Funakoshi and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1239
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1239
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/341
GENERAL ADMINISTRATIVE DIVISION ) Re MIZUE FUNAKOSHI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date16 December 2005
PlaceSydney
Decision The decision under review is affirmed
...............................................
Ms N Bell
Senior Member
CITIZENSHIP AND MIGRATION – Spouse (Provisional) Visa - Refusal of Visa on Character Grounds – Citizen of Pakistan – Entered Australian on Temporary Business Visa – Lodged Application for Protection Visa Onshore – Application Refused –Requested Ministerial Intervention – Bridging Visa Expired 1998 – Joined Herijanto/Muin High Court Action –Convited of Assault in 1999 - Bridging Visa Expired 1999 –Remained in Australia – Commenced Relationship with Applicant in 2001 - Requested Further Bridging Visa in 2002 –Withdrew from Class Action in 2003 –Departed for Pakistan in 2004 – Does Not Pass Character Test – Ministerial Discretion Should Not Be Exercised – Decision Under Review Affirmed
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wati v Minister for Immigration and Multicultural Affairs [2000] AATA 984
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Kaveh v Minister for Immigration and Multicultural and Indigenous Affairs (2004) AATA
Phuoc Tuong Tran v Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997)
Beale v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714
Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935
McKay v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 861
REASONS FOR DECISION
16 December 2005 Ms N Bell, Senior Member 1.Mr Shehzad Hameed, a citizen of Pakistan, applied in August 2004 for a Spouse (Provisional) visa, with Ms Funakoshi, the Applicant in these proceedings, as his sponsor. That application for visa was refused by the Minister on character grounds and Ms Funakoshi seeks a review of that refusal.
2.Mr Hameed had first entered Australia on a temporary business visa in March 1997. His visa was valid until June 1997. In May 1997 he lodged an application for a protection visa. That application was refused and the refusal was later affirmed by the Refugee Review Tribunal in June 1998. Mr Hameed requested the Minister’s intervention and in the meantime his bridging visa expired in August 1998. He was arrested on a charge of assault in October 1998 and transferred from the custody of the Police to Villawood Detention Centre. He was ultimately released from detention after joining the Herijanto/Muin High Court class action and having the refusal of his application for a bridging visa set aside by the Immigration Review Tribunal, on condition of the lodgement of a $3,000 security.
3.Further bridging visas were granted to Mr Hameed. He was convicted of assault in January 1999, fined and placed on a 6 month good behaviour bond. His last bridging visa expired on 1 April 1999 and on 25 May 1999 the Minister refused to exercise his discretion in Mr Hameed’s favour.
4.Mr Hameed and Ms Funakoshi commenced a romantic relationship in May 2001 and commenced to live together in March 2002. In September 2002, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) sent a notice of forfeiture of security to Mr Hameed and the security provider, Ms Tazreen and it was returned with a handwritten note advising he had not lived at that address for 3 years.
5.In November 2002, Mr Hameed applied for a further bridging visa on the grounds of his involvement in the High Court class action. The bridging visa was granted in March 2003 up until 28 days after the final determination of the class action. The class action was withdrawn in June 2003 and the bridging visa expired on 18 July 2003. On 18 February 2004 Mr Hameed departed Australia for Pakistan.
issues
6.Section 501(1) of the Migration Act 1958 (the Act) allows the Minister to refuse to grant a visa if the person does not pass the character test. The character test is defined in s501(6). Relevant to this application, a person does not pass the character test if, having regard to either the person’s past and present criminal conduct or past and present general conduct, or both, the person is not of good character (s. 501(6)(c) (i) and (ii)).
7.The Minister may give written directions concerning the exercise of powers under the Act (s499(1)). The direction referred to as “Direction – Visa Refusal and Cancellation under section 501 – No. 21” (the Direction) provides some directions on the application of the character test. In relation to the question of past and present criminal conduct, the Direction requires decision makers to take into consideration the nature, severity and frequency of the offence, how long ago it was committed, the person’s record since then and any mitigating circumstances evident from court documents or similar material. In relation to past and present general conduct, the Direction requires decision makers to take into consideration, relevant to this application, activities indicating contempt or disregard for the law, including breaches of immigration law, the making of false or misleading statements and whether the person has made a false or misleading declaration about character or conduct on an approved form. The Direction also requires decision makers to take into account any recent good conduct.
8.If I conclude that Mr Hameed does not pass the character test, then I must consider whether the discretion in s.501(1) to grant the visa should be exercised. The Direction provides that decision makers must have regard to 3 primary considerations and a number of other considerations. The 3 primary considerations are:
a)the protection of the Australian community and members of the community;
b)the expectations of the Australian community; and
c)where relevant, the best interests of the child or children.
