HOKAFONU And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS - [2001] AATA 234

DECISION AND REASONS FOR DECISION [2001] AATA 234

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/843

GENERAL ADMINISTRATIVE DIVISION          )
           Re      MICHELLE HOKAFONU
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President J. Block

Date23 March 2001
PlaceSydney

Decision      The decision under review is affirmed.
  (signed Julian Block)
  ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – whether visa applicant fails the character test – offences against the Migration Act 1958 – criminal conviction for drug offences – false protection visa applications – false or misleading statements to immigration authorities – past and present general conduct – discretion – hardship.

Migration Act 1958 – ss 234, 235, 501.
Administrative Appeals Tribunal Act 1975 – s 37
Ayaad v Minister for Immigration and Multicultural Affairs [2000] AATA 935

REASONS FOR DECISION

23 March 2001 Deputy President J. Block

The Applicant, Michelle Hokafonu, seeks the review of a decision made by a delegate of the Respondent on 3 March 2000 to refuse her husband, Villiami Kafo Hokafonu, a Subclass 309 Spouse (Provisional) Visa, pursuant to section 501 of the Migration Act 1958 ("the Act").
At the hearing the Applicant was self-represented, while Ms Bridget Quayle and Mr Marten Kennedy, Departmental advocates, appeared for the Respondent. The Tribunal had before it the T documents and Supplementary T documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. It also took into account the following exhibits, tendered at the hearing:
Exhibit #      Description of Exhibit      Submitted by
A1      Applicant's Statement of Facts and Contentions          Applicant
A2      Photo of Villiami Kafo Hokafonu   Applicant
A3      Character reference from Brian Spurrell dated 24 November 2000   Applicant
A4      Character reference from Kerry James dated 01 December 2000     Applicant
A5      Character reference from Alan Gosling dated 11 December 2000     Applicant
A6      Character reference from Simote Po'uliva'ati, General Manager of the International Dateline Hotel, Tonga, dated 20 December 2000 Applicant
A7      Character reference from Christine O'Neale dated 04 March 2001    Applicant
A8      Character reference from John Daly, undated   Applicant
A9      Statutory declaration of Villiami Kafo Hokafonu dated 21 December 2000   Applicant
A10     Statement of Sione Pinomi dated 09 March 2001         Applicant
R1      Visa Applicant's criminal records Respondent

Exhibit A1 was tendered simply because the Respondent was prepared to accept it in lieu of a witness statement of the Applicant.
The Applicant gave oral evidence in person and Mr Hokafonu gave oral evidence by telephone from Tonga with the occasional assistance of a Tongan interpreter.
background

In order to set the scene and the background, I include a number of documents before the Tribunal. The Respondent's Statement of Facts and Contentions reads as follows:
1. Michelle Anne Hokafonu is the sponsor of Viliami Kafo Hokafonu in an application for a subclass 309 Spouse (Provisional) visa.
2. On 3 March 2000, the application was refused on the basis that Mr Hokafonu did not pass the character test in section 501 of the Migration Act 1958. This is the decision under review.
3. Mr Hokafonu was born in Tongatapu, Tonga on 21 April 1962. He is a citizen of Tonga. He married Michelle Anne Hokafonu (nee Jacobs), an Australian citizen, on 22 March 1996.
4. Below is a chronology of Mr Hokafonu's immigration history.

Date    Event   Comment
7.4.1992        Arrived in Australia as the holder of a temporary entry permit.        Mr Hokafonu became unlawful on 9 July 1992.
31.5.1993       First application for Refugee Status in Australia (T6).         Claims based on religious persecution due to espousing that there is no God.
31.08.1993     Application refused.
14.1.1994       Advised time for applying for review to the RRT had expired (T16).
22.4.1994       Deportation Order signed on basis that Mr Hokafonu is an illegal entrant (T18).     Mr Hokafonu's whereabouts unknown to the Department.
3.08.1995       Second application for protection visa (S3). Appears the second application was accepted in error. Claims based on belief that protection visa was only application available. (S3)
20.2.1996       Application refused (S7).
5.03.1996       Application to RRT for review (S8).
9.9.1997        Refusal affirmed (T21).
3.09.1998       Application for Permanent Residence on Remaining Relative grounds (T22)
28.9.1998       Application refused.
12.10.98        Application for review of above in IRT.
16.4.1999       Refusal affirmed (T26).
8.7.99 Mr Hokafonu departs Australia.        Departure monitored by Department.
9.7.99 Application for Spouse visa lodged in Suva (T34).
14.9.99          Interview with DIMA in Tonga re application (T35).
3.3.00 Application for spouse visa refused on character grounds (T42).

5. Mr Hokafonu arrived in Australia as the holder of a temporary entry permit on 7 April 1992. He was permitted to remain in Australia for three months until 9 July 1992. He did not leave Australia until 8 July 1999.
6. Mr Hokafonu worked in Australia without having permission to do so. Mr Hokafonu held visas permitting him to work in Australia only between 8 February 1996 and 13 May 1999. Evidence of the conditions attached to visas held by Mr Hokafonu is at S18.
7. In 1993, Mr Hokafonu applied for refugee status in Australia (T6). He claimed he feared persecution from Tongan authorities because he had 'spread to the people that there is no God'. This application was refused because, among other reasons, Mr Hokafonu had admitted at interview that he was, in fact, a practising Methodist and 'was not aware of anything' in his application (T14).
8. On 22 April 1994, a Deportation Order (T18) was made against Mr Hokafonu because he was an illegal entrant pursuant to section 60 of the Migration Act 1958 (as it then was) (S1 and S2). The Order was not executed because Mr Hokafonu's whereabouts were not known by the Department.
9. On 3 August 1995, Mr Hokafonu made a second application for a protection visa (S3). In that application Mr Hokafonu made no convention-related claims but appeared to apply because there was not any other application available to him.
10. This application was refused on 20 February 1996 (S7). Mr Hokafonu applied to the RRT for review on 5 March 1996 (S8). The RRT affirmed the decision to refuse Mr Hokafonu a protection visa on 3 September 1997 (T21 ).
11. On 3 September 1998, Mr Hokafonu applied for permanent residency in the 806 Family subclass (T22). This application was refused because Mr Hokafonu did not meet the criteria that the application be made within 12 months of the date when he last held a substantive visa (T25).
12. Mr Hokafonu applied for review of this decision on 12 October 1999. The decision was affirmed on 15 April 1999 (T26).
13. Upon departing Australia on 8 July 1999, Mr Hokafonu applied for a Spouse visa (Subclass 309) (T34).
14. On 3 March 2000, this application was refused on character grounds pursuant to section 501(6)(c)(ii) Migration Act 1958 (T42). Michelle Hokafonu, as sponsor, applied for review in this Tribunal on 29 August 2000 (T1 ).
LEGISLATION
15. In order to be granted a Subclass 309 Spouse visa, Mr Hokafonu must satisfy the relevant public interest criteria, including item 4001 of Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under section 501 of the Migration Act 1958 to refuse to grant a visa.
(i) Migration Act 1958, section 501
16. Section 501 of the Act provides as follows:
(1) The Minister may refuse to grant a visa to a person, if the person does not satisfy the Minister that the person passes the character test.
Character Test
(6) For the purposes of this section, a person does not pass the "character test" if:
(a) the person has, a substantial criminal record (as defined by subsection (7); or
(b) the person has, or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(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
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or to a segment of that community , whether by way of being liable to become involve(j in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise the person passes the "character test",
(ii) Migration Regulations 1994, Schedule 4 ("Public interest criteria and related provisions -Part .1 -Public Interest Criteria"), Item 4001
17. Item 4001 is a mandatory criterion for the grant of a subclass 309 Spouse visa (see clause 309.225).
18. Item 4001 provides as follows:
4001
(1) Either:
(a) the applicant satisfies the Minister that the applicant passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

