Hoque and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 934

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1188

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ABDUL HOQUE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date22 September 2003

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr J Block   Deputy President

CATCHWORDS

Immigration – bogus documents - character test – exercise of discretion

LEGISLATION

Migration Act 1958–sections 234, 501

Ministerial Direction 21

CASE LAW

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

REASONS FOR DECISION

22 September 2003 Mr J Block, Deputy President       

PART A - PRELIMINARY AND GENERAL

1.      The decision under review is the refusal on 26 June 2002 by a delegate of the Minister of Immigration and Multicultural Affairs (as he then was) of an application for a permanent residence, Subclass 457 (Class AJ) visa applied for on 29 June 1999 by Mr Ahsanoul Haque ("the Visa Applicant"). The application was sponsored by the Applicant, who is the Visa Applicant's brother and a resident and citizen of Australia. This application was made after an application for an extension of time was applied for and granted.

2. The Applicant was represented by Mr Nigel Dobbie of Parish Patience Solicitors, while the Respondent was represented by Mr Greg Peek of the Australian Government Solicitor’s office. The Tribunal had before it the T-Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:

·     Exhibit A1 is a witness statement dated 9 June 2003 by Mrs Mahbuba Hoque;

·     Exhibit A2 is a witness statement dated 2 June 2003 by the Applicant;

·     Exhibit A3 is a Secondary School Certificate, of the Visa Applicant, referable to the 1992 examination , conducted by the Sreekail KK High School in Comilla in the Bengali language together with an English translation, ;

·     Exhibit A4 is a witness statement dated 11 June 2003 by Dr Abul F M Wali Ul Islam;

·     Exhibit A5 is a witness statement dated 12 June 2003 by Mr Delwar Hossain;

·     Exhibit A6 is a witness statement dated 9 June 2003 by Mr M D Mobarak Hossain;

·     Exhibit A7 is a witness statement dated 15 June 2003 by Mr Shamsul Hoque.

3.      In respect of the Respondent's Statement of Facts and Contentions dated 11 June 2003, the Tribunal includes only clauses 1-5 under the head of "Facts" and 9-12 under the head of "Contentions" as follows:

"…

1.The visa applicant, Ahsanoul Haque, is a citizen of Bangladesh. He applied for a permanent residence, subclass 457 (Class AJ) visa, at the Australian Embassy at Bangkok on 29 June 1999 (T2). He had previously resided in Australia on a temporary residence subclass 457 visa.

2. The visa application included the following supporting documents:

·     Secondary School Certificate from Sreekail KK High School, Comilla, dated 8 August 1992 (page 56).

·     Higher Secondary School Certificate from Tejgoan College (page 57).

·     Tejgaon College Marks Sheet (page 58).

3.        Investigations undertaken by officers of the respondent revealed that these documents were fraudulent (pages 96-97).

4. The applicant’s solicitor provided further documentation in support of the genuineness of the documents on 22 November 2000 (pages 106-110). These were not considered by the respondent to attest to the genuineness of the documents and a Notice of Intention to Refuse the visa under subsection 501(1) of the Migration Act 1958 (the Act) was issued on 29 November 2000 (pages 111-112).

5. On 26 June 2002, a delegate of the respondent refused the applicant’s application for a visa on the grounds the applicant did not pass the Character test in section 501(1) of the Act (T23). The delegate commented, in relation to the further material submitted, “I note that there is nothing that states that the Board of Intermediate and Secondary Education made the wrong findings” (page 8). He decided not to exercise the discretion not to refuse the visa.

…

9. The Tribunal should find that the visa applicant submitted bogus documents in support of his visa application. As a result of this conduct, the applicant may have committed offences under section 234 of the Act, which carries a penalty of 12 months or more imprisonment.

10.      The applicant has stated in his statement of facts and contentions that the respondent’s investigation miscarried: “DIMIA failed to check the records at the Board of Intermediate and Secondary Education, Comilla, Bangladesh, despite the certificate stating that it had been issued by that board and not by the board in Dhaka” (paragraph 7).

11.      While the Secondary School Certificate (page 96) refers to Comilla, this is not evidence that there is a separate Board of Intermediate and Secondary Education at Comilla, or that the Board office does not hold records for all of Bangladesh, and there is no other evidence that this is the case. The Higher Secondary Certificate (page 97) bears only a reference to Dhaka in any event, and is confirmed to be false by the absence of the Board not holding a record of it.

12.      There can be no question that the visa applicant did not know the documents were false. Even if it was the case that he had been told by a teacher he would be passed, an official Board certificate would not have been issued without the board having a record of it

…"

4.      The Applicant's Statement of Facts and Contentions dated 11 February 2003 is included in full, both as a matter of balance and also because it is an annexure to all exhibits, excepting only Exhibit A3.It reads as follows:

“1.       Mr Ahsanoul Haque is a citizen of Bangladesh.

