King and Minister for Immigration and Multicultural Affairs
[2001] AATA 103
•14 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 103
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/847
GENERAL ADMINISTRATIVE DIVISION )
Re SANDA DEVI KING
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date14 February 2001
PlaceSydney
Decision The decision under review is affirmed
..............................................
CATCHWORDS
IMMIGRATION – preferential family visa - refusal on character grounds – substantial criminal record – past and present general conduct – making false or misleading statements - failure to pass the character test - whether discretion should be exercised – hardship to applicant and visa applicant
Migration Act 1958 - sections 234, 499, 501
Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896
Re Ivanayevska and Minister for Immigration and Multicultural Affairs [2000] AATA 489
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
REASONS FOR DECISION
14 February 2001 Deputy President J Block
(a) The decision under review in this matter is the refusal dated 17 April 2000 of an application by Mr Perumal Kananalway, (referred to in the Respondent's Amended Statement of Facts and Contentions dated 20 October 2000, and in other documents before me, as "Kananalway Perumal", and who is referred to in these Reasons as the "Visa Applicant"), for a Preferential (Migrant) (Class AY) Visa; that application was sponsored by the Applicant, who is the Visa Applicant's sister, as his last remaining relative.
(b) Mr Christopher Levingston of Christopher Levingston & Associates, solicitors appeared for the Applicant; Mr Leonard Leerdam of Sparke Helmore, solicitors appeared for the Respondent.
(c) The Tribunal had before it the T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:
Exhibit A1 is a report by Anna Robilliard of Duffy Barrier Robilliard, psychologists, dated 7 August 2000, and addressed to Australian Address, (the migration agency which assisted the Applicant in applying for a visa for the Visa Applicant).
Exhibit A2 is a letter of recommendation by Willie K H Ooi of Copthorne Orchid, Penang, (a hotel in Malaysia).
Exhibit A3 is a brief statement addressed "To Whom it May Concern" by the Applicant and dated 25 July 2000.
The Applicant did not prior to the hearing furnish statements by the witnesses on whom she intended to rely; apart from the Visa Applicant himself, the Applicant and her husband, Mr Ian King, gave oral evidence. Mr Leerdam was good enough to accept Exhibit A3 in lieu of a statement by the Applicant; in addition he did not object to each of the Visa Applicant and Mr King giving oral evidence, despite the fact that statements by them had not been furnished.
Exhibit A3 reads as follows:
To Whom It May Concern
I wish to submit this statement in support of my appeal against a decision by an officer of the Department of Immigration and Multicultural Affairs to reject my application to allow my brother, Mr Kananalway, to migrate to Australia.
My brother was born in 1955 and he lived with our parents and me in Taiping. About five years later my father passed away. Some time later my mother formed a de facto relationship with another man. This man lived with us and during his time with us abused both my brother and me.
My brother, who I've always referred to as Howlee, attended a Christian school in Taiping and stayed in school until Year 6. Owing to the level of abuse we received from my mother's de facto husband, Howlee ran away from to work (and live) in the Taiping markets. My mother and I also left at this time and moved to Penang. This occurred in about 1965.
My mother and I both gained work in Penang as housekeepers. I lost contact with Howlee until about 1973 when he came to Penang. I am not sure if he was working in Penang at that stage. Howlee attended my wedding in 1974 which was just prior to my move to Australia.
Between 1974 and 1977 I again lost contact with Howlee. However, when my husband and I returned to Malaysia in 1977 we were able to contact Howlee again. In fact he stayed with us for some time during 1978-79. During his stay with us, Howlee was working on various construction site in Penang.
In 1979 I returned to Australia and again lost contact with Howlee. I think he spent his time between Taiping and Penang over the next ten years. In 1989, I returned to Penang with my family. We re-established contact with Howlee soon after our arrival there.
Howlee stayed with us for almost the two years I was back in Penang. During this time Howlee secured work as a gardener at the Novatel Hotel in Penang. He has worked in this position ever since.
On my return to Australia in 1991, I have been able to maintain regular telephone contact with Howlee. In 1996, our mother died and when I returned to Penang for her funeral, Howlee was there to give support. I guess we supported each other.
Since my mother's passing, Howlee and I have become much closer. He has travelled to Australia twice since to visit me.
(It should be noted that the Visa Applicant was referred to by the Applicant in her evidence as "Howlee".)
Exhibit A4 is a chronology of events ("the Chronology") prepared by Mr Levingston during the hearing and handed up towards the end of it; it reads as follows:
DATE EVENT 'T'
2/Feb/1947 Applicant for Review born 105
24/1/55 Perumal Kananalway (Visa Applicant born) 113 1963 1965 Applicant for review leaves home (aged 16) Evidence in Chief
Visa Applicant leaves home (aged 12) Evidence in Chief
Applicant for review and Visa Applicant reunited in Penang A3
16/2/1974 Applicant for Review marries Ian King - Applicant for Visa attending wedding 94 / A3Drug Conviction
1977-79 Applicant and sister live together in Penang A3Theft Conviction
Drug Conviction
Drug Conviction
Sister returns to Penang A3
1989-91 Applicant and sister live together in Penang A3
2/5/90 Job as gardener A2Sister returns to Australia A3
24/12/97 Applicant travels to Australia on visitors visa – PAX card R2
1/10/98 Applies to migrate to Australia T4, folio 44
9/1/99 Applicant travels to Australia on visitors visa – PAX card R3
Exhibit R1 is an affidavit of the Applicant, dated 20 July 2000; it reads as follows:
I Kananalway s/o Perumal (Malaysian Identity Card No.550124 - .08-5023) holding a valid Malaysian International Passport No. A9243277 presently residing at 608-E, Jalan Oldham, 11200 Taanjung Bunga, Penang Malaysia do hereby solemnly and sincerely affirm and state as follows:-
1.I verily state that the statement and facts stated I herein are in all respects true, In regard to the wrongful arrest of me which led me to the conviction of theft.
