Islam and Minister of Immigration, Multicultural and Indigenous Affairs - [2002] AATA 395

DECISION AND REASONS FOR DECISION [2002] AATA 395

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1447

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Urmila Islam
  Applicant
           And    Minister of Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date27 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 to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Nazrul Islam.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – visa application – spouse provisional visa – character test – examination of the visa applicant's past and present conduct – held that the visa applicant does not pass the character test because of his past general conduct – discretion that the Tribunal may exercise if the visa applicant fails the character test – held that the Tribunal's discretion be exercised in favour of the visa applicant taking into account the suffering and hardship to the applicant -– matter remitted to the Minister with a direction to this effect.
Migration Act 1958 ss 499, 499(1)(2)(2A), 501, 501(1)(6), 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1990) 90 FCR 583

REASONS FOR DECISION

27 May 2002 R P Handley

This is an application by Urmila Islam ("the Applicant") for a review of a decision of a delegate of the Minister of Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 6 August 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Nazrul Islam ("the Visa Applicant"). At the hearing, the Applicant was represented by David Godwin, of Counsel, and the Respondent was represented by Sharon Hanstein, 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 by the Applicant in person and by the Visa Applicant by telephone.
BACKGROUND
Mrs Islam was born in Fiji on 4 April 1959 and is aged 43. She is an Australian citizen. Mr Islam was born in Bangladesh on 24 November 1972 and is aged 29. Mr Islam left Bangladesh in 1991 to work in Saudi Arabia. He travelled on a passport that falsely stated his date of birth as 24 November 1967. In Saudi Arabia, he worked as a cook at the Al Khozama Hotel in Ryadh. On 22 May 1996, Mr Islam applied for and was granted a visitor visa to travel to Australia, which was valid for three months from the date of entry. Mr Islam arrived in Australia on 11 June 1996 and, on 3 July 1996, he lodged an application for a protection visa and was granted a Bridging Visa permitting him to work. The protection visa application showed Mr Islam's correct date of birth and, on 27 August 1996, Mr Islam's passport was amended to show this. Mr Islam obtained employment as a cook at the Indian Home Diner in Paddington.
On 16 May 1997, Mr Islam's solicitors notified the Department of Immigration and Multicultural Affairs ("the Department") that Mr Islam wished to withdraw his application for a protection visa. As a consequence, Mr Islam's Bridging Visa A expired on 19 June 1997. On 10 June 1997, Mr Islam had lodged an application for a subclass 126 (independent) visa which was refused on 22 August 1997. On 29 August 1997, Mr Islam lodged another application for a protection visa and, on that day, he was granted a Bridging Visa C subject to a condition that he was not permitted to work. However, Mr Islam continued to work as a cook at a series of restaurants and home diners.
On 17 November 1997, Mr Islam's application for a protection visa was refused and, on 28 November 1997, he lodged an application for a review of this decision with the Refugee Review Tribunal ("RRT"). On 15 December 1997, Mr and Mrs Islam met for the first time. They were subsequently married in Sydney on 30 September 1998. On 1 September 1998, the decision to refuse Mr Islam's application for a subclass 126 visa was set aside and a reconsideration of that decision was commenced. On 29 June 1999, Mr Islam was granted a further Bridging Visa C, again subject to the condition that he could not work. On 13 January 2000, the RRT affirmed the refusal of Mr Islam's protection visa application. On 9 March 2000, Mr Islam was granted New Zealand permanent residency. On 26 April 2000, the refusal of Mr Islam's application for a subclass 126 visa was confirmed. On 30 November 2000, Mr and Mrs Islam departed Australia for New Zealand but, on 16 December 2000, Mrs Islam returned to Australia.
On 9 January 2001, Mr Islam lodged an application for a subclass 309 spouse (provisional) visa at the Australian Consulate in Auckland and, on that day, he also became a member of a class action in the High Court in relation to the refusal of his application for a protection visa. On 12 February 2001, Mr Islam was granted a visitor visa and he entered Australia on 13 February 2001, returning to New Zealand on 3 March 2001. On 4 April 2001, Mr and Mrs Islam were interviewed by a migration officer at the Australian Consulate in Auckland. On 6 August 2001, a delegate of the Respondent decided to refuse Mr Islam's application for a spouse visa. On 21 September 2001, Mrs Islam lodged an application for a review of that decision by the Tribunal. On 4 February 2002, Mr Islam was granted another visitor visa to enable him to attend a Compensation Court hearing in Sydney.
RELEVANT LAW AND POLICY
Under s 501(1) of the Migration Act 1958 ("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 are 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 Mr Islam is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he 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
Nazrul Islam (the Visa Applicant)
Mr Islam said he is currently living in Gleneden, Auckland, and is unemployed. He said he had to leave Bangladesh because of his involvement with the JSD Party there and following an incident where he took part in a demonstration against the ruling BNP Government in which four people were killed. At that demonstration, he had addressed members of his Party through a microphone. When fighting started several hundred metres away resulting in two people being shot and two people being killed with sticks, the BNP Party tried to implicate him and the police were searching for him. Members of the BNP Party were also against him because he had recruited BNP Party members into the JSD Party. Because it was dangerous for him to remain in Bangladesh, Mr Islam decided to travel to Saudi Arabia. However, when he approached a travel agency, they advised that he would not be able to get work in Saudi Arabia because he was not aged at least 25 years old. They offered to arrange a passport with a false date of birth and they did this as part of a package in which they arranged a medical examination, work visa, and passport for him together with airfares, for which he paid a total of the equivalent of about Aus$3,500. Mr Islam said he did not provide any false documents to the travel agency.
On arrival in Saudi Arabia, Mr Islam obtained work as a cook at a hotel in Ryadh. In 1996, having heard that it was a nice country, Mr Islam decided to visit Australia with some friends. A friend who worked for a Saudi Prince offered to assist him obtain a visitor visa. He gave the friend his passport together with a visa application fee which was about Aus$50 - Aus$80. His visa application was at first refused, but his friend told him that it would be reprocessed when a letter from the Foreign Minister was provided which he would organise. Apparently, this happened and a visa was issued. Mr Islam said he did not complete any application form or sign anything or attend any interview. He was never asked whether he was single or married. He could not speak English at that time and did not know how to apply for a visa. He was intending to travel to Australia for a holiday and then return to Saudi Arabia. He had his job to return to, a re-entry visa, and he left most of his belongings there.
Mr Islam flew to Australia with two friends arriving on 11 June 1996. They found accommodation in Darlinghurst. Then a friend suggested to Mr Islam that he should see a solicitor whom he knew, a Mr Kabir, who spoke Bengali. When Mr Islam went to see him, Mr Kabir gave him a business card which stated that he was an immigration consultant. Mr Islam said he therefore thought that Mr Kabir was an immigration lawyer. He told Mr Kabir about the false date of birth in his passport, on which he had travelled to Australia. In the protection visa application which Mr Kabir prepared for Mr Islam, Mr Islam's correct date of birth was stated and Mr Islam sent his passport back to Bangladesh by courier for it to be amended so that it showed his correct date of birth. Mr Islam said he arranged this himself. It took about two months and he had to produce his birth certificate and a fee equivalent to about Aus$1.25.