2.        Mr Haque was born on 10 July 1976.

3.        Mr Haque is the brother of the Applicant, Mr Abdul Hoque.

4.        Mr Haque lodged a genuine Secondary School Certificate with his migration application.

5.        The record of the Secondary School Certificate for Mr Haque is held by the Board of Intermediate and Secondary Education, Comilla, Bangladesh.

6.        DIMIA checked the records at the Board of Intermediate and Secondary Education, Dhaka, Bangladesh.

7.        DIMIA failed to check the records at the Board of Intermediate and Secondary Education, Comilla, Bangladesh, despite the certificate stating that it had been issued by that board and not by the board in Dhaka.

8.        The search conducted by DIMIA in relation to the Secondary School Certificate revealed that there was no record of the certificate at the Board of Intermediate and Secondary Education, Dhaka, Bangladesh.

9.        The absence of a record of the Secondary School Certificate at the Board of Intermediate and Secondary Education, Dhaka, Bangladesh does not mean that the document is ‘false’ or bogus.

10.      Mr Haque did not know that the Higher Secondary Certificate submitted with his migration application was bogus.

11.      Mr Haque believed that the Higher Secondary Certificate was genuine.

12.      Mr Haque was told by his teacher that he had failed a subject for his Higher Secondary Certificate, but he would still be passed on review by the teacher.  Mr Haque subsequently was issued with the Higher Secondary Certificate and final marks sheet and believed he had passed the course as claimed to DIMIA.

13.      Mr Haque was not aware that the document was not genuine.

14.      Mr Haque has not knowingly produced false documents to DIMIA.

15.      Mr Haque has not knowingly made misleading statements on his migration application form.

16. Mr Haque has not committed serious offences or any offences under the Migration Act 1958, unless the provision of a bogus document is a strict liability offence. It is contended that such provision is not a strict liability offence.

17.      Mr Haque has not been dishonest in his dealings with DIMIA.

18.      Mr Haque is a person of good character.

19.      Mr Haque does not fail the character test.

20.      Mr Haque should not be denied the visa sought merely because of the lodgment of the Higher Secondary Certificate.

21.      A Higher Secondary Certificate had no material relevance in determining whether or not Mr Haque passed the points test.  There is no date of birth recorded on that certificate.

22.      There is no risk of harm to the Australian community if Mr Haque is granted the visa sought.

23.      There is no risk of the submission of bogus documents being given by Mr Haque.

24.      The refusal to grant the visa will not have a general deterrence effect in relation to other people like Mr Haque.

25.      There would be no undermining of Australia’s migration system if Mr Haque is granted the visa sought.

26.      The granting of the visa to Mr Haque would not encourage deceit.

27.      The granting of the visa to Mr Haque would not weaken Australia’s protection of its borders.

28.      The refusal of the visa application would not deter people from seeking to remain in Australia through fraudulent means.

29.      Mr Haque’s actions are not unacceptable to the Australian community.

30.      Mr Haque does not have any children.

31.      The exercise of discretion, if required, should be made in favour of the Applicant for the purposes of this application for review and the visa applicant.”

5.      .. This case ran for three full hearing days and in addition a considerable part of a fourth hearing day. On the first hearing day, much of the time involved was taken up by evidence as to the Visa Applicant's Higher Secondary Certificate ("HSC"). Put, in this stage, and in succinct terms, the evidence of the Visa Applicant was to the effect that the Visa Applicant believed that the HSC was genuine, or put it in another way, he did not know that it was bogus. There was also some, but much less evidence, as to the Visa Applicant's Secondary School Certificate  ("SSC"). The Respondent contends that the SSC too is bogus, whereas the Applicant contends that it is genuine. After lengthy evidence as to the circumstances in which the relevant certificates were submitted to the Department of Immigration and Multicultural Affairs ("DIMIA"), the Visa Applicant changed his evidence and admitted that he always knew the HSC was bogus, because he bought it. It is in these circumstances that parts of the Applicant's contentions contained in his Statement of Facts and Contentions could not be sustained; similarly written submissions on behalf of the Applicant, which were furnished by his solicitors at an early stage could not, in large part, be sustained.  As a result of that admission (referred to hereafter in these reasons in brief as "the admission") much of the evidence, before the Tribunal, was either irrelevant or of dubious value and so that it is not necessary in these reasons to refer to it in any detail. The admission had another and concomitant effect. All of the exhibits, save Exhibit A3, are witness statements. All six witness statements rely categorically on the Applicant's Statement of Facts and Contentions and which indeed are annexed. It may be noted that the witness' statements are references broadly take the same form. Once the Applicant's Statement of Facts and Contentions proved to be fundamentally flawed, those exhibits and statements were similarly flawed. All of them testify to the honesty of the Visa Applicant on the basis that he would not have presented a bogus document; in fact he did. In consequence of the admission, some parts of the lengthy evidence before me can be dealt with in brief terms only.

