Lata and Minister for Immigration and Multicultural Affairs
[2002] AATA 788
•11 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 788
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1434
GENERAL ADMINISTRATIVE DIVISION
Re: INDAR LATA
Applicant
And: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Deputy President J. Block
Date:11 September 2002
Place:Melbourne
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 Sub-class 309 Spouse Visa, under s.501(1) of the Migration Act 1958, should be exercised in favour of the Jinendra Prasad.
(sgd) J. Block
Deputy President
IMMIGRATION – application for spouse visa – whether visa applicant not a person of good character – discretion under Part 2 of Ministerial Direction Nº 21
Migration Act 1958 ss.234, 235, 501
Migration Regulations
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
REASONS FOR DECISION
11 September 2002 Deputy President J. Block
1(a) The decision under review in this matter is the refusal by the respondent of an application by Jinendra Prasad ("the visa applicant") for a Class UF Spouse (Provisional) Visa (Sub-class 309) ("spouse provisional visa") under the Migration Regulations. In respect of that application, the visa applicant was sponsored by the applicant, who is his wife.
(b) The applicant was represented by Mr A. Krohn, of counsel, instructed by Mr P. Shulman, of Zolis, barristers and solicitors and the respondent was represented by Ms S. Law on 23 April 2002 and by Mr M. Brereton on 3 June 2002, solicitors, both of the Australian Government Solicitor.
(c) The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("T documents and ST documents"), together with the exhibits and documents which are detailed in clause 1 of the Applicant's Consolidated Submissions (referred to as the "first applicant's submissions" in clause 2 (c) below)
2(a) A decision, affirming the decision under review, was handed down by Deputy President Forgie on 21 February 2001; in respect of that decision ("the original decision") I was informed that the parties accepted the correctness of the background facts contained in clauses 3 to 22 (inclusive) of the original decision; it is convenient to set out those clauses in this decision as follows.
…
3. Some of the factual matters in this case were not in dispute between the parties. In light of that and on the basis of the evidence, I will set out the facts that form the background to the application.
4. Jinendra Prasad was born in Fiji on 29 August, 1967. He has a brother and sister who are older than he and a brother who is younger. His elder brother lives in Fiji but his sister, who is an Australian citizen, and his younger brother live in Melbourne. All of his brothers and sisters are married. Indar Lata was born on 17 September, 1970 in Fiji. She came to Australia on 22 February, 1988. She has a brother who is older than she and a sister and a brother who are younger. Her sister and her older brother both live in Australia. Her brother is an Australian citizen and her sister has a Bridging Visa permitting her to remain in Australia. Her younger unmarried brother continues to live in Fiji. On 24 May, 1990, she married Mr Philip Lewin and that marriage was later dissolved. She now works as a process worker in Melbourne.
5. Jinendra Prasad entered Australia on 23 July, 1995 on a Student (Temporary) (Class TU) Sub-class 560 Visa ("Student Visa") (T documents, page 124). That visa was valid until 17 August, 1997. A condition of the visa was that he "… must satisfy course requirements" (condition 8202) and that he not work for more than 20 hours per week (condition 8105). In July, 1997, Jinendra Prasad enrolled in a two year course at the Box Hill Institute of TAFE International ("Box Hill") leading to an Associate Diploma in Mechanical Engineering (T documents, page 125).
6. Jinendra Prasad left Australia for a short time on 27 March, 1997 and returned on 13 April, 1997 (T documents, page 103). He received a further Student Visa on 15 August, 1997 and it was valid until 2 August, 1999 (T documents, page 157).
7. On 9 April, 1997, Indar Lata was granted a Resident Return P Visa (Sub-class 154T) (T documents, page 160 and see also page 179 where it is described as "Residence II").
8. On 2 September, 1997, Jinendra Prasad's mother suffered from a cerebrovascular accident which affected the left side of her body (Exhibit C).
9. On 4 April, 1998, Jinendra Prasad again left Australia and returned to Fiji. He indicated that his "usual occupation" was "student" (Exhibit 2). On his return to Australia on 22 April, 1998, he stated that his "Intended length of stay in Australia" was 6 months, his country of residence was Fiji and that his "usual occupation" was "student" (Exhibit 3).