9.For the first of these primary considerations the Direction lists a number of factors relevant to an assessment of the level of risk to the community. Consideration (c) above has no relevance to the circumstances of this application.
10.The Direction then lists a number of “Other Considerations” that may be relevant but should be given less weight than the primary considerations.
11.The issues for me to consider, then, are:
(a)Whether Mr Hameed passes the character test in section 501(6)
of the Act and, specifically, whether, having regard to his past and present criminal conduct or general conduct or both, he is not of good character;
(b)If I conclude that Mr Hameed does not pass the character test, then whether the discretion in section 501 to grant the visa should be exercised, with particular regard to the protection of the Australian community and its members, the expectations of the Australian community and other considerations set out in the Direction.
does mr hameed pass the character test?
12.I turn first to the question of past and present criminal conduct. I am satisfied, on the basis of the “COPS” database record provided by Ms Funakoshi (contained in Exhibit A1), that on 6 January 1999, Mr Hameed was convicted of common assault and sentenced to a $500.00 fine and a good behaviour bond of 6 months. There is no evidence of any other conviction.
13.Mr Hameed’s evidence was that he did not have legal representation at the hearing of his common assault charge. He said he thought he had not been convicted and did not understand the significance of the good behaviour bond.
14.Ms Funakoshi gave evidence of the background to the assault as she understood it from Mr Hameed and said it had arisen out of a fight prompted by an insult by Mr Hameed’s flatmate and that Mr Hameed had been injured as well. She referred to a clinical record from Canterbury Hospital dated 3 October 1998 noting treatment of Mr Hameed for a large laceration after falling on a glass table (Exhibit A1).
15.I note the Police Fact Sheet (Exhibit A1) makes no mention of injuries to Mr Hameed and reports him throwing a glass coffee table at his flatmate. The Fact Sheet also mentions that the current immigration status of Mr Hameed was “illegal” as of July 1998 and that he was to be taken to Villawood Detention Centre to be dealt with by immigration officials.
16.The incident appears to have been an isolated one, taking place some 7 years ago. There is no evidence of recidivism or any further violent behaviour.
17.I turn, now, to the question of Mr Hameed’s past and present general conduct. I consider this conduct raises more serious questions about his character.
18.When Mr Hameed entered Australia, he did so on a temporary business visa which, he said, had been arranged for him by a family friend in Pakistan. He had no business intentions. He said he did not see or sign the application form. He was 18 years old and considered himself bound by the decisions of his family. He entered Australia on 1 March 1997 and his visa was valid until 1 June 1997.
19.Mr Hameed said that when he applied, on 28 May 1997, for a protection visa, he did so on the advice of some people he had met when he arrived in Australia. He said he knew no one here and that was the only advice available to him. He conceded that, in relation to the claims made by him in that application, while some of the claims were true, some were untrue and some were exaggerations. In particular, he agreed that it was untrue that he would be killed on his return to Pakistan. He said he made these exaggerated and untrue claims in order to “buy time” and agreed he made the claims again before the Refugee Review Tribunal and in his request for the exercise of the Minister’s discretion.
20.Mr Hameed said that when he was in detention at Villawood he joined a High Court class action concerning the dismissal of visa applications and some alleged mistakes in Department files, on the advice of a solicitor to whom he had been referred by a friend. He said he thought the bridging visa he obtained in 1999 had just continued. He said he made no further contact with his migration agent but was critical of his agent for not ensuring the continuation of his visa. He then described becoming depressed following a relationship breakdown and said he “just gave up on life”. He agreed he had reporting obligations, when his visa was current, that he did not meet.
21.Mr Hameed said he seized control of his life after he met Ms Funakoshi and, in November 2002, sought the advice of a solicitor in order to clarify his migration status.
22.Much was made, in the course of the hearing, of an incorrect date of birth in Mr Hameed’s passport. However, Mr Hameed’s explanation that, when his passport was issued, a number 7 was inserted as the month of his birth instead of the correct number 1, is plausible and I accept his and Ms Funakoshi’s evidence that he attempted to have it corrected by approaching the Pakistan High Commission in Canberra.
23.Ms Funakoshi’s evidence was that when she began a relationship with Mr Hameed in 2001, he was very depressed and she was concerned about him but he gradually began to “correct his life”. They began living together in March 2002. Ms Funakoshi said she did not know Mr Hameed’s visa had expired and did not learn about it from him until January 2004. She said she now knows that Mr Hameed was concerned that he could not work and so could not offer financial support to Ms F and so he contacted DIMIA in October 2003 and found out he would have to go back to Pakistan and apply offshore.