POLICY
(i) Ministerial Direction No.17
19. Ministerial Direction No.17 ("Visa refusal and cancellation under section 501 of the
Migration Act 1958" -"the Ministerial Direction") was issued on 16 June 1999 under section 499 of the Act. Section 499 of the Act empowers the Minister to give policy directions which the Respondent contends are binding on the Tribunal. The Ministerial Direction provides guidance to decision makers in making decisions to refuse or cancel a visa under section 501 of the Act.
(ii) Migration Series Instruction No.254
20. Migration Series Instruction No.254 ("The Character Requirement: Visa refusal and cancellation under section 501 -"MSI 254) was issued on 20 September 1999 and provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act.
The Character Test
21. Non-citizens who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the Character Test.
22. Paragraph 1.9 of the Ministerial Direction provides that - in considering whether a non- citizen is not of good character against subparagraph 501 (6)(c)(ii) - decision makers should consider the following matters - and where they are relevant – would - in the absence of any countervailing factors - constitute a failure to pass the Character Test (emphasis added):
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
·     engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
·     continual evasion or non-payment of debt;
·     continual disregard as to payments of family maintenance;
·     involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or
·     involvement in war crimes or crimes against humanity.
(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;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined by subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia.
23. The Respondent submits that Mr Hokafonu does not pass the Character test by reason of his involvement in activities indicating contempt or disregard for Australia's Immigration law.
24. The Respondent submits that Mr Hokafonu:
·     Overstayed his original temporary entry permit;
·     worked illegally in Australia; applied for a protection visa with false claims;
·     applied for a protection visa again with no claims and subsequently applied to the RRT for review of the refusal;
·     was the subject of a Deportation Order;
·     departed Australia only under threat of detention and removal.
25. Paragraph 1.7 of the Ministerial Direction also provides that, 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. The Respondent notes that in his application for a spouse visa (T 34, p253) Mr Hokafonu answered relevant Question 70 'Character' questions as follows:
70.Have you, your spouse, or any of your dependant children or other dependants ever:
·     Left any country to avoid being removed or deported? (NO)
·     Been excluded or asked to leave any country (including Australia) (NO)
26. Mr Hokafonu did not therefore disclose that he had been subject to stringent conditions on his Bridging visa in lieu of removal (S 18). Indeed in the Application for Review before this tribunal, (T1, p10) Ms Hokafonu maintains that Mr Hokafonu departed Australia voluntarily. The Respondent submits it is not accurate to describe Mr Hokafonu's departure as voluntary when his failure to do so would have subject him to detention and removal.
27. Similarly, Mr Hokafonu did not disclose that there had been a Deportation Order made against him on 22 April 1994 (T18). The Respondent submits that this is a further example of dishonesty in his dealings with the Department which negates any claim of rehabilitation or recent good conduct.
28. Accordingly, the Respondent submits that there is no evidence of good conduct and that there is in fact evidence of recent dishonesty in his dealings with the Department.
29. The Respondent submits that Mr Hokafonu's past and recent general conduct demonstrates a blatant disregard for Australian immigration laws, and as such, he does not pass the Character Test pursuant to section 501 (6)(c)(ii).
The discretion
30. If a non-citizen does not satisfy the Minister that they pass the Character Test, the discretion under section 50 1 of the Act is enlivened.
31. Paragraph 2.1 of the Ministerial Direction provides that, in exercising the discretion whether to refuse the application, regard must be had to the following Primary and Other considerations.
32. Paragraph 2.2 of the Ministerial Direction further provides that a weighing system is to be used, whereby no individual considerations can be more important than a primary consideration, but a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse a visa. 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 that takes into account all relevant considerations.
Primary Considerations
A. PROTECTION OF THE AUSTRALIAN COMMUNITY
(i) Seriousness and nature of the conduct
33. Under paragraph 2.6 of the Ministerial Direction, examples of offences which are considered by the Government to be very serious are:
(e) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia.
34. The Respondent submits that, by overstaying his visa and engaging in work Mr Hokafonu committed offences under section 235 (3) of the Act.
35. Section 235 (3) of the Act provides that:
An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.
36. Mr Hokafonu admitted at interview on 14 September 1999 (T35) that he had been working in Australia while he was an unlawful non-citizen.
37. The Respondent also repeats its contentions at para 25-27 in the context of providing a statement that, to Mr Hokafonu's knowledge, was false or misleading in a material particular.
38. Section 234 (1) of the Act provides that (emphasis added):
A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that, to the person's knowledge, is false or misleading in a material particular; ...
39. The Respondent submits that Mr Hokafonu's conduct regarding his false claims in his first protection visa application constituted an offence under the Act, and a disregard for Australia's immigration laws. The Respondent contends that this warrants the exercise of the discretion in favour of refusing his spouse visa application upon character grounds.
40. It is further submitted that failing to declare the Deportation Order and the circumstances of his departure also constitute breaches of section 234(1 )(b )
41. Paragraph 2.8 of the Ministerial Direction provides that, when exercising the discretion, decision-makers must also take into account any relevant factors provided by the non-citizen as mitigating factors.
42. Attachment 2 to the Application for Review (at p9) outlines certain claims of mitigation.
43. The review applicant (Ms Hokafonu) submits that:
(i) He (Mr Hokafonu) overstayed his visitor's visa. He did this for compassionate reasons because he wanted to be with his family who all bar one live in Australia. We met and married, and of course we want to stay together as husband and wife in Australia;
(ii) Kafo (Mr Hokafonu) worked illegally - he did this to survive rather than become a criminal and steal from others. Our laws force people into a comer, where they then break the law even when they are trying to be law abiding. He even paid his taxes;
(iii) The interviewer accused Kafo of lying in his interview in September 1999. This is what I meant by misunderstanding. Kafo knew he had lodged a protection visa. He even answered questions in his application regarding this. There was no reason for him to lie. Also it is suggested that we knew his protection visa application was groundless. This is not true. We were advised that this was the way to go, and in good faith we lodged for a protection visa.
(iv) Kafo's immigration history is up to interpretation. Immigration has chosen to view it in the light that Kafo wants to stay in Australia, at any cost, even illegally. This is not true. We went to Tonga to lodge it offshore;

