Hanna and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 257
•19 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 257
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/622
GENERAL ADMINISTRATIVE DIVISION ) Re SONIA HANNA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C., Deputy President Date19 March 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] The Hon R N J Purvis Q.C.
Deputy President
CATCHWORDS
IMMIGRATION - spouse visa - character test – past and present general conduct – Ministers Direction 21 - fraudulent visa application and associated review – failure to disclose existence of daughter - maintaining falsity during interview process for spouse visa – claims that fraudulent visa application advocated by Review Applicant and Visa Applicant’s family no excuse - hardship to wife – best interests of a child - level and duration of fraudulent behaviour not outweighed by hardship to wife - refusal to exercise discretion in favour of Visa Applicant – refusal seen to have general deterrent value to the community
Migration Act 1958 sections 234, 501
Ministers Direction 21
Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422
Goldie v 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
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AAATA 935
REASONS FOR DECISION
19 March 2003 The Hon R N J Purvis Q.C., Deputy President the application
1. By an application lodged with the Tribunal on 7 May 2002 Ms Sonia Hanna ("the Review Applicant") sought review of a decision made by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") on 16 April 2002 to refuse to grant a class 309 provisional spouse visa to her husband Mr Ricardo Audish ("the Visa Applicant"). The application was refused pursuant to the provisions of section 501(6)(c)(ii) of the Migration Act 1958 ("the Act") and the discretion available to the Respondent was not exercised in favour of the Visa Applicant.
2. In the reasons for the refusal decision the delegate inter alia stated:
"…[there is] evidence of provision of false or misleading information. The evidence includes information and documentation provided to DIMIA which indicates that the applicant sought asylum in Switzerland, was involved in a relationship in Switzerland which resulted in the birth of a child for which the applicant acknowledged paternity and that he used an alternative identity in Switzerland. None of these matters was disclosed to DIMIA in documents and application forms completed in association with his visa application and he provided false information in his interview in response to questions on those issues.
…
In his application form at Q14 the applicant failed to disclose that he has in the past been known by a different name, Ricardo Farid-Kindy. A number of Swiss documents, the authenticity of which have been verified by the Swiss authorities, indicate that the applicant sought asylum in Switzerland and obtained temporary residence there under that name.
At Q69 in his application form, the applicant indicated that the only country in which he had lived for more than 12 months in the last 10 years was Iraq. He failed to disclose his period of temporary residence in Switzerland.
At interview in Athens on 28.03.2002 the applicant stated that he had arrived in Athens on 02.07.2000. He stated that he came from Iraq by himself and that his family arrived a few days later. A related application by his family for a sc 202 visa which includes the applicant as a dependant family member, states that the family left Iraq in December 1999. Swiss documents relating to his asylum application and temporary residence indicate that the applicant was in Switzerland from 1997.
At Q22 and Q34 in his application form the applicant indicated that he had not had any previous relationships and that he had no children. At interview he also stated that he had no children. Swiss documents indicate that the applicant acknowledged paternity of a child he had from a relationship with a Swiss national. When challenged at interview on the issue of whether he had a child, the Applicant stated that he had nothing to do with the child after its birth and was not sure that he was the father. The Swiss document is a formal acceptance of paternity.
…
Having failed to disclose information material to consideration of his application in the relevant application forms and supporting documents, the applicant continued to provide misleading and false information at a recent interview.
…
The applicant has consistently presented false and misleading information to DIMIA in application forms and supporting documents relating to Partner Visa applications. At interviews relating to those applications he has similarly presented false and misleading information relevant to consideration the issues of whether he is in a genuine and continuing marital relationship and to assessment of public interest criteria. He has failed to disclose previous relationships and the existence of a child and he has failed to disclose alternative identities and periods of residence in other countries. As a consequence of the latter, full and effective public interest criterion checking was not possible.
When challenged on the issues at interview, the applicant continued to present false and misleading information, only admitting to the actual circumstances when presented with documentary evidence from Swiss sources.
…" (T2, pp10-11)
3. The reasons advanced by the Review Applicant for seeking review of the above mentioned decision were:
"1. Procedures required by the Migration Act 1958 were not observed by the delegate of the Minister of Immigration and Multicultural Affairs.
2. The decision was an improper exercise of power conferred by the delegate of the Minister conferred on it by the Migration Act 1958 and the Migration Regulation 1994.