10. At the beginning of 1998, Jinendra Prasad enrolled in a marketing course at the City College in Melbourne. On 7 April, 1998, the City College notified the Department of Immigration and Multicultural Affairs ("the Department") that Jinendra Prasad's enrolment had been cancelled "… for failure to meet course requirements, or other reason" (T documents, page 98). Although the written form required that reasons be attached, none appears in either the T or ST documents. Upon receiving the City College's notification, the Department wrote to Jinendra Prasad advising him of it. In its letter of 27 May, 1998, the Department asked him to contact an officer to arrange an interview to advise why he had, or had not, failed to meet the course requirements and why he thought that his visa should not be cancelled (T documents, page 99).
11. On 4 June, 1998, Jinendra Prasad attended at Box Hill to pay $500.00 for tuition fees that had been outstanding for the 1997 academic year. Jinendra Prasad agreed to attend a meeting at Box Hill on 9 June, 1998. He paid the further tuition fees of $2,556.00 that had been outstanding for the 1998 academic year in three instalments in June, 1998 (T documents, page 102). The first of those instalments was paid on 5 June, 1998 and the third on 19 June, 1998. Although not addressed during the course of the hearing, there is some question as to whether or not the cheques used to pay the tuition fees were honoured (see paragraph 30 below).
12. Before the final two payments were made, Jinendra Prasad was interviewed by an officer of the Department on 10 June, 1998 (T documents, pages 112-115). On the same day, Jinendra Prasad's Student Visa was cancelled (T documents, pages 103-105 and 108-111). He immediately applied for, and was granted, a Bridging Visa E (Sub-class 050) until 24 June, 1998 (T documents, pages 106-107).
13. On 19 June, 1998, Jinendra Prasad lodged with the Immigration Review Tribunal ("IRT") an application to review the decision to cancel his Student Visa. He then made a further application for a Bridging E Visa on 24 June, 1998. Rather than specifying a particular date for the expiration of that visa, he asked that he be granted it to a time 28 days after the notification of the decision on review.
14. By an order of the Family Court a decree nisi that Indar Lata's marriage to Mr Lewin be dissolved was granted on 18 November, 1998 and became absolute on 19 December, 1998 (T documents, pages 165-166).
15. On 29 April, 1999, the IRT wrote to Jinendra Prasad enclosing a copy of the decision it had reached after reviewing the decision to cancel his Student Visa. The IRT advised him that it had before it the Tribunal's file and the Department's file and it noted that Jinendra Prasad and his solicitor had also attended a hearing. The IRT decided that he had failed to satisfy the requirements of his course in that he did not have an attendance rate of at least 80% (T documents, pages 121-128).
16. On 31 May, 1999, Jinendra Prasad lodged in the Federal Court an application for an order to review the decision of the IRT (ST documents, pages 1-5). There were four grounds of appeal. The first was that there was no evidence to support a finding of fact that Jinendra Prasad had not satisfied the course requirements at Box Hill. The second was that the IRT had applied policies that a student had to have an attendance rate of at least 80% and that a Student Visa would be cancelled whenever its holder failed to comply with condition 8202 of the Migration Regulations. The IRT should, Jinendra Prasad contended, have considered the evidence that he had attended classes but that his results had been withheld pending payment of fees and that he had been unable to pay those fees. The third was that the IRT had cancelled the Student Visa solely because of Jinendra Prasad's failure to comply with condition 8202 and had not considered the further question whether it should be cancelled. Relying on the second and third grounds, the fourth ground was that the decision was not authorised by the Migration Act.
17. On the advice of his solicitors, Jinendra Prasad then applied for a further Bridging E Visa. The period of the visa he sought was "until 28 days after the Federal Court decision is made or application is withdrawn" (T documents, page 132). He was granted a further Bridging E Visa for that period from 11 June, 1999 (T documents, pages 133 and 156).
18. On 24 November, 1999, the Minister wrote to Indar Lata advising that her application for a grant of Australian citizenship had been approved. He advised her that she would not acquire the legal status of an Australian citizen until she had made a Pledge of Commitment at a citizenship ceremony (T documents, pages 163-164).