2.At the material time of my wrongful arrest, I was then very young and was then seeking for a gainfull employment at which time I met a friend who told me that there was a job in a company, I trusted him and he told me to wait at the place, so that he could see the employer, I then waited as instructed by my friend. My friend did not turn up and I went home disappointed.
3.One week later the police authorities came and arrested me without giving any reasons. I was taken to the police station and detained by the police. I then heard from the Police officer that the friend whom I saw earlier for a job who was arrested for a theft had alleged to the Police that was among the group who committed the theft jointly which allegation was a fabrication to fix me up.
4.Owing to, too much of police harassment and not being able to withstand further pressure and the police inducing me to admit being involved in the theft, so that I will get light sentence, and in the circumstance I admitted to the alleged theft. At that time I was unemployed and didn't have the financial means to engage la lawyer to defend me. Thus when I was brought to Court I pleaded guilty not knowing of the future consequences. I am a victim of circumstances in this instance.
5.Subsequent to that I have never indulged in any criminal wrong doings and have exercised caution in associating with any friends, in order to refrain from any problems as aforesaid. Since then I am not involved in any wrong doings and have a clean record and never been involved in any criminal activities of whatsoever nature.
Exhibit R2 is an incoming passenger card in respect of the Visa Applicant, dated 23 December 1997.
Exhibit R3 is an incoming passenger card in respect of the Visa Applicant, dated 9 January 1999.
I begin, (as I have done in other visa cases), and in order to set the scene, by including a number of documents:
(a) The Applicant's Statement of Facts and Contentions, dated 3 October 2000, (prepared by the Applicant's previous representative), reads as follows:During the conference, which was conducted via telephone between Ms Judith West (migration agent), Mr Simon Cohen (AAT) and Ms Sharon Hanstein (DIMA) on 10 August 2000, the following outstanding issues were to be addressed:-
· Information relating to each of the four convictions:-
Attempts have been made to gain further information from official sources in regard to the four convictions which occurred in 1976, 1979, 1983 and 1988 (please note that these dates are as set out in the police report, copy of which is to be found at Folio 137 of the T Documents, however, the decision maker has listed the dates to be 1976, 1979, 1984 and 1987). On 13 August 2000 a letter was written to the Malay police requesting further information. No reply has been forthcoming. An attempt was also made through a local solicitor working in Malaysia to obtain court transcripts, this also proved unsuccessful. The Principal Migration Officer in Kuala Lumpur, Mr Peter Richards, was also contacted and he advised that it is rare to receive any specific information about convictions from the Malay Police.
An affidavit is enclosed from Mr Perumal explaining the circumstances of his arrest on the 1979 charge of theft. Mr Perumal has previously provided information regarding the other three convictions of 1976, 1983 and 1988. Mr Perumal states that these convictions were for smoking marijuana.
The decision maker states in Part C of his decision that because Mr Perumal admitted his offences "it was not considered necessary to request that Mr Perumal provide additional documentation an the circumstances leading to another conviction such as court transcripts".· Ms Hanstein requested an explanation regarding folio 108 of the T Documents.
Folio 108 is a statutory declaration signed by five local Malay people who state "we are all known and related to a couple. ..." Mrs King advises that these people are not related in any way to the family and it seems that there was a problem with the English language when this statement was prepared.
The main outstanding issue to be addressed:-
whether the discretion in s501(1) should be exercised to refuse the grant of the visa to the visa applicant.
The following arguments addressing Ministerial Direction No.17 strongly indicate that indeed, this discretion should not have been exercised.
MINISTERIAL DIRECTION NO 17 (Direction under sections 499 and 501 of the Migration Act 1958 (the Act).
PART 1 -APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test."1.7 In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account an the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct"
Please see reference dated 15 September 1999 in which it is stated that Mr Perumal has worked for the Copthorne Hotel (previously Novotel) since 2 May 1990. He is a respected employee with over 10 years of service, a clear indication of his successful rehabilitation and on-going good conduct. He has not re-offended for a period of nearly 13 years. His past occasional use of marijuana has been attributed to his deprived upbringing (please refer Mrs King's statement and psychologist's report).
"1.8 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(i), decision-makers should take into consideration the following:-
(b) how long ago the offences were committed;
Mr Perumal has not re-offended since his last conviction in 1988. The only two convictions which occurred in the 1980's were for smoking marijuana.
(c) the non-citizen's record since the offences were committed including;
·any evidence of recidivism or continuing association with criminals;
·a pattern of similar offences; and/or
·a pattern of continued or blatant disregard/contempt for the law;
Mr Perumal has not re-offended since 1988, he lives at the Hotel where he works and leads a largely solitary life, this main focus being his employment.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed.
Mr Perumal's constant employment for over 10 years and the fact that he has not re-offended is indicative of 'recent good conduct'.
Paragraph 501(6)(d) - "significant risk" of future conduct grounds
1.12 For the purposes of the Character Test, it is not sufficient to find that a non-citizen has engaged in conduct specified in paragraph 501(6)(d) in the past, rather the decision-makers are required to determine whether there is a significant risk that a non-citizen would engage in the specific conduct set out in paragraph 501(6)(d)
The decision maker states in the decision, dated 17 April 2000, that "the likelihood of re-offending is not assessed as high" [1.(b)]
Subparagraph 501(6)(d)(i) -"engaging in criminal conduct in Australia"1.13 The reference to criminal conduct must be read as requiring there to be a significant risk of the person engaging in conduct for which a criminal conviction could be recorded. Decision makers must make a finding that there is a significant risk that the non-citizen would engage in conduct which, if proven, would amount to a criminal offence.
