July and Minister for Immigration and Multicultural and Indigenous Affairs

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1036

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2004/424

GENERAL ADMINISTRATIVE DIVISION		)
Re		JULY JULY

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Deputy-President J Block

Date1 October 2004
PlaceSydney

Decision

The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a Contributory Parent visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Hennilys Njoman.

[SGN] Deputy-President J Block

CATCHWORDS

MIGRATION ACT – Contributory Parent (CA143) visa – refusal on character grounds – overstaying visitor’s visa – mother overstayed visa to be with her three daughters - false evidence – consideration of the character test – whether discretion should be exercised – decision under review set aside and remitted back to the Respondent.

LEGISLATION

Migration Act 1958 – section 501(1) and 501(6)(c)(ii)

REASONS FOR DECISION

Deputy-President J Block

1 October 2004

Part A: Introduction and General

The decision under review is the decision made on 16 February 2004 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) to refuse an application by Hennilys Njoman (the “Visa Applicant”), for a Contributory Parent visa. That application was filed by the Visa Applicant’s daughter, July July, who is the Applicant in this matter.
The concept of a Contributory Parent visa was introduced in July 2003. In accordance with its provisions, a visa may be granted to a non-resident parent whose children are resident in Australia and where the Applicant pays a substantial amount to the Australian government. One of the conditions imposed upon the grant of such as visa is that social security benefits are not available for an extended period.
The Applicant was represented by Mr Andrew Maguire of A & M Migration Services; the Respondent was represented by Mr Ben Cramer of Blake Dawson Waldron, solicitors. The Tribunal had before it the T-Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 and exhibits as follows:
(a) Exhibit A1 is a brief statement by the Visa Applicant dated 29 July 2004 and which reads as follows:
“Dear sir/madam,
With this letter, I want to apologize from the bottom of my heart to Australian community for what I have done in the past. At that time and until now, I never have any intention to breach any laws in any countries. It really because of my fears and my childhood trauma of violence against Chinese in Indonesia that force me to do such thing.
When I was 15 years old, the most brutal massacre in Indonesian history was happened under Soeharto regime (1966). The riots and massacre which actually was aimed to cleanse communism in Indonesia, at the end turn to be against Chinese (because China was the main supporter of Communist Party at that time). I still remember, how my parents, my 6 siblings and I have to run and hide in refugee house for several days. The fear and trauma are still fresh in my memory. And when the tragedy May 1998 happened – although I was in Australia at that time – it was like brought my worst nightmare back into my life. I was hardly slept and eaten. There were so many times I woke up from my nightmare at night just to realize how happy I was have a chance to live in a very safe countries like Australia.
I am 53 years old now and feel very lonely. All of my daughters live far away from me. In my old days I have no many expectations anymore in my life. The only thing that I need is live close to my daughters and grandchildren, where we can laugh together and take care each other.
This all dream can’t be happened without being a permanent resident. My past history has banned me to get other visa to Australia for 5 years. One of my daughters has planned to have a child next year. The thought of not being with her when she become a first mum makes me very sad. In addition, if I got a residency, I can help look after my daughter’s child, so safe her lots of money.
Being overstay do not make someone automatically become a bad person. I’m just an ordinary hoursewife (sic) and a very good mum. I’m not a threat to Australian community at all. I did have 1 negative points, but have lots of positive points to be reconsidered, such as no criminal records, never join unlawful group/association and you can probably consider my religion as well. I’m Buddhist and really believe in karma. So, I always try to make a good karma in my whole life.
By grant me a PR means you already help me to eliminate the only negative points that I have. And although I’m old, there are still so many positive things I can do for Australian. So, please reconsider my case very wisely and carefully to give a chance to reunite with my family. Thank you very much for your understanding.
Regards,
Hennilys Njoman”
(b) Exhibit A2 is a document entitled “Statement of Argumentations Over Decision of Parent’s Visa Refusal” (undated) and prepared by the Visa Applicant’s daughters July, Yuly and Sanly. I include a part of its content and being that under the heading of “Summary” as follows:
“1. Based on paragraph 1.11 of direction 21, we found that the rejection decision is unfair. We concern that the decision have been made purely because of Ms. Njoman past conduct and there is no consideration of her recent conduct (go back voluntarily) that showed Ms. Njoman has been reformed.
2. We can not find any resources that showed overstay is a serious crimes. It is part of “not good characters” but not part of serious crime.
3. Once Ms. Njoman get her PR, there is no risk of recidivism anymore.
4. There is no any evidence to prove that Ms. Njoman disregard Australian Law. Overstay could be forced by many reasons, situations and conditions at that time. Her truly regards to Australia Law was shown by not working, did not do any crime and did not try to claim benefits from Australian government while she was in Australia.
5. All daughters of Ms. Njoman live in Australia. (Husband will migrate as well later on).”