6.      It may be noted that in Bangladesh an SSC and HSC are obtained, i in the Australian equivalent of years 10 and 12 respectively. There will be references throughout these reasons to Comilla and Dhaka, these being large cities in Bangladesh. Dhaka is the larger of the two, but Comilla ranks second. The two cities are about 100km apart. I propose, throughout these reasons, to use two abbreviations; the term “Comilla School” means Sreekail KK. High School in Comilla which is referable to the SSC, whereas the term “Dhaka School” refers to Tejgoan College in Dhaka, which is referable to the HSC.

7.      In a helpful opening statement, Mr Dobbie advised the Tribunal as to how the points test which applied in Australia at the relevant time operated. That test has since that time been changed. The explanation was given in the context of the relevance of the two certificates. In the light of the admission, I do not think it necessary for me to refer to the points system at the relevant time. The Tribunal is satisfied that Parish Patience acted at all times on instructions and so that relevant correspondence or documents prepared by that firm containing assertions as to the genuineness of the HSC would have been made bona fide. I think that Mr Dobbie deserves to be commended for the circumstances in which the admission came to be made.  As the evidence proceeded, it became increasingly hard to credit the Visa Applicant's evidence as to the circumstances in which the HSC was obtained. At the submission stage, Mr Dobbie informed the Tribunal that he had advised the Visa Applicant that it would not have been possible for him to continue as the Visa Applicant's representative unless he was prepared to give truthful evidence thereafter.

8.      There is another aspect of a general nature, which can be disposed of in brief terms. The Visa Applicant came to Australia on 31 March 1999 as the holder of a Temporary Business Entry ("Class UC") visa. He came, in particular, to work as a cook or chef in a restaurant owned by the Applicant.   That visa entitled him to work only in the occupation and place specified. It was cancelled in July 2002 when officers of DIMIA located the Visa Applicant at the Parramatta Taxi and Hire Car Bureau of the Department of Transport. The Migration Review Tribunal, by a decision dated 31 July 2002, set aside the cancellation decision and reinstated the visa. Clauses 20 and 21 of the relevant decision read as followed: 

“20.     There is no evidence before the Tribunal that the review applicant had actually changed employers or had actually ceased working for the sponsoring business. It does not appear that the Department sought confirmation of Mr Haque’s employment status with his sponsor, the Curry Junction restaurant. On 30 July 2002 the Tribunal contacted the Curry Junction restaurant. The manager, Mr Minul Haque, indicated that the review applicant had been employed there until he was detained. The Tribunal also contacted the owner of the restaurant who stated that the review applicant continues to be an employee.

21       Whilst the review applicant may have been intending to change employers, the evidence is that he had ceased being employed by the sponsoring business. The sponsor has indicated that the review applicant continues to be employed there. The Tribunal finds on the available evidence that the review applicant did not breach condition 8107.”

9.      A considerable part of the evidence on the first hearing day, related to the circumstances upon which a student may obtain a condoned pass where he does badly in one subject only. In these circumstances, a failure, in a given subject, is treated, as an act of grace and as it were a pass. Such a condoned pass can apparently be granted only in certain circumstances and under certain conditions. That evidence was given in the context of the Visa Applicant's original contention that he believed that the HSC was genuine. I need not detail that evidence in the light of the admission.

10.     The Visa Applicant, pursuant to the admission, admitted that the HSC was bogus. He continued to contend that the SSC was genuine. The circumstances in respect of the SSC are in accordance with the evidence, suspicious but I do not think that sufficient for a positive finding that it too was bogus. I shall revert to this aspect later in these reasons.

11.     There was also considerable evidence before me as to good work of the Visa Applicant, for various organisations, connected with the Bangladeshi community while he was resident in Australia in connection with the visa referred to in clause 7.  Many organisations were mentioned; there were many, sometimes confused, references to the actual work done and its frequency. Here too, I do not intend to go into great detail. Suffice it to say, I am satisfied that the Visa Applicant, while in Australia, probably perform some work of a communal or charitable nature. However, he could not have performed nearly as much as was claimed, if only because the nature of his employment was such that he had very limited leisure time. As a restaurant chef, he had one day off each week and an extra day off in each second week.

PART B - THE EVIDENCE OF MRS MAHBUBA HOQUE

12.     Mrs Mahbuba (whose witness statement is Exhibit A1) is the wife of the Applicant. She has known the Visa Applicant since 1992. At times while in Australia, the Visa Applicant lived in her home.

13.     She said that Visa Applicant rang her in Australia to tell her that he had passed his SSC when results came out in 1992. However, that evidence was of course of very limited probative value.