The decision maker finds that there is no such significant risk.
PRIMARY CONSISDERATIONS
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:(b)the likelihood that the conduct may be repeated (including any risk of recidivism);
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(b) The decision maker assesses the risk of recidivism as "not high".
(c) The decision maker states "given the time that has elapsed since Mr Perumal's convictions, it is unlikely that the refusal of his visa application will deter others from committing similar offences" [1.(c)]
2.8 When exercising discretion, decision makers must also take the following factors into account as relevant considerations:
(a) any relevant factors provided by the non-citizen as mitigating factors;
(b)a lighter sentence would be incurred in Australia or a similar offence;
(a) Mr Perumal has provided an affidavit in which he gives details of his wrongful arrest and conviction in 1979. His sister, Mrs King, has also provided information explaining his occasional use of marijuana as being a direct result of the abuse he suffered as a child and his deprived upbringing (Refer Mrs King's statement and psychologist report). He has not engaged in such activity since his last conviction in 1988.
(b) A sentence of 18 months imprisonment would not be imposed for the offence of smoking marijuana in Australia. It is highly unlikely that any term of imprisonment would be imposed for the smoking of marijuana in any state or territory in Australia.Expectations of the Australian Community.
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen his breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application…."
Mr Perumal did not commit any crimes of violence nor was he involved in drug trafficking. He has steadfastly denied any part in a theft which allegedly occurred 21 years ago. He was abused as a child and had a very unhappy childhood and adolescence leading him to the occasional use of marijuana. Mr Perumal presents no risk to the Australian community.
OTHER CONSIDERATIONS2.17
(c) the "degree of hardship which could be caused to immediate family members lawfully resident in Australia (including Australian citizens)…
(d) family composition of the non-citizens family, both in Australia and overseas;
(h) any evidence of rehabilitation and any recent good conduct;
(c) It is evident from the psychologist's report that Mr Perumal's Australian Citizen sister is suffering greatly because of the refusal of the visa application. Her husband and two daughters are also affected directly and indirectly (because of Mrs King's suffering).
(d) Mr Perumal has no family in Malaysia or anywhere else in the world. His only family being that of Mrs King and her husband and daughters, all living together in Australia.(h) Such evidence is already stated as being his ongoing good conduct and steady employment with the same hotel for over 10 years.
Please also refer to the following AAT cases:-
(1) Narciso AATA 722 (18 August 2000) - File no. S1997/403
(2) Gruszkowski AATA 402 (23 May 2000) - File no. N1999/790CONCLUSION
On the basis of the above information, the information provided in the statement of issues and the documentation provided we ask that the decision made on 17 April 2000 be set aside.
(b) The Respondent's Amended Statement of Facts and Contentions, dated 20 October 2000, reads as follows:
1 . Facts
1.1 Mr Kananalway Perumal (the Visa Applicant) was born in Malaysia on 24 January 1955.
1.2 The Visa Applicant was born the youngest of four children, the oldest being his sister Sanda Devi King (the AAT Applicant in these proceedings) who was born on 2 February 1947.
1.3 Ms King, who is sponsoring the Applicant on his current application for a Class AY, preferential (Migrant) application.
1.4 On 16 February 1974 Ms King married an Australian citizen in Malaysia and migrated to Australia. She became an Australian citizen on 14 October 1974.
1.5 In 1977 Ms King and her husband returned to Malaysia and lived there until 1979 when they returned to Australia.
1.6 In the following 10 years Ms King lived in Australia with her husband and had no contact with her brother.
1.7 The Visa Applicant visited Australia for the first time on 24 December 1997 and departed on 21 January 1998. His second visit to Australia was on 9 January 1999, departing on 7 February 1999. By this time the Visa Applicant had already lodged an application for permanent migration to Australia dated 1 October 1998. On both occasions of the Applicant's entry into Australia he was asked to nominate whether he had any criminal convictions on the incoming passenger card he was required to complete. On both occasions he answered in the negative. Those answers were false and misleading in a material particular within the meaning of offences nominated in section 234 of the Migration Act 1958 which provides for imprisonment up to 10 years.
1.8 The Visa Applicant was interviewed in relation to his application to migrate to Australia on 13 September 1999. He did not at that time reveal any details about his convictions.
1.9 On 5 October 1999 he filled out a form titled "Personal Particulars for Character Assessment".
1.10 On 13 December 1999, in response to a letter from the Principal Migration Officer in Kuala Lumpur, the Malaysian authorities informed that the Applicant had a criminal record for offences committed in 1976, 1979, 1983 and 1988. No other details were forthcoming.
1.11 The decision maker had those convictions verbally confirmed with the Malaysian police. It is recorded in the Statement of Reasons that those convictions were for the following:
1976 - drug charge convicted and sentenced for three months imprisonment
1979 - theft convicted and sentenced for four years imprisonment
1984 - drug charge convicted and sentenced to 18 months imprisonment
1987 – drug charge convicted and sentenced to 18 months imprisonment
1.12 The Visa Applicant was informed of these convictions by telephone whereupon he responded on 3 January 2000 with a letter to the Australian High Commission confirming those convictions and providing details.
1.13 The Visa Applicant claims that the forms in which he omitted to provide details of his convictions was filled in on his behalf by someone else. He claims that it could have been an embarrassing subject for that person to question him on and this information was therefore not obtained from the Visa Applicant.
1.14 The Visa Applicant was given a written opportunity to comment on 13 January 2000. He responded on 24 January 2000 stating that his criminal convictions occurred at a time when he was much younger, that he never thought of the consequences of his actions and he now regrets those actions. He claims now to be aware of the serious consequences of his criminal actions and that he has turned over a new leaf.