(c) Exhibit A3 is a document entitled “Riots and Bombs Chronology in Indonesia”; it covers the period 27 July 1996 to 5 August 2002 and contains a large number of entries, some detailed and others in a form best described as very general.

The Respondent’s Statement of Facts and Contentions dated 13 August 2004 contains the usual helpful chronology of events, and which is referred to as “the Chronology”; the Chronology is set out in these reasons as follows:

“Date	Event	Reference[1]
31 January 1997	Visa Applicant enters Australia on a Short Stay Visitor Visa (TR 676)	Tp.155
12 February 1997	Visa Applicant lawfully departs Australia	Tp.160
28 February 1998	Visa Applicant enters Australia on a Short Stay Visitor Visa (TR 676)	Tp.160
6 April 1998	Applicant applies for a protection visa	Tp.37
14 April 1998	Department refuse the grant of a protection visa	Tp.64
11 May 1998	Visa Applicant granted a Long Stay Visitor Visa (TN 686) (Long Stay Visa)	Tp.160
29 November 2002	Visa Applicant departed Australia as an unlawful non citizen	Tp.160
30 June 2003	Visa Applicant applied for the Visa	Tp.73
5 November 2003	Visa Applicant was refused the Visa	Tp.192”

[1] The references given are to the s 37 documents (Tp).

