Hossain and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 315
•7 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/755
GENERAL ADMINISTRATIVE DIVISION )
Re Farid Hossain
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr R P Handley
Date7 May 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Ms Poppy.
..............................................
Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – subclass 309 spouse (provisional) visa – character test – past and present general conduct - failure of the visa applicant to pass the character test – discretion that can be applied by the Tribunal – discretion to be exercised in favour of the visa applicant in view of hardship to the applicant and visa applicant and humanitarian considerations.
Migration Act 1958 ss 499, 499(1) (2A), 501, 501(1) (6)
Goldie and Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Kahila and Minister for Immigration and Multicultural Affairs [2001] AATA 83
Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731
REASONS FOR DECISION
7 May 2002 Mr R P Handley
This is an application by Farid Hossain ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 10 May 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Elfiyanti who is known as Poppy ("the Visa Applicant"). At the hearing, the Applicant was represented by George Lombard, a registered Migration Agent, and the Respondent was represented by Susan Goodman, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given in person by the Applicant, Shajeda Begum and Peter Clark-Saunders, and by telephone by the Visa Applicant.
BACKGROUNDThe Applicant, Farid Hossain was born in Bangladesh on 27 October 1958 and is aged 43. He arrived in Australia on 10 February 1989 and became an Australian citizen on 25 February 1999. The Visa Applicant, Ms Elfiyanti was born in Padang, Indonesia on 31 July 1969 and is aged 32. She is generally known by her nickname "Poppy".
Ms Poppy first entered Australia on 27 August 1995 on a three month visitor visa valid until 27 November 1995. On 16 November 1995, she lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs ("the Department"). In the application she recorded her name as Poppy and her date of birth as 25 December 1970. Mr Hossain and Ms Poppy first met in September 1996 when they were both working at Uni Chef as process workers. At that time, Mr Hossain was married and their relationship was purely platonic. However, after Mr Hossain's marriage broke down in 1997, their relationship became a deeper one and, in January 1998, they commenced living in a de facto relationship. On 11 March 1998, Ms Poppy's application for a protection visa was refused and, on 30 March 1998, she sought a review by the Refugee Review Tribunal ("RRT"). On 23 December 1998, the RRT affirmed the decision of the delegate and, as a result, on 27 January 1999 Ms Poppy's bridging visa A expired. Despite this, she continued to work even though, as she acknowledged later, she was aware that she was working unlawfully.
On 22 October 2000, Ms Poppy departed Australia for Indonesia. Mr Hossain was divorced from his first wife on 27 December 2000 and, on 2 February 2001, Ms Poppy and Mr Hossain had a traditional wedding reception in Bangladesh. They were subsequently married in an Islamic ceremony in Indonesia on 7 November 2001. On 8 January 2001, Ms Poppy lodged an application for a subclass 309 visa at the Australian Embassy in Jakarta. On 9 May 2001, Ms Poppy and Mr Hossain were interviewed by a senior migration officer at the Embassy and, on 10 May 2001, the officer, acting as a delegate of the Respondent, decided to refuse Ms Poppy's application for a visa. In her decision, the officer stated that she was not satisfied that Ms Poppy was of good character because of her past and present general conduct and declined to exercise the Minister's discretion under s 501(1) of the Migration Act 1958 ("the Act") not to refuse the grant of a visa. On 4 June 2001, Mr Hossain lodged an application for a review by the Tribunal.
RELEVANT LAW AND POLICYUnder s 501(1) of the Act, 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 character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
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;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes 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.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Poppy is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Farid Hossain (the Applicant)Mr Hossain said he first came to Australia on a student visa and later applied for a spouse visa relying on his relationship with his former wife. He became an Australian citizen on 25 February 1999. Since June 2000, Mr Hossain has owned and run an Indian restaurant although he sometimes also drives a taxi.