19. On 6 December, 1999, Jinendra Prasad was, by consent, granted leave to withdraw his application in the Federal Court and ordered to pay the Minister's costs in the sum of $400.00 (ST documents, page 6). The withdrawal meant that his Bridging Visa remained valid until 28 days after the withdrawal. Whether this meant that it was valid only until 23 December, 1999, as mentioned in the reasons for decision of the Minister's delegate, or to a date over a week later is a moot point and of no relevance in this case. Jinendra Prasad left Australia with Indar Lata on 18 December, 1999 and so before the expiration of his Bridging Visa.
20. Jinendra Prasad and Indar Lata married on 28 December, 1999 in a civil ceremony at the court house in Suva, Fiji. On 30 December, 1999, Jinendra Prasad lodged with the Australian Embassy in Fiji an application for migration to Australia. He applied for a Spouse Provisional Visa on the basis of his marriage to Indar Lata.
21. On 29 February, 2000, Indar Lata became an Australian citizen when she attended a citizenship ceremony.
22. Jinendra Prasad and Indar Lata married in a traditional Hindi ceremony held in Fiji on 21 May, 2000.
(b) Following an appeal to the Federal Court, the matter was remitted to this Tribunal; it was heard by me in the first instance on 23 April 2002 ("first day") and thereafter on 3 June 2002 ("second day") by telephone link to Sydney. The hearings on the first day and the second day together comprise the second or remitted hearing.
(c) It was agreed following the second day that the parties would furnish me with written submissions; in due course, I received, first, the Applicant's Consolidated Submissions dated 1 July 2002 ("the first applicant's submissions"); secondly, the Respondent's Outline of Submissions dated 23 July 2002 ("the respondent submissions") and, thirdly, the Applicant's Submissions In Reply dated 14 August 2002 ("the second applicant's submissions"). I found the written submissions by the parties to be particularly helpful; when considered in conjunction with each other and the background taken from the original decision, they set out, in comprehensive fashion, those matters which are in issue between the parties. It is for this reason that I reproduce, in this decision, parts of those submissions.
(d) In respect of the first applicant's submissions, I include clause 1 (as to the documents and material before me) and clauses 35 to 82 inclusive, which are, in fact, the applicant's contentions; those clauses read:
1.The following are the documents and evidence before the Tribunal in the present review:
A: Material before the Tribunal from previous review
(a)The " 'T' Documents" in the previous Tribunal proceeding, No. V2000/484, relating to the applicant and her husband;
(b)" 'S' ", being Supplementary book of documents filed by the respondent in the previous Tribunal proceeding, No. V2000/484;
(c)" 'SA' ", being Supplementary book of documents filed by the applicant in the previous Tribunal proceeding, No. V2000/484;
(d)Transcript of evidence given on 4 December 2000 and 7 December 2000, in the previous Tribunal proceeding, No. V2000/484;
(e)Handwritten document;
(f)Exhibits A, B, C, 2 and 3 in the previous Tribunal proceeding, No. V2000/484;
B: Fresh material on the present review
(g)Decision of deputy President Forgie, in the previous Tribunal proceeding, No. V2000/484, dated 21 February, 2001
(h)Applicant's outline of submissions, dated 22 January, 2002;
(i)Respondent's Outline of submissions, dated 1 February, 2002;
(j)Evidence given to the Tribunal in the present review at hearing on 23 April 2002 and 3 June, 2002.
…
35.The Minister's Direction in paragraphs 1.9 to 1.11 deals with application of section 501(6)(c)(ii) of the Act. (T5, pages 34-36). It is notable that the other matters mentioned in the Minister's Direction in interpreting this aspect of the character test are very grave. They include involvement in activities indicating contempt or disregard for the law or for human rights, provision of bogus documents or making of false or misleading statements in connection with application for visa or government benefit, removal or deportation from Australia or in other country, dishonourable discharge from the armed forces of any country, and being charged with any criminal offence. It is notable that at 1.11, the Minister states in his Direction that "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…" (T5, page 35).
36.In interpreting the Minister's Direction, it is clear that because the general context of the Direction relates to very grave matters in general conduct of a person, a decision maker ought not lightly to construe an ambiguous statement on a declaration as a false or misleading statement for the purpose of determining that the person fails the character test. It is notable also that the decision maker himself has referred to 1.9(c) of the Minister's Direction, which refers to "whether the non-citizen has every made a false or misleading declaration on an approved form…." (T5, page 35).