Part B: The Evidence of the Visa Applicant

The Visa Applicant gave evidence by telephone link to Indonesia with the aid of an interpreter in the Indonesian language. It may be noted that the evidence of the Visa Applicant was at times incoherent and vague and to some limited extent only, untruthful.
The Visa Applicant was born on 5 May 1951 in Medan, Indonesia. She attended high school in Indonesia but did not study further. Her evidence was that she has never worked either in Indonesia or in Australia. However, her daughter July, when she came to give evidence, said that her mother did work in Jakarta for a period before her marriage and after she moved from Medan to Jakarta.
The Visa Applicant married when she was 24 years old and has three daughters (one of whom is the Applicant). All three of the Visa Applicant’s daughters reside in Australia. All three of them came to Australia in order to study. The Applicant was the first to come to Australia and her sisters followed, some months later, in 1998. They have all completed their studies and obtained permanent resident status in Australia. Furthermore, the Applicant has obtained Australian citizenship.
The Visa Applicant’s evidence was at times rambling, and as I have said rather less than coherent. Commencing with the chronology, the Visa Applicant as appears from her movement details (T: page 160 and T: page 161) made two short trips to Australia and returned to Indonesia. One of those two departures is the second entry in the chronology. The chronology does not include her departure from Australia on 12 August 1997 after a stay of about one month.
As set out previously in these reasons all three daughters came to Australia for the purposes of study; the necessary arrangements having been made previously in Indonesia. In each case the daughter spent a few months learning English and then went on to the University of Technology Sydney (“UTS”). The Visa Applicant was somewhat vague as to what precisely each daughter studies. For example she said that July took Business Studies at UTS and obtained her degree after about a year and a half. In fact July had obtained a degree in Economics in Indonesia and obtained a post-graduate degree in Banking and Finance at UTS.
In February 1998 the Visa Applicant came to Australia on a visitor’s visa. On 6 April 1998 she applied for a protection visa which was denied on 14 April 1998. The Visa Applicant then, and in May 1998 applied for a long stay visitor’s visa which was granted. About three days before the latter visa was due to expire in February 1999 the Visa Applicant went to see the Department of Immigration and Multicultural and Indigenous Affairs (the “Department”) at the Rocks in an endeavour to obtain an extension of her visitor’s visa. She was told that no further visitor’s visas could be granted. It was at that time that in consultation with her family she decided to stay (illegally) in Australia and did so (illegally) for over three years until she departed Australia for Indonesia in November 2002.
I do not think it necessary for me to go into detail, as the Visa Applicant did, as to where she and her daughters lived at various times. For a period they stayed in a unit in Ultimo and subsequently moved to a unit in Mascot.
The Visa Applicant’s evidence as to why she stayed on in Australia illegally can again be described as incoherent and at times disjointed. According to the Visa Applicant her decision to stay in Australia which was made in 1998 was related to an event which occurred in Indonesia much earlier. It was in this context that she was asked why she applied for a protection visa on 6 April 1998. Her answer was that she had fears in Indonesia. When asked what events caused her to have those fears, she replied by referring to a riot in Medan which had occurred in 1966, and being an event which occurred almost 40 years previously.
Again, and in the same sort of context, she was due to depart in May 1998. However, she applied for a protection visa in April 1998. She said that she did so because she had received information (the source of which was not specified) that unpleasant occurrences were going to take place in the future and perhaps within a short time thereafter in Indonesia.
Over and over again the Visa Applicant talked of her fears in Indonesia. On many occasions those fears were expressed as being held by her as an Indonesian of Chinese ethnicity against whom Indonesians who have no Chinese background harbour grudges and of whose success they are envious. She would often speak in the broadest possible terms of riots and demonstrations and bomb explosions; she spoke of the Indonesians burning down Chinese owned buildings. These comments were usually made without reference to either a time or a place, and so that it was difficult for the Tribunal to comprehend what precisely she was afraid of. Language of an emotive nature was often employed. She talked of the Indonesian economy collapsing in the late 1990s. There were at times in recent years periods when the Indonesian economy was under some pressure, but it did not collapse.
I referred earlier in these reasons to the Applicant’s evidence of a riot in Medan in 1966; she said “they burned the contents of the house and we have to go somewhere else. I was traumatised by it and I was in great fear”. It must be remembered that the Visa Applicant to this day has close family members living in Medan; she herself moved to Jakarta in 1970 where she lived with her aunt until her marriage.
Mr Cramer noted that the Respondent does not contend that the Visa Applicant’s protection visa application was in any way false. The Department denied that application because she was not and never has been a refugee in the Convention sense.
The Visa Applicant’s evidence was untruthful in one significant respect. She was asked whether when she applied for her long-stay visitor’s visa whether she was asked how long she intended to stay. Her answer at first was “no they didn’t ask”. When pressed by Mr Cramer for an answer she finally admitted that she had been asked this question (a question which would invariably occur in any tourist visa application) and she answered that she had stated that she would stay for one year.
Indonesia is a large country and it has substantial natural resources. An unpleasant incident in say Medan may have flow-on repercussions in say Jakarta (two hours away by air) in the sense that it may make people in Jakarta uneasy. But a riot in Medan is not a riot in Jakarta.
The Visa Applicant’s evidence is that she stayed on (illegally) in Australia after her long term visa had expired for two significant reasons. One of those reasons was her desire to live with and to care for her young daughters; the other reason, so she said, was her fear in Indonesia.
It is entirely possible, and indeed quite likely that in relation to Indonesia the Visa Applicant exaggerated the dangers, sometimes in a fashion that bordered on the ludicrous, and so much so that the Tribunal has doubts as to the truth of some of that evidence. It is also possible that the Visa Applicant is an inordinately nervous and fearful woman and so that her fears, however ludicrous from an objective point of view were, subjectively speaking, genuinely held. It is very hard to be sure when so much is exaggerated, where the truth lies. Of one thing I am perfectly satisfied, and that is that her predominant and main reason for staying in Australia was her concern for her daughters and her desire to be with them. At the same time I cannot dismiss her fears as to Indonesia as nonsensical. She is Indonesian-Chinese in a country where there is resentment of that ethnic minority. And she is a Buddhist in a predominantly Muslim country, and so that the fact that she felt at risk in relation to the Indonesian Muslim majority is not implausible.
The Visa Applicant’s evidence in relation to Indonesia was in general terms, as I have said, highly coloured and such that one might think that it is in a state of more or less continual turmoil erupting into violence at frequent intervals. Such a description would be inapt and indeed Exhibit A3 makes it clear that this is so. But at the same time it is reasonable to accept that the ethnic Chinese community does feel a degree of uneasiness.
The Visa Applicant’s evidence as regards her husband was that he is a business man who owns and runs a prosperous coconut plantation in Sumatra. When she said of the Indonesian economy that it was in a state of collapse, she said that nevertheless her husband’s business was doing well. Sumatra is some distance away by air from Jakarta and her husband travels to and from Jakarta. For that matter he has been a frequent visitor to Australia. He has supplied all of the not inconsiderable financial requirements of the Visa Applicant and her daughters in respect of Australia; as I have mentioned, the Visa Applicant’s evidence was that she had never worked in Australia or in Indonesia; although July said that she did work in Indonesia before her marriage. July’s evidence was that her father also supplied the deposit of about $60 000 used to buy a unit in Castlereagh Street, Sydney which is registered in her (July’s) name but in reality belongs to all three daughters. There was no statement by the Visa Applicant’s husband and there was no suggestion that he would give evidence. He was, so to speak entirely invisible in all of this hearing. And yet his evidence would have been relevant. In the absence of any evidence from him, the Tribunal has the impression of a commuter marriage which had the effect, in relation to the Visa Applicant that her contact with her husband has at times (and perhaps quite frequently) been intermittent. It is conceivable, (although this is surmise only) that loneliness was a cogent factor in her desire to stay in Australia with her daughters.
I consider that the Visa Applicant’s evidence was (allowing for exaggeration as to her fears about Indonesia), mainly truthful. She admitted, somewhat belatedly, that she had in applying for a long-stay visitor’s visa said that she would leave after a year. If was put to her that she did not intend to return to Indonesia either at the end of that year or at all; she agreed that this was so “because of my fear”. She also admitted that she had approached the Department for an extension, knew that she could not get an extension and knew that she was legally obliged to return to Indonesia.
The Visa Applicant admitted also that she decided to stay in Australia when her long-term visa expired after discussion with her family and that she took no steps of any kind to legalise her position in Australia.
In November 2002 the Visa Applicant left Australia voluntarily. She said that she did so because of the change of Government in Indonesia which brought in the Megawatti regime. She said that she hoped that this new regime would bring peace and stability to Indonesia. As to why or on what basis she was entitled to entertain such optimistic beliefs is not at all clear. But the fact remains that she did depart Australia voluntarily and now seeks a visa of a special kind which requires a considerable payment to the Australian Government.
In conclusion as to Visa Applicant’s evidence, it may be noted that she has six siblings living in Indonesia and that her mother also lives in Indonesia (T9: page 86). Of these close relations some live in Medan and others in Jakarta.