24.She said that at some stage she knew Mr Hameed would have to do something about his visa but he had mentioned something to her about a High Court class action. She said she is sure she knew he had to contact DIMIA because he had said he was prevented by his visa conditions from working or studying and she thought it was very strange.
25.A number of people provided character references for Mr Hameed. Three of those people gave oral evidence to the Tribunal. Ms Tomoko Bauer, originally a friend of Ms Funakoshi’s, attested to Mr Hameed’s good character and support of Ms Funakoshi. In cross examination, she stated she maintains her favourable view of Mr Hameed notwithstanding his conviction and his false statements in relation to his application for a protective visa.
26.Ms Marilyn Wharton, who met Mr Hameed in 1997 when he worked as a security guard at her block of units, until he left Australia in February 2004, described him as responsible and helpful. She attested to his reliability and intelligence and his wish to remain in Australia to study and be with Ms Funakoshi. Ms Wharton said Mr Hameed was confused and concerned about his immigration status and she contacted his solicitor on his behalf in 2002 or 2003. She said she gained the impression that the solicitor thought he had little chance and was simply manipulating Mr Hameed. She did not know that Mr Hameed was without a visa at any time. She confirmed Mr Hameed was of the opinion that he had not been convicted of assault as he thought he had not been subject to any punishment.
27.Ms Sonia Colossi described herself as Mr Hameed’s best friend, having known him for 7 years. Ms Colossi attested to Mr Hameed’s strength of character and his quiet nature. She said she was not fully aware of his difficulties with immigration but he had told her about being placed in the Detention Centre, being falsely accused and about “calling DIMIA all the time and not getting an answer”. She said she thought he always had a visa except perhaps for the last year or two.
28.The other character references, all contained in the T documents, generally attest to Mr Hameed’s good character.
29.In considering the effect of Mr Hameed’s past and present general conduct on the question of his character, I had regard to the decisions of the Tribunal in Re: Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Wati v Minister for Immigration and Multicultueral Affairs [2000] AATA 984 and of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.
30.I had particular regard to the decision of Deputy President Walker in Kaveh v MIMIA 2004 AATA, in which he said:
“The false and misleading grounds for her protection visa are a much graver matter. Although she did not fabricate any particular instances of persecution, her general self-portrayal as a freedom-loving dissident was greatly exaggerated at best, and probably wholly false. It is possible that, as she claims, she was unaware that she was claiming refugee status, as she mistakenly understood that term until the rejection of her RRT appeal in September 2002, but she certainly knew no later than July 2001 that she was seeking a protection visa. Given her (mistaken) admission that she knew from the start that her application had something to do with Falun Gong, I conclude that from the outset she was aware that she was claiming to have suffered some form of persecution in China. That was entirely untrue. By instituting and pursuing her application, appeal and request for ministerial intervention she perpetrated a gross abuse of the migration law system that involved the department in considerable waste of time and resources. I find that her immigration misconduct is of a serious nature given that such conduct was prolonged and intentional.”
31.I am satisfied that, in applying for and entering Australia on a business visa, with no intention with regard to business activity, Mr Hameed exhibited a disregard for the law. I am mindful that he did so at the urging of his family in Pakistan and I accept that he had little to do with the actual application for the visa.
32.However, the untruths and exaggerations in his protection visa application and perpetuated in his Refugee Review Tribunal application and his application for the exercise of the Minister’s discretion, were all put forward by him, and no one else, over a period in excess of a year. This was followed by his conceded failure to comply with the conditions of his bridging visa and then the expiry of that visa in 1999. Thereafter he made no contact with his migration agent or solicitor and continued in Australia with no apparent regard to his migration status for 3 or 4 years.
33.Mr Hameed’s conduct in relation to his application for a protection visa shows clear contempt for migration law. I do not consider that evidence as to his good character and conduct from Ms Bauer, Wharton and Colossi and others displaces or ameliorates the effect of this consistent pattern of breach of migration law. I have no doubt Mr Hameed is capable of and has, at times, exhibited good character and conduct. However, his conduct in relation to his migration status has been seriously culpable. On this basis, I conclude that Mr Hameed does not pass the character test.
should the discretion in section 501 be exercised?
34.The first of the primary considerations to which I must have regard, in consideration of the exercise of the discretion, is the protection of the Australian community. The factors that I am required, by the Direction, to consider in this regard are the seriousness and nature of the conduct, the likelihood that the conduct may be repeated and the issue of general deterrence.
35.Turning to the first of these factors, I note the Direction identifies making false or misleading statements in connection with stay in Australia as a serious crime against the Migration Act. Mr Hameed has conceded that he made such statements in his application for a protection visa and later in his application to the Refugee review tribunal and in his application for the exercise of the Minister’s discretion. The Direction does not include any mitigating factors relevant to this conduct.