3. That a breach of the rules of natural justice occurred in connection with the making of the direction, and
4. the decision was so unreasonable that no reasonable person could have reached it, or
5. the delegate failed to procure and consider all relevant information and facts before reaching his decision to refuse the visa application under s501 of the Migration Act 1958."
the hearing
4. At the hearing of the application before the Tribunal the Review Applicant was represented by Mr Michael Chahoud of Messrs Chahoud Kalouche and Associates, Solicitors, the Respondent by Mr Mutalib of Blake Dawson Waldron, Lawyers.
5. The documents lodged on behalf of the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T26 and supplementary documents S1 to S5. Written material tendered on behalf of the review applicant was also admitted into evidence and marked as exhibits, namely:
Exhibit
Description
Date
A
Statutory declaration of Ms Sonia Hanna
11 November 2002
B
Statutory declaration of Mr Ramzi Hanna
11 November 2002
C
Copy of Compensation Court of N.S.W. Determination
28 August 2001
D
Correspondence and statement of home loan account
E
Medical Certificates
20 January 2003
5 February 2003
F
Three Optus Accounts
7 June 2002
7 July 2002
G
Unsigned statutory declaration of Mr Richardo Audish
Undated
6. The Review Applicant, her father Mr Ranzi Hanna and the Visa Applicant gave oral evidence upon which they were each cross-examined. The Visa Applicant gave his evidence by telephone connection from Greece.
issues for determination
7. Although in the reasons for making the application to the Tribunal the Review Applicant detailed the same as set forth above, at the hearing the matters so detailed were not all raised or argued. Other than for the reasons specified in paragraphs four and five there was no submission made or evidence adduced directly relevant to matters stated in paragraphs one, two or three. More specifically the issues now for determination in these proceedings are as follows:
1. Does the Visa Applicant pass the character test provided for by section 501 of the Act having regard to his past and present general conduct, including whether he:
(a)failed to disclose that he has been known in the past by a different name, namely Ricardo Farid-Kindy;
(b)failed to disclose his period of residence in Switzerland;
(c)failed to disclose a previous relationship and paternity of a daughter, and
(d)engaged in adverse conduct in connection with applications for the grant of a visa including the making of false and misleading statements.
2. If the Visa Applicant does not pass the character test, should the available discretion be exercised in his favour having regard to the factors stated in the Ministers Direction 21, including:
(a)the seriousness of the Visa Applicant’s conduct;
(b)the need to protect the Australian community;
(c)the expectation of the Australian community; and
(d)the hardship to the Review Applicant, her family and the Visa Applicant.
relevant statutory and ministers direction 21 provisions
8. Section 234(1) of the Act provides:
"234 False Papers etc.
(1)A person shall not, in connexion 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.
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 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;
…
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 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), decislon-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); …"
15. Chronology of relevant events:
Date
Event
7 May 1978
Review Applicant born in Baghdad, Iraq
3 January 1979
Visa Applicant born in Baghdad, Iraq
6 November 1980
Review Applicant arrives in Australia
1989
Review Applicant and family visit relatives in Iraq
June 1996
Visa Applicant applies for Fiance Visa with Review Applicant as sponsor
Fiance Visa application refused
23 October 1997
Visa Applicant applies for Refugee Status in Switzerland
6 February 1998
Visa Applicant’s application for Refugee Status refused, temporary residence permit granted
Visa Applicant commences association with Maria D’Ambrosio in Switzerland
10 June 1999
Visa Applicant’s child born to Maria D’Ambrosio
31 October 2000
Visa Applicant lodged application for permanent visa on refugee ground
6 June 2001
Visa Applicant arrives in Athens
Review Applicant arrives in Athens
29 June 2001
Review Applicant marries Visa Applicant in Athens
12 July 2001
Review Applicant completes sponsorship for Visa Applicant to migrate to Australia
23 July 2001
Visa Applicant completes application for migration to Australia
14 September 2001
Visa Applicant interviewed in Athens by officer of the Respondent
14 October 2001
Visa Applicant’s application for subclass 309 visa refused
22 October 2001
Review Applicant completes sponsorship for Visa Applicant to migrate to Australia
25 October 2001
Visa Applicant completes application for migration to Australia
19 December 2001
Visa Applicant temporary Swiss residence permit cancelled
16 April 2002
Visa Applicant’s application for subclass 309 provisional visa refused
7 May 2002
Application for review lodged with the Administrative Appeals Tribunal
relevant facts and findings of fact
16. The Review Applicant and the Visa Applicant were both born in Iraq, the Review Applicant on 7 May 1978 and the Visa Applicant on 3 January 1979. The Review Applicant first entered Australia with her parents when she was two and half years of age and has remained resident in this country since that time. She received formal education to Year 10 and apart from English has a fluency in the Chaldean Arabic dialect, which dialect she only uses at home and to some extent in conversation with the Visa Applicant. Since leaving school she has worked in various unskilled positions and has assisted her father in his take-away food/restaurant business. She is presently unemployed and on compensation as a result of a wrist injury. She is one of a relatively large Iraqi family grouping resident in Australia.