14.     Mrs Mahbuba was asked in re-examination what her view of the Visa Applicant would be if the HSC was bogus and nevertheless provided by the Visa Applicant as genuine. Her answer was that "if it is bogus then no good for character" but she then said that she would take the view that he is a good person if he did not know it was bogus.

PART C - THE APPLICANT

15.     The Applicant (whose witness statement is Exhibit A2) came to Australia in 1986. He has three children aged nine, seven and less than a year. He currently owns a restaurant called “Indian Excellency” in Park Street Sydney. He previously owned two other restaurants in Coogee and Bondi respectively, but those latter restaurants have been sold. One of those restaurants was styled “Currie Junction” and which will be referred to later in these reasons because it was the restaurant in which the Visa Applicant worked. The Applicant said that the Visa Applicant worked as a chef in Currie Junction and was in a position of trust, in particular in relation to money.

16.     The Applicant said that the Visa Applicant was very helpful in the Bangladeshi community. He worked in a Bangladeshi association, which sent money to needy persons in Afghanistan, Bosnia, the Sudan and Bangladesh itself.   The Applicant told the Tribunal that voluntary work took up one day per week and required him to go from house to house. In addition he worked in the Bangladesh Islamic Centre, a Muslim charitable organisation. Subsequent evidence indicated that the Applicant's evidence in this context may have been mistaken, exaggerated or simply untrue. 

17.     The Applicant said that his brother, the Visa Applicant, also, during his day off took the Applicant's children to the park. It was the Applicant who said that the Visa Applicant worked six days in each week and five days in each second week. When it was put to him that time might be difficult to find for the activities specified his answer was that "he manages to find time".

18.     The Applicant said that if the Visa Applicant had submitted a bogus document he should be given a second chance. As he put it "any person can make a mistake".

19.     The Applicant said, when referred to the SSC (T2, p56), that the Comilla School is near the home of his parents in Comilla. His father was an active committee member of the Comilla School.  A copy of a HSC issued in 1994 to the Visa Applicant by the Dhaka School is located at T2, p57.  According to the Applicant, the Visa Applicant obtained his SSC in Comilla and his HSC in Dhaka. The family could afford the move to Dhaka and the change in school for the Visa Applicant.

20.     The Applicant then gave lengthy evidence as to the circumstances in which a condoned pass mark can be obtained. In very broad terms, this could occur when the mark for one subject only was below 33. I need not detail the evidence relating to the alleged condoned pass, since in accordance with the admission, there was none. It was put to the Applicant that this evidence was fabricated, as the relevant certificate bore no reference to a grace or compassionate mark. This Applicant denied this allegation.  The witness said that the Visa Applicant had obtained his pass through a compassionate or grace mark, and given by a teacher at the Dhaka School whose whereabouts are now not known.

21.     Evidence of this witness was suspect in the light of the fact that the HSC was false and admitted to be false.

PART C - THE EVIDENCE OF THE VISA APPLICANT BEFORE THE ADMISSION

22.     The Visa Applicant agreed that his Visa application was refused because DIMIA contended that his certificates were false.

23.     The Visa Applicant gave evidence of great length as to how he obtained the HSC and in particular in relation to a teacher in Dhaka called Ahmed, who was the head of the Arts Department and who procured the HSC for him. When asked why a teacher would give him a bogus certificate he said, "it doesn't make sense". He went on to say that "sometimes the teacher takes money but it didn't happen on this occasion”.. He went on to say that "the teacher said that sometimes grace marks are given and that the position would be rectified”.

24.     It was put to the Visa Applicant that the HSC was not signed by his teacher, and that it had rather been signed by the Board. His answer was that he did not know how the teacher obtained it from Board. When asked why the teacher would have put himself at risk in this manner, the Visa Applicant answered that the teacher was the father of one of his friends. He went on to say that he told the teacher he did not do well in one of his subjects and the teacher told him not to worry and that he would procure a certificate from the Board. He said categorically that if he had known it was bogus he would not have produced it as part of his visa application.

25.     The Visa Applicant repeated that his friend's father, a teacher, obtained the certificate for him. He also said that he now knew that he it is possible that he did not need it.

26.     It was then put to him that he knew he had failed. He agreed that this was so. It was put to him that "knowing you failed you arranged to get a bogus certificate.  Yes or no?" The answer was "no"; he went on to say that he requested his friend's father to obtain a genuine certificate for him.

27.     The Visa Applicant said that he did not know how the teacher obtained it. It was at this stage that he said that he gave money to his friend for the certificate; the cost an Australian equivalent of which would have been approximately $160.00. It was put to the Visa Applicant that "you basically paid money to get a certificate and you did not care how it was obtained". The Visa Applicant said that he did not know or care how it was obtained from the Board, but he thought he was obtaining a genuine certificate even though he knew he did not deserve it. He said that he thought, having some considerable time previously obtained advice from a migration agent in Bangladesh, that such a certificate would be of benefit in relation to a subsequent Australian visa application.