Mr Hossain said he first met Ms Poppy in September 1996 when they were both working at Uni Chef, a factory processing poultry products. At first, their friendship was purely platonic but, after Mr Hossain and his wife separated in 1997, their relationship developed into that of boyfriend and girlfriend. In January 1998, Ms Poppy moved into Ms Hossain's flat and they commenced living together in a de facto relationship. At that time, Ms Poppy had already told Mr Hossain about her application for a protection visa and that Adrian Joel was her lawyer. When her protection visa application was refused, Mr Hossain went with Ms Poppy to see Mr Joel who advised her to apply to the RRT for a review because this would enable her to remain in Australia. Mr Hossain said he advised Ms Poppy to return home to Indonesia and then apply to return to Australia legally. However, she did not want to return to Indonesia, but instead wanted to stay with him because she loved him and did not want to go to Indonesia on her own without him.
Mr Hossain said Ms Poppy went to the RRT hearing but did not answer any questions from the Tribunal because she did not know the answers. When she made the protection visa application, she did not understand what it meant to be a refugee. She was advised to make the application by friends to enable her to stay in Australia. After her application to the RRT failed, Ms Poppy was scared that she might be detained but did not apply for ministerial intervention. Mr Hossain said that Mr Joel told her about the possibility of joining a class action, but Mr Hossain was not aware of whether Mr Joel had discussed applying for ministerial intervention with her. Once again, Mr Hossain advised her to return to Indonesia. Ms Poppy did not apply for ministerial intervention. However, she continued working, even though she did not have a visa.
At this stage, Ms Poppy was not working at Uni Chef: she had a series of other temporary positions including working for a gourmet chicken company and for a cleaning company. Mr Hossain said he was aware that it was illegal for Ms Poppy to work when she did not have a visa and he kept advising her that she should return to Indonesia. Eventually, Ms Poppy found that she could not bear to stay in Australia any longer on an illegal basis and so she decided to return to Indonesia and lodge an application for a spouse visa from there. She departed Australia on 22 October 2000. Mr Hossain said after the RRT decision, Ms Poppy had not heard from the Department about her working illegally in Australia, although she was asked questions about this by immigration officials when she left the country. When they were interviewed at the Australia Embassy in Jakarta on 9 May 2001, Ms Poppy told the interviewing officer that she had worked illegally in Australia.
Mr Hossain said that while his wife's real name is Elfiyanti – in Indonesia people only have one name – her nickname is "Poppy". He first found out about her real name when she told him that her protection visa application had been refused. Mr Hossain acknowledged that Ms Poppy's passport shows her nickname and the wrong date of birth. Her cousin obtained this passport for her from the Indonesian Government but used the name by which she was known, "Poppy", and got her date of birth wrong. Mr Hossain said he found out about this about five or six months after meeting Ms Poppy. Mr Hossain said Ms Poppy's family home is in Padang in Sumatra. Passports are issued in Jakarta so Ms Poppy had asked her cousin there to obtain one for her.
When Mr Hossain realised that Ms Poppy's passport was unlawful, he advised her to state her real name in the spouse visa application. He noted that she had already opened a bank account using the name Poppy and had also obtained a tax file number in that name. She used the name Poppy on each occasion because she had no other identification with her. Mr Hossain said he had not helped Ms Poppy fill out any forms in the name of Poppy. He did assist her in completing her spouse visa application, which includes both her real name, Elfiyanti, as well as her nickname Poppy. The application form was completed by Mr Hossain with Mr Lombard's help after Ms Poppy left Australia.
Mr Hossain said he loves his wife and wants to be with her. He thought she should be able to get a visa despite her having made mistakes in the past. When they started living together, they decided to get married in the future. They did not discuss what they would do if Ms Poppy could not obtain a visa. Mr Hossain said he flew to Indonesia on 25 December 2000 and, on 15 January 2001, he and Ms Poppy flew together to Bangladesh where they stayed with his family in Dhaka and Jamalpur. They had hoped to get married in Bangladesh, but the Mullah told them that Ms Poppy had to have a letter from the Indonesian Consulate saying that she could marry. She could not obtain this easily, so they decided to have a wedding reception in Bangladesh and then have a formal wedding ceremony in Indonesia in November 2001. They therefore had a traditional wedding reception in Bangladesh on 2 February 2001 and, on 12 March 2001, they flew back to Singapore from where Ms Poppy flew on to Indonesia and Mr Hossain returned to Australia. Then, on 5 May 2001, Mr Hossain flew to Indonesia in order to be with his wife for the interview at the Australian Embassy in Jakarta on 9 May 2001. They travelled together from Padang to Jakarta which takes 38 hours by bus. On 29 October 2001, Mr Hossain flew to Indonesia once again and, on 7 November 2001, they had a formal wedding ceremony.