37.A declaration is a solemn statement by an applicant of the kind which is found at the end of an official application form. In the present case the relevant declaration is found at T20, page 154. The paragraph of the Minister's Direction to which the decision-maker has referred is specifically focused on "declarations" and not on statements in general. There was no formal specific declaration by the applicant concerning his motives for departure from Australia after his previous visa, a student visa, had been cancelled. (It is true that para 1.9(b) refers more generally to the making of a false or misleading statement, but it is notable that the decision maker has not referred to this paragraph of the Minister's Direction).
38.In any event, in his application form for the spouse visa, the visa applicant very clearly stated that his "student visa was cancelled due to non-attendance of classes". (T20, page 153).
39.The sole ground upon which the decision-maker concluded that Mr Prasad failed the character test was that he made a false declaration to the effect that he had not ever "left any country to avoid being removed or deported." (T20, page 147).
40.The fact this applicant previously had a student visa cancelled, after he had completed more than 2 years of his course, is not itself a matter prescribed in the Minister's Direction for assessing whether a person passes the character test. Further, the cancellation of the student visa did not of itself render the visa applicant liable to deportation. There is no evidence that any deportation order was every made. There is no evidence that the visa applicant was ever told that he would be deported. In fact, the visa applicant could not have been deported because after the cancellation of his student visa, he was issued with a bridging visa E. He departed Australia in accordance with the terms on that visa after having withdrawn an application to the Federal Court for judicial review of the decision to cancel the student visa. The applicant could have remained in Australia for a considerable time longer than he did had he persisted with that Federal Court review. It was the visa applicant's own choice to depart Australia at the time that he did. In this sense, his departure is far more akin to the departure of any person who has a temporary visa to remain in Australia than it is to somebody who is escaping from deportation.
41.Any person lawfully in Australia with a temporary visa, as was the visa applicant, knows that if he or she over stays the visa, there is a risk of eventual detection, detention and deportation. It would be, however, a contorted use of language to say that such people who leave Australia voluntarily with no deportation order in force are doing so "to avoid deportation". It is in the applicant's submission at least a disingenuous use of the language by the decision-maker to say that the applicant departed to avoid deportation.
42.It would appear that the primary decision-maker had prepared for this interview with the intention of cross-examining the visa applicant with a view to obtaining the answer "yes" to the leading question that you "left any country to avoid being deported". (See handwritten memorandum of interview conducted by SMO Angus Pryor). (T26, page 197).
43.We are not provided with a transcript of the interview and there are various ways that the question may have been put to the visa applicant. It may well be that at the time of the completion of the application form for spouse visa, the visa applicant honestly stated, as many people who depart from Australia would state, that he had not left in order to avoid being deported. It may equally be that when the visa applicant was attempting honestly to answer the questions put to him at the interview by the Migration Officer, that the question was put to him and pressed in a way which suggested that as the visa applicant could eventually have been deported, then his departure was a departure to avoid deportation.
44.There would be far more force to the decision maker's conclusion that this visa applicant made a false or misleading statement if there had been no disclosure on the application form of the cancellation of the student visa. The visa applicant, however, did clearly and unambiguously disclose the previous cancellation of his student visa and disclosed also that it "was cancelled due to non-attendance of classes" (T20, page 153). On the same page, the applicant states that he did not receive help in completing the form. The disclosure of the circumstances of the cancellation of the student visa is therefore to be taken as his open, simple and honest disclosure of relevant circumstances including those which may tell against him.
45.In summary, the applicant strongly submits that the visa applicant clearly disclosed in the application form for spouse visa the circumstances relating to the cancelled student visa. When one looks at the substance of what is required by section 501(6) and the Minister's Direction concerning the character test, it is clear that this visa applicant has put before the decision-maker the relevant circumstances openly and honestly. It is a highly technical and almost perverse reading of the application form to set aside the open and honest disclosure of the cancellation of the student visa and to say that the statement that the applicant had never left the country to avoid deportation is a false or misleading statement.
46.In interpreting the phrase "false or misleading statement", an honest mistake is not the basis for an applicant to fail the character test. An honest mistake could include e.g. an error in an address or a date. An honest mistake can also include an error in understanding a question on a form. At the most, in the present application, the visa applicant can only be said to have answered "no" to a question when he might have put "yes" if he had understood the application form differently at the time he filled it in. There was no "false or misleading statement". There is no evidence of any intention to deceive the decision-maker. It therefore follows that the decision-maker erred in interpreting or applying the law when he concluded that this applicant did not pass the character test.