1.15 On 17 April 2000 the Visa Applicant's application for migration to Australia was refused.
1.16 On 2 June 2000 Ms King, the Review Applicant in these proceedings, applied for review of that decision with the Administrative Appeals Tribunal.
2 Contentions
Application of Section 501
The Applicant does not pass the character test as it is defined in section 501(6) because he has a substantial criminal record as defined in section 501(7)(c). Under those circumstances the Minister's discretion under section 501(1) must be considered. In the exercise of that discretion, the Tribunal must comply this the relevant direction issued by the Minister under section 499 entitled "Direction/Visa refusal and cancellation under section 501- Direction No.17".
The Tribunal is required to consider a number of 'primary considerations' along with other considerations. Most weight is to be given to primary considerations outlined in paragraph 2.3 of the direction. While it is clear that the exercise of the discretion involves the need to weigh a number of factors in the process, the Tribunal must have due regard to the importance placed by the government on the three primary considerations.
Primary considerations1. The Protection of the Australian Community and members of the community (para 2.4)
A primary objective of the direction is to protect the Australian community from crime and to take action to lessen the risk of crime and disorder within the Australian community.
Of particular concern are crimes in relation to drugs and crimes of violence. The factors relevant to protection of the Australian community are:a. The seriousness and nature of the conduct
The Visa Applicant has been convicted three times of offences in relation to the use of drugs. In addition he obtained a conviction for theft in 1979, resulting in four years imprisonment. While the Applicant now claims that he was innocent of any wrong doing in relation to that offence, the Tribunal should accept as a fact that he was rightfully convicted. In circumstances where it has not been possible to obtain evidence from the Malaysian authorities regarding the commission of this offence, the Tribunal should give no weight to the Applicant's own account of the incident.
aa.In addition to the Applicant's criminal offences committed in Malaysia. It is submitted that the Applicant comes within Paragraph 2.6(c) of the direction. The Applicant has clearly made a false or misleading statement in connection with his previous entries to Australia. In so doing he has breached Immigration law in Australia.
b. The likelihood that the conduct may be repeated (including any risk of recidivism)
While it is clear that the Visa Applicant's last offence was over 11 years ago, he has been convicted four times. He has served time in prison for each of those offences. While it is fair to say that the Applicant has been gainfully employed since 1990 and has been free of conviction, there remains a risk that his criminal conduct may be repeated.
bb.While the breach of Australia's immigration laws is a crime which is different in nature to the Applicant's convictions in Malaysia. It nevertheless adds significantly to assessment of the risk of recidivism. The Applicant has recently shown a disregard for Australia's laws and a willingness to breach them.
c.Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrent)
Paragraph 2.11 requires the Tribunal to give weight to the deterrent effect of a refusal decision in this case. It is submitted that in any case involving the use of drugs a visa refusal decision will have some deterrent effect on the use of illicit drugs by other persons.
cc.It is submitted that the Tribunal should give more weight to the deterrent effect in this case given the clear evidence that the Applicant has been willing to breach Australia's immigration laws as well as the criminal provisions of his home country.
2. The expectations of the Australian community (para 2.12)
This is not a case involving removal from Australia. This is an application to migrate to Australia as the last remaining relative of an Australian citizen. Apart from the Visa Applicant's relationship to his sister he has previously visited Australia on two occasions. That is his only connection with Australia. In the circumstances, the expectation of the Australian community is a significant factor in this case. It is an expectation founded on the premise that a person migrating to Australia should obey the law and to be a law abiding citizen. The breach of Australia's laws is particularly relevant to this factor. The expectation of the Australian community is that non-citizens obey Australian laws while in Australia. The Applicant has shown a willingness to break those laws.
3. In all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children
As the Visa Applicant has no children in this case, this factor is not relevant.
Other Considerations (para 2.17)
The Visa Applicant appears to live on his own in Malaysia. He is employed and self supporting. While it is accepted that he wishes to migrate to Australia to live and be near his sister, it should also be accepted that the Visa Applicant and his sister have spent most of their time apart since 1974. Most of the time in which they have been together since 1974 has been when the Visa Applicant's sister has been in Malaysia. While the Review Applicant's wishes in this regard are a relevant consideration, it is submitted that those considerations do not outweigh the primary considerations in this case.
Other International Obligations
There are no international obligations relevant in this case.
Summary
It is submitted that on balance the primary consideration of protection of the Australian community outweighs the other considerations. The Visa Applicant's only ties to Australia are to his sister. He has no other family here.
It is submitted that the decision under review be affirmed.
(c) The Applicant's Outline of Submissions, dated 2 February 2000, which is in fact a response to the Respondent's Amended Statement of Facts and Contentions, (referred to in subparagraph 2(b) above), reads in part (and omitting its content under the head of "The Law") as follows:
The applicant for review is Sanda Devi King who is an Australian citizen and was the sponsor (T4) on the application for Kananalway Perumal who was seeking to migrate to Australia on the basis of being a last remaining relative.
The applicant commenced proceedings by filing an Application for Review of Decision made on 17 April 2000 filing that application on or about 25 May 2000 and paid the filing fee of $505.00.
JURISDICTION
This is an application to review the decision of the Respondent to refuse a visa to the visa applicant, Perumal Kananalway, on the basis that the applicant was unable to satisfy the character test incorporated in Section 501(6)(a) of the Migration Act 1958. This is a decision which is reviewable by the Administrative Appeals Tribunal pursuant to powers under Section 500 of the Migration Act 1958.
In particular Section 500(1) identifies at subparagraph (b) decisions of a delegate of a Minister under Section 501 as being a decision which is reviewable by the Administrative Appeals Tribunal.
In this particular case, the decision to refuse the applicant a visa was made on or about 17 April 2000 at Kuala Lumpur, Malaysia, (T1 folios 5-14).
