exercise of the discretion is not limited to the matters set out in the Ministerial Direction.  While decision makers are obliged to consider its terms, there may be further circumstances which need to be taken into account.  There is a further circumstance in this case which must be considered when exercising the discretion.

32.     During the course of the hearing the Tribunal raised concerns with the respondent’s representative over the delay in instituting return action after the discontinuance of the Federal Court proceedings.  A period of approximately 4½ years passed between the immigration authorities knowing of the discontinuance and their taking action to apprehend and remove the visa applicant.  The Tribunal was informed that the applicant and the visa applicant had moved house three times.  However there was no suggestion this had been done with a view to avoid the authorities or that their moves could not be traced with a minimum of effort.  There was no suggestion that any action was taken to pursue the visa applicant or that difficulties were encountered in subsequently locating her.  It was further maintained that in the priority of matters which the immigration department had to deal with, this case was assigned a lower priority because no physical threat or violence to the community was involved.  That however does not accord with the thrust of respondent’s submission that the circumstances surrounding the use of false documentation and information is a matter so serious that it warrants a refusal of the visa.  The delay fuelled the applicant’s understanding that the visa applicant was being permitted to remain in Australia.  Their marriage relationship continued during the delay and it is unsurprising that the evidence indicates that the applicant is depressed (using that term in a generic descriptive, rather than a clinical, sense), as the result of the physical separation after such a long period of being together.  Had action been taken sooner then some of the distress experienced by the applicant may have been reduced.

33.     On the basis that there was a genuine marriage between the applicant and the visa applicant and the undue delay in commencing action in relation to the visa applicant’s visa status, the Tribunal may have exercised the discretion in the visa applicant’s favour, despite her failure to satisfy the good character test and despite her not being able to satisfy any of the matters nominated as being of primary concern in the Ministerial Direction.  However it is the visa applicant’s present conduct in persisting with the unsustainable assertions as to her past conduct which causes the Tribunal to conclude that, on balance, the considerations adverse to the visa applicant outweigh those favourable to her and that it is in the best interests of the Australian community that a visa not be issued to her.  Despite the Tribunal sympathising with the unfortunate circumstances in which the applicant finds himself through no fault of his own, the discretion should not be exercised in favour of granting the visa.

DECISION

34.     For the reasons stated the decision under review is affirmed.

I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr G.L. McDonald, Deputy President

Signed:          Lauren Spragg

Clerk

Dates of Hearing  29 November and 6 December 2007
Date of Decision  9 January 2008
Advocate for the Applicant          Mr S. De Zoysa
Advocate for the Respondent       Mr J. Forsaith, Australian Government Solicitor