On the first occasion when Mr Islam went to see Mr Kabir, he was accompanied by one of his two travelling companions. His other companion saw Mr Kabir on the following day. All three of them subsequently lodged protection visa applications with Mr Kabir's assistance. Mr Kabir gave Mr Islam a blank application form to sign. He also asked Mr Islam various questions and made a note of his answers. When Mr Islam saw Mr Kabir a week later, Mr Kabir produced a completed application form which he placed in front of Mr Islam in the presence of Andrew Dent, to whom Mr Islam was introduced. Mr Kabir asked Mr Islam to sign the application form, but did not offer to show him the form. Mr Islam said he trusted Mr Kabir because he had told Mr Islam at their first meeting that he would do everything that he could for Mr Islam.
Mr Kabir told Mr Islam that if he received a letter from the Department, he should take it to Mr Kabir for him to read. Mr Islam, who could not speak or understand English at that time, therefore took any letters he received to Mr Kabir. Mr Islam said he spoke Arabic in Saudi Arabia. Whilst he acknowledged that English was a subject taught in Bangladesh, what they learned at school was totally different to the English spoken in Australia. He had one subject in English at the beginning of his High School years. He has learnt English since arriving in Australia, largely taught to him by his wife.
After Mr Islam's first application for a protection visa had been lodged, Mr Kabir informed him that the Department had accepted what he had said and had given him a visa. His passport was returned to him stamped with a Bridging Visa A which was valid until 28 days after the final decision on his application. Mr Kabir informed him that he could work. It was after having had his passport returned to him that Mr Islam sent the passport to Bangladesh for amendment. (The amendment of his date of birth was made on 27 August 1996.)
About a year later, Mr Kabir phoned Mr Islam and advised him that he should withdraw his protection visa application because otherwise it would be refused. Mr Islam signed a blank withdrawal form. Mr Kabir prepared another visa application form for Mr Islam to sign which was lodged together with the withdrawal. About 15 to 20 days later, Mr Islam received a letter from the Department which he took to Mr Kabir. Mr Kabir opened the letter and said the application had been received. He said nothing to Mr Islam about whether he could stay in Australia or work. Mr Islam assumed that because Mr Kabir had said nothing about this, he could continue working.
About two months after the lodging of what was Mr Islam's subclass 126 visa application, Mr Kabir contacted Mr Islam and said he had to lodge another protection visa application; otherwise, Mr Islam could not stay in Australia. Mr Kabir asked Mr Islam to sign a blank protection visa application form which he did. Mr Kabir did not show Mr Islam the completed form. It was not until Mr Islam sought assistance from Parish Patience, and they told him that Mr Kabir was not a lawyer, that Mr Islam realised that Mr Kabir was a "crook". On Mr Islam's instructions, Parish Patience lodged a complaint with the Migration Agents Registration Authority about Mr Kabir on 8 December 1998 (A7). Mr Islam said he also signed a complaint to the Commonwealth Ombudsman and it was the Commonwealth Ombudsman from whom Mr Islam eventually found out that his subclass 126 visa application had been refused.
In his application for a spouse visa lodged on 9 January 2001 (T69), Mr Islam provided details of his employment Initially, from 4 July 1996 to 28 January 1997, Mr Islam worked at the Indian Home Diner at Paddington, as a cook. Then from 29 January 1997 to 1 July 1997, he worked at the Tandoori Palace Restaurant as a cook. From 2 July 1997 to November 1997, he worked at the Indian Home Diner at Glebe, and from then until 8 August 1999 he worked at the Indian Home Diner at Surry Hills, in each case as a cook. It was only when Mr Islam applied for a visa for his honeymoon in October 1998 that he discovered he no longer had permission to work. Mr Islam was referred to a copy of the Bridging Visa C issued to him in conjunction with his second protection visa application. He said this visa was not actually inserted in his passport until he provided his passport to the Department when applying for his visa to return to Australia after his honeymoon. While the visa states that it was granted on 29 August 1997, the Department did not have possession of his passport at that time and did not have access to it until he provided them with his passport in connection with his application in October 1998.
Mr Islam acknowledged that some of the information in his subclass 126 application regarding his employment was incorrect. He said this visa application was completed by Mr Kabir from a blank form which Mr Islam signed. Mr Kabir had phoned him to ask for some further information over the phone and Mr Islam had provided him with certificates for his work providing details of his employment. Mr Kabir wrongly recorded that Mr Islam was working as a chef when in fact he was working as a cook as the certificate that Mr Islam gave him stated.
Mr Islam said he and his wife had intended to travel to New Zealand and Fiji for their honeymoon in October 1998, and he sought a Bridging Visa B to enable him to return to Australia. It was then that he discovered that he no longer had permission to work. Notwithstanding this, Mr Islam continued working at Surry Hills until 8 August 1999. Mr Islam said that when he discovered that he did not have approval to work, his wife called the Department and explained that it was the fault of his agent that the work permit had been cancelled. The Department advised that Mr Islam should lodge an application on hardship grounds, which he did, but ultimately this application was refused. He said he needed to continue earning to enable him to pay the fee for his application for permanent residence for New Zealand. Then, after he was granted permanent residence, he worked for David Jones' Restaurant in the City as a cook from March 2000 until November 2000 to save some money for when he went to New Zealand. Mr Islam said he was aware that he should not have worked and he feels guilty about this and apologises. He said he would not do this again and believes it is most important that visa conditions should be complied with. He noted that on both his recent trips to Australia when he has been issued with a visitor visa, he has complied with the conditions attached to those visas.
Mr Islam said he had last worked as a cook at an Indian Restaurant in New Zealand but he left this job when he found they were not paying his tax and superannuation contributions. He complained about this to the relevant New Zealand department who told him that he should stop working at the restaurant. The New Zealand equivalent of Centrelink is still trying to find him work and he is currently unemployed. Mr Islam said he is not claiming any social security benefits in New Zealand even though he is entitled, because he considers himself an able person who is capable of employment. Mr Islam said he had complained to the Australian Taxation Office ("ATO") concerning his employment at the Indian Home Diner because he was never given a Group Certificate. He sought advice from H & R Block and they calculated the tax and superannuation which should have been paid by his employer. He showed this letter to his employer who told Mr Islam that he did not care. So, in late 1989, Mr Islam rang the ATO Hot Line.
Mr Islam was asked about the evidence he gave at the RRT hearing. He acknowledged that some of the evidence he gave was not true because he was desperate to stay in Australia at the time. However, he emphasised that he had told the whole truth during the current Tribunal proceedings. At the RRT hearing, Mr Islam not reveal that the Bangladesh Government had cleared him of the charges laid against him in respect of the deaths which occurred during the demonstration in 1991: after a full police investigation, it was realised that he was not to blame for what had occurred. At the time of the RRT hearing, he was not, therefore, afraid that the Bangladesh authorities might discover he was in Australia. However, he still fears the BNP Party who continue to harass his family in Bangladesh. A friend there has confirmed this to Mr Islam.