28.     He was then asked about the SSC. He said that he knew it was genuine because he obtained it himself. It was put to him that he should have been more truthful the previous day and that his effort was  "too little, too late".  He said that he felt ashamed by his failure of the HSC examination and was reluctant to tell his relations of it.

29.     He was asked how he could get such a certificate and whether this was common in Bangladesh. He said that he did not know and that he thought he had paid for a genuine certificate. However he did not seek to recover the money paid.

30.     The Visa Applicant said that while in Australia and until he left Australia on 13 July 2002, he did charitable work at the Bangladeshi Centre and at the Islamic Centre. He helped to feed disabled people at their homes; sometimes he took food to them; for this purpose he used his free time.

31.     The Visa Applicant said that after his HSC in 1994, he went to work as a cook. He first attended a short course on food preparation, lasting four and half months, organised the by Bangladeshi Tourist Training Institute in Dhaka. During this period he lived in Dhaka; his family had moved there in 1992.

32.     Either then or shortly thereafter, he worked at the Sheraton Hotel for approximately one and a half months (T2, p61). Thereafter he worked at the Agrabad Hotel (T2, p66-67).   

33.     The Visa Applicant gave evidence then that he worked at Golpea Burger ("Golpea") from June 1992 to January 1995 (T2, p62). He was asked how he could have worked at Golpea while still at school. His answer was that he went to Golpea after school. School started at 7am and continued until 11.30am and then from 12.30pm to 13.30pm, whereafter he would go to Golpea. He had originally started work at Golpea in 1992 as a trainee.

34.     The Visa Applicant was at Golpea for two years before going on work on a full time basis at the Agrabad Hotel, which is a deluxe Sheraton Hotel. He stayed in the employ of that hotel until approximately one week before he came to Australia in 1999. He had obtained a visa to work as a cook (T2, p51).

35.     In Australia he worked in Curry Junction owned by the Applicant and stayed there throughout his period in Australia, except for a six-week trip back to Bangladesh.

36.     The Visa Applicant then went on to give evidence about his work for the Bangladeshi Islamic Centre, which organised religious activities and festivals, and is associated with the mosque. He said that he is religious and prays five times daily. This work occurred particularly during religious festivals. He said that he worked there about once each month. He also worked in the Bangladeshi Nationalist Party Association in Kensington. He said that this was different from a disabled persons association in North Sydney with which he was also involved.

37.     The Visa Applicant then went on speak of his interest in Bangladeshi politics, which resulted in attendances at the premises of the Bangladeshi Nationalist Party Association. He said that he was involved, in particular, in soccer and cricket, which he attended either once a month or once every two months, in order to organise tournaments. His brother, Mr Monaghul Hoque is the immediate past president of this body.

38.     The Visa Applicant then gave evidence as to his participation in cultural functions, which occurred primarily in February, March and November each year. He took part in them and other similar functions, numbering approximately six or seven functions annually.

39.     His help to disabled persons in North Sydney was carried out in conjunction with Samiran Barua who worked with him at Curry Junction and the Agrabad Hotel. He said that he worked with the disabled some four or five times in three years. He had a car and travelled to North Sydney from his home in Randwick.

40.     As regards charity work, the Visa Applicant said that he did not collect money and that he did not solicit charitable donations. This evidence in particular was in conflict with the evidence given by the Applicant.

41.     The Visa Applicant was then asked how he expected to pass his HSC while working in the afternoons and nights. He answered that he studied at night. He was asked whether the marks reflected in the HSC were concocted, or whether they bore some resemblance to reality. He said that they were concocted but did not say how. However, he did say in this context that he was weak in practical psychology.

42.     He was asked how, given that his father took an active interest in education, he could have been working in a restaurant instead of studying. He said that although in the beginning he had wanted to study, at some point thereafter he decided to make cooking his career. He said that he did badly in the exams, and failed in Islamic studies although he could not remember the area of study involved. (Islamic studies is not apparently of itself one subject only.)

43.     The Visa Applicant has four sisters who live in Bangladesh, as do his parents. His two brothers are residents in and citizens of Australia and one of them is the Applicant. He said that he has stayed with the Applicant in Australia and that he has strong ties to the Applicant and his family.

PART D - THE VISA APPLICANT CROSS-EXAMINED BY MR PEEK

44.     The Visa Applicant said that he knew he failed his HSC because he saw the marks when they were posted on the notice board at the school. He told his family that he passed and then contacted the friend whose father was Mr Ahmed. He said that his family did not know that he had failed because the results were published by reference to numbers rather than names. 

45.     He was then asked about the time periods involved. He said that to obtain an HSC took two years. It was pointed out to him that the period from 1992 to 1994 is three years. He said that he started late and that there were delays in the publication of the SSC results. He started only in 1993 and sat the exams in the middle of 1994. When it was put to him that this resulted in a period of less than two years he said that the course is designed to run for two years but would sometimes run for less.