2: Response to the decision of Deputy President Forgie and further submission concerning the character test –
(a) Passenger card47.Apart from section 501(6)(c)(ii) concerning "past and present general conduct" of the visa applicant, the applicant submits there is no other element of section 501(6) which could operate to cause the visa applicant not to pass the character test.
48.The question of a false statement to the Department arose in the course of the hearing conducted before the Tribunal as previously constituted, because of the answer of Mr Prasad on 4th April, 1998 to a question on a passenger card. To question 10 "Usual Occupation", Mr Prasad wrote "Student". In fact, because of debt and worry about his mother's health, Mr Prasad had ceased study in March of that year and did not expect to return to study. He did not return to full time study and his Student Visa eventually was cancelled for not meeting course requirements. On the other hand., Mr Prasad's consistent evidence was that he continued to abide by the condition that he not work more than 20 hours per week in term time. In those circumstances, it is submitted that the answer "Student" to the question "usual occupation" should not be taken as false given that Mr Prasad had been studying in Australia from 1995 until August 1997, when he decided that his course at City College was not a good course. (Transcript, p. 96, lines 17ff.). To this extent the applicant submits that the present Tribunal should not conclude, as did the previous Tribunal ([115]-[116]), that the answer on the passenger card goes against Mr Prasad being of good character.
(b) Litigation and departure
49.In June, 1998, Mr Prasad was called in by the Department in response to information that he was not meeting course requirements, and subsequently his Student visa was cancelled. He sought review of this in the Migration Review Tribunal, and then in the Federal Court, but withdrew his Federal Court proceedings voluntarily and departed Australia in December 1999. He made those applications for review in good faith, and withdrew in good faith, acting on legal advice (Transcript, p. 151), although he could have remained in Australia for the whole course of the Federal Court proceedings and appealed had he chosen. This was accepted by the previous Tribunal. [114].
(c) Disclosure of status to wife
50.An issue also arose at the hearing before the Tribunal constituted by Deputy president Forgie that Mr Prasad had not, until just after their wedding, informed his wife, the applicant herein, that his Student Visa had been cancelled, and he was not studying or entitled to re-enter Australia. Both Mr Prasad and his wife gave evidence that they were not concerned with each other's past (Transcript, pp. 62-63; 144-5) and Ms Lata did not consider that Mr Prasad had deceived her. Ms Lata said "He wasn't actually misleading me. I was the one who didn't want to know about it. …he said to me a couple of times that he has got something to tell me, I said just forget it, the past is the past…" (Transcript, pp. 62, lines 16ff.). Ms Lata's persistence with her present review application, at great cost to herself, in money and separation from her husband in order to work to pay her debts, including $10,000 loan taken out in part for the wedding (Transcript, p. 26, lines 13-15), is a demonstration of the truth of her evidence; she is clearly strongly committed to Mr Prasad, and herself regards him as a person of good character in his dealings with her.
51.The applicant submits that the present Tribunal should accept the evidence of herself and Mr Prasad that they remain committed to each other and to their marriage, as did the previous Tribunal [122]. The Tribunal should not consider, in the light of the marriage continuing under adverse circumstances, that there was any intention of Mr Prasad to deceive his wife about his status, and should not draw the adverse conclusions on this point drawn by the previous Tribunal nearly 18 months ago.
(d) Continuing married life
52.Mr Prasad married and he also incurred significant expense in doing so (Transcript, p. 29, line 17; p. 103, line 20). He has now lived married for two and a half years, but involuntarily separated from his wife for almost all that time. The spouses did not live together until after the Hindu religious ceremony on 28 May 2000, in accordance with their beliefs (Transcript, p. 25, line 10; p. 102, line 25). It is submitted that in the circumstances, the continuing strong commitment of the spouses to each other, and Mr Prasad's work assisting his parents in their family business in Fiji (Transcript, p. 149), all strongly suggest that Mr Prasad is a man of good character, faithful to his beliefs and his moral commitments.