(v) Kafo voluntarily departed Australia so that he could legalise his status. He did not leave through fear of being deported. Again this has been interpreted in the worst light.
44. In answer to these points, the Respondent contends that:
(i) Excuses for overstaying a temporary entry permit do not re-characterise the conduct as anything other than a breach and contempt for Australian immigration law. The Respondent submits that the fact that Ms Hokafonu was aware of Mr Hokafonu's immigration status when they married should result in less weight being placed on hardship to her as his spouse should the visa be refused.
(ii) Working without permission is an offence against s 235 (3) of the Act. It is not an answer to this that it was done to prevent commission of other criminal, offences.
(iii) Regardless of what Mr Hokafonu was advised and by whom, Mr Hokafonu knew that the claims he made in his protection visa application were false in that he was not at risk of persecution from Tongan authorities because of proselytising that there was no God. At the relevant time he admitted to immigration officials that he was a practising Methodist. Clearly it is not correct to say the applications were made in good faith.
(iv) The Respondent agrees that Mr Hokafonu's immigration history is a matter for interpretation and submits that it should be characterised as evidence that Mr Hokafonu is not of good general character in the meaning of s501( 6)( c )(ii).
(v) Mr Hokafonu only voluntarily departed in the sense that he was subject to detention and removal if he did not.
45. The Respondent submits that there are further factors militating against compassionate consideration. The Respondent reiterates that both the visa applicant and the sponsor state that the sponsor was aware soon after meeting the visa applicant of his immigration situation. Accordingly, the Respondent refers the tribunal to paragraph 2.17 (b) of the Ministerial Direction which relevantly states:
In assessing the compassionate claims of the Australian partner...decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
46. Furthermore, the connection Mr Hokafonu now claims to have with Australia is a result of his presence in Australia due to deliberate and lengthy breaches of Australian immigration laws over the course of 7 years.
(ii) Likelihood that the conduct may be repeated (including any risk of recidivism)
47. Mr Hokafonu's conduct occurred in the context of attempting to remain in Australia. The Respondent submits that he would have no need to repeat that specific type of conduct if he were to be granted a visa to remain permanently in Australia. However, the Respondent contends that Mr Hokafonu's disregard for Australia's law in the immigration context suggests that he may be likely to abuse other Australian laws and administrative processes in the future. Accordingly, the Respondent submits that there is a likelihood that similar conduct may be repeated.
(iii) General deterrence
48. The Respondent submits that Mr Hokafonu's applications are examples of the many where the applicant has wilfully abused Australia's migration system. The refusal of his spouse visa will act as a general deterrent to prospective visa applicants who seek to make false claims in relation to protection visas, overstay their visas and work without permission.
B. EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
49. Paragraph 2.12 of the Ministerial Direction relevantly provides: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached. ..this trust, it may be appropriate to refuse the visa application. Visa refusal. ..may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa. Decision-makers should have due regard to the Government's view in this respect.
50. The Respondent submits that the Australian community would expect situations where a visa applicant has deliberately provided false information and overstayed whilst working illegally to be dealt with appropriately.
51. In this case Mr Hokafonu has knowingly attempted to secure a visa through false claims, worked without permission, overstayed his visa and misled the Respondent in his current application. The Respondent therefore submits that Mr Hokafonu has shown a disregard for Australia's laws and as such has breached the trust of the Australian community.
52. The Respondent submits that, in the Australian community's eyes, in these circumstances, the appropriate resolution is to reject that person's subsequent applications for residence in Australia.
Best interests of the child
53. The Respondent submits that this consideration is not relevant as there are no minor children of Mr Hokafonu, or his spouse.
Other Considerations
54. Paragraph 2.17 of the Ministerial Direction provides that, where relevant, other factors such as the following should be taken into account; however, those factors should be given less individual weight than that given to the Primary considerations:
(a) the extent of disruption to the non-citizen's family: business and other ties to the Australian community; the extent of disruption to the non- citizen's family, business and other ties to the Australian community;
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen. .. .in assessing the compassionate claims of the Australian partner , decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
55. The Respondent acknowledges that a refusal decision will be distressing for both Mr and Ms Hokafonu. However, the Respondent reiterates its contention at para 45.
56. With the exception of his Mr Hokafonu's adult step daughter, there is no evidence of any child whose best interests should be taken into account in relation to the refusal to grant the visa.
57. Ms Hokafonu has one daughter, who is now an adult. Mr Hokafonu is not her biological father. The Respondent acknowledges the difficulty faced by Ms Hokafonu in being separated from her daughter, but submits that it will always be open for Ms Hokafonu to return to Australia. Similarly, it will always be open for Ms Hokafonu's daughter to visit her mother and stepfather in Tonga.
58. The Respondent acknowledges that Mr Hokafonu has many family members in Australia, both biological and through marriage. In relation to biological family members, it must be noted that Mr Hokafonu also has remaining family in Tonga (a brother).
59. The Respondent acknowledges that Mr Hokafonu's mother-in-law would be distressed by the spouse visa refusal because it may result in Ms Hokafonu living away from either her, or Mr Hokafonu. The Respondent contends however, that this distress could be alleviated because it would be open for Ms Hokafonu to return to Australia either permanently or from time to time. In any event, the Respondent contends that distress caused to the visa applicant's mother in law is not sufficient to outweigh the primary considerations.
60. The question for the Tribunal to determine is whether Mr Hokafonu does not satisfy the character test for the purpose of s501 of the Act. If the Tribunal is satisfied that the primary applicant does not satisfy the character test, then it may nevertheless exercise the discretion under s501.
61. The Respondent submits that the decision under review should be affirmed.
62. The Respondent draws the attention of the tribunal to the decision in Ross v Minister for Immigration & Multicultural Affairs [2000] FCA 1716. In that case, His Honour Spender J found inter alia that an error of law had been made when the discretion under section 501(2) of the Migration Act 1958 was described in a submission to the Minister as a discretion to 'not cancel a visa'. His Honour characterised the effect of this description at paragraph 27:
It is apparent that the Minister believed that once paragraphs (a) and (b) of s 501 (2) were satisfied he was obliged to cancel the visa unless he positively decided that he should not do so.
His Honour indicated that the error of law arose as follows (at paragraph 29):
The basis for my conclusion in this case is simply stated: I do not agree with the contention for the Minister that a discretion not to cancel a visa is the same as a discretion to cancel a visa. In terms, s 501 (2) is permissive: it confers a power to cancel a visa in the exercise of the Minister's discretion. The interpretation given to the section by the Minister, as evidenced by the explanations proffered to him by his officers and by what he said he decided, is that the section obliges him to cancel a visa unless he is satisfied that he should not. There is, in my view, an important difference between power and obligation.
And further at para 35
In my view, in this case the words of the Minister's decision indicate that he was unpersuaded that Mrs Ross' visa should not be cancelled. In my opinion, on its proper construction, s 501(2) of the Act does not permit the Minister to cancel Ms Ross's visa on the basis of that lack of persuasion.
63. The Respondent submits that the principle outlined by His Honour Spender J applies equally to the exercise of a discretion to refuse a visa under s501(2). Accordingly, the tribunal should be positively satisfied that the visa should be refused before proceeding to affirm the decision of the Minister's delegate.