Mr Islam was referred to a statement attached to his first protection visa application (ST p10). There is reference there to members of the BNP Party trying to kill members of his family, and to Mr Islam's employment in Saudi Arabia being terminated and his visa from Saudi Arabia not being extended. Mr Islam said this part of the statement was fabricated by Mr Kabir who said that, otherwise, his protection visa application visa would not succeed. Mr Islam was aware that Mr Kabir made changes to the information with which Mr Islam had supplied him and claimed that members of Mr Islam's family were intimidated. Mr Islam said he did not know that Mr Kabir had included in the statement a claim that his visa in Saudi Arabia had expired and his employment had been terminated. This was not true because he had a visa for re-entry and guaranteed employment there.
Mr Islam acknowledged that although he told the RRT that his protection visa application was correct, he had not checked the application itself. After the RRT decision, Mr Islam said the choices open to him were to return to Bangladesh or apply for permanent residence in New Zealand. He chose the latter course. He asked to be forgiven for his mistakes.
Mr Islam said his wife was working part-time as an entre' chef at the time they were married. However, in late 1998 she hurt her eye while working at the restaurant. Thereafter, she was on workers' compensation for between three and six months before returning to work in mid 1999. Mr Islam said his wife has a problem with her leg and has been on a disability support pension since 1995. However, she could still work part-time and did so, informing Centrelink of this. Mr and Mrs Islam were then living in Surry Hills.
Mr Islam said his wife had been on the IVF Program and trying to have a child for some time. She became pregnant once, towards the end of 1999, for about six weeks, before she had a miscarriage. He said that at this time neither he nor his wife were working, although his wife was receiving a disability support pension. Mr Islam was asked whether his wife would be able to live with him in New Zealand. He said because his wife's health condition is now serious, she needs to see a doctor every two or three days. Mr Islam questioned how he could possibly support his wife in New Zealand when he does not have a job. He said it is better for his wife, who is an Australian citizen, to remain in Australia and for him to try and obtain a visa to join her here. It is better for her to be treated in Australia where the medical expense involved will be covered by Medicare. In New Zealand, it is very expensive. He has visited a doctor several times and it has cost NZ$35 on each occasion. He said a home visit in New Zealand is over NZ$200.
Mr Islam said when he and his wife met, she was aware that he was here legally, although he did not yet have a visa to remain did not have a visa to remain permanently. Mr Islam thought that once his application for a visa was processed, he would be able to stay here permanently because he was assured of this by Mr Kabir. His wife was aware that his status rested on his protection visa application being successful. Mr Islam also acknowledged he was aware that if he married an Australian citizen, he would be able to obtain permanent residency.
Mr Islam has been involved in two legal actions recently, first in respect of an accident at work in November 1997 when he spilt burning oil on his arm while working as a cook. He was taken to hospital and his arm took about six weeks to recover. It was the compensation court proceedings in respect of this action which were the reason for Mr Islam seeking a visitor visa in February 2002 this year, to enable him to attend those proceedings. Mr Islam said that he received about $5,000 in respect of this claim. The other legal action brought by Mr Islam was in respect of his claim for his correct entitlements whilst he was working for the Home Diner take-aways and the Tandoori Palace Restaurant. Mr Islam claimed that he worked long hours for which he was not paid and this claim was settled in favour of Mr Islam for $52,000 on 26 February 2001 whilst Mr Islam was visiting Australia on a visitor visa granted for that purpose. Mr Islam said that he fully complied with the conditions of those two visitor visas.
Mr Islam said almost all the money which he has received in compensation has now been spent. More than $30,000 has been spent on his immigration case, including about $15,000 in respect of the current Tribunal proceedings. The remainder has been spent on airfares to and from Australia and on medical expenses. He also loaned $7,000 to a friend who was in difficulties who has not yet paid him back, and he purchased an air ticket for another friend, Abul Haq, who did not have sufficient money to return home to Bangladesh. This money has never been repaid to Mr Islam. Mr Islam said he has only $1,000 or $2,000 left which is in his and his wife's bank account in Australia, on which they can both draw.
Apart from giving money, Mr Islam has also helped a lot of people who have found themselves in difficulties. For example, he has assisted people open bank accounts and deal with government agencies, he has taken friends to hospital or to the doctor, and he has assisted others with withdrawing money from ATMs, even when this means going out in the middle of the night. When his wife had a fall in a shopping centre in March 2001, Mr Islam was in New Zealand and felt very bad because he was unable to assist her. They speak on the phone everyday, sometimes a number of times a day.
Mr Islam said he has had no contact with his parents, who live in Nokhali, a district of Bangladesh, since 1995, a year before he left Saudi Arabia. He learned that they were having problems as a result of the BNP Party looking for him in Bangladesh, so he stopped communicating with them. After arriving in Australia, he phoned his sister in Dhaka. He asked her to obtain documents for him to support his protection visa application, in particular, copies of arrest warrants and other documents relating to the criminal matter in which he was implicated in 1991. He also asked her to obtain some other documents related to his political activities in Bangladesh. He did not explain to his sister the reasons for wanting the documents and she said she was too busy to get them. He has not had any contact with her since. Mr Islam said he felt sure that his parents would be happy if he could stay in Australia. In 1996, he worried that if he returned to Nokhali, the BNP Party might kill him and he still believed this at the time of the RRT hearing. Mr Islam said he thinks fondly of his family in Bangladesh and is still worried that they might be hassled by the BNP Party if he tried to return there.
Mr Islam told the Tribunal that he has made two complaints about departmental officers. The first complaint concerned an officer by the name of Rafiq, who works at the Department's office at the Rocks, whom Mr Islam learned was tipping off people who were working unlawfully in Australia when the Department became aware of this, so that those people would not get caught. Mr Islam contacted Grant Brown about this and, whilst he initially did not have any evidence to support his claim, he later obtained this evidence while he was in New Zealand and asked his wife to pass this to Grant Brown. As a result of this complaint, the Department's Canberra office sent someone to talk to his wife, but he does not know what the outcome of the complaint was.
The second complaint concerned officers at the Australian Consulate in Auckland. Mr Islam was sharing a house with a person who had been granted residence for Australia. Mr Islam said he had provided the Department with the name of the r person and evidence of how his application for residence had been approved without a police clearance, and of how that person entered Australia on somebody else's passport. The person had stayed in Australia illegally and worked illegally and then three or four months ago he was granted residence. Mr Islam secretly observed a broker offering to obtain residence for this person on payment of $7,000. The broker said his contact in the Australian Consulate was already aware of the person's application which would be granted on the payment being made. The person approached was concerned that if he paid the $7,000 he had no guarantee that a visa would be granted. Mr Islam was standing behind a door in the house while this happened and so was not seen. Mrs Islam, who was in New Zealand at the time, was not then in the house. Mr Islam later obtained photographs of the person dining with his wife and children in Pakistan on a previous trip home. This person had told the Department that he was divorced and that his children were in custody. Mr Islam obtained these photographs when they were left on the table of the house. Mr Islam also provided photographs of himself and this person sharing the house.
Mr Islam said a few days after his and his wife's interview at the Australian Consulate on 4 April 2001, he also was approached by a broker "when Mrs Islam was present" and told that if he paid $5,000 his visa would be issued. Mr Islam declined the offer and that day telephoned his solicitor in Sydney, David Bitel, to tell him about this. Mr Bitel advised him that there was no point in making a complaint unless he could provide evidence. Mr Islam said he gave details of what had happened to the Department in February 2002 when he was in Australia. He spoke to John Lane Brown at the Department in Sydney and Belinda Lawson at the Department in Canberra about this. Ms Lawson sent two people to his home who interviewed Mr and Mrs Islam about the incident. Mr Islam said he does not like people who do not act properly in such matters.