17. In 1989 the Review Applicant with members of her family travelled to Iraq to visit relatives. Whilst there she met the Visa Applicant who is her cousin, the son of her father’s sister and after a short period returned with her immediate family to Australia.
18. The Visa Applicant is an Iraqi Chaldean. He says that during the Iran/Iraq War he was liable for conscription into the army and on account of his Christian beliefs was subject to persecution. In June 1996 he left Iraq, bribing border officials and entered Jordan where he remained for about eight months. Thereafter he travelled through Syria, the Lebanon, Greece and Italy where he sought to make arrangements for entry into Canada. This seemingly entailed the Visa Applicant’s obtaining a false passport. He was apprehended at Zurich Airport, Switzerland where the falsity of his travel documents was detected and he was detained. He applied for refugee status in Switzerland but in due course this was refused, he being granted a temporary residence permit, this in the name of Ricardo Farid-Kindy. He remained living in Switzerland for nearly four years.
19. The Visa Applicant says that whilst travelling from Iraq to Switzerland and later whilst residing in Switzerland, he telephoned his uncle, the Review Applicant's father, in Australia on a number of occasions and had the opportunity at such times of speaking with the Review Applicant. A relationship is said to have developed and in due course prospective marriage is said to have been discussed. An application was made by the Visa Applicant for a visa to enter Australia with the Review Applicant as a sponsor. It was refused.
20. Shortly after the Visa Applicant began living in Switzerland, and his refugee application had been refused he met Maria D'Ambrosio. They began living in the same premises and became "very good friends". In late 1998 Ms D'Ambrosio became pregnant to the Visa Applicant, a daughter being born to them in September 1999. The Visa Applicant remained living in Switzerland until he left for Greece in order to marry the Review Applicant in June 2001.
21. Seemingly for most of the period from when he left Iraq up until his wedding, the Visa Applicant relied upon the beneficence of his relatives in Australia and Canada.
22. In the month following the wedding the Review Applicant, the Visa Applicant, the Visa Applicant's mother, his two sisters and two brothers all discussed the Visa Applicant making an application for a visa to enter Australia. They were all in Athens at the time. The matter of disclosure to the Migration Authorities at the Australian Embassy of his having resided in Switzerland for nearly four years, of his having lived in a relationship with Ms D'Ambrosia and his having a daughter were debated. The Review Applicant expressed the opinion that disclosure might be detrimental to a visa being granted. The Visa Applicant and the other family members either agreed or were persuaded to agree and so the falsities earlier detailed in these reasons came about.
23. The Visa Applicant was interviewed in September 2001 in Athens by an officer of the Respondent and failed to tell the truth as to the date when he arrived in Greece and of his residence in Switzerland. He maintained the falsity up to the time when he was again interviewed in relation to his second application for a spouse visa. The false date of entry into Greece was also engendered by an intention not to prejudice an application made by his father for refugee status, the latter being supported by a false representation of the factual situation.
24. Following her wedding in June 2001 the Review Applicant and her family returned to Australia, she resuming her then employment and living with her parents. She purchased a house in her own name, intending, she says, it to be a residence for herself and her husband. Such house is now fully furnished but vacant. Since the marriage the Review Applicant has travelled to Greece on two occasions, in June 2002 staying two months and in November 2002 for a period of three months. On each occasions she lived with the Visa Applicant and in the home of his parents. On the most recent visit she became pregnant and is expecting a child in September 2003.
25. The Visa Applicant was given the name Ricardo Farid Boutros Audish Petros Kindy. In his visa applications he used the name Ricardo Farid Boutros and Ricardo Audish. In his passport he used the name Ricardo Farid Boutros Audish. He said that in Iraq he was known by the name Ricardo Farid Audish. His Iraq nationality card showed the name Ricardo Farid Boutros. In his refugee application in Switzerland he used the name Ricardo Farid-Kindy. He did not disclose in his applications for a spouse visa that he used a name or names other than as stated on the form.
26. The Visa Applicant says that he used the name Audish because his family in Australia were known by that name. He denied that he deliberately did not declare the names that he used or had used in his visa applications. He said that his name was very long and the documents and forms did not have sufficient space on them for the same to be written out in full. This may have been so but that does not provide a reason for his not declaring the fact of his having used variations of his name on different occasions and for different purposes.