By way of balance, I also include the Applicant's Statement of Facts and Contentions (Exhibit A1), reading as follows:
Chronology of Immigration History
1.07/02/92        Villiami (Kafo) Hokafonu arrived in Australia as a holder of a temporary entry permit. Kafo came to visit his family who had migrated to Australia during the 1980's.
2.09/07/92        Kafo's visa expired. Kafo decided to stay on in Australia and began the process of gaining permanent residency so that he could stay together with his parents and siblings.
3.31/05/93        Kafo applied for a protection visa. He hired the services of a migration agent to get him a visa. This agent lodged a protection visa for him.
4.31/8/93          The protection visa application was refused.
5.April 1995       Kafo met Michelle Jacobs (now his wife). They began to live together that same year.
6.03/08/95        Kafo applied for a protection visa. A member of the Tongan community who helped people with their visa applications put in the application for Kafo.
7.20/02/96        The protection visa application was refused.
8.05/03/96        Kafo applied to the RRT to review his application.
9.22/03/96        Kafo and Michelle married.
10.09/09/97        The RRT affirmed the refusal.
11.03/09/98        Kafo applied for permanent residency by lodging an application for change in circumstances on family grounds.
12.28/09/98        Application refused because it was not lodged within 12 months of having had a substantive visa.
13.12/10/98        Applied for a review of the decision with the IRT based on compassionate grounds.
14.16/04/99        IRT affirmed the refusal.
15.08/07/99        Kafo departed Australia to lodge a spouse visa application in Tonga.
16.14/9/99          Kafo had an interview with DIMA in Tonga.
17.November 1999        Michelle joined Kafo in Tonga for four months.
18.03/03/00        Application refused because Kafo did not pass the character test.
19.July 2000        Michelle applied to the AAT for an appeal.
20.September 2000        Michelle joined Kafo in Tonga for another four months.
To the tribunal,
21.After having read the facts and contentions from the respondent I would like to now reply to their statements. I can understand from their perspective some of their contentions. I appeal to the tribunal to understand our situation and series of events that have led us to this hearing today. I would like to point out that Kafo has not intentionally been dishonest or blatantly disregarded Australia's Immigration Law.
22.Kafo overstayed his original temporary entry permit.
Kafo had made a decision to stay on in Australia and apply for a visa that would allow him to do that.
23.Kafo worked illegally in Australia
There were periods of time when Kafo worked when he did not have permission to do so.
24.Kafo applied for a protection visa.
The respondent contending that Kafo knew that the claims he made were false. Kafo had hired the expertise of a migration agent, Finau and Associates, to help him get a visa to stay in Australia. The agent got Kafo to sign some blank forms and the agent lodged the application for Kafo. Kafo thought he was applying for a visa to live and work in Australia, not applying for refugee status.
25.Kafo did not know what the claims were, the agent made on his behalf. As far as Kafo was aware, he was applying to stay in Australia on compassionate grounds. He wanted to remain united with his family in Australia. He has no family in Tonga, except for one brother (who he does not get on with).
26.Kafo applied for a protection visa again.
Two years had passed when Kafo attempted again to legalise his status. By this time Kafo and I had met and were living together. Kafo had enlisted the help of a member of the Tongan community, who often helped people with their visa applications (for no charge). Again Kafo signed blank forms and this man Mr (I will get his name by the hearing) lodged them for Kafo. We paid him $50 which he said would pay for the cost of the visa and postage.
27.On this occasion we were aware it was an application for a protection visa. We were not aware of the claims made on our behalf by Mr (?). We put in this application because we were advised by his family and community elders this was the only kind of visa application he could lodge while still residing in Australia.
28.Kafo was the subject of a deportation order.
This order was not executed because Kafo's whereabouts were not known by the respondent. This is not to say that Kafo was not aware of his illegal status, because he was. Hence his applications to legalise his status since 1993.
29.Kafo departed Australia
The respondent contending that Kafo left only after threat of detention and removal. Kafo was advised by both DIMA and the Immigration Rights and Advice Centre that the only way he could get an Australian resident visa was to lodge a spouse visa application offshore. To go back to Tonga and lodge it there.
30.On 16/4/99 the IRT affirmed the respondent's decision, and Kafo was given 28 days to leave Australia. Kafo voluntarily approached the compliance section of DIMA to organise bridging visas while we raised the money to pay for his fare to Tonga and his application for Australian residency. In this context we thought Kafo was leaving voluntarily.
31.Evidence of rehabilitation and recent good conduct
Since 1993 Kafo has been trying to legalise his status. Kafo has always voluntarily approached DIMA in all his dealings with them. We feel that the way he departed Australia is an exampled of his rehabilitation and recent good conduct.
32.Kafo has no contempt or blatant disregard for Australia's immigration laws. There was no intention to be dishonest, either past or present.
I understand that people from other countries have had bad experiences with their own governments. This has led to distrust and fear when dealing with any authority in their new country of residence. Unfortunately I can see where this has led people to go up the wrong path when dealing with various government departments here in Australia, where there is a history of human rights and equal opportunity. This fear and distrust has influenced Kafo and how he has gone about legalising his status.
33.Kafo has been terrified of being separated from the support of his family. He thought he'd never get another chance of legalising his status once he left Australia. So he tried all he could to legalise his status while still being able to stay with his family in Australia.
34.English is not Kafo's first language, in fact he cannot read or write English. Kafo does not understand Immigration law and did not have the finances to hire a qualified migration agent. He also had a deep desire not to be separated from his family. He also received the wrong advice from the people who he thought knew what they were doing. All of this contributed to the situation Kafo now finds himself in. His good character now being in question.
35.Kafo did not intentionally disregard Australia's Immigration laws. He did his best with the resources he had at hand. Even when I stated to assist Kafo, and English is my first language and also further education behind me, I had just as much difficulty understanding the process involved.
36.The respondent contends that Kafo made false and misleading statements.
Due to the reasons stated in paragraphs 32-35, this influenced Kafo in the way he answered the following questions.
The protection visa. The respondent contends that Kafo knew that his claims were groundless. In 1993 Kafo hired a migration agent (Finau & Associates) to help him get a visa to live and work in Australia. He signed some blank forms and the migration agent lodged the application for Kafo. Kafo did not know what claims the migration (sic) made on his behalf. Hence the contradicting statements made at the interview. As far as Kafo was concerned he was appealing on compassionate grounds to be re-united with his family in Australia. Kafo realises ignorance is not an excuse. But he thought by hiring a migration agent to help him, he would be given the right advice.
37.Deportation order. Kafo answered No to the following questions. No I have not left any country to avoid being removed or deported, and no I have never been excluded or asked to leave any country (including Australia). Kafo misunderstood the question and answered it incorrectly. It was our wrong interpretation of the question. We did not intentionally lie or try to mislead DIMA. As far as we were concerned Kafo had not left Australia to avoid being removed or deported. Kafo had never received the official deportation order, he know he was illegal, but didn't think he'd actually bee asked to leave Australia. As again he thought he was leaving voluntarily to apply off-shore. We actually interpreted the question as have you been asked to leave any country, as in the past. If Kafo had been to Australia before an been asked to leave.
38.We thought Kafo had left voluntarily, by contacting compliance and organising his departure willingly. We had been advised by both DIMA and the Immigration rights and advice centre that his was the only way Kafo could apply for permanent residence. Being married to an Australian citizen made him eligible to apply on spouse grounds. Being an Australian citizen I thought I had the right to sponsor my husband so that he could get an Australian resident visa. We were willing to sacrifice an initial separation so that we could be together in Australia in the future. We realised we had exhausted all avenues of being able to apply for a visa while staying Australia and therefore not having to be separated. So we took the advice of DIMA and applied off-shore.
39.We contacted compliance to give us an extension on his bridging visa so that we could raise the funds for Kafo's ticket and his application fee.
40.Kafo had answered no to the following questions. Have you been charged with any offence that is currently awaiting legal action. Have you been convicted of a crime or offence in any country.
41.Kafo did not think that his situation applied to the timing of these questions. By the time he lodged his application in September 1998 Kafo had been arrested but not convicted of possesion (sic) and supply of a small amount of canabis (sic). We were hoping for a favourable outcome in court and so we did not mention it. Thing it did not pertain to the question at the time of answering it.
42.In the July 1999 application Kafo had been convicted and released on a good behaviour bond. We were hoping to appeal the conviction but could not because Kafo had to return to Tonga. As far as we were concerned his conviction was subject to appeal and therefore not fixed.