36.I am also mindful of the decision of the Tribunal in Phuoc Tuong Tran v Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997) in which the Tribunal said:
“The application envisages a permanent entry to and stay in Australia. In my view discretionary factors in such cases must be materially stronger in favour of the visa applicant than those that could sway a decision maker in the case of an application for a temporary visa. In this case the adverse factors are quite strong.
They are strong because they include an element of harm that would be likely to result to the Australian community if the visa were granted. This does not involve (as the applicant's solicitor put it) an assessment of the likelihood of Ms Duangchan re-offending or engaging in unacceptable conduct in Australia. The undue harm which would result would be the perceived reward Ms Duangchan would receive for deliberate fraudulent conduct in which she engaged. Such a reward would be inimical to confidence in Australia's legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian Government is able to say to other applicants that they will not be permitted to profit from their lack of candour.”
37.The second factor, concerning the likelihood of the conduct being repeated, raises the possibility of similar future conduct by Mr Hameed in another area of Australian law or regulation. In Beale v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714, the Tribunal said:
“33. In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.”
38.Similar points were made in Lachmaiya v MIMIA (1994) 19 AAR 148 and Azad and MIMIA [2005] AATA 185.
39.The final factor of general deterrence requires me to consider whether the refusal of the visa may have the effect of deterring others from committing similar offences. I consider that it would have such an effect and in reaching this view I had regard to the decision of the Tribunal in Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935 in which the Tribunal said:
“47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered. “
40.Having considered these factors and the decisions noted above, I consider that the protection of the Australian community would best be served by the refusal of Mr Hameed’s visa application.
41.The second primary consideration I must have regard to is the expectations of the community. The representative of the Minister urged me to conclude there is an expectation in the community that non-citizens in Australia abide by and respect Australian law, including migration law. I consider this the correct view and note, in this regard, the decision of the Tribunal in McKay and MIMIA [2004] AATA 861.
42.As there are no children affected by the application, there is no call for me to consider the third primary consideration.
43.It remains for me to consider any other matters that may be relevant to the circumstances of the application. A range of matters that may be taken into consideration is listed, but not exhaustively, in the Direction. Only a few of those matters have relevance to the circumstances of this application.
44.I note that Mr Hameed has no family members in Australia and his closest connection is with Ms Funakoshi. I accept that Mr Hameed and Ms Funakoshi are in a genuine de facto relationship. This was not disputed by the Respondent. I also accept that, if the visa is refused, Ms Funakoshi will suffer emotional hardship. I am mindful of the particular difficulty she faced in relation to the death of her former husband and the role played by Mr Hameed in assisting her to deal with that tragedy.
45.Ms Funakoshi’s evidence was that if Mr Hameed is not granted a visa she will have to go to Pakistan to live. She said the situation in Pakistan is very dangerous, particularly for her as Japanese because she “would be regarded as having money”. She said she has been in Australia for 12 years, all her friends are here and she is not a typical Japanese person any more and would not be at home in Japan. She also said that racism is prevalent in Japan and she and Mr Hameed would find it very hard to be a couple there. She said she would have to give up her graphic design business which is currently doing well. She has never been financially dependant on Mr Hameed.
46.Mr Hameed’s evidence was that he is currently working in Pakistan in a bank doing business financing. He lives with his mother.
47.I note that, when Mr Hameed and Ms Funakoshi met, Ms Funakoshi was aware that he was not a permanent resident and it follows that she could not be certain of his continued presence in Australia.
48.I consider there will be significant hardship to Ms Funakoshi if the visa is not granted to Mr Hameed. However, the gravity of his conduct relevant to the primary considerations, is not outweighed by hardship.
49.Mr Hameed’s recent conduct appears to be unblameworthy. He has attracted the sympathy and support of a number of people who have written character references for him. These have been arranged and obtained by Ms Funakoshi, who has shown herself to be a most energetic and organised supporter. She is a very impressive person and the manner in which she conducted her application to the Tribunal was admirable. However, I consider all of this says more about Ms Funakoshi than it does about Mr Hameed. I do not consider Mr Hameed’s recent conduct overrides the gravity of his earlier conduct.
50.On balance, having reached the conclusion that Mr Hameed does not pass the character test, and having taken into account the considerations set out in the Direction, I consider that the discretion in section 501(1) of the Act should not be exercised.
decision
51.The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ...........[Linda Blue]...................................
AssociateDates of Hearing 13 and 14 October 2005
Date of Decision 16 October 2005
Solicitor for the Respondent Clayton Utz Lawyers
0
6
0