27. The application forms were filled out by the Review Applicant; the Visa Applicant responded to questions as they were read out to him by the Review Applicant. He was not at that time and is not at the present fluent in English. Nevertheless, he had on other occasions with or without assistance completed migration applications and was not a stranger to their requirements.
28. The question as to the use of other names is not raised in the Application for a Visa form in order to satisfy a random curiosity. The answer is sought in aid of the making by the Respondent of relevant inquiries. It is in aid of carrying out a necessary activity associated with the migration process that the question of the use of other names is posed.
29. On the basis of the evidence tendered before it, the Tribunal has no doubt as to the intent of the falsities as to the Visa Applicant’s residence, female associate and child of that relationship. The omissions were so carried out to mislead the Respondent and in aid of obtaining a visa on the basis of false representations.
30. The Tribunal does not accept the claimed inadvertence for not disclosing the name and names under which the Visa Applicant had been known and that he had used. It may be that his full name was too long for the documents that he was required to complete, but this provides no good reason for non-disclosure. On the other hand non-disclosure of the name that he had used whilst in Switzerland was consistent with the Visa Applicant’s non-disclosure of his residence in that country, the female relationship and his child. The Tribunal is satisfied that the failure to disclose the other name and names was deliberate and in furtherance of the intent to mislead.
character
31. It was submitted on behalf of the Review Applicant that the Visa Applicant did not intentionally fail to disclose the information as it related to his residence, relationship and child, and that the "error if any" arose due to the actions of the Review Applicant and not of the Visa Applicant. The Visa Applicant it was submitted, relied on his wife and wife's family’s advice "contrary to his own better judgement". Further, his lack of "English skills" more easily enabled the error to be made. It was contended that "[h]e acted on advice, bad as it may have been and did not persist with the advice once questioned about it in the interview".
32. It was further maintained that the Applicants should be given credit for seeing the error of their ways and in due course admitting their mistake.
33. The Tribunal does not accept that the misleading information was as a consequence of an inadvertent failure to disclose. The non-disclosure was intentional. It may well be that it was at the behest of the Review Applicant that the Visa Applicant behaved as he did. It may also have been at the behest of his family. The fact is however, that he did behave dishonestly and did not disclose relevant information and maintained the non-disclosure even up until the second interview with an officer of the Respondent. It provides no assistance to the Visa Applicant to say that he relied on the Review Applicant and his family’s advice. It was he who signed the application. It was his application. As earlier mentioned, he well knew that what was contained in the application was not correct and that he had not disclosed information that would be relevant to a consideration of the matter by the Respondent. It is of little assistance to him to say that he now sees the error of his ways. The misleading information was put to him by an officer of the Respondent only after extensive investigations had been conducted. Such investigations were not assisted by the Visa Applicant not disclosing the name that he had used whilst in Switzerland.
34. The Tribunal considers that the failure on the part of the Visa Applicant to make appropriate disclosures and the provision by him of false and misleading statements places him within the policy guidelines stipulated in paragraph 1.9(a)(b) and (c) of Direction 21. It is fair to say as was noted in Lachmaiya (supra) at 155 - 156 and as it is applicable in this matter that :
"The observance of truth in dealing with officials in migration matters (particularly were the truth is only know only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications…Australia can have no confidence he would not again transgress in matters were truth and good faith could be deceptively withheld."
35. The Visa Applicant's lack of observance of the truth in his dealings with the Respondent demonstrates deficiencies in his enduring moral qualities. His failure to disclose the name he used whilst in Switzerland, the existence of his daughter, the relationship he had with Maria D’Ambrosio and the period of his residence in Switzerland are indicative of his lack of concern for and disregard of the provision of the Migration Legislation.
36. The Tribunal is satisfied that the Visa Applicant fails the character test. The misleading statements and failures to disclose as evidenced in this matter underscore the importance of truth in migration matters. It is of no assistance to the Visa Applicant for him to say that the Review Applicant was responsible or primarily responsible for the failures to disclose and the making of misleading statements. She indeed played a part and has to bear some blame for the situation in which the Visa Applicant now finds himself. Indeed her participation in the making of the misleading statements and the failures to disclose impacts on the hardship she may well experience.