43.We realise in hindsight that with correct advice we would have answered yes to those questions. We are sorry that we did not bring it to the attention of DIMA before now. We were hoping that it did not apply to the time of the application. Kafo was in the wrong place at the wrong time. The conviction does not reflect the type of person he is. I hope you will see this and understand our fear and hesitation in not bringing it your attention in the past.
44.Factors mitigating against compassionate grounds.
Because I was aware of Kafo's illegal status early on in our relationship, it seems to diminish the level of hardship I should be experiencing. Like I knew what I was getting into. Maybe so in the early years. I knew that there may be a waiting period and that Kafo may have to go to Tonga to apply off-shore. But I always thought he'd eventually be granted a visa to live with me and his family in Australia.
45.I never once thought he'd be refused on character grounds. I knew he'd overstayed his visa and worked illegally in Australia. But all the advice we received from DIMA and the Immigration Advice and Rights Centre, and some immigration lawyers was that Kafo would have to lodge a spouse application off-shore. And eventually he'd be back with me in Australia.
46.I feel it is extreme hardship. As I supported him knowing that as an Australian citizen I had some rights. And should be able to sponsor my husband in getting a resident visa. I had no idea it would take six years, and that he'd get refused on character grounds. What this does prove is that our relationship is strong and we are committed to legalising his status.
47.Likelihood that conduct may be repeated
Kafo is guilty of a desire to be re-united with his family in Australia. He is sorry that he did not get better advice as the path he took got him into the position he is now in. Kafo did overstay his visa and he did work illegally and he hopes the Australian community will not hold against him. He hopes that the AAT will focus on the fact that he has done all he can to legalise his status. And that his judgement was influenced by his emotions not to be separated (for life) from his family. Kafo truly believed that he had to stay in Australia to legalise his status. That was where his support structure was. He did not believe that once back in Tonga he'd be able to get a visa to come back to live in Australia.
48.As far as repeating his conduct, the respondent feels that if Kafo broke the Immigration law, he might break other laws. Please see from how Kafo has lived his life and his character references that he is a responsible person. Kafo values the opportunities that would be available to him in Australia and would not abuse them. He would only respect and thank the Australian community for allowing him to make a life for himself here with his family.
49.General deterrence
I can understand why the respondent wants to send out a message of don't do the right thing and you won't necessarily get in! But Kafo did not go into seeking Australian residency by willingly abusing the system. He was ill advised by his family and Tongan community. He was also ill advised by a paid migration agent. He started off badly and it only got worse. I can only implore that the AAT can see this case as the individual one that it is. That Kafo has made mistakes, and he has tried to correct them. If there was more counselling and support for people like Kafo he may have been able to make less mistakes throughout the process of legalising his status in Australia.
50.Kafo is trying to come in through the front door to Australia. He has a family who are citizens of Australia, and he is married to an Australian citizen. I do hope that the tribunal can see past all these contentions made by DIMA and see that there is a man who just wants to be with the people he loves, his family.
OTHER CONSIDERATIONS
51.The extent of disruption of the non-citizen's family, business and other ties to the Australian community
If my husband is not granted a visa, it means that I will have to join him in Tonga. I have already had to close down my business due to stress and health problems because Kafo has been refused a visa and the possibility of him not ever being able to return to Australia.
52.My health has been effected by the stress of being separated from my husband and not knowing the future. I always thought he'd be back on day. Please see my Doctors report. I have had suicidal thoughts. The stress building up over the six years that we have been involved in legalising his status with DIMA. The constant knock backs and frustration we feel and powerlessness at not being able to give this good man a chance with his family.
53.If I go to Tonga it will be difficult for me to come and go to visit my elderly mother. Firstly, it will involve long separations from my husband, as I have to find work once in Australia and save for the fare back to Tonga. Sure I have permission and the freedom to come and go but not economically. The average wage in Tonga is $1.50 and hour. Because Kafo does not have any family in Tonga we will have to rent a house, so it will be difficult to save up to visit my mother, as most of our money will go into day to day living costs. Food is more expensive in Tonga than in Australia. I will have trouble finding work as I don't speak Tongan and most jobs advertised require that the applicant speak English and Tongan. We cannot rely on any remittances from our families in Australia as they all have their own families to look after. For example Kafo's brother-in-law is recovering from liver cancer so a lot of the family focus is supporting his recovery.
54.This process of legalising Kafo's status has put us in debt. I would never be able to honour my financial commitments if I had to live in Tonga.
55.Going to Tonga would mean I would have to leave my elderly mother (85 yrs) and my teenage daughter (19 yrs). Neither of them are dependent upon me. My mother is fiersly (sic) independent and in good health. But as time goes on she will need my care more and more. Especially now around the house with repairs and general maintenance. My daughter will always need her mother, although she probably wouldn't admit to it at this stage of her life.
56.I would be eligible for a permanent resident visa in Tonga, renewable every 2 years. But what kind of stability its that, knowing that the Tongan government could refuse to renew it anytime it chose. I would never think of forfeighting (sic) my Australian passport to become a Tongan citizen for the same reasons I am trying to get an Australian visa for my husband. So we can live in Australia and be with our families where our responsibilities lie.
57.Kafo and I cannot do anything for ourselves or our families living in Tonga, but to survive on a day to day basis. Tonga is a lovely country to visit, but difficult to live in if you don't have the family support systems in place.
58. Kafo's marriage is genuine. This has been proven by our commitment to each other over the past six years, it has also proven our commitment to legalise Kafo's visa status.
59.Can family members travel to Tonga? Family is dependant on Kafo.
I can travel to Tonga but at great hardship, please see # 51-57. I am dependant on Kafo as his wife. I am dependant on Kafo for emotional support and love that he gives me. I also need him to help me with our financial commitments that we have incured (sic) in Australia. He has also proven to be a great support for my mother especially as her son-in-law, but he also helps her with repairs and maintenance of her house and garden.
60. Kafo would also like to be able to contribute to his family in Australia. In Tonga he feels isolated and impotent to not be able to fulfil his family responsibilities. Kafo's mother could visit Kafo in Tonga, but not on a regular basis. My mother could not visit Tonga as the heat and living conditions would make it very uncomfortable for her. The health resources in Tonga are not the same standard as here in Australia. And as she gets older she may need more care with her health.
FAMILY COMPOSITION IN AUSTRALIA AND TONGA
61.In Tonga: Kafo has one brother who he does not get on well with.
Michelle has no family in Tonga except her husband.
In Australia: Kafo has his mother. His father died here in 1992. His grandmother (who was over 100 yrs) died last Christmas. He was not able to see her before she died. Kafo has four brothers and three sisters and their respective partners and children.
Michelle has her mother. Her father died in 1990. She also has a daughter.
62.      Compasionate (sic) reasons to stay in Australia
So that Kafo and I do not have to be separated. It would cause me extreme hardship if I had to live in Tonga as it would disadvantage my mother and daughter. We would not be able to get out of debt, nor be able to support our families financially. My career would be disadvantaged. In Tonga massage is seen as a sex service rather than a healing modality. So I feel it would be difficult to build up a business in Tonga. Health and education are not to the same standards as in Australia, and once in Tonga I may not be able to avail myself to these services due to financial constraints. I certainly have taken for granted the equal opportunities and freedom of speech a women (sic) in the new millennium has in Australia. I would not have those same rights available to me in Tonga.
63.Our hopes for our future in Australia were to live in the Blue Mountains to be near my mother. Rebuild our massage therapy business, work part-time while we build up our clientelle (sic) and get out of debt. Be able to fulfil our family responsibilities and begin to live the life we have put on hold while we have been in limbo waiting for Kafo's visa to be processed.
64.At the moment so many lives have been torn apart and we appeal to the Tribunal to look favourably at our request to have my husband, Kafo's, visa application reviewed and accepted. Kafo is truly remorseful for the way in which he conducted his visa application to remain in Australia. In hindsight if I knew then what I knew now I would have encouraged Kafo to go to Tonga and lodge a spouse visa application in 1995 rather than take the advice of his family and community. But unfortunately that did not happen, and we have to work with what did. I do hope the tribunal will see the compasionate (sic) reasons outweighing the primary considerations.
SignedMichelle Hokafonu
for Kafo Hokafonu