53.The applicant notes that in the reasons given by Deputy President Forgie for the earlier decision of the Tribunal, there is no consideration at all of the matters which are relevant to the exercise of the discretion of the Tribunal under the Minister's Direction. These matters are addressed below.
3 Mr Prasad passes the character test
54.The applicant on 23 April 2002 and Mr Prasad on 3 June 2002 gave evidence which the applicant submits shows past and present general conduct which strongly weighs in favour of Mr Prasad passing the character test.
(a) Generous care for sick father
55.Mr Prasad in his time of separation from his wife worked for his living as a mechanic in Suva for seven months, until he left his job in order to provide day and night care to his father in hospital, washing him, helping him to eat and giving medication. He then has continued to help his father at home, e.g. with showering and massaging, as his father has not made a full recovery. This remains the situation. While not returning to paid work, he also has helped in the family business, without pay.
(b) Constancy to wife.
56.He has found the continuing separation from his wife "very hard" because of his love for his wife. Both have maintained contact with frequent telephone calls. Each calls the other, several times a week, despite Mr Prasad having to go to a neighbour's house in order to use the telephone.
(c)Responsibility in future plans
57.Both Mr Prasad and Ms Lata have considered their future. Both want to settle in Australia, work to pay their debts, and raise a family. Mr Prasad gave evidence that he would try to work as an automotive engineer/ mechanic, but that if he could not get such work he could and would work again at his sister's "7-11" shop. He would send money from his work in Australia home to his parent's in Fiji to assist them.
(d)Difficulty in previous studies
58.The applicant submits also that the difficulties of Mr Prasad with his studies do not tell against his character. In this connection it must be noted that he studied, although not with sufficient success to complete his qualification on time, from his arrival in Australia until the end of 1997. This was accepted by the previous Tribunal. [112] His compliance with his course requirements prior to 1998 was never an issue raised against him by the respondent. His evidence on 3 June 2002 should be accepted that he found difficulty in the research for the Diploma, and later the Associate Diploma, at Box Hill College. In addition, late in 1997 he had the combined worry about his mother's health and his financial difficulties after his brother crashed Mr Prasad's car, leaving him in debt. His decision to attempt the course at the City College may not have been wise, but it does not reflect ill on his character; his decision to leave that course as not being a course seriously taught reflects well on his character.
59.It is true that Mr Prasad did not maintain his studies in 1998, but his evidence about his worries and concern especially about his debts should be taken as mitigation of his failure to meet course requirements as a condition of his visa in the first half of 1998, the only breach of visa conditions relied upon by the Minister in cancelling his Student Visa.
(e)20 Hour work condition
60.The Tribunal should accept the evidence of Mr Prasad on 3 June 2002 clarifying his previous evidence that although he did occasionally work more than 20 hours/week while on his student visa, he did so only during vacations when that was permitted. Only ever in this sense was "in breach" of the 20 hour limit. It is notable that the Department never alleged any breach of the 20 hour limit on work as a basis for cancelling his visa.
IN SUMMARY, MR PRASAD PASSES THE CHARACTER TEST
61.If the submission made above in detail in response to the reasons of the decision-maker is accepted, then the Tribunal must necessarily find that the visa applicant passes the character test. Taking proper account of the relevant circumstances of the answers of Mr Prasad to questions on Departmental forms, there is no grave fault of the kind given as examples of matters which might indicate a failure of the character test in the Direction. (See the gravity of matters which are regarded as indicating that a person may not pass the character test, in paras 32ff. above.) The failure to meet the course requirement condition of the student visa was in the context of significant worry about Mr Prasad's mother, and about money which made it impossible for him to settle to study in 1998 after having engaged in study from 1995 to 1997.
62.It is stressed that paragraph 1.11 of the Direction requires that past and recent good conduct must be taken into account in assessing whether the visa applicant passes the character test: "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. Thus both good and bad conduct must be taken into consideration…" In the present case, there is much evidence of consistent continuing good character of Mr Prasad: commitment to his wife, concern for his parents, concern to pay his debts, acting in accordance with his religious beliefs in difficult circumstances, acting in good faith on his previous review application. There was also significant honest dealing with the Department from the time that the student visa was cancelled in that there was honest disclosure on the spouse visa application of the previous visa cancellation for not meeting course requirements.