37. The Tribunal having considered the past and present conduct of the Visa Applicant outlined above is satisfied that the Visa Applicant is within the meaning of section 501 of the Act not of good character.
the exercise of the available discretion
38. The matters relevant to the exercise by the Tribunal of the available discretion have earlier been detailed in these reasons. It was submitted on behalf of the Applicants that there was not anything in the evidence to convince the Tribunal that they were other then law-abiding citizens who wanted to establish a family in Australia. It was said that they had each expressed remorse. It was said that the Tribunal should “be forgiving” and that the errors committed by the Applicants should not rest upon them "forever and a day". Again it was said that the hardship that would flow if a visa was not granted was extreme and that even be it the Review Applicant knew of the risk in non-disclosure, she thought that “the consequences of non-disclosure would not be of significance”..
39. Reliance was placed, by Mr Chahoud on behalf of the Review Applicant, on a number of previous decisions of the Tribunal, vis: Dam and the Minister for Immigration and Multicultural Affairs [2001] AATA 649; Yacoub and Minister for Immigration and Multicultural Affairs [2001] AATA 958; Afoa and the Minister for Immigration and Multicultural Affairs [1999] AATA 82; Yusuf and Minister for Immigration and Multicultural Affairs [2000] AATA 792 and Narciso v Minister for Immigration and Multicultural Affairs [2000] AATA 722, as supportive of occasions when the discretion was exercised in favour of an applicant. Each of these decisions, however, turned on the relevant facts. It was sought to say that the conduct of the Review Applicant and Visa Applicant in the present case was "not more serious" than that in the identified cases. The Tribunal does not accept this submission. The conduct of the Visa Applicant in the present case was continuing. He deliberately engaged in a course of conduct intended to mislead the officers of the Respondent and maintained this position through two applications and into a second interview. It is appropriate to regard his conduct as very serious and an attempt to enter Australia by not being truthful.
40. The conduct of the Visa Applicant can by no means be described, as it was contended on behalf of the Applicant, as "minor indiscretions". The Visa Applicant displayed a propensity to do what ever was necessary to obtain a goal sought by him. It was not a mistake on his part, it was a deliberate planing to deceive and obtain a benefit. The Review Applicant played a measurable part in this misleading. They choose to get married even if not knowing a visa might not be granted but aware that one had not been granted some years before. The Review Applicant has become pregnant well knowing that a visa to enter Australia had been refused to her husband on no less than three occasions.
41. More specifically the seriousness of the Visa Applicant’s conduct makes it particularly relevant to the primary considerations as they relate to conduct, risk of recidivism and general deterrence. The conduct represents immigration malpractice, the Visa Applicant having shown repeated disregard for the laws and procedure referable to migration. As was stated in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 40:
"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 that might otherwise have been accepted were 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."
42. The Tribunal is satisfied that the refusal of a visa to the Visa Applicant would indicate clearly that conduct similar to that evidenced in this application is not acceptable to the Australian community. To grant a visa to one such as the Visa Applicant is equivalent to either ignoring or rewarding the perpetrator for his misleading and dishonest conduct.
43. The Review Applicant is with child, the date of birth to be in September 2003. The Tribunal is satisfied however that there is not a child within the meaning of the Minister's Direction 21 whose interests are of primary consideration. It is clear however, that the pregnancy is a factor to be taken into consideration even be it the child was conceived with full knowledge on the part of the prospective parents of the situation relating to the visa application.
44. In addition to the matters considered above there are other factors that warrant attention. It is true to say that the Review Applicant has made her life in Australia with her parents, siblings and relatives. She considers Australia her home. She has a limited fluency in a language other than English. She has purchased a house property, which is presently furnished but vacant. She would experience emotional hardship if required to leave Australia or if required to continue to live apart from her husband.
45. However, the Visa Applicant is living in Greece with his immediate family. The Review Applicant has spent time with him in that country. She, as it was put on the behalf of the Respondent "has at all times been aware of the Visa Applicant’s tenuous immigration status" and "she must have been aware there was risk the Visa Applicant would be refused a visa and/or refused further entry to or stay in Australia". The Tribunal accepts these submissions as being consistent with the evidence in this matter.
decision
46. Having considered the matters referred to in the Minister's Direction, the primary considerations and the other considerations relevant to its decision, the Tribunal is satisfied that those considerations adverse to the discretion being exercised are such as to dissuade the Tribunal from exercising its discretion in a manner favourable to the Visa Applicant.
47. Accordingly and for the reasons herein before set forth, the Tribunal is of the view and so determines that the correct or preferable decision in this matter is that the decision under review be affirmed.
I certify that the 47 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: L Bonouvrie
AssociateDate/s of Hearing 13 and 14 February 2003
Date of Decision 19 March 2003
Solicitor for the Applicant Michael Chahoud
Solicitor for the Respondent Ishan Mutalib
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