Mr Hokafonu came to Australia on a Visitors Visa valid for three months. He arrived in April 1992. By July 1992 the visa had expired. He approached Mr Finau, a migration agent, in 1993 and subsequently lodged a (first) Protection Visa application. He did not have a valid visa at the time.
First Protection Visa Application
In his statutory declaration (Exhibit A9) Mr Hokafonu claimed that he did not knowingly make a groundless application for refugee status. He claimed in his oral evidence that he did not know what was contained in the application. He maintained that the application was prepared with the assistance of Finau & Associates, migration agents. Mr Hokafonu claimed he could not read English at the time, and so that he did not read the form. He gave Mr Finau his personal details to fill in on the form and he signed it in blank. Mr Finau did not explain the nature of the application to him. (Mr Finau was not, perhaps understandably, called to give evidence.)
Claims which were made in this first Protection Visa application included the following:
"My country hate me because of my religious view and doctrine. The government and the people are joined in together on threatening me so I have no protection."…
"I fear that I will face persecution and even death if I return to my home country."…
"I have spread to the people that there is no God. We are parts of the earth and we will all die."…
"The Police Minister send me an order to stop practising my religion or I will face severe penalty."…
"In August 1990 the Police detained me… Because I still spread my belief that there is no God and nothing to fear about… They repeated bashing me in the cell or jail and told me that "this is the beginning"."
(T6, pp.57-61)
At an interview with a Departmental Officer in connection with this Protection Visa application Mr Hokafonu stated that he was in fact a practising Methodist and that he believed in God. (T12, pp.80-81)
Mr Hokafonu claimed that he understood at the time of making the application that he was not a refugee. He claimed in his evidence that at the time he thought lodging the application was the "right thing to do", because Mr Finau had instructed him to lodge it. At the interview referred to above, Mr Hokafonu stated that his concerns were primarily related to inability to own land (T12, p.81).
Second Protection Visa Application
In 1995 Mr Hokafonu lodged a second Protection Visa application. It is not known how this application came to be accepted, but presumably a mistake was made by of the Department of Immigration and Multicultural Affairs ("the Department").
The Applicant became involved with what she allegedly perceived to be attempts to legalise Mr Hokafonu's immigration status in Australia in 1995. She attended a meeting with Mr Hokafonu and a member of the Tongan community, Maka Naulu, who, she claimed, assisted them with the Protection Visa application. The Applicant stated that Mr Hokafonu signed the forms in blank. In oral evidence she maintained that she did not recognise the handwriting on the Protection Visa application, and that she did not read the declarations on the form regarding giving false or misleading statements. The handwriting on the form does not appear (so she said) to be either that of the Applicant or of Mr Hokafonu. The Applicant claimed that this application was lodged quite soon after she and Mr Hokafonu began living together, so she did not want to involve herself too much in the process. Mr Hokafonu, in his oral evidence, stated that he believed that he and the Applicant acted alone in filling in and lodging the second Protection Visa application. He stated that he did not write the answers, but believed that his wife did so.
Application to the Refugee Review Tribunal
The second Protection Visa was refused and Mr Hokafonu subsequently appealed to the Refugee Review Tribunal (S8). In the course of this application he claimed that he was a Methodist and that he frequently argued with other Christians of different denominations (T21, p.106). He claimed in oral evidence before this Tribunal that he thought at the time that this was a good explanation for applying for refugee status. He now claimed that such arguments did not occur very often. At the RRT interview he claimed that one of his friends had been killed in the course of such an argument. In his evidence before this Tribunal Mr Hokafonu stated that his friend was in fact killed in the course of an argument between friends. He stated that he thought it would help his case to put forward a claim of this nature.
Application for Permanent Residence on last remaining relative grounds
Mr Hokafonu applied for permanent residence on last remaining relative grounds (T22). In this application Mr Hokafonu was assisted by Hitchcock and Co, migration agents. The application was refused because Mr Hokafonu did not apply for the visa in the 12 months after his last entry permit had expired. Mr Hokafonu claimed in his application that he had no family in Tonga. He did not mention that he had a brother who still resided there.
False statements on various applications
Mr Hokafonu made "false or misleading statements" on numerous occasions when dealing with the Department. These are detailed as follows:

