Hussein and Minister for Immigration and Multicultural Affairs
[2001] AATA 323
•20 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1518
GENERAL ADMINISTRATIVE DIVISION )
Re MOHAMMED HUSSEIN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J. Block
Date20 April 2001
PlaceSydney
Decision The decision under review is affirmed.
..........(signed J. Block)...........
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – preferential family visa – refusal on character grounds – whether visa applicant meets the character test – false or misleading statements on visa application – false protection visa application – work without permission – hardship.
Migration Act 1958 – ss 234, 235, 499, 501
Administrative Appeals Tribunal Act 1975 – s 37
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
REASONS FOR DECISION
20 April 2001 Deputy President J. Block
(a) The decision under review is the refusal by the Respondent of an application dated 6 May 1998 by Saliman Naz Hussein ("the Visa Applicant") for a Subclass 104 Preferential Family Visa, in respect of which her father ("the Applicant") was the sponsor.
(b) The Applicant was represented by Mr Simon Diab of Simon Diab & Associates, solicitors, while Mr Avinesh Chand, a solicitor and Departmental advocate of the Respondent, appeared for the Respondent.
(c) The Tribunal had before it the T Documents and also Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:
Exhibit # Description of Exhibit Submitted by
A1 Reference in support of the Visa Applicant from Iqbal Khan dated 26 January 2001. Applicant
A2 Reference in support of the Visa Applicant from Amjad Ali dated 26 January 2001. Applicant
A3 Reference in support of the Visa Applicant from Roopesh Pradsh Singh dated 21 December 2000. Applicant
A4 Reference in support of the Visa Applicant from Lee Birch dated 21 December 2000. Applicant
A5 Reference in support of the Visa Applicant from Dr Hari Kewal dated 21 December 2000. Applicant
A6 Reference in support of the Visa Applicant from Lyn Raymundo dated 19 December 2000. Applicant
A7 Reference in support of the Visa Applicant from Dr Arenas dated 10 October 2000. Applicant
A8 Statutory Declaration of Saliman Naz Hussein dated 15 December 2000. Applicant
Because the Supplementary T Documents are not numbered sequentially after the T Documents, references preceded by "T" refer to the T Documents, while references preceded by "S" refer to the Supplementary T Documents.
(d) Evidence was given by each of the Visa Applicant (by telephone link to Fiji) and by the Applicant.
I commence, by way of background and in order to set the scene, by including a number of documents or extracts from documents, as follows:
(a) The Respondent's Statement of Facts and Contentions, dated 23 January 2001, reads as follows:"FACTS
This is an application by Mr Hussein Mohammed (the Review Applicant) for review of a decision to refuse Ms Saliman Naz Hussein (the Visa Applicant) the grant of a subclass 104 Preferential Family visa pursuant to section 501 of the Migration Act 1958 (the Act).
Ms Hussein married Mr Munesh Pati Vali on 17 November 1988. (T Docs, p 26)
On 6 March 1997, the Nadi Magistrate's Court in Fiji certified that the decree nisi between Ms Hussein and her husband, Mr Vali had become absolute. (T Docs, p 33)
On 4 July 1997, Ms Hussein lodged a visitor visa application in Suva (T Docs, p 21). In response to question 8 on the form she indicated that she was married and named Mr Vali as her husband at question 19. She also included a copy of the marriage certificate (T Docs, p26) and a letter dated 16 May 1997 (T Docs, p 29) stating that he permitted his "wife, Saliman Naz Hussein" and daughter to travel to Australia. Ms Hussein signed the declaration at question 29 of the form stating that the information provided was complete and correct.
On 6 May 1998, Ms Hussein lodged a Subclass 104 Preferential Family visa application (T Docs, p 42), the decision for which is under review in this application. In response to question 17 in that application form, Ms Hussein stated that she was divorced. At question 18 she stated that this had occurred on 6 March 1997. A copy of the decree absolute dated 6 March 1997 was attached with the application form.
Schedule 2 of the Migration Regulation 1994 (the Regulations) sets down the relevant criteria for the grant of a Subclass 104 Preferential Family visa. These provisions have now been repealed but transitional provisions preserve them for undecided applications. Clause 104.223 of the Regulations requires that at the time of the decision, the applicant satisfy public interest criterion 4001. Public interest criterion 4001 requires the Minister to decide that there is no evidence of anything that might justify refusal under section 501 of the Act.
On 14 August 2000, the Minister's delegate refused Ms Hussein the grant of a visa on the grounds that she did not pass the character test as set out by section 501 of the Act.
Mr Hussein applied to the Administrative Appeals Tribunal (AAT) for review of the visa decision on 29 September 2000. He applied for an extension of time for lodging an AAT application for review of a decision, which was granted by the AAT on 23 October 2000.
CONTENTIONS
The Respondent contends that Ms Hussein does not pass the character test, as having regard to her past and present general conduct, she is not a person of good character – section 501(6)(c)(ii).