46.     He was then cross-examined as to the subjects he took. He said that there were ten compulsory subjects and two optional subjects but could not remember which they were.. Mr Peek put to him that he did no study for his HSC. He replied that he went to school in the mornings and to Golpea in the afternoon. It was put to him that these answers did not tally with those contained in his visa application. The Visa Applicant was referred to question 32 of his Application for Migration to Australia form (T2, p23),, which sought details of "your employment history since leaving school, including any periods of unemployment". His answer was that he worked for Golpea from June 1992 to January 1995. It was put to him that if that answer was correct and related to his employment history since leaving school, he could not have attended school from June 1992 onwards. His answer was that he could not remember what he wrote. The Tribunal notes with reference to question 27 of the form, the Applicant’s answer in this context is inconsistent (T2, p22).. It should be noted that in referring to Golpea he did not indicate that he worked on a part- time basis.

47.     It was put to the Visa Applicant that if he was then living with his family in Dhaka, he had specified (T2, p62) his address is as being in Comilla. His answer deserves repetition in full: "Comilla is my birth place and we used it as my permanent address. My family lived in Dhaka-sometimes they visited Comilla. We have a house in Comilla as well as one in Dhaka. My father used to work in a medicine company."

48.     He went with on to say that the family moved to Dhaka in 1992 after he finished his SSC; he could not remember the exact month but the move definitely took place in 1992.

49.     He was asked why his parents moved to Dhaka. His answer was that they wanted to be able to communicate with his brothers in Australia and that they had a telephone connection in Dhaka.

50.     He then said that the false HSC certificate was obtained at the end of 1994 after the results were published. It was put to him that his earlier evidence was that he obtained it to assist with his application for a visa and was asked why he obtained it at the end of 1994, at a time years before migration might take place. His answer was that "I though it would be a good idea to get it at that time".

PART E - THE CROSS-EXAMINATION CONTINUED ON 7 SEPTEMBER 2003

51.     The Visa Applicant was asked to recall his evidence as to his involvement with the North Sydney disabled centre in company with Samiran Barua. He could not recall the address of the centre. He knew Mr Barua as a co-worker at Curry Junction and at the Agrabad Hotel. Mr Barua furnished a reference for him in connection with his visa application. The Visa Applicant was asked how many times he had actually attended at the Disabled Centre. He answered that this occurred twice during his entire stay in Australia. The Tribunal notes that the Visa Applicant’s answer to the same question on a previous occasion was different.  

52.     The Visa Applicant admitted that he provided a false HSC knowing that it was false. He said that he was sorry that he had done this.

53.     Mr Peek put it to him that he was lying when he said that he attended Dhaka School and that at that time he was working at Golpea. The answer was "I don’t understand". Mr Peek then put it to him that he did not go to Dhaka School at all and he said that he did, but that he did not do well.

54.     Mr Peek proceeded to question the Visa Applicant about the SSC obtained from the Comilla School. The Visa Applicant said that he obtained it himself and that he collected it from the school himself prior to applying for temporary residence. He said that it was issued in August 1992 but that he obtained it at some time thereafter.

55.     The Visa Applicant then agreed that he collected the SSC in 1996. It was pointed out to him that the date of issue is recorded as 8 August 1992 (T2, p56). The Visa Applicant agreed that it was issued in 1992 and that he collected it only in 1996. He said that he did not collect it previously because it was not required. He then said that it was issued automatically after two years to the Comilla School but he collected it from the Board and not from the school. When it was put to him that the certificate was available on his evidence in 1994 (two years after 1992) but that he collected it only in 1996, he again said that he did not collect it earlier because he did not require it.

56.     The Visa Applicant was then asked about the testimonial from the Comilla School (T12, p109). He said that DIMIA wanted a testimonial "so I went to the school to get it.." He then said that he was in Australia at the time and so that accordingly his father collected it. He tasked his father to fetch it and his father went to Comilla to collect it from the Headmaster. This required a trip of 100km each way. The Applicant said the Headmaster’s name is Mr Fazbul Hoque who is no relation of the Applicant and that the school does not have a telephone connection. This last answer was presumably by way of explanation for the fact that his father went all the way to the school to fetch it but does not explain why the post would not have served.

57.     The Visa Applicant said that he remembered the Headmaster. He was asked why, while all the other relevant documents were issued both in Bangladeshi and translated into English, the testimonial was issued only in English. His answer was that he told them to issue it in English because he needed it for production to DIMIA.

58.     The Visa Applicant then agreed that in November 2000 his father was living in Dhaka having moved there in 1992. When he moved to Dhaka, he said, as indicated previously, that his father made a trip of 100km each way in order to collect the testimonial.