Urmila Islam (the Applicant)
Mrs Islam confirmed that her Statement dated 1 March 2002 (A1) is true and correct. She said she suffers from various health problems. She had a fall while in Fiji in about 1993 and, as a result, has a painful right thigh. It feels numb all the time, but the level of pain varies in intensity. Since the fall, she has only been able to work part-time and, since 1995, has received a disability support pension in respect of that condition. She has worked part-time when she can and has kept Centrelink informed. She said working takes her mind off the pain.
In late 1998 or early 1999, after she and Mr Islam were married, Mrs Islam said she was injured in an accident at work when she splashed some bleach into her left eye. As a result, a cyst developed and she had to go to the Eye Hospital to have the cyst removed. She still cannot see well with that eye and the tear duct does not work properly, requiring her to use eye drops and ointment. She said she feels pressure from the eye in her head.
On 5 March 2001, Mrs Islam slipped on the floor near the entrance to a Coles Supermarket where an orange substance had been left on the floor, damaging her back and neck. She immediately went to see a Dr Shand in the shopping complex, and then later her general practitioner, Dr Hassim. Dr Hassim has provided two reports dated 22 April 2001 (A2) and 3 April 2002 (A3). Mrs Islam said she has also seen specialists about her back. The following reports were tendered: a copy of a report of an MRI lumbar spine examination dated 21 August 2001 (A4), a report from Mr Peter Bentivoglio, neurosurgeon dated 5 September 2001 (A5), and a report of a CT scan of the cervical spine dated 8 March 2002 (A6). Mrs Islam takes daily medication in respect of her neck and back conditions: Voltaren, Panadeine Forte and Codeine Phosphate. Since her fall in 2001, her hip swells every now and then, and she has been unable to sit for long and cannot do her own shopping, washing, cleaning or cooking. She also suffers pain in her left hand and numbness in the fingers of that hand. She uses her right hand to support her left hand if she lifts something.
Mrs Islam said she has to ask somebody to do her shopping for her. Sometimes one of her neighbours will help and will take her out, or, at least, come and visit her. When her husband was here in February and March 2002, he did the shopping and cooking for her, cleaned the house, did the washing and undertook any other housework which needed doing, and took her for medical appointments.
Mrs Islam says she has difficulty dressing and has to dress very slowly because she has problems lifting her arms. She also has difficulty using the toilet, and when showering, she puts one leg in the bathtub at a time. When her husband is with her, he helps her wash her body in the bath and dress. On 25 March 2002, she went to the Emergency Department at St. Vincent's Hospital because she had a sharp pain in her chest, could not lift her hand, and was vomiting. When they were unable to treat her, she went home and called her doctor and he came and gave her an injection. She said she woke up two days later.
Mrs Islam has also been having IVF treatment since 1999. She became pregnant in about August 2000 and then, shortly before she went to New Zealand in November 2000, she had a miscarriage. Her husband was with her during the early stages of the IVF program and treatment, and neither he nor Mrs Islam were working. She remains on the IVF program at Westmead Hospital. If she were living in New Zealand, participation in such a program would cost a substantial sum. In Australia, the cost of the IVF program is largely born by Medicare with some contribution from her.
Mrs Islam said she is scared that her husband will not be granted a visa. She cannot sleep properly. Since her fall in March 2001, her husband has been to Australia twice for three to four weeks. She finds it very difficult living alone. She gets assistance with shopping but otherwise looks after herself. When her husband is not with her, she feels lonely and insecure. She does not want to go to New Zealand because of her health and medical conditions. She needs an operation on her stomach but is waiting for her husband to be with her before she has this.
Mrs Islam said when she first met her husband, she thought he was an Australian citizen like her. She only found out that he was not an Australian citizen in October 1998 when he provided his passport to Parish Patience who were preparing a visa application for him to visit New Zealand and Fiji for their honeymoon. She then discovered that Mr. Islam was not an Australian citizen even though he was here legally, and that he had applied for a protection visa. Mrs Islam said it was she who went after her husband and asked him to marry her. She was present at the RRT hearing in December 1999. She said she did not understand everything that was said by her husband because he was speaking in Hindi with the assistance of an interpreter. She said that her husband has had no contact with his family in Bangladesh since she has known him. He told her that he did not have a good relationship with them.
Mrs Islam said she often calls her husband many times a day using a phone card or the Telstra "special offer of $4 for 1 hour" for calls to New Zealand. Mrs Islam said that when she and her husband departed Australia for New Zealand on 30 November 2000, her intention was to live with him there. They went and looked for a flat together. She also went to see doctors to find out about the health care system and discovered that the system in New Zealand is totally different. It costs $45 to visit a doctor and $69 for an emergency call out. One has to pay the full price of medication. Mrs Islam said that all her medical history is in Australia and that she cannot keep changing her doctors. She found the cost of living in New Zealand very expensive and she thinks it will be very hard for her husband to find a job there. He is currently not working.
Mrs Islam said her husband received compensation of $52,000 in 2001 in respect of unpaid wages. Almost all of this has been spent, mostly on legal fees and agent's fees and in respect of travel to and from New Zealand. Mrs Islam said her husband is also very generous with friends. He gave one person $7,000 when that person was in difficulties, which has never been repaid. He also paid for an air ticket for a friend who was in Villawood Detention Centre to enable him to return home to Bangladesh. That money has also never been repaid. Her husband is generous with this time, helps friends by taking them to the doctor when needed or giving them assistance with their banking, for example in withdrawing money from ATMs. Her husband has also just received $5,000 compensation in respect of his workers' compensation claim for the burn suffered at his work place. She received $12,000 compensation in respect of her eye injury. She has not yet received any compensation in respect of her fall near the entrance to the Coles Supermarket. Her lawyer has contacted Coles about this but is awaiting her further instructions. At the moment, she is too focused on the Tribunal proceedings to be able to provide such instructions. Mrs Islam receives a disability support pension of approximately $307 per fortnight. She noted that after she and her husband were married, she went to see Centrelink in about October 1998 and they reduced her pension. Mrs Islam said she pays money into her husband's credit account in Australia and he draws on this from New Zealand.
With regard to the second complaint made by her husband in relation to corrupt conduct involving the Australian Consulate in Auckland, Mrs Islam said she supplied photographs and paperwork from New Zealand to John Lane Brown, an officer with the Department. She and her husband met with him while her husband was in Australia in February and March 2002, and she told Parish Patience about this. Her husband also spoke with Belinda Lawson at the Department in Canberra who sent two people to talk to them about what had happened.
Mrs Islam said that at the interview with a departmental officer at the Australian Consulate in Auckland on 4 April 2001, they were introduced by the officer to a Fijian Indian colleague who had asked her what they were going to do with the $52,000 compensation received by her husband in February 2001. After being pressed about this on several occasions, Mrs Islam said, flippantly, that she would be spending some of this money on travelling. A few days later, a man named Asim Riaz came to the hostel where she and her husband were staying and told Mr Islam that if he paid $5,000 to a broker from Nepal, he would be able to obtain a visa for Mr Islam through his links with the Australian Consulate. Her husband had asked the man why he needed to do that when his application was a genuine one. Her husband did not tell her of this incident at the time, only later in April. She was scared to make a complaint because she thought it might impact on her husband's visa application. However, her husband did tell Mr Bitel about this at the time and, in February 2002, d he also spoke to Nigel Dobie at Parish Patience about this.