4 IN THE ALTERNATIVE, DISCRETION IN FAVOUR OF MR PRASAD BEING GRANTED VISA
63.If the applicant's submission above is not accepted and the Tribunal considers that the applicant does not pass the character test, then it is necessary to deal with the considerations governing the exercise of the discretion conferred under section 501(1). As noted above, the Tribunal is bound here by the provisions of the Minister's Direction issued under s. 499 of the Act, in the current version, Direction 21 of 23 August, 2001. An earlier version, Direction 17, is reproduced in the T documents before the Tribunal on the previous review as T5. The versions are substantially identical, save that the later version incorporates specific reference to certain international Covenants and Treaties. Under the Direction there are "Primary considerations", and "Other Considerations" to be balanced in exercising discretion if a person does not pass the character test.
(a)Primary Considerations:
(i) Protection of the Australian community
64.The first primary consideration is that "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… (Direction para 2.4, T5, page 39).
65.In the submission of the applicant, this is a consideration which simply cannot apply to the kind of allegedly misleading statement made by the applicant, or anything else urged by the respondent at paragraph 5 of the respondent's submissions. The present case is not one of "blatant disregard for Australia's immigration laws in knowingly failing to comply with the conditions of his student visa…" especially given the antecedent compliance with all conditions up to the beginning of 1998. The applicant submits there is no evidence which makes out any of the other matters alleged by the respondent in paragraph 5 of the submissions, i.e. bad faith in the IRT and Federal Court proceedings or disclosure of his reasons for departing Australia.
66.All of the matters dealt with by paragraphs 2.6 ff. of the Direction are extremely grave, as they comprise trafficking and drugs, organised crime, serious crimes under the Migration Act, sexual assault, armed robbery, murder, manslaughter, assault, terrorist activity, kidnapping, blackmail, extortion, arson, serious theft, crimes against children, violent crimes, and ancillary crimes to such serious crimes.
67.Even taking the worst possible view of Mr Prasad's character on the evidence, the seriousness of the conduct by Mr Prasad is small in the context of the grave matters mentioned in the direction. MR Prasad has never been charged with any offence under s. 234 of the Act (false or misleading statements or papers), and for the reasons outlined above, it is submitted that it was not his intention to mislead the Australian authorities in a material particular, and he has not been guilty of such an offence, not having the requisite intention. His later open disclosure of the cancellation of his student visa in his application for the spouse visa tends to support his character as honest in dealing with the authorities.
68.Similarly, on the evidence before the Tribunal, Mr Prasad is not guilty of any offence against s. 235 of the Act, as his evidence should be accepted that he never worked beyond 20 hours/ week save during vacations when his visa permitted this. He has never been charged with such an offence, nor was it ever advanced as a breach of his visa or a reason for cancelling his visa.
69.There is no evidence of any other offence ever committed by Mr Prasad against the Migration laws of Australia, or of any other offences at all.
70.The risk of recidivism is low or non-existent. (Direction para. 2.10) Mr Prasad has behaved honestly with the Department in his spouse visa application, as noted above. He disclosed honestly the adverse fact of a previous visa cancellation. (He will also not be in a position with any motivation to mislead the Department if the visa is granted.)
71.General deterrence (Direction para. 2.11) will not be achieved if the visa is refused; Mr Prasad is not notorious and his case will receive no publicity. Mr Prasad can not be said to have been guilty of an offence by the conduct which has been urged against him– he has not even been charged – nor part of a criminal scheme within the terms of para. 2.11 of the Direction.
(ii) Expectation of the Australian community
72.It is similarly the strong submission of the applicant that the consideration expressed in para 2.12 of the Minister's Direction do not apply in the present case. That paragraph provides in part that "Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community will expect that the person would not be granted a visa or should be removed from Australia". (T5, page 43).
73.It cannot be the case that the Australian community would expect the refusal of a visa because the visa applicant answered "no" to the question whether he had ever left a country to avoid deportation when, as discussed in detail above, the visa applicant held a valid bridging visa and departed Australia lawfully when there is no evidence of any deportation order being made or deportation being arranged. The applicant repeats and emphasises that the visa applicant had openly, truthfully and honestly declared that he had previously had his student visa cancelled. Having done so, it cannot be that the Australia community would expect him to be refused a visa. Similarly the Australian community cannot expect the refusal of a spouse visa because of the answer "Student" to the question about usual occupation in the circumstances of this case, or because of his failure, for 1 semester, to maintain course requirements.