The decision was communicated in writing to the applicant under cover of a letter dated 17 April 2000 (T1 folio 5).
It is not known what date the applicant received the refusal letter.
It does not appear that any issue arises in respect of the timing of the filing of the Application for Review on 25 May 2000.
THE FACTS
The applicant has filed an Applicant's Statement of Facts and Contentions communicated to the Respondent on or about 5 October 2000 which seeks to address the relevant issues concerning this case, albeit in abbreviated form
The Respondent has filed a Respondent's Statement of Facts and Contentions which was faxed to the then applicant for review's agent on or about 20 October 2000 and on 1 November 2000 the applicant's then advisers received a Respondent's Amended Statement of Facts and Contentions.
To assist the Tribunal in the determination of this matter the applicant admits the respondent's "facts" as set out in the respondent's amended Statement of Facts and Contentions dated 27 October 2000 at paragraphs 1.1 to 1.7 inclusive are admitted.
The "facts" at paragraph 1.8 is denied. There is no evidence (T14, folios 125 to 128 inclusive) that the question of the applicant's criminal antecedents was raised. The applicant was not obliged to raise it himself other than in the context of the application. See Form 47 (T4, folio 56).
Paragraphs 1.9 to 1.12 are admitted.
The Visa Applicant's reply dated 3 January 2000 is admitted. It is not evidence of a failure on the part of the Visa Applicant to admit criminal convictions in the context of the application for the visa class 104 (T4). The reply (T15) although making reference to "application forms" can not be a reference to the Form 47 as on that form the applicant admitted his prior conduct. It is submitted that the reference to "application forms" must be a reference to the application for the visitor visa used to enter and depart Australia on 24 December 1997 and 9 January 1999.
The "fact" of the making of an application for a visitors visa is admitted. The application forms are not in evidence before the Tribunal.
The "facts" at paragraphs 1.14 to 1.16 are admitted.
The applicant's contentions at paragraph 2 is conceded with the caveat that the decision to exercise powers in favour of the Visa Applicant are discretionary and that after careful consideration of the applicant's facts and circumstances that the exercise of a discretion in favour of the applicant, is under the circumstances, warranted.
The Respondent's recitals under the heading or "primary considerations" are conceded in that they correctly identify the primary objectives of the policy and the weight to be given to each of the considerations arising under that policy.
The following chronology will assist the Tribunal.CHRONOLOGY
DATE EVENT
1976 1979 1984 1987 24/12/97 21/01/98 25/09/98 01/10/98 09/01/99 Drug Conviction Theft Conviction Drug Conviction Drug Conviction Applicant enters Australia on visitor's visa and fails to disclose on incoming Pax card criminal history. Applicant departs Australia Applicant signs form 47 – Application for migration to Australia Application form 47 lodged Applicant enters Australia and fails to disclose criminal convictions on incoming Pax card.
The relevant facts as they apply in this particular case which it is conceded are capable of enlivening the exercise of power under Section 501 of the Migration Act 1958 are the convictions in the period between 1976 and 1984 and the conduct in respect of the passenger cards engaged in by the applicant for the visa on 24 December 1997 and 9 January 1999.
The original decision record correctly identified the offending behaviour in the period between 1976 and 1984 (T1 folio 8) and commented in the context of the heading Protection of the Australian Community as follows:
"It would appear as if Mr Perumal's problems with drug abuse during his 20's are behind him and the likelihood of reoffending is not assessed as high". (T1 folio 9)
and under the heading of General Deterrence the following comments are noted:
"Given the time that has elapsed since Mr Perumal's convictions, it is unlikely that the refusal of his visa application will deter others from committing similar offences". (T1 folio 9)
Mr Levingston had intended to call the Visa Applicant as his first witness. A number of attempts were made, at the commencement of the hearing, to telephone him; those attempts were unsuccessful because the telephone number was engaged. Accordingly, Mr Levingston called, as his first witness, the Applicant; in respect of her evidence:
(a) The Applicant was, in general terms, quite extraordinarily vague as to dates, periods and ages; she was unaware of the exact age of her brother, the Visa Applicant; she was even unsure as to the date of her marriage. Having made this point, I do not mean to suggest that the Applicant's evidence was not worthy of credit. On the contrary the Applicant, who was rather nervous, impressed me as a person who, from difficult beginnings, has made a success of her life, due I would think, in no small part to her successful marriage to Mr King, who at the time of their marriage was a member of the Royal Australian Air Force ("RAAF").
(b) The Applicant grew up in Taiping in Malaysia. There were four children in the household; the Applicant is the oldest, followed by the Visa Applicant and then a younger brother and a younger sister. In the early 1960s the Applicant's father died in Taiping, and in the same year both her younger brother and her sister also died. The sister was a paraplegic; the brother died in consequence of a nasal blockage, which so far as I could gather, might not have been attended to with sufficient speed.
(c) Her mother then formed a relationship with another man, who treated both her and her brother extremely badly. The term "abuse" was mentioned. I did not understand this term to refer to sexual abuse, but rather to cruelty generally.
(d) In 1965, the Applicant, who was then 16, left home and went to Penang where she found work as a housekeeper. Her mother also went to Penang at the same time and she too found work as a housekeeper. The Chronology (Exhibit A4) indicates that the Applicant left home in 1965, and that the Visa Applicant left home in 1967. (When the Chronology was tendered the year in which the Applicant left home was reflected as 1963 and not 1965; an adjustment to reflect "1965" and not "1963" was made after the tender of the Chronology had been accepted.) This Chronology is not readily reconcilable with the Applicant's statements contained in Exhibit A3, where she indicated that the Visa Applicant left home at the same time she did. I am inclined to take the view that, in general terms, Exhibit A3 is probably more accurate, and in cases of differences, can be preferred. The Applicant also said in her oral evidence that she married in 1976. I noticed that on a number of occasions, Mr King, at the back of the hearing room, would have liked to correct his wife. I repeat, though, that I do not think that anything very much turns on the fact that the Applicant was so unreliable as to dates.