The Respondent contends that Ms Hussein made a false and misleading statement in connection with entry into Australia when she stated that she was married in her visa application form lodged on 4 July 1997. She supported this by attaching a marriage certificate and a letter from Mr Vali purporting to be approval from her husband, allowing Ms Hussein and her daughter to travel to Australia. Ms Hussein signed the declaration on the form stating that the information provided was complete and correct when she knew that she had been granted a decree absolute in her divorce proceedings with Mr Vali on 6 March 1997.
The relevant policy on cancellation or refusal of visa's on character grounds, Direction No.17 (3) – Visa Refusal and Cancellation under Section 501 (the Direction) sets out matters to be considered when assessing whether a non citizen is not of good character against section 501(6)(c)(ii). At paragraph 1.9(b), the Direction states that in the absence of countervailing factors, a non citizen would fail to pass the Character Test if he/she, in connection with any application for the grant of a visa, provided a bogus document or made a false or misleading statement.
The Respondent contends that there were no countervailing factors in this case and that as such, the Tribunal should make a finding consistent with the Direction that Ms Hussein is not a person of good character because of her past and present general conduct in making a false or misleading statement on her visa application form. The fact that a copy of a marriage certificate and a signed letter from Mr Vali were provided with the application suggest that Ms Hussein was aware that statements relating to her marital status had been made on the form. The Respondent contends that it would have been difficult for a third person to have access to Ms Hussein's marriage certificate without her being aware of it. Further, any request that Mr Vali sign a letter purporting to be her husband would have led to some questions being raised, especially by Mr Vali on the truth of such statements. The Respondent contends that Ms Hussein was aware at all times that false or misleading statements were being made in support of her visa application.
The Respondent contends that Ms Hussein should be personally held responsible for statements made in support of her visa application as she signed a declaration attesting to the truth and completeness of the information provided in support of the visa application. This contention is supported by remarks made by Deputy President Chappell in Kiokata v MIMA [1999] AATA 1022 at 73:
…The Tribunal is in full concurrence with the view expressed by McDonald DP (in Luong v MIMA [1999] AATA 625) that a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies…where an applicant simply signs a blank form and then leaves it to someone like a migration agent, lawyer or friend to fill in the details this would seem on the face of it to amount to reckless conduct. It is also conduct which would fit within the definition of being knowingly involved in the making of any subsequent false or misleading statement contained in such an application, even though it was not completed in person by the applicant. To hold otherwise would be to render largely purposeless much of the processing of immigration applications.
Having satisfied itself that Ms Hussein is a person not of good character because of her past and present general conduct, the Tribunal must decide whether to refuse her visa application. In doing this, the Tribunal must have regard to the considerations in the Direction.
The Direction sets out two primary considerations. They are:
Protection of the Australian community, encompassing the seriousness of the conduct, likelihood that the conduct may be repeated and deterrence effect on others as a result of visa refusal;
Expectations of the Australian community; and
In cases involving a parental relationship between a child or children and the person under consideration, the best interest of the child or children.
The Direction also sets out several secondary considerations. The relevant secondary considerations in this case are:
The degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere; and
Family composition of the non-citizen's family, both in Australia and overseas.
Seriousness of conduct
The Directions list examples of conduct which are considered by the Government to be very serious. They include, at paragraph 2.6(c);
…providing false or misleading information about a marital, de facto or interdependency relationship;…making a false or misleading statement in connection with entry or stay in Australia.
The Respondent contends that Ms Hussein's conduct as discussed at paragraph 10 clearly falls within examples of what the Government considers to be very serious conduct.
Likelihood that the conduct may be repeated
While the Respondent accepts that the particular conduct will not be repeated if a visa is granted to Ms Hussein, it is the Respondent's contention that there is a likelihood that Ms Hussein could make false and misleading statements in other documents in her dealings with Government Departments and other such bodies in a bid to achieve further benefits for herself. The Respondent contends that if a visa is granted, than the likelihood that the conduct may be repeated would increase as Ms Hussein would have been successful in obtaining a benefit by her adverse conduct and this would only encourage such conduct.
Likelihood that visa refusal would prevent similar conduct by other persons
The Respondent contends that a visa refusal in this case will send a strong deterrence message to persons contemplating similar actions. Visa refusal would demonstrate that the Australian government took seriously the obligations that it imposed on visa applicants in supplying complete and correct information for the purposes of visa applications and that conduct that was contrary to this obligation could lead to serious disadvantages for visa applicants later in time.
Expectations of the Australian community
The Respondent contends that the Australian community would expect that Ms Hussein not be rewarded for her previous conduct as there was an expectation in the community that non citizens obey Australian immigration laws when applying to enter Australia and that those who tried to work outside immigration laws in trying to secure a visa should not be encouraged or rewarded for their conduct.
Best Interests of the child
Ms Hussein has custody of the child and will remain with her if the visa is refused. As such, this is not a relevant consideration.
Degree of hardship caused to Australian citizen family members
Whilst Ms Hussein will not be able to reunite with her parents in Australia, the Respondent contends that there will be very little hardship that will be caused to them due to visa refusal. The Respondent contends that Ms Hussein's parents will be able to visit her in Fiji if they so wish. Further, there is no evidence that her parents are in some way dependent on Ms Hussein for support which cannot be provided elsewhere.