SUBMISSIONS
Applicant

Mr Godwin, for the Applicant, submitted that Mr Islam passes the character test. Referring to Direction No. 21, he noted that paragraph 1.7 states, in relation to s 501(6)(c):
In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

Mr Godwin also noted that paragraph 1.9 requires decision-makers to take into account any relevant countervailing factors at the time the incidents occurred.

With regard to the Respondent's first contention that Mr Islam provided bogus documents and made false or misleading statements in connection with applications for the grant of a visa, the Respondent no longer contends that Mr Islam falsely claimed to be married in his visitor visa application dated 22 May 1996. The second contention is that he obtained and presented a passport which contained a false date of birth for the purposes of obtaining visas to enter Saudi Arabia and Australia. Mr Islam has admitted that his passport contained a false date of birth and has explained the circumstances, which were that he needed to escape Bangladesh because he was being harassed and persecuted by the BNP Party and had an opportunity to go to Saudi Arabia. Mr Islam's travel agent secured a new passport and visa for him with a different date of birth showing that he was aged at least 25, to enable him to enter and obtain employment in Saudi Arabia.

Mr Islam acknowledged that he used the same passport to enter Australia. However, soon after arriving in Australia, he had his passport amended to show his correct date of birth and he stated this correct date of birth in his first protection visa application. Thus, the Australian authorities were not mislead, and Mr Godwin submitted that, given the countervailing factors, this incident should not be taken as evidence of bad character. With regard to the Respondent's contention that in a statutory declaration prepared for the purposes of his application for a spouse visa, Mr Islam claimed falsely that he intended to live in New Zealand permanently when he applied for permanent residency in that country, Mr Godwin submitted that this assertion was not put to Mr Islam in cross-examination and so could not be relied on.
Mr Godwin noted that paragraph 38 of the Respondent's Statement of Facts and Contentions questions the validity of Mr Islam's protection visa applications. Mr Godwin said that when Mr Islam first arrived in Australia, he had only very limited English and so he sought the assistance of a person who held himself out to be a migration agent/solicitor, and placed his trust in that person. At that time, Mr Islam could have returned to Saudi Arabia because he had a return visa and a job to return to. At their first meeting, the adviser, Mr Kabir, acted improperly by getting Mr Islam to sign a blank visa application form. Mr Islam was aware that, by virtue of the application, he would be granted a bridging visa which would enable him to remain in Australia lawfully and to work. Mr Islam later became aware that some parts of the story in the visa application prepared by Mr Kabir were exaggerated but, nevertheless the bulk of it was true. Mr Islam was not aware that Mr Kabir stated in the application that Mr Islam was not able to return to Saudi Arabia and that his job there had been terminated.
Mr Godwin acknowledged that, at the RRT hearing, Mr Islam should have updated the RRT on the situation in Bangladesh and, in particular, should have revealed that he had been cleared of the charges arising out of the 1991 demonstration. Mr Godwin said the fact that Mr Islam had volunteered this evidence to the Tribunal during the current proceedings was evidence of recent good conduct and rehabilitation. Mr Godwin said the first and second protection visa applications were probably accurate in terms of the information provided about the charges at the time the applications were lodged. However, even though Mr Islam knew that he had been cleared of the charges by the time of the RRT hearing, he still had a genuine fear of persecution by BNP Party members. As to the Respondent's contention that Mr Islam has been involved in activities indicating disregard for the law, Mr Godwin submitted that there was a proper basis for Mr Islam lodging the two protection visa applications and for pursuing his application for review before the RRT.
With regard to the Respondent's contention that Mr Islam was in Australia unlawfully between 19 June 1997 and 29 August 1997, Mr Godwin noted that between the time of Mr Islam's Bridging Visa A ceasing when his first protection visa was withdrawn and his Bridging Visa C taking effect after the lodging of his second protection visa application, Mr Islam's skilled visa application was being processed and Mr Islam acted in reliance on his migration adviser. In any event, Mr Islam's evidence is that the Bridging Visa A was not actually cancelled and the Bridging Visa C was not actually inserted in his passport until October 1988 when he sought a visa to enable him to return to Australia after his honeymoon. Mr Godwin noted that the stamp in Mr Islam's passport labelling the Bridging Visa A inoperative is dated 28 July 1998. This indicates that the Bridging Visa C was not inserted on 29 August 1997. All this suggests that Mr Islam was not in Australia unlawfully as claimed by the Respondent.
Mr Godwin noted that the subclass 126 skilled visa application form completed by Mr Kabir detailing Mr Islam's employment history in Australia, only listed one employer, the Tandoori Palace Indian Restaurant. However, although this was not strictly correct, Mr Islam's employment in Sydney, whilst involving him working at restaurant and a number of diners, was for the same employer.
With regard to the Respondent's contention that Mr Islam worked without permission between 19 June 1997 and August 1999, Mr Godwin pointed out that Mr Islam first learned of the cancellation of his Bridging Visa A in October 1998 and, prior to this, he relied on the migration adviser's advice that he could continue working. After he learned of the cancellation in October 1998, Mr Islam tried to obtain permission to work on hardship grounds, lodging an application in June 1999. Mr Islam's evidence is that he stopped working when his application was unsuccessful. Thus, Mr Godwin contended that the countervailing argument to be made in respect of Mr Islam's conduct is that, when his wife was receiving a disability support pension and was not physically able to work and they did not have sufficient money to pay for necessities, Mr Islam tried to regularise his position by seeking permission to work. When this application was refused, he ceased working. However, Mr Islam acknowledges that he did later recommence work in March 2000 to fund his transfer to New Zealand. He now admits that he thereby did the wrong thing and would not repeat such misconduct.
In summary, Mr Godwin said the Applicant contends that there are only three matters which go to bad character: Mr Islam's failure to advise the RRT of his change of circumstances, his working in 1999 without permission, and his working again in 2000 without permission. However, in respect of each of these matters, there are countervailing factors which should be taken into account. The Applicant therefore submits that Mr Islam passes the character test. Mr Godwin also referred the Tribunal to paragraph 1.7 of Direction No. 21 which states that:
In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
Mr Godwin contended that there are three recent instances which should be taken into account, all of them involving Mr Islam notifying the authorities of fraudulent conduct. Two of these involve complaints made to the Department and one to the ATO. Of the two matters notified to the Department, there is still an ongoing investigation in respect of the matter involving alleged corruption at the Australian Consulate in Auckland. Mr Godwin noted that at the time the corrupt approach was made to Mr Islam, his spouse application was being processed at the Consulate and he did not immediately notify the Department of the corrupt approach because he was concerned that his spouse visa application might be jeopardised. Mr Godwin noted that Mr Islam had sufficient money to pay the bribe and that there was no advantage to him in notifying the Department of this matter. Nevertheless, he supported his allegation with photographs and names which he provided to both the Department's Canberra and Rocks offices. Similarly, there was no advantage to Mr Islam in respect of the earlier complaint to the Department concerning a departmental officer passing information, nor in respect of his complaint to the ATO concerning his former employer's non-payment of tax.