(e) After leaving home, the Visa Applicant worked in the market in Taiping. The Applicant said that during the period which commenced when she left home, up to the time of her marriage in 1974, she had very little contact with the Visa Applicant; indeed that contact consisted only of two meetings in the market in Taiping. When the Applicant was married in 1974, the Visa Applicant was present; she said that she had met him accidentally in a restaurant where he was working.
(f) After her marriage, the Applicant accompanied her husband to Australia; she said that she left her brother in the care of a New Zealand friend.
(g) Mr King was posted back to Penang for a period of approximately 2 years in 1977, and the Applicant accompanied him. She had, in the intervening three years, lost contact with her brother. Relations were restored, however, and it was during this period that the Visa Applicant lived with the Applicant and her family for a time, the precise duration of which was not clear, but probably in excess of a year. The re-establishment of contact again occurred accidentally; on this occasion the Visa Applicant was working on a construction site.
(h) In 1979 the Applicant returned to Australia; contact with the Visa Applicant was again lost and indeed there was then no contact between them for a period of approximately ten years. Contact was re-established in 1989 when the Applicant's husband was again posted to Malaysia. It was through contacts of the Applicant that the Visa Applicant obtained employment as a gardener at a hotel in Penang, and where he has worked ever since. Indeed, the Applicant has performed his job well, as is indicated by the reference which is Exhibit A2. During this posting period, the Visa Applicant again lived with his sister and her family for an extended period.
The Applicant and her family returned to Australia in 1991; thereafter Mr King left the RAAF, and he has, since leaving the RAAF, been employed in the private sector.
(j) The Visa Applicant has visited the Applicant and her family in Australia twice, in 1997 and in 1999, respectively. The Applicant did not know of the Visa Applicant's criminal record until his application for a visa was refused.
The next witness was the Visa Applicant himself. He gave evidence by telephone link to Malaysia, aided by an interpreter in the Tamil language. It was clear, though, that the Visa Applicant is comparatively fluent in English and indeed most questions were answered before they could be translated. In respect of his evidence:
(a) After he ran away from home, because of his stepfather's cruelty to him, the Visa Applicant worked in the market in Taiping. He said at first that he worked in the market for 25 years, but later amended that period so as to reduce it to 20 years. (I note that I use the term "stepfather" loosely; the Applicant thought that her mother had not ever married the man with whom she formed a relationship, whereas the Visa Applicant thought that she had.)
(b) Before taking up employment as a hotel gardener, he had been employed as a sweeper and cleaner in a country club and prior to that in the Taiping market. He said that he never worked in either a restaurant or on a construction site. (Exhibit A3 states that the Visa Applicant worked on various construction sites while living with the Applicant and her family in 1978/1979.)
(c) Some time was taken up with evidence as to his criminal record, which is set out in detail in clause 1.11 of the Respondent's Statement of Facts and Contentions; (see paragraph 2(b) of these Reasons). The T Documents reveal that the Malaysian police authorities are not prepared to furnish details of the surrounding circumstances in respect of his four convictions. The Visa Applicant said that all three drug convictions, (in 1976, 1984, 1987), related only to the smoking of marijuana. If this is so, the sentences imposed appear to be remarkably severe, and at all events much more severe than would have been imposed by an Australian court.
(d) The 1979 theft conviction, which resulted in a 4-year prison sentence, arose, according to the Visa Applicant, in the following circumstances; he and a friend, also employed in the Taiping market, were together when they met a Chinese man. The friend robbed the Chinese man of 150 ringgit (about A$75). The friend then spent the money on marijuana, which was smoked by the two of them. The Visa Applicant, according to his evidence, played no active role in the robbery. A suggestion to the effect that he may have been a 'look-out' was denied. He merely enjoyed, to an extent, the proceeds of the robbery.
(e) The Visa Applicant was cross-examined at some length as to the affidavit (Exhibit R1), which was prepared and attested in July 2000. It is irreconcilable with his version of events given before the Tribunal; in fact the Visa Applicant admitted that the affidavit version of events was false. He said that he consulted a lawyer in Malaysia, and that lawyer's assistant or clerk prepared the affidavit, telling him, (the Visa Applicant), that this version would suit him better. Although he knew it was false, and moreover that it was to be used in these proceedings, he nevertheless attested it, and paid what was, for him, a substantial sum by way of legal fees.
(f) The Visa Applicant was also very unsure of certain dates, times and events. He thought that his father had left his mother to go to India, (the country of his father's birth). He also thought that his mother had married his stepfather. On each of his visits to Australia in 1997 and 1999, the box as to criminal convictions was ticked with the answer 'No'. The Visa Applicant said that on each occasion he asked the Malaysian Airlines stewardess to fill in the form because his English is poor; that she filled it in completely; and that he merely signed it without reading it. The Tribunal does not find that evidence credible. The landing forms contain information which could only have been obtained by the Visa Applicant; by way of example, the address at which he would be staying in Australia must have been obtained from him. Moreover, it is unlikely that a Malaysian Airlines stewardess would have been prepared to fill in a form on the basis alleged by the Visa Applicant. And even if this occurred once, (however unlikely that appears to be), it is altogether unlikely that it happened twice in exactly the same way.
(g) In his application for a visa (T4) the Applicant did correctly indicate that he had been "convicted of a crime or offence in any country"; (T4, page 56). This subject was not raised at all in his interview with the Australian authorities (T14), which leads me to think that it is conceivable that this aspect of the application was overlooked.