CONCLUSION
The Respondent contends that in balancing the factors in reaching a decision whether or not to refuse Ms Hussein's visa, the factors are clearly balanced in favour of visa refusal.
The Respondent submits that the decision under review should be affirmed."
(b) The Respondent's Further Statement of Facts and Contentions, received in the Tribunal on 10 April 2001, reads as follows:
"FACTS
These Facts and Contentions are to be read in conjunction with the Facts and Contentions filed on 24 January 2001.
On 19 December 1991, Ms Hussein (the visa applicant) lodged an application for a visitor visa with the Australian High Commission in Fiji (S1, p6). On her visa application form, Ms Hussein stated that she was married. A Statutory Declaration purportedly made by Ms Hussein's husband, Mr Pati Vali Munesh, was included with the visa application (S1, p5). In submissions lodged with the visa application, it was claimed that Ms Hussein intended to travel to Australia to visit relatives for a period of one-month (S1, p1).
Ms Hussein entered Australia on 17 January 1992 on a visitor visa valid until 21 January 1992 (S12, p 36). On 23 January 1992, Ms Hussein applied for refugee status. On a form that she lodged on 25 February 1992 (S6, p15), she wrote N/A in the section requiring details of her family including her husband's name and date of marriage.
On 24 January 1992, Ms Hussein applied for permission to engage in employment in Australia. On the application form, she indicated that she was separated (S5, p14).
On 13 May 1993, Immigration officers located Ms Hussein working at a garment factory without a permit (S12).
Ms Hussein left Australia on 29 May 1993, indicating that she did not wish to continue with her refugee application (S12).
Ms Hussein was granted a decree absolute in her divorce proceedings on 6 March 1997.
CONTENTIONS
The Respondent contends that Ms Hussein made a false and misleading statement on her application for permission to engage in employment when she stated that she was separated from Mr Munesh. Further, she made a false and misleading statement when she failed to state her marriage details on her refugee application form.
The Respondent contends that her conduct in relation to her entry into Australia in January 1992, her subsequent false and misleading statements in various application forms as well as the fact that she worked without a valid work permit are demonstrative of the fact that having regard to her past and present general conduct, she is not of good character – section 501(6)(c)(ii) of the Migration Act 1958 (the Act). This contention is supported by the findings of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when he noted that :
"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 with held."
In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, Deputy President Forgie commenting on the need to be truthful when providing information to the Department said:
In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some others. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed at the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met.
The Respondent contends that the findings by the Minister's delegate on 14 August 2000 that Ms Hussein did not pass the character test as set out at section 501(6)(c)(ii) of the Act are further strengthened if Ms Hussein's conduct as described at paragraph 8 are considered. The Respondent contends that there is a pattern of deceit on the part of Ms Hussein that has continued in her dealings with the Department since 1992.
The Respondent submits that the decision under review should be affirmed."
(c) In the interests of balance, I also include all of the Applicant's Submissions (even though some of it is of little relevance), which read as follows:
"Factual Background
1. The review applicant is the father of the visa applicant.
2. The visa applicant is a citizen of Fiji. She made an application for a permanent residency visa as a last remaining relative as her parents and siblings are all residing in Australia.
3. The visa applicant was divorced on 6th March 1997 and Court documents were provided to the Australian High Commission in Suva Fiji as evidence of the divorce in connection with the current visa application. The Minister's delegate accepted the fact that the visa applicant was divorced on 6th March 1997.
The Applicable Law
4. The Minister's delegate refused our client's application on the basis of character ground test in Section 501(6)(c) of the Migration Act 1956. Sub-section 6 being the character test provides as follows :-
"(6) For the purposes of this section, a person does not pass the
character test if :-
the person has a substantial criminal record (as defined by subsection (7); or
the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
having regard to either or both of the following:-the person's past and present criminal conduct;
the person's past and present general conduct;the person is not of good character; or
in the event the person is were allowed to enter or to remain in Australia; there is a significant risk that the person would:
engage in criminal conduct in Australia; or
harass, molest, intimidate or stalk another person in Australia; or
vilify a segment of the Australian community; or
incite discord in the Australian community or in a segment of that community; or
represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.Otherwise, the person passes the character test.
The Minister's delegate decided that, based on the visa's applicant's general conduct, the visa applicant is not a person of good character.
6. The provisions of Section 501 of the Migration Act 1954 have come before the attention of the Federal Court on a number of occasions and the section has been construed to call for two considerations.