Mr Hossain said that according to the Koran, he has to look after his wife, respect her and share everything with her. He has no intention of ever divorcing her. They hope to have children and had thought that Ms Poppy was pregnant on two occasions but unfortunately she was not. She flew to Bangladesh on 26 January 2002 and is currently staying with Mr Hossain's two sisters in Dhaka. Mr Hossain said he is currently taking Zoloft for depression and Algor (5mg), a sleeping tablet, both of which he takes daily. Mr Hossain said he first experienced health problems when his wife's application was rejected in May 2001, although he has had more serious symptoms since about August/September 2001.
Ms Poppy (the Visa Applicant)
Ms Poppy said that her real name is Elfiyanti and her nickname is Poppy. When she first arrived in Australia on 31 August 1995, she used her passport which was in the name of Poppy. She had asked her cousin, Cindy, who lives in Jakarta to obtain a passport for her. However, Cindy did not know Ms Poppy's real name, having only known her by her nickname. Cindy was also not sure about Ms Poppy's date of birth and used a date that she thought she remembered. Ms Poppy said she signed blank passport and visa application forms which Cindy obtained for her and then passed them to Cindy who said she would look after it all for her because Ms Poppy was very busy at the time. When Ms Poppy received the passport and visa and realised that they were not in her real name, she was concerned, but was reassured by a relative who said it was not important. In any event, she was very keen to go to Australia and did not think it would be a problem. Ms Poppy acknowledged that she had told the RRT that the reason for her obtaining a new passport was that the old one had been confiscated which was not true.
Ms Poppy acknowledged that she had used her passport in the name of Poppy, with the false date of birth, to open a St. George bank account in that name. She did not use her real name and date of birth in Australia because she was relying on the false passport for identification. Ms Poppy has now obtained a new passport in her real name of Elfiyanti with her real date of birth. She said that in her protection visa application, she had used her real name Elfiyanti and her real date of birth, in addition to using the name Poppy. The bridging visa issued to her by the Department was in the name of Poppy, even though the Department was aware of her real name and date of birth.
Ms Poppy said that a few weeks after arriving in Australia, she tried to obtain information about staying in Australia. A friend, Susie, told her that she could apply for a protection visa and said she would help Ms Poppy with the application. Susie told her not to worry about inventing a false story. Ms Poppy said she did not then know what it meant to be a "refugee". Susie introduced Ms Poppy to a lawyer, Adrian Joel, and he arranged for Richard Hardy to represent her. Mr Hardy told her that he would try and assist her. Susie had already prepared a story for Ms Poppy which she gave to Mr Hardy. Ms Poppy can no longer remember exactly what the story was and said, at the time, she only read it. Mr Hardy never told her what would happen if her protection visa application was based on false information or what the effect of the use of a false passport might be. Mr Hardy took no steps to check her protection visa application story. He merely said that he would help her and she trusted him because she wanted to stay in Australia.
Ms Poppy said she did not tell Mr Hossain about her protection visa application immediately on their meeting. However, she did tell him about this when her application was refused. At that time, Mr Hardy suggested she should seek a review by the RRT. He never attempted to find out whether the story she was telling was true and Ms Poppy is aware that the same story was used in her RRT application. She attended the RRT hearing and answered a few questions about her story in the protection visa application having been reassured by, as her friend Susie that she should not be concerned about whether the story was true.
Ms Poppy remembered receiving a letter from Mr Joel advising her that the RRT had rejected her application and saying that she could no longer remain in Australia. She went to see Mr Joel with Mr Hossain and Mr Joel told her that she should return to Indonesia and apply for a spouse visa from there. He did not suggest that she should join a class action. Ms Poppy said she could not apply for a spouse visa then because Mr Hossain's divorce was not finalised. In any event, she did not want to return to Indonesia without Mr Hossain because she loved him. Nevertheless, Mr Hossain tried to persuade her to return to Indonesia because he did not want her to be in Australia unlawfully. She resisted. She was concerned that if she returned to Indonesia without her husband, her parents would be upset and would set about trying to find a husband for their 27 year old unmarried daughter.