(h) The Visa Applicant described himself as uneducated. He said that he had long ago given up smoking marijuana and that he had "seen the error of his ways".
Specifically as regards Exhibit R1, the Visa Applicant said that while clause 2 was untrue, some of the rest of it was true. He said also that following the theft conviction there were no further "wrongdoings". In fact, of course, there were two subsequent drug convictions.
(a) The evidence of Mr Ian King, although altogether credible, was not such that it could advance the matter very much. He described the Visa Applicant as "not very smart" and "not a genius". He also described him as being very shy. Mr King, like his wife, knew nothing about the criminal convictions in Malaysia until after the visa was refused.
(b) It was put to Mr King that Anna Robillard had noted that he was "a little apprehensive" about the Visa Applicant living with his family; (Exhibit A1; last paragraph on page 3). However Mr King said that he did not recollect any such apprehension, and that in any event, the Visa Applicant had fitted in well.
(c) Mr King had a clear recollection of the Visa Applicant being covered in dust in a manner applicable to a worker in the construction industry, and had no doubt that the Visa Applicant was, at some time prior to his becoming employed as a gardener, a construction worker.In respect of Exhibit A1, Anna Robilliard was not called to give evidence, and so that, as Mr Levingston accepted, it cannot be accorded much weight. There are indeed aspects of it which do not accord with the oral evidence before me. By way of one example, Exhibit A1 is in some respect critical of the Applicant's mother; the evidence of both the Applicant and the Visa Applicant indicated nothing but strong affection for their mother. I note also that Exhibit A1 refers to the Applicant as 'Debbie King'; this may perhaps have been a nickname, but if so there was no mention of it in the hearing before me.
It is clear that the Visa Applicant fails the character test; this is so because of his criminal record and having regard to section 501(6)(a) of the Migration Act 1958 (the "Act"), read with section 501(7) of the Act. In addition, Mr Leerdam contended that the Visa Applicant must also be taken to have failed the character test pursuant to section 501(6)(c) of the Act; (ie. having regard to the Applicant's past and present general and criminal conduct).
(a) I turn next to deal with the Direction under section 499(1) of the Act (T3), "Visa refusal and cancellation under section 501 – No 17", which is binding on me; I refer to it in these Reasons as "Direction 17". Clause references in this paragraph 8 should be construed as references to clauses in Direction 17. Since it is clear that the Visa Applicant fails the character test it is necessary for me to consider the discretion contained in part 2 of Direction 17.
(b) Clause 2.3 provides that the three primary considerations are as follows: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 relationship between a child or children and the person under consideration, the best interests of the child or children.
Clause 2.3(c) must be considered in relation to clause 2.5, which requires me to take into account:
(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).
(c) Specifically in respect of clause 2.6, (which relates back to clause 2.5), it is required that the crimes for which the Applicant was convicted be placed within the category of 'very serious'. I note that the circumstances in respect of which the drug crimes in question were committed are not at all clear to me. The Visa Applicant said that the drug convictions related to the smoking of marijuana; if this is so they would fall within clause 2.8(c), (the lighter sentence provisions). I believe that I am entitled to take note of the fact that Malaysia does impose heavy sentences for drug offences; that said, one has to wonder whether Malaysia would have imposed such heavy prison sentences for the mere smoking of marijuana.
(d) As to the theft conviction; the Visa Applicant's version, in his evidence before me, was that he was merely a passive bystander; on the other hand he admitted his affidavit (Exhibit R1), in respect of the conviction, was false. In any event, I am precluded from going behind the conviction: Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245 (per Branson, Lindgren and Emmett JJ). As to whether the sentence was higher than would have been imposed by an Australian court is difficult to assess, given that I am not clear as to the surrounding circumstances, and taking into account the fact there were two conflicting versions before me.
(e) The four convictions in question occurred many years ago; moreover, the Applicant has for the past 10 years been in good steady employment with the same employer and for which he is entitled to credit.
(f) It is unfortunate then that there have been more recent incidents of conduct which would appear to fall within clause 2.6(c). I refer in this context to the two false incoming passenger cards and the false affidavit (Exhibit R1), which was prepared and attested only seven months ago. It would seem likely, (on a balance of probabilities), that there have been breaches of section 234 of the Act, and in respect of which the maximum penalty is such that clause 2.6(c) could apply.
(g) As to deterrence, Mr Leerdam referred me to two relevant decisions in "last surviving relative" cases; in particular in Re Ivanayevska and Minister for Immigration and Multicultural Affairs [2000] AATA 489, Deputy President BM Forest said, at paragraph 36:
36. On the question of general deterrence I think it reasonable to conclude that cancellation of the visa may be viewed as a deterrent to others contemplating providing false and/or misleading information for the purposes of entry to Australia. In the administration of Australia's migration laws if prospective migrants gain a perception that truth in their dealings with the immigration department is not something that is taken seriously then the requirement for truthfulness as to their background is devalued when undertaking the task of making a proper assessment of potential migrants. This is of some significance in a system, as I understand, where the number of places available for permanent residence are limited; persons who act with honesty in their dealings with the system may well be somewhat disillusioned if, other considerations aside, it were thought that persons who act dishonestly are on an equal footing to them or will have their behaviour ignored. Consistent with this I accept that the community expectation would be generally that persons who have engaged in immigration malpractice of the kind exhibited by the Applicant not be entitled to a favourable exercise of the discretion.