Firstly, an assessment and a decision must be made as whether or not the visa applicant, having regard to their general conduct, is a person of good character. Secondly, if it was found that the visa applicant is not a person of good character, the Minister's delegate and the Administrative Appeals Tribunal have a discretion considering the entirety of the circumstances as to whether or not to refuse the applicant's application on the basis of character, notwithstanding a finding against the person's lack of good character. See Irving v. Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422; Minister for Immigration & Ethnic Affairs v. Baker (1997) 45 ALD 136.In Suria Kanti & Minister for Immigration & Multicultural Affairs AAT No. 13575 [1998] AATA 993(22nd December 1998) Deputy President Chappell stated as follows :-
"43 Section 501 of the Act requires the consideration of two distinct issues by the Tribunal. The first of these is whether the Tribunal is satisfied that Mr. Kanti, having regard to his general conduct, is not of good character. The second issue, which is only required to be answered if the first is resolved unfavourably for Mr. Kanti, is whether in the circumstances the Tribunal should not refuse to issue a visa, despite an adverse finding as to character."
8. It is therefore respectfully submitted that the first task before the Honourable Tribunal is to make a finding as to whether or not the visa applicant is a person of good character.
The visa applicant has no criminal record and there is no information to suggest that she had any association with a person or group or organisation involved in criminal conduct. The decision of the Minister's delegate is wholly based on section 501(6)(c)(ii) being the
visa applicant's general conduct. The Minister's delegate based his decision on the fact that the visa applicant had provided information to the Department of Immigration and Multicultural Affairs in relation to a previous application for a visitor visa whereby the applicant had informed the Department that the applicant was married while in fact the applicant was divorced. The visa applicant had provided a statutory declaration to the Department of Immigration & Multicultural Affairs Office in Suva explaining the way in which the information was provided to the Department of Immigration and that the visa applicant had no intention of misleading the Department but the person who assisted in making that visitor visa application had completed the form for the visa applicant and she had no knowledge that the person had completed the form in a way suggesting that she was married at the time of making the visitor visa application in July 1997. I shall refer to the evidence before the Tribunal later in my submissions.As a matter of interpretation, it is a settled principle of interpretation that the provisions in a statute must be read in the context in which they appear. The words "general conduct" in section 501(6)(c)(ii) are found in the midst of a test for character assessment referring to such things as substantial criminal record, the person's association with someone else involved in criminal conduct, the person's criminal conduct, significant risk that that person would engage in criminal conduct in Australia, incite discord in the Australian community, represent danger to the Australian community by way of becoming involved in activities that are disruptive or violence threatening harm to segments of the Australian community. It is respectfully submitted that the expression "general conduct" when read in the context in which they appear refers to conduct of criminal nature.
Justice Whitlam stated in Baker v. Minister for Immigration & Multicultural Affairs [1996] 564 FCA 1 (4 July 1996) when referring to the expression "general conduct" as follows "-
"Examples of such conduct that may not be criminal overseas, yet might be regarded in Australia as showing that a person is "not of good character", including brothel keeping, usury, exploitation of child labour, and defaulting on child maintenance."
It is therefore submitted that before this Honourable Tribunal can make a finding that the visa applicant is not a person of good character. The Tribunal must first find conduct of the visa applicant which is so serious as to be regarded as conduct of a criminal nature.
Furthermore, it is respectfully submitted that the expression "general conduct" refers to evidence as to the visa applicant's persistent conduct and not simply a one off occasion. Justice Whitlam stated in Baker as follows :-
"The meaning of "general conduct" in par (a) of subs 501(2) emerges once it is appreciated that conduct may be criminal, whether or not a person has been convicted in respect of such conduct. The adjective "past" makes it clear that all such criminal conduct up to the time of decision under s 501 must be taken into account under subpar(I). Conduct that is not criminal is then provided for specifically in subpar(ii). But not all such conduct needs to be taken in account, only that which is described as "general". That word is, in my opinion, apt to describe a person's prevalent or usual conduct. This makes sense for a contemporary assessment based on a non-criminal conduct. Examples of such conduct that may not be criminal overseas, yet might be regarded in Australia as showing that a person is "not of good character", including brothel keeping, usury, exploitation of child labour
and defaulting on child maintenance. However, one-off acts of disgraceful conduct in the dim and distant past that do not constitute crimes are not to be relied upon."Considerations of Applicability of the Character Test to the Facts as Found
It is submitted that in order for the Honourable Tribunal to make a finding that the visa applicant is not a person of good character the Tribunal must have before it evidence to satisfy it in relation to key matters. Firstly, the Tribunal must find that the visa applicant engaged in conduct which is so serious that it is of a criminal nature. Secondly, if the Tribunal so finds, the Tribunal must consider as to whether or not that conduct is a general conduct of the visa applicant or a one-off occasion.
It is not disputed that the visa applicant made a visitor visa application with the Australian High Commission in Suva on 4th July 1997. Further, it is not disputed that the application form submitted to the Australian High Commission and signed by the visa applicant provided information that the visa applicant was married at that time. It is not disputed that that information was wrong. The visa applicant made the application for a visitor visa to come to Australia to attend the wedding of her brother. She has provided an explanation in a statutory declaration provided to the Australian High Commission in Suva and she has now sworn a second statutory declaration declared on 15th December 2000 which is now before this Honourable Tribunal. Those statutory declarations provide an explanation from the visa applicant as to how the erroneous information was provided to the High Commission in Suva. The visa applicant stated that she has signed a blank form and her cousin then completed the form which was then submitted to the Australian High Commission either by her cousin or a travel agent associate of her cousin.