Mr Godwin said there is other evidence of good character: Mr Islam's generosity in loaning $7,000 to a fellow Bangladeshi and paying $1,200 for an airfare for another; his acts of kindness in assisting people with operating ATMs and in transporting acquaintances to appointments with doctors or at hospitals. The character references provided for Mr Islam also attest to his being a hardworking, responsible, polite, honest, sincere and friendly man. Mr Godwin noted that Mr Islam is presently unemployed in New Zealand and could have access to social security benefits but has not made a claim because he is able to work. Mr Godwin said the evidence supports a finding that Mr Islam is of good character for the purposes of the Act. He referred the Tribunal to the decision in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 and the finding of the Full Federal Court, that a person does not have to be perfect to pass the character test but does have to have "enduring moral qualities". This approach was also followed by Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192.
Mr Godwin said that if the Tribunal decides that Mr Islam does not pass the character test, then the exercise of the discretion in s 501(1) must be considered. With regard to the first of the three primary considerations to which decision-makers are referred by Direction No. 21, the Protection of the Australian Community, the Applicant acknowledges that Mr Islam's conduct was of a serious nature but contends that the circumstances should be taken into account. Mr Godwin said the likelihood of repetition is negligible and Mr Islam has expressed regret. Moreover, Mr Islam has been permitted to enter Australia on two occasions on visitor visas and on both occasions has complied with the conditions of those visas.
With regard to the second of the primary considerations, the Expectations of the Australian Community, Mr Godwin contended that the community would take into the account the evidence of Mr Islam's good character and the relevant circumstances, in particular, Mrs Islam's poor health and special needs, including her need for the support and assistance of her husband. Mr Godwin contended that the Australian community would take the view that Mr Islam should not be excluded permanently from Australia.
With regard to the Other Considerations to which decision-makers are referred by paragraph 2.17, Mr Godwin noted that Mr Islam's absence from Australia is causing significant disruption to his family, namely Mrs Islam. She is now suffering significant hardship as a result of their separation, particularly, because of her need for daily support and assistance, but also because her husband's absence is frustrating their participation in the IVF Program and, thereby, their desire to have a family. Mr Godwin noted that Mrs Islam stated in evidence that she was not aware of problems with her husband's immigration status at the time they were married. Mr Godwin said that if Mrs Islam had to move to New Zealand, there would be additional costs associated with the treatment of Mrs Islam's medical conditions.
Respondent
Ms Hanstein, for the Respondent, submitted that Mr Islam does not pass the character test. She said the overall pattern of his conduct suggests that he is not a truthful person and has sought to manipulate the migration system. He has committed serious misconduct. He obtained a passport with a false date of birth and used this passport to enter both Saudi Arabia and Australia. Ms Hanstein said it is an offence to enter Australia using a false passport. Mr Islam has also committed other immigration malpractice. While it could be said that he is naive to have signed blank application forms, his past experience in Bangladesh should have made him aware that protection visa applications might not be correct and, ultimately, he must take responsibility for applications signed and lodged on his behalf. His first protection visa application was withdrawn in order to facilitate a skilled visa application being lodged. When this application was refused, a further protection visa application was lodged. The protection visa applications contain false and misleading information. Mr Islam has admitted that his family was not harassed and the statements in those applications about his not being able to return to Saudi Arabia were also false. Moreover, his migration adviser had told Mr Islam that he would be making changes in the information provided by Mr Islam in order to ensure the success of his application.
With regard to his skilled visa application, Ms Hanstein submitted that the claims about Mr Islam's employment were exaggerated in so far as he had worked as a cook and not as a "chef", as claimed, and not just in one restaurant but in a range of "diners". Ms Hanstein said that at the time of the RRT hearing, not all the claims in the protection visa applications were true. It was Mr Islam's responsibility to check his application before the hearing to ensure that everything stated there was correct. Mr Islam has admitted that he misled the RRT in so far as at the time of the hearing, he no longer feared criminal charges being pressed against him. Yet, this comprised a major part of his claim before the RRT. Ms Hanstein said Mr Islam's oral evidence indicated that he did not accept responsibility for the misconduct. She also pointed to discrepancies in the accounts provided by Mr Islam relating to the 1991 incident. The RRT decision indicates that only one person was killed in the demonstration whereas in Mr Islam's there is mention of four people being killed. Ms Hanstein submitted that this is further evidence that Mr Islam is not always truthful. She noted that he had made only one attempt to obtain supporting documents. He contacted his sister in Bangladesh and, when she said she was busy, he did not explain his need for those documents and did not bother to follow this up.
With regard to Mr Islam working unlawfully in Australia, Ms Hanstein said he has admitted that he worked unlawfully after October 1998, even if he did try and regularise his situation in June 1999. He also admitted to working unlawfully again in 2000, prior to leaving for New Zealand.
Of the instances of good character referred to by the Applicant, Ms Hanstein submitted that Mr Islam would benefit from his complaint to the ATO because, if this was followed up, superannuation contributions which apparently had not been made by his ex-employer would be made on his behalf. With regard to the second of his complaints made to the Department concerning alleged corruption at the Consulate in Auckland, Ms Hanstein noted that the complaint had not been made until February 2002, after Mr Islam's spouse visa application had been refused: the approach made to Mr Islam was in April 2001. Finally, with regard to the character references submitted in support of Mr Islam, Ms Hanstein noted that the only version of events witnesses were provided with was that stated in the Applicant's Statement of Facts and Contentions. In conclusion, Ms Hanstein submitted that the Tribunal should find that Mr Islam does not pass the character test.
With regard to the exercise of the discretion under s 501(1), Ms Hanstein said the Respondent accepts that Mrs Islam's separation from her husband causes her hardship. However, the Respondent contends that she could go and live with her husband in New Zealand and have similar access to medical services and Social Security benefits. If she and her husband were to stay in New Zealand permanently, their treatment would be more beneficial than that provided for under the reciprocal agreement between Australia and New Zealand. Ms Hanstein contended that the fact of Mrs Islam needing to change specialists should not be considered a significant factor. Ms Hanstein also noted that Mrs Islam may seek compensation in respect of the fall near the supermarket entrance in March 2001.
Ms Hanstein submitted that the need to preserve the integrity of Australia's migration system and to deter others from committing similar misconduct are paramount considerations for the protection of the Australian community which outweigh the hardship to Mrs Islam.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Islam passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie (supra), 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…