59.     He was then asked whether he knew Mr Mohammad Alam. His answer was "no, he has nothing to do with my family". Mr Peek then put it to him that he has a nephew called Alam Hoque who is also known as Mohammed Alam. The answer was “yes”. He was then asked why he answered that he did not know him.  The answer was "I thought it was a different Alam." He agreed that Alam Hoque lived with his family in Comilla and moved with the family to Dhaka in 1992. He was asked why he had not said so; his answer was "it was a mistake". He was then asked where Alam Hoque went to school and the answer was "Comilla". He was then asked whether Alam Hoque for this purpose travelled 100km each way to Comilla from Dhaka so as to attend school. His answer then was "so far as I know he was studying at Comilla".

60.     His evidence then became even more difficult to credit. He said that "my nephew used to live in Comilla but moved to Dhaka before coming to Australia". It was then put to him that he had said that Alam Hoque moved with the family to Dhaka in 1992. The answer was "he moved to and from Comilla" and then "he lived in both places. My father has residences in both places and once in a while my father goes to live in Comilla."

61.     The Visa Applicant was then referred to the Secondary School Certificate signed by the Controller of Examinations, attested on 29 April 2003 (Exhibit A3). He was asked how this certificate was obtained. He said that he originally obtained it in 1996 and that he took it back to the Board for verification in April 2003. He said that he took it himself for verification together with a letter requesting verification and that he travelled to Comilla to obtain it. When asked how he knew that it was ready he said that he was told that it would be ready on the following day. He also said that the Board, which verified it, is in Comilla. Mr Peek then put to him that the SSC is also bogus; he denied that this was so.

62.     In re-examination, the Visa Applicant said that he helped with the disabled in North Sydney on two occasions in 1999. He said also that he was involved with the Bangladeshi Nationalist Party and also with other communal organisations. He was then asked how often he had helped out at the Bangladeshi Islamic Centre and his answer was that he had done so on three occasions in three years, involved in cooking and reception.

PART F - ORAL EVIDENCE

63.     Oral evidence was given by telephone by each of Doctor Abul F M Wali Ul Islam  (Exhibit A4) Mr Delwar Hossain (Exhibit A5), Mr M D Mobarak Hossain (Exhibit A6) and Mr Shamsul Hoque (Exhibit A7). In each case, the witness had given a witness statement which tested to the fact that the Visa Applicant was honest and founded on the basis that the contentions contained to the ‘Applicant's Statement of Facts and Contentions’ were true.

64.     In broad terms each of the witnesses said or implied that the Visa Applicant had made a "mistake". Dr Islam said that if the Visa Applicant were allowed to come to Australia he would reform. The others remained convinced of his honesty. Some of them referred to his community work, although that evidence was not consistent with the Visa Applicant's own evidence.

65.     Mr M D Mobarak Hossain's evidence (Exhibit A6) was particularly difficult. According to his statement he has an MA and an LLB from the university in Bangladesh. He was quite remarkably reluctant to tell the Tribunal what he does in Australia. When pressed on more than one occasion he said that he is self -employed but at first, and again despite being pressed, refused to specify in what capacity he is self- employed. He eventually said that he drove a taxi. He said that the Visa Applicant did not take part in any activities against the community. It was put to him that the Visa Applicant lied to this Tribunal. His answer was "well maybe he did".

66.     Mr Delwar Hossain (Exhibit A5) who also drives and owns a taxi said that "maybe it is a mistake".

67.     In general terms the evidence of the character witnesses was not helpful. Mr M D Mobarak Hossain's evidence was particularly counter-productive

68.     Mr Shamsul Hoque (Exhibit A7) emphasised that he is the General Secretary of the Bangladeshi Islamic Centre and that he occupies its highest office. He too is involved in the taxi industry as an owner and driver.

69.     Generally, in relation to the character evidence and including in this context the evidence of the Applicant himself, it is decidedly odd that the witnesses in general terms took the view that the Visa Applicant had made a "mistake". The term "mistake" connotes something which is either an accident or perhaps something more serious, but at all events something which happens once and not something which forms part of a continuum. The behaviour of the Visa Applicant cannot on any basis and by any stretch of the imagination be characterised as a mistake on this basis. Having obtained a bogus HSC for which he paid, he instigated and pursued a dishonest course of conduct for a long period of time thereafter, including in particular in his evidence before the Tribunal. It must be remembered that the Visa Applicant had known for some considerable time that the Respondent had checked and was aware of the fact that the HSC at least was bogus.  He nevertheless persisted with his allegation that, so far he was concerned, it was genuine or that he believed it was genuine. It was not until later in the proceedings that he admitted that he knew from the outset that it was bogus. His evidence, even after the admission, was in the Tribunal’s view fanciful and untrue. The Tribunal notes that at times the Applicant’s answers suggested that he was plainly concocting evidence on an ad hoc basis.