First Protection Visa Application              False claims made regarding   persecution on religious grounds.
Second Protection Visa Application       False claims made regarding Visa Applicant's entire family being in Australia.
Application to RRT  False claims made regarding religion-based fear. Claim about entire family being in Australia maintained.
Application to remain permanently in Australia            False claim made regarding Visa Applicant's entire family being in Australia.
False answers given in relation to character assessment questions (part 40 of the form) (T22, p.122)

Spouse visa application False answers given in relation to character assessment questions (part 70 of the form) (T34, p.253)

In relation to the character assessment questions in the application to remain permanently in Australia on the last remaining relative ground, as well as in the spouse visa application, false answers were given regarding Mr Hokafonu's criminal history and requirements to leave Australia. He answered "No" to questions asking whether he had been convicted of any crimes or offences in any country (including Australia). He also answered "No" to questions asking whether he had ever left any country to avoid being removed or deported, and whether he had been excluded from or asked to leave any country including Australia.
The Applicant stated in her evidence that she and Mr Hokafonu were embarrassed about Mr Hokafonu's convictions, and knew that "it would not help" their situation with regard to the visa application. She also claimed that they believed the conviction was not fixed because they were considering an appeal against the conviction. She thought therefore that they did not need to declare the convictions. At the time of the last remaining relative visa application Mr Hokafonu had been charged, but not convicted, in relation to the cannabis offence. However, at the time of the spouse visa application he had been convicted.
In 1994 a deportation order was signed against Mr Hokafonu. He claimed in his oral evidence that he knew about this deportation order, and that he was aware that he had to leave the country, but he wanted to remain in Australia, and thus did so. A letter dated 17 February 1994 (T17, p.95) was sent from the Department to Mr Hokafonu, advising him that he was an illegal entrant. He saw this letter and understood that he was illegally in Australia, but continued to work. Mr Hokafonu stated that while he paid for his air ticket back to Tonga, he was aware of the fact that he had to leave Australia, and that it was not a voluntary departure. Thus it is clear that the questions relating to removal or exclusion from Australia were answered incorrectly.
On various forms Mr Hokafonu stated that he had no family in Tonga, whereas in fact he has a brother who resides there.
It is thus clear that on a balance of probabilities, Mr Hokafonu committed numerous breaches of section 234 of the Migration Act 1958 ("the Act"); the maximum penalty prescribed for offences under that section is such that these offences must be regarded as very serious.
Illegal work in Australia
At various times since 1993 Mr Hokafonu worked illegally. In 1993 he worked in scaffolding. He did not have permission to work. He stated in his oral evidence that he thought it was the "right thing" to obtain employment. He claimed that he paid tax while working. As he was granted Bridging Visas associated with his Protection Visa applications, there were times when he had permission to work. However, there were other and lengthy times when he worked in breach of Section 235 of the Act.
Visa Applicant's Criminal History
Mr Hokafonu was arrested in 1998. He claimed in his oral evidence that this was as a result of being "in the wrong place at the wrong time". He agreed that he was charged in relation to a cannabis offence and spent a night at Waverley police station. He understood that he was convicted in relation to this incident. A document entitled "Criminal History – Bail Report", which forms a part of documents relating to Mr Hokafonu's criminal history (Exhibit R1) details his convictions as follows:
Charge          Court Name  Court Date  Date    Charge Station  Charge No  Offence  Sentence
27/08/1998     Downing Centre Local Court            18/12/1998   Waverley  H 5345327  001     Goods in personal custody          Fine: $100  reasonably suspected being   stolen
  Supply prohibited drug (2 counts)     Dismissed: (LC 24731)
  Supply prohibited drug (2 counts)     Recog S55B: $1,000
  2 years
002     Supply prohibited drug  Fine: $200

failure to meet the character test

Section 501 of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The persons is said not to pass the character test if, having regard to their past and present general conduct, as well as their past and present criminal conduct, the person is not of good character. In considering whether the Visa Applicant passes the character test I am bound by section 499 of the Act to take into account Ministerial Direction number 17 ("the Ministerial Direction"). Paragraph 1.9 of the Ministerial Direction provides that decision makers should take the following into account:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

…
…
… breaches of immigration law
….
(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;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined by subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia…

The Ministerial Direction states that general conduct also includes recent good conduct. The Applicant submitted that there was evidence of good conduct on the part of Mr Hokafonu. She claimed that the fact that Mr Hokafonu kept in contact with the Department, rather than going into hiding, and left the country before applying for the spouse visa, should be taken as evidence of good character. The fact that Mr Hokafonu did not engage in further breaches of immigration law cannot be used as evidence of good character. Further, the fact that he left Australia to apply for the spouse visa off-shore cannot be used to his credit, as he had no choice but to leave. There was thus no evidence of recent good conduct.
It is thus clear that Mr Hokafonu does not meet the character test. This is so having regard to the breaches of both section 234 and 235 of the Act, to which I have referred earlier in these reasons, the convictions referred to in paragraph 21, and the fact that there is no evidence of recent good conduct.
discretion
Given that Mr Hokafonu does not meet the character test, it is then necessary for me to consider Part 2 of the Ministerial Direction, which deals with discretion. References to numbered clauses in this paragraph and succeeding paragraphs should be construed as references to clauses in the Ministerial Direction. The starting point is clause 2.3 which provides that the primary considerations are:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.

Primary Considerations
Protection of the Australian community

Clause 2.3(a) requires me to take into account the protection of the Australian community; that clause must be read in conjunction with clause 2.5 which provides:
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).
It is clear that the breaches of section 234 of the Act fall within the very serious category referred to in clause 2.6(c). The illegal work may also fall within this category. Clause 2.6(c) relates to serious crimes against the Act:
"including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more...; .. or making a false or misleading statement in connection with entry or stay in Australia".

The drug conviction falls within clause 2.6(a), which includes in its examples of offences which are to be considered very serious:

"the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing or selling of illicit drugs…."

The risk of recidivism is not in my view high, although the convictions referred to in paragraph 21 give cause for concern, and Mr Hokafonu has indicated a readiness to breach the law when it suits him to do so. The evidence revealed in the clearest possible way that he never was (and knew he never was) a refugee, but that did not prevent him from making two Protection Visa applications; the manner in which he answered questions (and where the Applicant was complicit) on official forms is also a matter for concern.
As to whether a refusal of a visa will act as a deterrent may be open to debate. The question may perhaps be answered more appropriately in the negative; that is to say that to grant a visa in these circumstances, and to reward Mr Hokafonu accordingly, would send the entirely wrong message. I refer in this context to DP Purvis in Ayaad v Minister for Immigration and Multicultural Affairs where he said (at paragraph 47):
"…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."

expectations of the australian community

The Ministerial Direction states:
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.

The Tribunal believes that Mr Hokafonu's conduct was such that the Australian community would expect that the visa be not issued.