In Re Msumba (supra), the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Islam does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does 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 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9(c)).
Before considering whether Mr Islam passes the character test, it is appropriate to make some general findings about his conduct. With regard to his passport, which contained a false date of birth, the Tribunal finds that this was obtained for him by a travel agent in Bangladesh in 1991 with his knowledge, to enable Mr Islam to travel to and obtain employment in Saudi Arabia. The reason for Mr Islam leaving Bangladesh was for him to avoid criminal charges associated with a demonstration at which he had been present when at least one person was killed. As a speaker at the demonstration, the ruling BNP Party believed he bore responsibility for the death and, in the immediate period after the demonstration, the police appear to have laid charges against him. Mr Islam's evidence was that he was later cleared of these charges and was aware of this by the time of the RRT hearing in December 1999. The Tribunal accepts Mr Islam's evidence that he held genuine fears for his safety in Bangladesh at the time he travelled to Saudi Arabia. However, the Tribunal notes that it is unfortunate that he did not obtain documentation from Bangladesh to substantiate his claims about these events.

Mr Islam obtained a visitor visa for Australia on 22 May 1996 while he was in Saudi Arabia. The Tribunal accepts that this was obtained for him by a friend and that he and two friends travelled to Australia together. At this time, Mr Islam could speak little English. His evidence is that he spoke mainly Arabic in Saudi Arabia. Mr Islam arrived in Australia on 11 June 1996 with a visitor visa valid for three months. Shortly after arriving, a friend suggested that Mr Islam and his two travelling companions should see a solicitor for immigration advice about staying in Australia. They went to see Mr Humayun Kabir, with whom they spoke Bengali, who, Mr Islam said, held himself out as an immigration lawyer and gave him a business card stating that he was an "immigration consultant". In fact, Mr Kabir was employed by Leitch Hasson and Dent, Solicitors, working for one of the partners, Mr Andrew Dent.
Having spoken with Mr Kabir, Mr Islam trusted him to assist Mr Islam in obtaining an appropriate visa to enable him to remain in Australia. When asked to do so by Mr Kabir, he therefore signed a blank application form which he left Mr Kabir to complete on the basis of information with which Mr Islam had provided him. About a week later, Mr Islam had a second appointment with Mr Kabir when Mr Kabir introduced him to Mr Dent and Mr Islam then signed a form in Mr Dent's presence. Mr Kabir placed the form in front of Mr Islam but did not offer to show him the completed form or explain its contents. The Tribunal assumes that this second appointment must have taken place on 2 July 1996 because this is the date on which Mr Islam signed a Form 956 appointing Mr Dent to act as his migration agent in dealings with the Department. A fee agreement was also signed by Mr Islam on that date, as was Mr Islam's completed protection visa application. The Tribunal notes that the dates inserted on the documents were apparently not inserted by Mr Islam. The protection visa application was lodged with the Department on 3 July 1996 with a covering letter from Leitch Hasson and Dent dated 1 July 1996.
The protection visa application contained a typed statement in answer to Question 37 "What do you fear may happen to you if you go back to that country?" Mr Islam gave evidence that he was aware that in composing the statement, Mr Kabir had made changes to the information with which Mr Islam had provided him, including a claim that members of Mr Islam's family had been intimidated. Mr Islam said he was not aware that Mr Kabir had included reference to his visa for Saudi Arabia having expired and to his employment there having been terminated. Mr Kabir told him that some changes were necessary to the information which Mr Islam had provided to ensure that the protection visa application was successful. Mr Godwin noted that following advice from Mr Kabir, Mr Islam returned his passport to Bangladesh for the insertion of his correct date of birth, which was also stated in all visa applications.
With regard to the Respondent's submission that Mr Islam sought to manipulate the Australian migration system, the Tribunal accepts Mr Islam's evidence that when he withdrew his first protection visa application and lodged a subclass 126 (independent) visa application, he was acting on the advice of Mr Kabir. There was no evidence as to any motive for Mr Islam doing otherwise and it seems unlikely that he would have had sufficient knowledge of the migration system to assess the relative benefits of different visas. Certainly, withdrawing his first protection visa application and having his skilled migration application refused, put him at a significant disadvantage in so far as he was unable to obtain permission to work when he lodged his second protection visa application. Mr Islam's evidence is that about two months after the skilled migrant visa application visa had been lodged, he was told by Mr Kabir that he had to lodge a second protection visa application because he would not otherwise be able to remain in Australia. Again, Mr Kabir gave him a blank form to sign and the application was otherwise handled by Mr Kabir. Mr Islam said Mr Kabir did not show him the completed application form, which relied on the statements contained in the first protection visa application.
With regard to the RRT hearing, Mr Islam acknowledged that some of the evidence he gave to the RRT was not true. He was desperate to stay in Australia at that time. He did not reveal to the RRT that he had learned that he had been cleared by the Bangladeshi Government of the charges made against him in relation to the 1991 demonstration: after a full police investigation, the police realised that he was not at fault. Nevertheless, Mr Islam continued to fear BNP Party members, who were against him because he had recruited former BNP Party members into his JSD Party.
The Tribunal accepts Mr Islam's evidence that he was not aware that the effect of the withdrawal of his first protection visa application was that his Bridging Visa A was cancelled and, therefore, he no longer had permission to work. The Department's letter dated 22 May 1997 (T37) states that his protection visa was registered as being withdrawn as of the date of the letter and that his Bridging Visa would cease 28 days from the date of the letter: as of that date, unless Mr Islam had other outstanding visa applications, Mr Islam would become an unlawful non-citizen. Mr Islam's evidence is that he did not receive this letter and Mr Kabir, to whom the letter was copied, did not inform him about the letter.
After Mr Islam's application for a subclass 126 (independent) visa was refused and his second protection visa application was lodged, Mr Islam was granted a Bridging Visa C on 29 August 1997. Thus, between 19 June 1997 and 29 August 1997, Mr Islam was in Australia unlawfully and, after 19 June 1997, he worked in Australia without permission. His Bridging Visa C granted to him on 29 August 1997, did not give him permission to work. The Tribunal notes that the Bridging Visa A in Mr Islam's passport was not invalidated until 28 July 1998. Mr Islam's evidence is that he was not aware of the cancellation of the Bridging Visa A until he applied for a Bridging Visa B to enable him to leave Australia for his honeymoon in October 1998. The Tribunal finds that Mr Islam worked unlawfully between 19 June 1997 and August 1999 and between March 2000 and November 2000. Mr Islam's evidence is that he ceased work in August 1999 after his application for permission to work had been refused in July 1999. He said that he recommenced employment in March 2000, and worked until November 2000, in order to save to fund his move to New Zealand. The Tribunal recognises that Mrs Islam also had ongoing health problems through 1999 and 2000 which involved additional expenses. Mr Islam was granted permanent residence in New Zealand on 9 March 2000 and he and Mrs Islam departed Australia for New Zealand on 30 November 2000.
With regard to the character test, the Tribunal finds that Mr Islam provided a bogus document on his first entry into Australia and made false and misleading statements in relation to his protection visa applications. Nevertheless, the Tribunal recognises that there were countervailing factors in both instances. Mr Islam sought to rectify the incorrect date of birth in his passport soon after arriving in Australia and notified the Department of his correct date of birth. The Tribunal also accepts that Mr Islam was not initially aware of the false and misleading statements in the two protection visa applications which were composed for Mr Islam by Mr Kabir. These false and misleading statements took the form of embellishments on the account given to Mr Kabir by Mr Islam and the Tribunal finds that the substantial part of the story included in the protection visa applications was in fact true. Mr Islam became aware of the embellishments in the protection visa applications prior to the RRT hearing but failed to notify the RRT of this and, in particular, did not notify the RRT that he had been cleared of the criminal charges which were initially a significant concern for him when he left Bangladesh. As discussed above, the Tribunal also notes that Mr Islam was unknowingly in Australia unlawfully during the period 19 June 1997 to 28 August 1997 and that he worked in Australia unlawfully from 19 June 1997 until August 1998 and from March 2000 to November 2000. The Tribunal finds that Mr Islam was aware that he was working unlawfully from at least October 1998.
With regard to Mr Islam's general conduct, Mr and Mrs Islam's evidence indicates that Mr Islam is generous in assisting others, both in terms of time, for example helping friends with banking and taking them to medical appointments, and money, for example loaning $7,000 to a friend and buying an air ticket from Sydney to Bangladesh for another friend. The Applicant also submitted a number of references for Mr Islam attesting to his good character. Moreover, Mrs Islam's evidence indicates that Mr Islam provides her with significant support when they are together and, when he is absent, she has considerable difficulty with undertaking everyday tasks. The Tribunal notes that Mr Islam has visited Australia on two occasions since he departed for New Zealand on 30 November 2000. Both visits were in relation to court proceedings and Mr Islam was granted a visitor visa on both occasions with whose terms he complied.
The Tribunal notes the evidence of Mr Islam having made allegations of corrupt conduct in respect of an officer in the Department's Rocks Office and in respect of the Australian Consulate in Auckland. He has also made a complaint to the ATO alleging unlawful conduct by his former employer.
The overall impression gained by the Tribunal from the evidence is that, notwithstanding the improper conduct of and bad advice given by Mr Kabir, Mr Islam has, nevertheless, been prepared to breach Australia's immigration law by working unlawfully when he has considered it necessary to do so, and has been prepared to conceal relevant information from the RRT where he thought this was to his benefit. In the Tribunal's view, these are serious matters which go to Mr Islam's moral qualities and are not outweighed by the evidence of his good conduct. The Tribunal therefore determines that Mr Islam does not pass the character test by reason of his past general conduct. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Islam.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. 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.