Ms Poppy said she obtained work through an employment agency, working casually in a range of different locations. The agency did not know she was in Australia unlawfully. She worked because Mr Hossain could not cover all her expenses, even though he told her not to work. Ms Poppy said the Department did not contact her to inform her that she should leave Australia although, when she departed, she was asked questions by immigration officers at the airport and was afraid that they might take her away. Ms Poppy said she finally went back to Indonesia on 22 October 2000 because her husband was continually nagging her to return, she was afraid that she might be arrested, and because she wanted a bright future with her husband.
Ms Poppy said that when she and her husband were married in Jakarta on 7 November 2001, she did not ever consider the possibility of her not being able to live with her husband in Australia. A Moslem wife must obey her husband and must be close to him. Ms Poppy broke down and cried in giving evidence – she said she did not want to live anywhere without her husband: "better you kill me than I live without Farid". She went to Bangladesh in January this year because she was under pressure from her family in Indonesia.
Ms Poppy said she last saw her husband in November 2001 and he seemed very depressed and angry. One moment he would be fine and the next moment he would be angry and talk in a loud voice. He would also often get headaches and was unable to sleep. She said there was a big change in his behaviour from the time she saw him previously and she was very sad to see him like that. Her approach is to yield to him and try to calm him down.
Ms Poppy said she has a big family including two younger brothers, an older brother and two older sisters, most of them in Padang and one in West Java. She said it is very hard being in Bangladesh and she cries every day. She cannot work in Bangladesh and does not think she would be able to raise a family there. Going out is very difficult because she needs to be accompanied by her husband's older brother – otherwise it is dangerous. She does not like the food in Bangladesh and is unable to obtain Indonesian food or the spices she would use to cook Indonesian food for herself. Moreover, she can speak very little Bengali – only "hello", "good-bye" and "how are you?" Ms Poppy said she is truly very sorry for what she did. At the time that she first entered Australia and in the period afterwards, she did not understand about Australia's immigration rules, nor about what it means to be a refugee. She assured the Tribunal she would never be involved in such misconduct again.
Shajeda BegumMs Begum said she is an Australian citizen but is originally from Bangladesh. She is a social worker with the Migrant Resource Centre in Parramatta and has provided the Tribunal with a statement dated 28 February 2002 (A10) and an assessment of Mr Hossain's and Ms Poppy's relationship (A11).
Peter Clark-SaundersMr Clark-Saunders, a clinical and forensic psychologist and a criminologist, had prepared a report for the Tribunal dated 16 January 2002 (A3). He considered it very unlikely that Ms Poppy would re-offend and said that the risk of this is very low. He said Mr Hossain's separation from his wife is the cause of his major depressive episode. Following Mr Clark-Saunders seeing Mr Hossain on 27 November 2001, Mr Clark-Saunders telephoned Mr Hossain's general practitioner and had a discussion with him. As a result, Mr Hossain is now being treated for depression which, with the assistance of medication, is under control. Mr Clark-Saunders said Mr Hossain's depression is unlikely to improve significantly until Mr Hossain is reunited with his wife.
SUBMISSIONSMr Lombard, for the Applicant, conceded that Ms Poppy does not pass the character test but contended that there are mitigating circumstances which the Tribunal should take into account. The false passport and visa were obtained for Ms Poppy by her cousin. The initial visa was granted on 31 July 1995. Given that the date of travel was 27 August 1995, this may not have afforded a sufficient opportunity for Ms Poppy to correct the documentation. Moreover, she was reassured that the incorrect information in the passport did not matter. With regard to Ms Poppy's application for a protection visa, her evidence is that she wanted to stay in Australia and was advised how to do so by her friend, Susie, and by a registered migration agent. While Ms Poppy acknowledged that the story concocted for her was false, it is clear that her friend was the initiator. Ms Poppy's evidence was that the migration agent did not undertake what Mr Lombard described as normal credibility checking or advise her of the possible consequences of making a false application. Ms Poppy's situation is not the same as that of someone who sets out to defraud Australia's immigration system.