And in Re Ha and Minister for Immigration and Multicultural Affairs [2000] AATA 896, Deputy President Purvis said, at paragraphs 51 to 54 (inclusive):
51. The Applicant has engaged in conduct namely the making of statements and the provision of false and misleading material, which to her knowledge were false. The commission by her of these acts may well constitute an offence pursuant to section 234(1) of the Act. Even be it that the legislation has recently been amended to increase the penalty and even be it the time limit for prosecution might in respect of some of the acts have expired the Applicant may still be liable to prosecution in respect of others of them. However as earlier mentioned the conduct of the Applicant is to be regarded under the rubric of general conduct and it was as has already been mentioned clearly conduct contrary to the provisions of the migration legislation. Her misconduct was very serious and was a violation of and a threat or challenge to the integrity of the migration procedures. The observance of truth in dealing with migration officers in relation to inter alia visa applications is of the utmost importance and this is especially so where the Applicant is the one who is aware of the actual situation. (See Lachmaiya v Department of Immigration and Ethnic Affairs. (1994) 19 AAR 148; Prasad v Department of Immigration and Ethnic Affairs (1994) 35 ALD 780 and Annecchini v Minister for Immigration and Multicultural Affairs (AAT 11838, 7 May 1997).
52. Falsity of information in the subject application and accompanying written material is also to be seen in the context of the Applicant's failure to correct or retract her lies and deceit until placed in a situation where she had no alternative even be it that she maintained indicia of her bad character by not being truthful as to the matter of the false marriage and divorce certificates.
53. The Respondent submits that whilst there is little likelihood of the Applicant engaging in further immigration misconduct if she were to be granted a preferential family visa thus fulfilling her immediate intent of gaining permanent residency in Australia, her actions in providing fraudulent information and documents indicates a disregard for Australian law which my be repeated in this country should she seek other benefits. The conduct of the Review Applicant in making a fraudulent statement in her sponsorship form is indicative of the way in which conduct the like of that committed by the Applicant can permeate into the conduct of others. There is a deterrence in recognition of bad conduct and a finding of bad character and it not being accepted by the community. A visa refusal sends a strong message to persons contemplating similar actions. The Tribunal accepts the submissions made on behalf of the Respondent. As was said in Re Santos and Minister for Immigration and Multicultural Affairs (2000) AATA 567, the strongest deterrent message possible should be sent to non-citizens as well as to any citizens who assist them in their illegal activities that they cannot anticipate a sympathetic consideration of their past misdeeds. It is this type of conduct which is "so deficient as to show it is for the public good to refuse entry" to those who engage in such behaviour.
54. The Respondent also submits that refusal of a visa would send a strong deterrent message to sponsors in Australia that their relatives will suffer if fraudulently based applications are lodged particularly where a sponsor has participated in providing false information.
(h) Specifically in respect of the primary considerations set out in clauses 2.3(a) and 2.3(b):
(i) The conduct for which the Visa Applicant was convicted in Malaysia was indeed serious; against this must be set the fact that the convictions occurred many years ago, and that there is evidence of reform at least in relation to the offences of which he was convicted.
(ii) At T1, page 9, the Respondent's delegate indicated that he thought that the likelihood of recidivism was not high. However, that statement was made in the context of the convictions in Malaysia, and without reference to the incoming passenger cards and the false affidavit; (and it was only at the hearing that the affidavit was admitted to be false). I am inclined to the view that the risk of recidivism is not high, at least in relation to the conduct for which he was convicted in Malaysia. However, this may not be so in relation to other aspects, and in particular as to his truthfulness in migration matters; as stated previously, the false affidavit was attested only about 7 months ago. As to his evidence before the Tribunal, the Tribunal is inclined, wherever there is conflict, to prefer the evidence of Mr King, and to a lesser extent that of the Applicant.
(iii) As to the expectations of the Australian community, clause 2.12 provides that "the Australian Community expects non-citizens to obey Australian Laws while in Australia". In this case I consider that the Australian community would, in all the circumstances, (and having regard to the more recent matters), expect me to deny this visa.
I turn next to deal with the general hardship provisions contained within clause 2.17. In this regard:
(i) The Visa Applicant is now a man of 46, (and he described himself as old); he has never married, lives alone, and wishes to spend his last years with his sister.
(ii) Exhibit A1 refers to stress to the Applicant because of her separation from her brother. As I said earlier, I am unable to give much weight to Exhibit A1 because Anna Robilliard did not give evidence; this said, it must be remembered that in respect of the years since they left home in the early 1960s, the Applicant and the Visa Applicant have spent most of them apart, and indeed for long stretches of time with either little contact, or indeed no contact at all.
(j) The Applicant has a good steady job in Malaysia. He is not old, (despite his evidence to that effect). He lives alone, presumably as a matter of choice, although his unfortunate childhood may have a bearing on the matter.
This is in many respects a tragic case. The Visa Applicant had an unfortunate childhood, followed by a life working in the markets in Taiping, (when not in prison). Accepting as I do that Malaysia almost certainly imposes far heavier sentences than would be the case in Australia, I would have been inclined to discount his criminal convictions in Malaysia, partly because they occurred so long ago, and partly because of the real evidence of reform. However, the two false incoming passenger cards and the false affidavit are much more recent and cannot be treated lightly. (Mr Levingston contended in his closing submissions that to grant a visa could not adversely impact upon Australia, having regard to the fact that the Visa Applicant would know that any convictions in Australia could result in his deportation. I do not consider that this is an argument which need be taken seriously.)
In the circumstances the primary considerations are not outweighed by the (secondary) hardship considerations. In any event the hardship considerations are not strong. The Visa Applicant said that he wished to be "looked after" by his sister. Such a desire is surprising when one considers his age.
The circumstances are such that, at this time, this is not a proper case for the exercise of the discretion in favour of the Visa Applicant. Accordingly, the decision under review is affirmed.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: ............................................
AssociateDates of Hearing 5 February 2001
Date of Decision 14 February 2001
Solicitor for the Applicant Mr Christopher Levingston,
(of Christopher Levingston & Associates)
Solicitor for the Respondent Mr Leonard Leerdam,
(of Sparke Helmore)
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