Part C: The Evidence of July

Some of the evidence of July has been referred to previously in these reasons. July would read “Julie” in English and is pronounced in the same way. The fact that she is July July arises, so she said from the fact that her parents were not married when she was born.
July took an Economics degree at a university in Indonesia and obtained a Masters degree in Banking and Finance at UTS in Australia. She has Australian citizenship and lives in the unit in Castlereagh Street with her two sisters. The cost of that unit was abut $260 000; her father provided the deposit and she and her sisters are making repayments in reduction of the mortgage loan which was obtained at the time of purchase.
July’s two sisters did not give evidence. Mr Maguire felt, reasonably enough, that their evidence would be much the same as that of July. All three girls have degrees from UTS and all three have good jobs. July works for St George bank, Yuly works in the headquarters of the Police Department and Sanly works for Westpac bank. Yuly intends to marry and to start a family. When she does marry she will move out of the unit in Castlereagh Street.

July is quite clearly an intelligent and accomplished young woman. After obtaining a Masters Degree from UTS she worked as a cleaner for Tempo because until she obtained permanent residence her permitted working hours were restricted. She has visited Indonesia on two occasions. She admitted that the three girls made the decision with their mother, that she, their mother, should stay in Australia even though it was illegal for her to do so. The rationale was that she should stay in Australia until “there was peace in Indonesia”.
Exhibit A2 was prepared by July, Yuly and Sanly. Although the English and grammar is faulty their effort indicates intelligence.

Part D: The Character Test

It is clear enough that to stay in Australia illegally is not a crime which brings about a criminal sanction. The sanction is of course, that if detected a person who is illegally in Australia can be detained and deported. It is nevertheless serious because it is strikes at the very foundation of the Australian migration system and pursuant to which Australia has the right to determine who may come to Australia and who may not. The Visa Applicant quite deliberately breached the terms of her visa for a long period. The fact that she did so because of her wish to care for her daughters (in my view her dominant motive) and her alleged fears as to Indonesia (in my view not her dominant motive) does not alter the fact that she was in breach of her obligations under Australian law. Her evidence before me was in certain respects untruthful, and particularly the information that she gave to the Department in respect of her departure plans. In all the circumstances, I cannot find that she passes the character test. In consequence it is necessary for me to consider the discretionary powers contained in Part 2 of Direction 21.