Mr Lombard noted that even though Ms Poppy had included her real name in the protection visa application, the bridging visa issued to her was in the name used in her false passport. He said it was open to the Department to have issued her with a visa evidence card and to have inserted her real name in that card. Ms Poppy was not asked to obtain further documentation from Indonesia although this would have been relatively easy to arrange.
Mr Lombard noted that when Ms Poppy lodged an application for a review by the RRT, no attempt was made by the migration agent to verify the story which Ms Poppy had given as should be normal practice for a migration agent. Had she been properly advised, she might have chosen not to pursue the RRT application. Mr Lombard noted that when Ms Poppy was notified of the RRT decision and after her visa had expired, she was encouraged to return to Indonesia, both by her migration agent and by Mr Hossain. However, there is no evidence of any departmental compliance officer attempting to contact Ms Poppy with a view to her leaving Australia.
With regard to the exercise of the Minister's discretion under s 501(1) of the Act and Direction No. 21, Mr Lombard submitted that the Tribunal should adopt a balancing process which takes into account all relevant considerations. The Tribunal should not regard itself as bound to distinguish between primary and other considerations. In this case for example, some of the other considerations are particularly compelling. Mr Hossain is suffering severe and ongoing hardship, as is apparent from the reports of both Mr Clark-Saunders and Ms Begum. The statements by other witnesses also support this. Mr Hossain is now being treated for depression by his general practitioner, Dr S Ktenas. Mr Lombard noted, in particular, Ms Poppy's evidence as to the change in her husband's personality when she last saw him in November 2001.
Mr Lombard also drew attention to the fact that Mr Hossain's and Ms Poppy's marriage is a genuine and loving one and that they wish to have children. They have been living apart for about 17 months which has been both emotionally and financially draining for both of them. Because neither speaks the other's first language and because they are from different cultural backgrounds, living in each other's country, whether Bangladesh or Indonesia, is difficult.
With regard to the first of the primary considerations referred to in Direction No. 21, the Protection of the Australian Community, Mr Lombard said Ms Poppy has recognised that her conduct was wrong and has expressed remorse. While her conduct is regarded as very serious, it is not in the same category as the most serious of Australian offences. Mr Lombard noted that no prosecution has ever been initiated. He said there is negligible risk to the Australian community of Ms Poppy committing any crime in the future and referred the Tribunal to the report of Mr Clark-Saunders to that effect. Mr Lombard said there will be minimal "general deterrence" if Ms Poppy's visa application is refused. He submitted that Ms Poppy and Mr Hossain have suffered enough.
With regard to the second of the primary considerations, the Expectations of the Australian Community, Mr Lombard noted that Ms Poppy had frankly apologised for her conduct in the interview at the Australian Embassy in Jakarta on 9 May 2001. Moreover, she acknowledged the false story to immigration officials at a time when there was no compulsion for her to do so, and she did the right thing by leaving the country and applying for her spouse visa overseas. Ms Poppy chose not to join the Joel class action but preferred to make her application in the proper fashion.
Mr Lombard noted that the Australian community is culturally diverse and includes a significant Moslem population. When Moslems marry, they enter a sacred bond for life. This is a consideration which the Tribunal should take into account when determining the expectations of the Australian community. Moreover, the community would likely accept that Ms Poppy has been punished sufficiently for her bad conduct and, if appraised of the particular circumstances, would look at her case sympathetically. Mr Hossain and Ms Poppy are a family and, in this case, there are significant compassionate circumstances that tend towards a determination that permits them to live together as husband and wife in Australia.