If the Tribunal accepts this explanation from the visa applicant the Tribunal must then overturn the decision of the Minister's delegate. If the Tribunal does not accept the applicant's explanation and finds that the applicant deliberately provided misleading information to the Minister's delegate in relation to a previous visa application, the Tribunal must then consider the seriousness of that conduct and whether or not that conduct is of a criminal nature to offend against the character test in section 501(6) of the Migration Act.
In my respectful submission, although the visa applicant's prior dealings with the Department of Immigration and Multicultural Affairs are relevant considerations in relation to character test assessment, the provision of the information to the Department in relation to the visitor visa application for the purpose of the applicant to visit Australia to attend the wedding of her brother, is not conduct that is targeted by the character test.
It is further submitted that if the Honourable Tribunal is against me in relation to characterising the conduct of a visa applicant in relation to the persons prior dealings with the Department and the seriousness of such conduct, the Honourable Tribunal then must consider whether that conduct refers to the persons "general conduct" as provided in section 501(6)(c)(ii).
It is respectfully submitted that if the Honourable Tribunal finds that the applicant had mislead the Department in relation to her previous visitor visa application and that conduct is conduct which offends against the character test, that conduct was a one-off act and therefore cannot be characterised as the visa applicant's general conduct as interpreted by Justice Whitlam in Baker. If the Honourable Tribunal accepts this interpretation of the expression of "general conduct" as stated by
Justice Whitlam the Tribunal must then decide on the evidence before it as not evidence of the visa applicant's "general conduct".Discretion
If the Honourable Tribunal is against me in relation to characterisation of the visa applicant's conduct and the Tribunal finds that the visa applicant is not a person of good character the Tribunal must then consider its discretion of whether or not to confirm the refusal of the visa application on the basis of the character ground.The Tribunal will note that the visa applicant is the last remaining relative in her family. Her parents and siblings are in Australia. She is a divorcee and has a child. The Tribunal may consider in its discretion, taking into account the circumstances of the conduct complained of, and the general circumstances of the visa applicant being the last member of her family in Fiji and a divorcee with a child, the Tribunal may use its discretion not to refuse the applicant's application on character grounds."
(d) The Visa Applicant's Statutory Declaration, dated 15 December 2000, (Exhibit A8) reads as follows:
"1. I made an application for a visitor visa in July 1997 with the Australian High Commission in Suva. The purpose of my visitor visa application was to attend the marriage ceremony of my brother in Australia.
2. I telephoned my cousin Mohammed Aziz Khan who had previously assisted me in completing visitor visa applications to Australia, and asked him to assist me in completing the visitor visa application, which was then made to the Australian High Commission in Fiji on 4th July 1997. My cousin Mohammed is acquainted with a travel agent and I understood that he was capable of assisting me in making my visitor visa application.
3. My cousin Mohammed Aziz Khan attended my work and brought with him a visitor visa application form which was blank. He asked me to sign the form and said to me that he knows my details and that he will complete the form and he will then given the form to the travel agent to submit to the Australian High Commission. That visitor visa application was refused by the Australian High Commission.
4. I submitted an application for permanent residency visa to the Australian High Commission in Suva in May 1998 on the basis of being a last remaining relative. In answering a question as to my marital status I answered that I was divorced. I was in fact divorced on 6th March 1997. The Australian High Commission sent correspondence to me advising that an answer to a question in my visitor visa application of July 1997 I had answered that I was married and that I have now stated that I was divorced on 6th March 1997 which is a date prior to the filing of my visitor visa application on 4th July 1997.
5. I replied to the Australian High Commission in Suva and now confirm that I was divorced on 6th March 1997 and the statement in my visitor visa application that I was married was a wrong statement. I did not intend to provide the Australian High Commission in Suva with wrong information when filing for my visitor visa application. I in fact did not complete the application form and the form was blank when I signed it. My cousin Mohammed had assured me that he knew my details and that he would complete the form correctly and submit it to the Australian High Commission for me. My cousin Mohammed was well aware at the time of completing the application form that I was divorced. I had no reason to suspect that Mohammed would provide wrong information."
(e) The Visa Applicant's application for refugee status is document S6 (S pages 15-30). I set out the questions and answers in respect of questions 62-66 as follows:
"62. Have you or a member of your close family ever suffered as a result of your/their membership of or association with a political party, group, movement or association?
No Yes 4 If "Yes", describe what happened below. Include
the following details:a)what happened?
b)when?
c)where?
d)who did it?
e)which of the other incidents you describe in this form to you attribute to this factor?
Answer: My father was arrested and detained on several occasions by the Security Forces. This happened after the Military Coup of 14th May 1987. He suffered mental and physical torture. I was also attacked several times
63. If you answered "yes" to question 62, give the following details about your/their membership of or association with this organisation. Include the following, in this order:
a)name of the party, group, movement or association
b)when did you/they join?
c)when did you/they leave?
d)what branch, section or region did you/they belong to?
e)how many members were in the party/group?
f)did you/they have a membership card?