Interests of any relevant children

As to clause 2.3(c), the Applicant has a daughter from a previous relationship. That daughter is 19, lives on her own and supports herself. The Applicant said that she was estranged from her daughter in part because of her marriage to Mr Hokafonu. Leaving aside the fact that her daughter is 19 and thus not a child for the purposes of the Ministerial Direction, there was no evidence of any relationship between Mr Hokafonu and that daughter.
Mr Hokafonu also has a daughter from a previous relationship. That daughter lives in Tonga; she has been adopted and does not know that Mr Hokafonu is her father. His contact with her has been altogether minimal, and there was no evidence of any relationship of any nature between the Applicant and that daughter.
Secondary Considerations

The Applicant currently works as an accounts clerk at a nursing home, but her usual occupation is as a massage therapist and accupuncturist. The relationship between Mr Hokafonu and the Applicant began in April 1995. They had met briefly about 18 months before then. They were married in March 1996. By this stage the Applicant was aware of Mr Hokafonu's migration problems. In assessing hardship to the Applicant, the Ministerial Direction states that it is relevant to consider whether at the time of the establishment of the relationship the Australian partner knew that the visa applicant was of character concern. The Applicant gave evidence that she knew early in the relationship that Mr Hokafonu's status in Australia was not legal.
The Applicant gave evidence about her experiences of Tonga and the reasons it would (in her opinion) cause hardship to her if the visa were refused. The Applicant went to Tonga to be with her husband in November 1999 for about four months. They initially lived in Houma, a village about 12 kilometres from Nuku'alofa, the capital of Tonga. The Applicant described the village as having a population of about 300 and having three general stores. At the time Mr Hokafonu and the Applicant both practised massage therapy at the International Dateline Hotel in Nuku'alofa. This was described as being the main hotel in the town, having approximately 76 rooms. Mr Hokafonu ran the massage business as a private business based at the hotel, but was not employed by the hotel. They lived on his cousin's property in Houma and travelled to the city daily by bus or by taxi. They worked six days per week, from 11am to 6pm. The Applicant gave evidence that while working at the hotel they lived "day to day", as the average wage in Tonga is much lower than in Australia, but the cost of food is higher. Whereas initially they did not pay rent at the cousin's place, they eventually rented an apartment in Nuku'alofa as they found that the property in Houma afforded little privacy.
Following the initial stay in Tonga, the Applicant returned to Australia because she was finding it very difficult living in a new country with a different language and culture. She claims there was pressure on the relationship because of the continuing migration problems, and she was unsure when she left whether she would return. After her return to Australia she maintains that she began to see the situation in better perspective and she decided she would return to her husband.

The Applicant returned to Tonga in September 2000. She and Mr Hokafonu again resided in Houma, this time on some family property just outside the village. Mr Hokafonu's brother runs a bar/restaurant on the property, and the Applicant and her husband lived in a room in the establishment, helping the brother to run it on occasions. They used the public toilets in the bar and rigged up a shower outside the building. Once again they travelled to and worked in the city. The Applicant stayed for another four months, returning to Australia to prepare for this hearing. She plans to return to Tonga after the proceedings to await the outcome, and will decide whether or not to stay there if the outcome is not favourable. In her oral evidence the Applicant described her experience in Tonga as "an adventure" in a very beautiful area, but also as a very difficult time.
The Applicant's main concern regarding the perceived hardship she would experience in Tonga is economic. She gave evidence that with the massage business she and Mr Hokafonu could earn the equivalent of approximately $300 to $350 per week between them. Approximately $70 of this was spent on transport, as they had to travel to work by taxi with their massage tables and equipment. She said that transport of this rather expensive nature was necessary because there was no totally secure place at the hotel in which their equipment could be stored. She said that there had been some thefts at the hotel. The Tribunal considers, on the other hand, but without any evidence, that it is strange to conceive of so substantial a hotel (apparently the leading hotel in the city) which has no safe storage place, inter alia, for the luggage of its guests. While the Applicant has a background in clerical administration, she does not speak Tongan. Most jobs advertised in this area of work require applicants to speak both English and Tongan. The Applicant claimed she had not put energy into learning Tongan because most of her massage clients at the hotel were English speakers, while Mr Hokafonu generally looked after the Tongan clients.
The Applicant currently holds a visa to return to Tonga. This visa gives her residency in Tonga and is renewable every two years. The Applicant claims that she fears the instability that would be caused if she moved to Tonga, as her visa may not be renewed at some point. Given that she is married to a Tongan citizen and resident, and that she is skilled, the Tribunal would not have thought that such a fear is realistic. She does not wish to take Tongan citizenship, as she does not want to give up her Australian citizenship.
Applicant's family in Australia
The Applicant's mother is 85 years old and lives on her own. She is in good health and enjoys her independence. However, the Applicant would like to be in Australia as a support for her mother in the coming years. She fears that if she moved to Tonga she may be unable to return to Australia to fulfil family commitments because she could not afford the airfare. She does not have investments, as she built up her own business and supported her daughter as a single parent.
As set out previously in these reasons, the Applicant's daughter is 19 years old and lives independently. The Applicant and her daughter are currently estranged, but they keep in touch through the Applicant's mother.
Visa Applicant's Family
Most of Mr Hokafonu's family live in Australia. Some of them are Australian citizens. He has one brother in Tonga, but he claims they do not get along very well. The Applicant claimed that life in Tonga is very difficult with no family support structure, as there is no social security or other social support networks. While most of Mr Hokafonu's immediate family reside in Australia, he has cousins and an aunt in Tonga.
hardship
The Tribunal accepts that the refusal of the spouse visa would cause hardship to the Applicant. If she decided to remain in Australia, she would be separated from her husband. If she went to Tonga, she would not be able to have frequent contact with her mother or her daughter. However, she would be able to return to Australia from time to time to visit them. Her primary concerns about the perceived difficulty in moving to Tonga appear to be economic. While the Tribunal accepts that she would not be as well off financially in Tonga as she could be in Australia, it does not appear that her situation would be unbearable. Mr Hokafonu runs a successful massage business out of a hotel. The Applicant has formerly worked there and she would presumably do so in the future. She also has administrative skills, which could well be in demand in Tonga. Whereas her ability to speak Tongan is very limited at present, she could pick up language skills over time, and thereby limit her impediment to employment in this area. The Tribunal accepts that there would be some hardship to the Applicant; the circumstances are such that her degree of hardship is in all the circumstances, and as set out previously, primarily economic, and certainly not such that they could possibly outweigh the primary considerations.
There may also be some hardship to Mr Hokafonu's family in Australia, although there was no evidence to this effect. This is also cannot outweigh the primary considerations.
The documents before the Tribunal include a number of character references which do not advance the matter in any way, particularly having regard to the fact that none of them speak in any detail of his conduct in Australia.
conclusion
In summary;
(a) Mr Hokafonu's conduct in Australia was of a very serious nature, so that the primary considerations referred to in clauses 2.3(a) and 2.3(b) of the Ministerial Direction are against him.
(b) The hardship factor in respect of the Applicant is not severe, and certainly not such that as a secondary consideration it outweighs the primary considerations.
This then is not a proper case for the exercise of the discretion, and in the circumstances the decision under review must be affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  9 March 2001
Date of Decision  23 March 2001
Representative for the Applicant              Self-represented
Representatives for the Respondent      Ms Bridget Quayle &
  Mr Marten Kennedy
  (DIMA)