With regard to Other Considerations, Mr Lombard noted that Mr Hossain's family are in Bangladesh and therefore not able to provide him with support in Australia. As mentioned above, it is not reasonable to expect Ms Poppy to live in Bangladesh nor Mr Hossain to live in Indonesia given their significantly different cultural backgrounds and languages. The marriage between Mr Hossain and Ms Poppy is a genuine one and the formalisation of that marriage was only delayed as a result of the need to await Mr Hossain's divorce. Mr Lombard noted that Ms Poppy has apologised for her conduct and that this should be considered on her part. As to hardship, Mr Lombard submitted that there is a clear risk to Mr Hossain's health evidenced by his suffering from clinical depression for which he is being treated.
Respondent
Ms Goodman, for the Respondent, submitted that paragraph 2.17 of Direction No. 21 is binding on the Tribunal and it is only in exceptional circumstances that other considerations should outweigh the primary considerations. With regard to the first of the primary considerations, the Protection of the Australian Community, Ms Goodman said Ms Poppy committed document fraud, an offence under s 234 of the Act, when she entered and left Australia on a passport which did not contain her real name and date of birth. Moreover, Ms Poppy's protection visa application contained claims that she knew were false. She also provided this information to other public bodies in Australia, such as the Australian Taxation Office, thereby further compounding her misconduct. Ms Goodman said Ms Poppy was in Australia unlawfully and worked unlawfully for a period of almost two years from late January 1999 to late October 2000.
Ms Goodman submitted that Ms Poppy has committed serious offences against the Act as detailed in paragraph 2.6(c) of Direction No. 21. She referred to the Tribunal's decision in Kahila and Minister for Immigration and Multicultural Affairs [2001] AATA 83, where, at page 32, Deputy President Block noted that he was obliged by the equivalent paragraph of Direction No. 17, the forerunner of Direction No. 21, to regard such offences as being very serious. Ms Goodman said that the need to protect the Australian community is directed at the community generally and cannot be used to focus on Mr Hossain, whose health, the Applicant alleges, has been adversely affected by the Respondent's decision.
Ms Goodman said the Respondent accepts that the risk of Ms Poppy repeating such misconduct is not high but said, nevertheless, that such misconduct cannot be ruled out because of the period over which it was committed. In particular, Ms Goodman noted that Ms Poppy has sought to avoid responsibility for her actions by blaming others. It is clear that she was easily led and willing to take her friend's advice to do whatever it took to achieve her end. The Respondent says Ms Poppy has not properly apologised for her misconduct and the Respondent also questions the reliability of Ms Poppy's evidence, for example her claim that she is not able to remember what she told the delegate at the departmental interview in May 2001. Thus, taking these matters into consideration, the Respondent submits that while the risk of recidivism is not high, nevertheless, it should be taken in to account.
With regard to deterrence, Ms Goodman referred the Tribunal to Deputy President Block's acceptance in Kahilla (supra), at page 33, that it is necessary to send a message to potential applicants that false visa applications are not likely to succeed. Ms Goodman submitted that the same approach should be adopted by the Tribunal in the present case. In Kahilla, Deputy President Block, referring to the second primary consideration, the Expectations of the Australian Community, cited the decision in Re Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575 at paragraph 26, where Deputy President McMahon stated that the expectations of the Australian community would include an expectation that "no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled". There is an expectation in the community that applicants should be truthful and, Ms Goodman submitted, Ms Poppy's lies to the delegate at the interview on 9 May 2001 is another example of her bad conduct. Ms Goodman questioned the relevance of the submission made by the Applicant as to the cultural diversity of the Australian community. She submitted that in this case the community would expect that a visa would be refused.
With regard to the Other Considerations to which decision-makers are referred by paragraph 2.17 of Direction No. 21, Ms Goodman noted that Mr Hossain was aware when he married Ms Poppy both of her application for a visa having been refused on character grounds and of her previous breaches of Australia's immigration law. Ms Goodman referred to the decision of Deputy President McMahon in Turini and Minister for Immigration and Multicultural Affairs [2000] AATA 731 at paragraph 33 where Deputy President McMahon said of the review applicant:
In my view, the emotional hardship which he will undoubtedly suffer must be discounted heavily by the fact of his pre-knowledge of the likely consequences.
Ms Goodman noted that Mr Hossain had not himself been prepared to inform the authorities in order to regularise Ms Poppy's immigration status.