·where is it now?
·are/were you/they identified as a member? How?
g)who were you/their immediate superiors?
h)who was/is the national leader?
i)outline briefly the aims, objectives and philosophy of the party/group
·did/does the party/group use or condone violence?
·was the party/group ever banned or illegal? If so, when?
·was it legal when you/they were a member?
j)do/did you/they hold any rank or official position?
k)do/did you/they take part in any violent activities? If so, describe:
l)do/did you/they ever make speeches at public meetings?
m)do/did you/they ever write or sign any literature or publications?
Answer: I was a member of the National Federation Party since 1984. I am still in favour of the Party's principles but since recently I could not support the Party openly because I am threatened by natives that if I supported the party they would assault me.
I supporting the Nadi Branch of the Party, by campaigning in 1987 General Election. On the election day I helped the party at the polling station publicly.
I am unaware of the membership of the party but feel that there must have been about 30,000.
Our National Leader was Mr H.C. Sharma but the National leader of Coalition Party was Dr Timoci Bavadra. The Objective of the party is to practice democratic in Fiji. The NFP never issued membership card to it members. I did not sign or write any publication of the party.C. YOUR EXPERIENCES IN YOUR COUNTRY
…
64. Have the security forces in your country ever come to your home or place of work?NoYes 4 If "Yes", describe what happened below. Include
the following details:
a)what happened?
b)why?
c)when?
d)who came?
e)what were the consequences?
Answer: On 27th May 1987, some soldiers came to my parents place and arrested my father. On the same day I was also threatened by soldiers that unless I tell them the plannings of National Federation, they shoot me.
65. Have you or a member of your close family ever been interrogated or questioned by authorities in your country?
No Yes 4 If "Yes", describe what happened below. Include
the following details:a)what happened?
b)why?
c)when?
d)where?
e)who did it?
f)what where the consequences?
Answer: My statement in question 64 of this application is one of the several incidents that took place. I cannot recollect other dates. On each occasion my father was brutally questioned and interrogated. At times soldiers also questioned and interrogated me.
66. Have you or a member of your close family ever been detained or arrested or tried or imprisoned?
No Yes 4 If "Yes", describe what happened below. Include
the following details:a)what happened (on each occasion)?
b)why?
c)when?
d)where?
e)who did it?
f)what were the consequences?
Answer: My father was on several occasions arrested and detained. One of the incidents of which I remember the date is stated in my answer to question 64 of this application."
T2 (page 12) indicates that the Visa Applicant applied for visas to visit Australia in 1989, 1990, 1991, 1995 and 1997, and that on each occasion the application "was refused on bona fide issues". Other than in respect of 1997, there was no evidence before me as to the application for or refusal of a visitor's visa, and I do not therefore intend to take any other visa applications or refusals into account.
In respect of the evidence of the Visa Applicant:
(a) She lives in Fiji and works as a supervisor in a garment factory, and has done so for the past 3 years. She has a daughter (Reshika), now 6 years old, who lives with her and her grandmother (a courtesy title for someone who is not a blood relative). Reshika is in her first year at school.
(b) The Visa Applicant receives financial support from her father, the Applicant, at the rate of $100 to $150 per month. She said that he visits her annually and "settles" matters, by which she meant that he saw to financial problems and generally looked after her. (The Applicant's evidence was that he visits Fiji twice a year and gives his daughter money when he visits).
(c) The Visa Applicant was previously married to Munesh Pativall ("Munesh"). They separated in 1995 and were divorced in March 1997. Although he is legally obliged to do so, Munesh does not provide support for his daughter, and Reshika has little or no contact with her father.
(d) In 1997 the Visa Applicant wished to travel to Australia as a visitor to attend the wedding of her brother Mohammed Nazir Hussein. The Applicant suggested to the Visa Applicant that she utilise the help for this purpose of her cousin Mohammed Aziz Khan ("Aziz"), who was then living in Fiji, although he has since migrated to New Zealand.
(e) The Visa Applicant's evidence was that at the request of Aziz she signed the visa application form in blank, and Aziz completed it thereafter. The false statement in it as to her marital status was made by Aziz; he too was responsible for the procurement of a consent letter by Munesh in respect of his "wife" at a time when they were no longer married.
The Visa Applicant appeared to regard the letter by Munesh, which accompanied the visa application, as in some way designed to harm her; the Tribunal is not clear as to why this should be so. The Visa Applicant also thought that there was collusion between Aziz and Munesh, although why in these circumstances she trusted Aziz so completely is also not clear. In essence, the Visa Applicant gave evidence that any and all false and misleading statements in the 1997 visa application were made entirely by Aziz. (The Applicant in his evidence said that Aziz's whereabouts are not known, and for that reason a statement by him is unavailable).