Part E: Direction - Visa Refusal and Cancellation Under Section 501 - No. 21 (“Direction 21”)

In this Part E references to numbered clauses should be construed as references to numbered clauses in Direction 21.
The primary considerations are contained in clause 2.3 which reads as follows:
“2.3     In making a decision whether to refuse or cancel a visa, there
are three primary considerations:
(a)       the protection of the Australian community, and members of the
community;
(b)       the expectations of the Australian community; and
(c)       in all cases involving a parental or other close relationship
between a child or children and the person under consideration, the
best interests of the child or children.”

Clause 2.3 must be read in conjunction with clause 2.5 which reads as follows:
“2.5 The factors relevant to an assessment of the level of risk to
the community of the entry or continued stay of a non-citizen include:

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

The risk of recidivism is in my view very small indeed and such that it can be discounted. The Visa Applicant seeks only to stay in Australia to be with her daughters. There is no suggestion of any other breach of law. She did not work illegally in Australia. When she needed medical attention she paid for it.
In the same context the Visa Applicant presents no threat whatever to Australia. When living with her daughters she mostly stayed at home cooking and caring for them. She said that she was concerned about the risk of detection. For a woman as nervous as the Visa Applicant, that fear would have been very real.
Deterrence is in my view a minor aspect of this matter. This case is concerned with a wealthy family, one with sufficient means to educate three daughters as foreign students in Australia, and then to purchase a unit in Castlereagh Street for them; in addition of course the Visa Applicant’s husband provided the means which enabled the Visa Applicant to stay in Australia for an extended period. The number of families in this class must be limited. To some minor extent deterrence is a relevant factor in that the grant of a visa to someone who has flouted the system might be thought to be sending the wrong message. But the recipients of such a message (assuming that it is wrong) who are able to draw comfort from it would be few.
As to clause 2.12 I think that the expectations of the Australian community, assuming knowledge of all of the relevant facts, would favour a grant of the visa, and notwithstanding that, put as a general proposition, Australia is entitled to expect compliance with its laws. But to separate a mother from her daughters in these circumstances would not in my view be considered appropriate.
I do not rate the Visa Applicant’s conduct as serious. A part of her evidence was untrue, but only a part. Her protection visa application was not untruthful even though it failed as it was bound to fail. As to whether the Visa Applicant thought of herself as a refugee is difficult to say. Given her nervous nature it is just possible that she did, although the probabilities favour the reverse view.
Turning to hardship under clause 2.17, Mr Cramer correctly pointed out that hardship in this context refers to the daughters who were complicit in the illegal conduct in question and so that their hardship should be discounted accordingly. There is merit in that contention.
A consideration of the balancing factors contained in part 2 of Direction 21 results in a number of negatives. The hardship factor for the daughters is not great. They were complicit in their mother’s illegal behaviour and it is clear that there are sufficient family means to enable them to travel to Indonesia for visits; in fact they can now given their current jobs presumably fund travel without help from their father. But then the other factors when carefully considered are not against their mother. The risk of recidivism can be discounted; she presents no threat to Australia and her conduct cannot be categorised as falling within the serious category. Deterrence is arguably a factor against her but then Australian expectations would favour the grant of a visa to her. To the extent that I have been critical of some aspects of her evidence I should in fairness note that it generally accords with Exhibit A1. In summary it is my view that the balance required in terms of Part 2 of Direction 21 requires that the discretion be exercised in favour of the Visa Applicant.
Accordingly, the Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of the contributory parent visa under section 501(1) of the Migration Act 1958 should be exercised in favour of Hennilys Njoman.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy-President J Block

Signed: Melinda Di Condio
Associate

Date/s of Hearing  20 and 21 September 2004
Date of Decision  1 October 2004
Representative for the Applicant    Mr Andrew Maguire, A & A Migration Services
Solicitor for the Respondent          Mr Ben Cramer, Blake Dawson Waldron, solicitors

[2004] AATA 1036

1 October 2004

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Judicial Review

Discretion

Refusal of Visa

Character Test