With regard to the Protection of the Australian Community, paragraph 2.4 states:
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…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Migration Act 1958, which in turn include "presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mr Islam presented a false document in connection with his entry into Australia - a passport stating a false date of birth, and made false or misleading statements on forms signed by Mr Islam in connection with his applications for protection visas. While the Tribunal recognises that Mr Islam was not initially aware of the extent of the false or misleading statements, which were embellishments concocted by Mr Kabir, nevertheless, ultimately, he must bear responsibility for these statements. Of greater concern is the fact that Mr Islam was prepared to perpetuate the false or misleading statements by not revealing the full truth at the RRT hearing. Such matters are regarded as serious by the Australian community. The Tribunal also notes that Mr Islam knowingly worked unlawfully in Australia from October 1998. However, Mr Islam has apologised for his misconduct and, in the Tribunal's view, the risk of his repeating such misconduct is minimal, given the evidence of his recent good conduct. The Tribunal acknowledges that the refusal of visas where a person has been guilty of immigration misconduct is likely to have a deterrent effect on others who may be contemplating such misconduct.
The second primary consideration is the Expectations of the Australian Community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, Mr Islam's misconduct is serious. Nevertheless, the Tribunal notes what Deputy President McMahon said in ReLeha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054, of the relevant paragraph in Direction No. 17 which is expressed in identical terms in paragraph 2.12 of Direction No. 21:
Paragraph 2.12 (of Direction No 17) gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely. This view has been cited with approval by the Tribunal in other cases, for example, in Moengangongo and Department of Immigration and Multicultural Affairs [2001] AATA 74.

In Mr Islam's case, the Tribunal is of the view that the Australian community would take a humane view of the other considerations in this matter.

The third of the primary considerations, the Best Interests of the Child, is not relevant here. With regard to the Other Considerations to which a decision-maker is directed by Direction No. 21, paragraph 2.17 states that, where relevant, "it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause 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 in which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; and any evidence of rehabilitation and recent good conduct.
There is no dispute that the relationship between Mr and Mrs Islam is a genuine marital relationship. It is not clear whether Mrs Islam was aware of her husband's immigration status before their marriage. Mrs Islam's evidence is that she thought he was an Australian citizen until about October 1998. Mr Islam's evidence is that she was aware that his status depended on his protection visa application being successful although he had been assured of this by Mr Kabir.
The Tribunal finds that significant hardship is being caused, in particular, to Mrs Islam by the separation from her husband. She is an Australian citizen, in poor health and in desperate need for his support and assistance. In the Tribunal's view, it is not unreasonable that she chooses to stay in Australia where she has established relationships with various medical specialists, where she is participating in an IVF program, and where she has a home. The Tribunal also finds that Mr Islam is suffering hardship as a result of the separation from his wife who is, to all intents and purposes, his only family. He has had no contact with his family in Bangladesh for some years.
The Tribunal notes the evidence of Mr Islam's good character and generous nature, that he has recently drawn alleged immigration malpractice by others to the Department's attention, and has complied with the terms of the recent visitor visas.
Weighing up the primary and other considerations, in the Tribunal's view Mr Islam is no real threat to the Australian community, and the community would take a humane view of Mr Islam's situation, would note his recent good conduct, and take into account his wife's poor health and need for support. The Tribunal concludes that the discretion not to refuse the grant of a visa under s 501(1) of the Act should be exercised in favour of Mr Islam and, therefore, sets aside the decision under review and remits the decision to the Respondent with a direction to that effect.

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10 April and 11 April 2002
Date of Decision  27 May 2002
Representative for the Applicant              Mr D Godwin, Barrister
Representative for the Respondent        Ms S Hanstein, Solicitor