(f) It became clear during the course of the Visa Applicant's evidence that her claims in the Protection Visa application (S6, pp. 23-30) were not true. She said that she came to Australia in 1992 on a visitor's visa (Aziz had been instrumental in obtaining it) in order to visit family. She knew at the time that she was not a refugee, and made a Protection Visa application (within a few days of her arrival) in order to enable her to stay in Australia for a few years. As regards her Protection Visa application specifically, she initially said that she had no political past and had been involved in no political activities; she later said that she was a member of a party and that she had been present at polling booths during an election in support of this party. She did have contact with authorities, but in order to seek assistance (which was obtained) in relation to adverse conduct by native Fijians. She said in her Protection Visa application that her father was the subject of conduct which could fall within the meaning of persecution; her evidence in this context was vague and contradictory; she said that her father was arrested but released within a short time; she also said that his contact with the authorities was also designed to obtain assistance. (The Applicant, when he initially gave evidence, said that nothing of this nature had occurred).
(g) Her evidence as to how the Protection Visa application came into existence was even more confused and contradictory. She did not know the name of the agent who allegedly assisted with the application or where his offices were. She said at one stage that she gave him information which he wrote down; at a later stage she said that she simply signed what he had written. (The Applicant said that he was present throughout, that the agent wrote down what he was told, and that the agent was fluent in both English and Hindi, the languages used at that time by the Visa Applicant.)
(h) There was even some confusion as to when the Protection Visa application was made. The evidence was that she applied for a Protection Visa within 5 days after her arrival. In fact her substantive application was made in February 1992. But this aspect can be resolved by a reference to the S Documents; on 23 January 1992 the Visa Applicant made an application for a Refugee Temporary Entry Permit and thereafter on 25 February 1992 her own application for a Protection Visa. It seems clear though, given that there was a gap of 5 days between arrival and the first application, that she came with the intention of staying. And indeed, as set out previously, her evidence was that she made the application to gain residency rights for a period of a few years.
She described herself as "separated" in her Protection Visa application. At that time she was not separated. Indeed she returned to Fiji in 1993 in order to rejoin her husband. She said that she meant "separated" in the sense that they were physically in different countries at the time ie. Australia in her case and Fiji in his case. This ingenuous explanation cannot have been truthful.
(j) Of course, and as became increasingly clear, her Protection Visa application was untruthful in numerous respects.
(k) The Visa Applicant also worked illegally in Australia for a period of about a year. She said that she did not know if she had a Bridging Visa which entitled her to work but that she did obtain a letter from "the lawyer" (name unknown) telling her that she could do so. No such letter was produced. She stopped work after being found by the Respondent in illegal employment and subsequently returned to Fiji for "personal reasons". These personal reasons were apparently that "an Indian woman is not separated from her husband". She did say that her husband was involved with another woman and in effect that she had to get him back. But if so, as her subsequent separation and divorce indicated, her attempts, however genuine, were not successful.
(a) The Applicant's evidence was not of great help. I have already noted that he contradicted the evidence of his daughter in a number of important respects. In fact, much of his evidence was pure hearsay, and being what his daughter told him. He said that he had not, after the coup in Fiji in 1987, had any contact with or suffered any harm from the police authorities.
(b) After the luncheon adjournment on the day of the hearing, and although he had completed his examination in chief of the Applicant, Mr Diab asked for permission to reopen and continue his examination in chief in respect of the Applicant. That application was granted. The Applicant then said that he had been examined about once or twice a month (some 7 times in all) when the authorities asked him questions of a political nature. In the light of his earlier and clear denial (before the luncheon adjournment) of any events of this nature, I do not accept the later evidence. It seems clear that it arose in consequence of consultations during the luncheon adjournment, and when it was appreciated that his evidence before lunch was not helpful to his case. (I need hardly say that conduct of this nature is distinctly dubious.)
(c) The Applicant then went on to contrast his daughter's evidence further. She had initially denied any political involvement at all; her later evidence indicated that she was at most a member of a party. The Applicant said that she was involved in the same manner as was applicable to him, and in accordance with his evidence after the adjournment (to be contrasted, of course, with his evidence prior to it).
(d) While it is undoubtedly true (and common knowledge) that there has been tension between native Fijians and Indian Fijians, all of the evidence of the Visa Applicant and the Applicant must be treated with great reserve, and not to put too fine a point on it, great doubt. She went back to Fiji in 1993 of her own free will in order to resume relations with her then husband, and the Applicant continued to travel to and still travels to Fiji on a regular basis.
(e) The Applicant and his two sons work as self-employed independent contractor couriers, and for which they have three vehicles. There is one house in which the whole family lives, and where there is room for the Visa Applicant as well.There was virtually no evidence as to Reshika, and there is no reason to doubt that she is in good health and doing satisfactorily at school. Although the Visa Applicant spoke of hardship (economic hardship) to herself, the Applicant did not speak of hardship of any kind to himself, his wife or his sons. I am nevertheless prepared to assume emotional hardship to all of them, if a visa is refused.
(a) I turn now to consider Direction No. 17 – Visa Refusal and Cancellation Under Section 501 ("the Ministerial Direction"), which is binding on me in accordance with section 499 of the Migration Act 1958 ("the Act"). In this paragraph 7, and also in paragraph 8, references to clauses should be construed as references to numbered clauses in the Ministerial Direction.