PART G - SOME OF THE DOCUMENTARY EVIDENCE

70.     The Tribunal is convinced that the testimonial issued by the Dhaka School (T12, p107), which certifies that the Visa Applicant passed the HSC in the second division, is false. The Visa Applicant did not pass the HSC.

71.     The testimonial by the Comilla School displays a signature said to be that of the Headmaster of that school on 8 November 2000 (T12, p109). This signature can usefully be compared with a testimonial issued to Mohammad Alam, signed by a headmaster of the same name. (Tp125). The name of the Headmaster in both cases is Fazbul Hoque. The signatures are quite obviously different and I do not accept a contention by Mr Dobbie that I cannot make such a finding without the support of a handwriting expert. Even the most casual perusal of the signatures indicates that two different people signed them. I do not know which of the two signatures. It is possible, in the circumstances, that both are fake.

PART H -THE EVIDENCE OF THE VISA APPLICANT AND THE LIES

72.     The evidence of the Visa Applicant was at all times such that it is hard to attribute any credibility to him. He was untruthful, as he admitted, before the admission.  He was untruthful thereafter, notwithstanding the fact that had undertaken to tell the truth. His evidence as regards, for example, his nephew was unacceptable. Similarly his evidence as to the manner in which the certificates were obtained was unacceptable. So too was his evidence as to his father's place of residence. Equally his evidence as to his work activities and his attendance at school was unacceptable. As I have said previously at these reasons, he appeared to be making up some of his evidence as he proceeded.

73.     The Tribunal is unsure whether, as the Respondent contends, both certificates are bogus. It is quite possible that the SSC is just as bogus as the HSC. Mr Dobbie criticised the Respondent for checking in Dhaka but not in Comilla as well. Mr Peek pointed out that the Australian Embassy, which is in Thailand, has limited resources. Mr Dobbie riposted by pointing out that there is an Australian Consul General's office in Bangladesh, which might have assisted. Be that as it may, there is reason to suspect that the Visa Applicant did not go to school in the manner alleged.  The evidence suggests that he was a poor student and his employment record did not indicate that he worked in Golpea in the manner specified in his visa application.

74.      The Tribunal does not know just what community work was performed by the Visa Applicant while in Australia.  It is likely that he performed some community work but the evidence, as a whole was so remarkably inconsistent that the Tribunal cannot be sure just what or how much was done. His employment obligations were so strenuous of nature that he cannot possibly have looked after his brother's children and performed all of the various charitable activities alleged all on his days off. In any event none of these activities can now be aptly characterised as recent.

75.     The evidence of the character witnesses was less than helpful and this is particularly so of Mr M D Mobarak Hossain. The evidence of the Visa Applicant's sister-in-law was found on a false premise, as was the evidence of the Applicant. The Applicant did not give evidence after the admission and so that the Tribunal is unsure whether the Visa Applicant's admission came as a shock to him.

PART H - THE CHARACTER TEST

76. The Visa Applicant must fail the character test; so much is clear from the manner in which he lied to the Respondent and this Tribunal, thus committing numerous breaches of section 234 of the Migration Act 1958 ("the Act").

MINISTERIAL DIRECTION 21

77.     Clause 2.3 of Ministerial Direction 21 provides that there are three primary considerations: Clause 2.3 reads as follows:

“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.”

78.     Clause 2.3 should be considered in conjunction with clause 2.5, which reads as follows:

“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).”

79.     Notwithstanding the manner in which the Visa Applicant has behaved, I would not rate the risk of recidivism as high although it cannot be discounted altogether. In the end result this case is simply just another case of a resident of a very poor country trying to get in to a country where he would have a better future. Mr Dobbie informed me that Bangladesh is the second poorest country in the world, ravaged by floods and rampant corruption. When one analyses his untruthful behaviour and evidence, one is struck by how unnecessary so much of it was. A trained cook need not surely have much in the way of scholastic qualifications. The Applicant was prepared to sponsor him for employment in his restaurant. But that said, the deterrence factor is such that the Tribunal must send a strong message that conduct of this kind cannot be tolerated. As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994) at [35]:

“This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”

80.     This is a case where the expectations of the Australian community would in the Tribunal’s view be strongly against grant of a visa to a person such as the Visa Applicant who treats the Australian migration system so dishonestly.

81.     Hardship is not a significant factor in this case. The Visa Applicant's brothers may miss him and the Applicant's children may remember him fondly but that is as far as it goes.

82.     This is not a case in which the discretion can be exercised in favour of the Visa Applicant and the decision under review must be affirmed.  

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed:         A. Krilis  Associate

Dates of Hearing  1-2 July 2003, 8 -9 September 2003
Date of Decision  22 September 2003
Solicitor for the Applicant          Mr Nigel Dobbie
Solicitor for the Respondent     Mr Greg Peck