With regard to hardship to Ms Poppy, Ms Goodman said Ms Poppy had created her own fate and knew she was acting illegally. Thus, as in Turini (supra) at paragraph 34, her hardship may also be discounted. Ms Goodman also referred to Kahila (supra) at page 34, where the Tribunal found that hardship to the applicant and review applicant and their families was outweighed by the visa applicant's serious misconduct and the need to protect the Australian community. In the current matter, Ms Goodman said that while the Respondent accepts that Mr Hossain and Ms Poppy will suffer hardship, nevertheless this hardship is outweighed by the other primary considerations. In conclusion, Ms Goodman submitted that the discretion in s 501(1) should not be exercised in favour of Ms Poppy. The Other Considerations are outweighed by the primary considerations of the Protection and Expectations of the Australian Community.
CONSIDERATION OF THE LAW AND FINDINGSThe Applicant concedes that Ms Poppy does not pass the character test by virtue of s 501(6)(c) of the Act having regard to her "past and present general conduct". The application of the character test in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
The Tribunal is also of the view that Ms Poppy's conduct in submitting visa applications containing false information with regard to her name, date of birth, and as to her having been persecuted in Indonesia, more particularly set out below, lead to the conclusion that she is not of good character and does not, therefore, pass the "character test" because of her past and present general conduct. Having so decided, the Tribunal must proceed to consider the exercise of the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that Ms Poppy not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
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.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community
Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes under the Act which, in turn, include providing false or misleading statements or presenting false or forged documents. The Tribunal recognises the importance of observing the truth when dealing with officials in migration matters. For example, in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:
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.
Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.
The Tribunal finds that when Ms Poppy first arrived in Australia on 27 August 1995, this was on the basis of a passport issued in the name of Poppy rather than her real name of Elfiyanti and with a false date of birth. The Tribunal accepts Ms Poppy's evidence that her cousin, Cindy, in Jakarta obtained this passport for her in her nickname rather than her real name and with a mistaken belief as to her date of birth. The Tribunal can see no advantage to Ms Poppy from having a passport containing her nickname and a wrong date of birth rather than the correct information, and is of the view that Ms Poppy's using this false passport and the visa which was issued to her for that passport was purely a foolish mistake.
The Tribunal accepts Ms Poppy's evidence that it was her friend, Susie, who suggested she apply for a protection visa in order to enable her to stay in Australia and who concocted the false story for the purpose of her protection visa application. There is no dispute that Ms Poppy was aware that the story was a false one. The Tribunal notes that the protection visa application also included Ms Poppy's real name, Elfiyanti, and her true date of birth. However, her statement explaining the change of name – "to get the passport, I have to change my name" – was false (T p97).
The Tribunal also notes that Ms Poppy was assisted with this application by Adrian Joel & Co, Solicitors and Migration Agent. Ms Poppy's evidence is that she was never advised by Richard Hardy of this firm as to what would happen if her protection visa application was based on false information. The Tribunal also notes Ms Poppy's evidence that after the refusal of her protection visa application, Mr Hardy suggested an appeal to the RRT. It was on this advice that Ms Poppy acted, thereby relying once again on the false story included in her protection visa application, despite Mr Hossain advising her to return to Indonesia. When the RRT affirmed the decision to refuse Ms Poppy a protection visa, and her bridging visa expired in late January 1999, 28 days after notification of the RRT decision, Ms Poppy remained in Australia unlawfully and worked unlawfully until the time of her departure on 22 October 2000.
The making of false or misleading statements in connection with entry or stay in Australia are serious crimes against the Act. Nevertheless, the Tribunal notes the circumstances in which the false passport was obtained, that Ms Poppy was easily led by a friend in making her protection visa application, and that the advice received from the solicitor and migration agent she consulted did not, seemingly, involve the agent first scrutinising the story presented to him by Ms Poppy.
The Tribunal finds, relying on Ms Poppy's evidence, there is little likelihood of her repeating such misconduct. The Tribunal notes that the evidence of Peter Clark-Saunders also supports this conclusion. Ms Poppy expressed her regret and remorse for what she had done and the Tribunal accepts that she has learned a lesson from the consequent hardship. With regard to deterrence, the Tribunal accepts that the refusal of a visa where there is immigration misconduct may deter other potential applicants from engaging in such misconduct. Ms Lombard submitted that Ms Poppy and Mr Hossain have suffered enough as a result of their separation of 17 months and that a message will already have been sent to potential transgressors.