(b)Having regard to clause 1.9(b), which relevantly reads:
"whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement…",
read together with clause 2.6(c), the Visa Applicant was indeed guilty of serious misconduct. In respect of the 1997 visa application, her evidence was that she was not responsible for the false statements in it. However, the fact remains that someone who signs a form of this nature must be held responsible for falsities in it; I refer in this context to the decision of Deputy President Chappell in Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022, where he said at clause 73:
"…a person cannot avoid his or her obligations to answer questions accurately and truthfully in immigration applications by merely asserting that reliance was placed upon someone else to provide this information and it is they who should be held solely responsible for any deficiencies. There are obviously varying degrees of inaccuracy and untruthfulness in the information that may appear in particular applications, but where an applicant simply signs a blank form and then leaves it to someone like a migration agent, lawyer or friend to fill in the details this would seem on the face of it to amount to reckless conduct. It is also conduct which would fit within the definition of being knowingly involved in the making of any subsequent false or misleading statement contained in such an application, even though it was not completed in person by the applicant. To hold otherwise would be to render largely purposeless much of the processing of immigration applications."
I am prepared, however, in relation to that application, to accept that her responsibility was to an extent limited by the trust placed by her in Aziz.
(c) But the Protection Visa application falls entirely into a different category. It occurred soon after her arrival in Australia and was clearly intended from the onset. And it was made, on her own admission, in order to obtain time in Australia. It was, as I have indicated, false and misleading in a number of important respects.
(d) A number of character references were tendered on behalf of the Visa Applicant (Exhibits A1 to A7). These do not advance the matter any further, as they do not refer to her conduct in respect of the Act.
(e) On a balance of probabilities, the Visa Applicant committed offences under both section 234 and 235 of the Act, the maximum penalties in respect of which are such that I must treat her conduct as serious. There was no evidence of recent good conduct and I must thus hold that she does not meet the character test.
I turn now to Part 2 of the Ministerial Direction.
(a) Clause 2.3 provides that the primary considerations are:"(a) The protection of the Australian community, and members of the community;
(b) The expectations of the Australian community; and
(c) In all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."
(b) There was, as I have said, virtually no evidence as to the Visa Applicant's daughter and, this being so, there is little weight to be accorded to this primary consideration.
(c) Clause 2.3 must be read with clause 2.5, which provides that the risk to the Australian community must be assessed having regard to the following factors:
"(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)."
(d) I do not think that recidivism is a serious aspect in a case such as this. The Visa Applicant was prepared to be unscrupulous and manipulative in relation to the Act, but there is no reason to believe that she will, if granted a visa, do so again; there will be no need for her to do so. I should note, though, that I found her inconsistency, in giving evidence before me, disconcerting.
(e) As to deterrence, I refer to the authorities contained in the Respondent's submissions, and contained in paragraph 2(b) of these Reasons; I agree with the passages cited. To grant a visa in these circumstances would send entirely the wrong message, and could indeed be seen to reward conduct which should not be so rewarded.
(f) I think that the Australian public would expect me in these circumstances (and even taking into account that I should implement the Ministerial Direction in a humane fashion) that a visa be refused. This is so because she has transgressed not once, but repeatedly and over a period.
(g) As to the seriousness of her conduct (and clause 2.6(c) refers) Mr Diab asked me to hold that the Visa Applicant's conduct was of a comparatively minor nature. However, the wording of the Ministerial Direction, which is relevant, indicates that this cannot be so. Indeed, offences under migration law are treated as serious; the maximum sentences (in particular in relation to section 234 of the Act) are such that this must be so.
(h) As to hardship, there was, somewhat to my surprise, virtually no evidence of anything other than economic hardship to the Visa Applicant. I accept though that for this family to continue to be separated must, regardless of the lack of evidence, be hard for them. The family is clearly close-knit. Moreover, the fact that the Visa Applicant is divorced is relevant in this context.
My attention was drawn by the representatives of both parties to the decisions in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. My own view is that these cases, while relevant up to a point, are of less relevance since the passing of the Ministerial Direction, which came into effect in point of time after both of them.
It is clear to me that the hardship considerations do not outweigh the primary considerations, and it follows that the discretion under Part 2 of the Ministerial Direction cannot be exercised in the Visa Applicant's favour. It is difficult not to feel sympathy for the Visa Applicant. Had she not transgressed against the Act in the manner set out in these Reasons, she might well have obtained her visa and been reunited with her family. But her case is, precisely because her conduct was so serious, not materially different from so many similar cases which have come before the Tribunal in recent times (and previously) where the Tribunal has consistently found against the Applicant. And as Brennan J indicated in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, consistency in decision making is desirable.
In the circumstances, the decision under review must be affirmed.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J. Block.
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 12 April 2001
Date of Decision 20 April 2001
Solicitor for the Applicant Mr Simon Diab (Simon Diab & Associates)
Solicitor for the Respondent Mr Avinesh Chand (DIMA)
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