With regard to the second primary consideration, the Expectations of the Australian Community, the Tribunal notes the discussion of the equivalent paragraph in Direction No. 17 by Deputy President McMahon in Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, at paragraph 34, that in addition to the statement in paragraph 2.12, "there would be a general expectation in the community that the Act would be administered fairly and humanely". While Ms Poppy has breached the trust of the Australian community by her immigration misconduct, nevertheless, in the Tribunal's view, the Australian community would have regard to the other circumstances in considering whether her misconduct is such that she should not be granted a visa and would take a humane view of her situation.
The third primary consideration is the Best Interests of the Child. While Ms Poppy and Mr Hossain clearly want to have children, currently, there are no children of their relationship. This third primary consideration is not therefore relevant. Decision-makers are also directed to consider other matters, although not primary considerations, where relevant. Paragraph 2.17 of Direction No. 21 states that these other considerations may include: the extent of disruption to the non-citizen's family, business and other ties to the Australian community; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizens character was of concern at the time of entering into the relationship; the degree of hardship which would be caused to immediate family members lawfully resident in Australia; and the family composition of the non-citizen's family both in Australia and overseas.
The Tribunal has no doubt that the relationship between Mr Hossain and Ms Poppy is a genuine, loving, marital relationship. Mr Hossain was aware of his wife's immigration problems from about March 1998 and the Tribunal accepts his evidence that he encouraged her to return to Indonesia so that she could make a proper spouse application. However, she resisted his advice relying, first, on the advice of her solicitor and migration agent concerning her appeal to the RRT, and then, after the RRT decision to affirm the refusal of a protection visa, she could not face the separation from her husband and returning to Indonesia to her parents as an unmarried daughter. Eventually r, Mr Hossain and Ms Poppy sought other advice and Mr Hossain managed to persuade his wife to return to Indonesia.
The Tribunal notes that all the other members of Mr Hossain's family are in Bangladesh and all Ms Poppy's family are in Indonesia. The Tribunal also notes the cultural differences between these two countries although both Mr Hossain and Ms Poppy are practising Moslems. The Tribunal finds that significant hardship will be caused to Mr Hossain and Ms Poppy if a visa is refused. Mr Hossain is a restaurant owner in Sydney and does not speak Indonesian. There is no prospect of employment for him in Indonesia. Ms Poppy does not speak Bengali and, according to her evidence, is not attuned to the traditions and customs of Bangladesh. The Tribunal finds that Mr Hossain is suffering from depression as a result of the separation from his wife. The Tribunal relies on the report of Peter Clark-Saunders (A3) and notes that Mr Hossain is currently taking medication which, while controlling his depression, is unlikely to alleviate its ongoing symptoms while Mr Hossain and Ms Poppy continue to be separated.
Paragraph 2.2 of Direction No. 21 requires decision-makers to have due regard to the importance placed by the Government on the three primary considerations but states that decision-makers should also "adopt a balancing process which takes into account all relevant considerations". In the current matter, the risks to the Australian community posed by Ms Poppy are minimal. While she committed serious immigration misconduct, there is little likelihood of repetition and, in the Tribunal's view, the Australian community would take a humane view of Ms Poppy's and Mr Hossain's situation in the light of all the circumstances. Those circumstances include the nature of the relationship between Mr Hossain and Ms Poppy, the consequences which have flowed from their separation and the future hardship which they will suffer if a visa is refused and that separation is ongoing. Thus, in the Tribunal's view a weighing of all the relevant considerations leads to the conclusion that the discretion s 501(1) should be exercised in Ms Poppy's favour.
The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in the case of Ms Poppy.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: .....................................................................................
AssociateDate/s of Hearing 18 and 19 March 2002
Date of Decision 7 May 2002
Representative for the Applicant Mr G Lombard
Representative for the Respondent Ms S Goodman, Solicitor
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