(iii) Balancing Other Considerations (Direction para. 2.17)
74.Direction para. 2.17 (a) & (d) In dealing with other considerations, it is manifest that there is major disruption to the visa applicant's family and ties to the Australian community because he has his wife permanently resident in Australia and some siblings in Australia. In assessing the force of this consideration balanced against the primary considerations (Protection and Expectations of the Australian community), this is a very heavy consideration which weighs the more strongly given the specific reference in Direction para. 2.17 to Articles 23.1 and 17.1 of the International Covenant on Civil and Political Rights, especially Article 23.1 which provides that "The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State". Both the applicant and her husband have suffered much in the course of their lives. They have against the odds found love and commitment expressed in their marriage. It is a serious obligation on the Tribunal, as an organ of the Australian Commonwealth, to consider the right of Mr Prasad and Ms Lata, as a married couple, to expect that the Australian authorities will support the institution of the family in general and their family in particular. To refuse a husband the right to reside in Australia with his Australian wife is recognized by the Minister in this paragraph of the Direction as a grave and exceptional step. The applicant submits that the circumstances of this case weigh strongly against the separation or other hardship to spouses which would result in this case if the visa is refused.
75.Direction para. 2.17 (b) There is no evidence that the marriage of the visa applicant to the review applicant is not genuine, and overwhelming evidence that the marriage is genuine, as noted above. (The conclusion reached by the previous Tribunal [122] that the marriage is genuine should be accepted and the contrary view of the primary decision maker on this point should be rejected by the Tribunal. If further evidence or information is required by the Tribunal in order to assess the genuineness of the relationship, then that evidence can be provided. It is noted that the decision-maker has not dealt with the issue of the genuineness of the marital relationship save in connection with the character assessment. The decision-maker did not determine the genuineness of the relationship for the purpose of assessing the substantive application for a spouse visa.) As stated above, refusal of the visa in this case is a grave matter, both in itself and in the light of Australia's international obligations.
76.Direction para. 2.17 (c) There is evidence of serious hardship to the spouse in Australia if the visa is refused. She would have significant hardship in moving to Fiji (Transcript pp. 103-4, and evidence of 23 April 2002, 3 June 2002), even if she were free to do so after paying off her debts. She would face that difficulty or further prolonged separation from her husband.
77.Direction para. 2.17 (e), (f) & (g) There is no evidence that the visa applicant is attempting to evade any legal obligations or liability. Indeed, he wishes to come to Australia in part to work in order to pay his debts and to assist with his wife's debts.
78.Direction para. 2.17 (h) There is significant evidence of rehabilitation and recent good conduct, especially in caring for his sick father and working without pay in the family business, noted above.
79.Direction para. 2.17 (i) & (j) The application is for a permanent visa, a life changing matter for both Mr Prasad and Ms Lata. This weighs strongly in favour of exercising discretion to grant the visa.
80.Direction para. 2.17 (k) Mr Prasad was not in the past formally advised by an officer of the Department that his conduct could bring him under the provisions of s. 501.
CONCLUSION ON EXERCISE OF DISCRETION
81.In the result, Ms Lata submits that all the other circumstances relevant to the exercise of discretion outweigh any concern about the protection and expectations of the Australian community; when finally balanced, all considerations are strongly in favour of not refusing the visa.
III:RELIEF
82.As noted above, the primary decision-maker did not determine anything other than whether the visa applicant passed the character test. There was no detailed consideration as such of whether the parties were spouses within the meaning of Regulation 1.15A of the Regulations. There was no detailed assessment of evidence relating to the spouse relationship on the part of the review applicant, the wife. In these circumstances, the appropriate relief is that the Tribunal set aside the decision and remit the application to the respondent Minister for further consideration according to law with the direction that the visa applicant does pass the character test, pursuant to the power in s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975.
(e) In respect of the respondent submissions, I include clause 1 (which contains a useful chronology), clause 2 (which contains some useful references to the evidence at the original hearing) and clauses 18 (Other Considerations), 19 to 21 (Previous Tribunal Decision) and 22 to 25 (Evidence of 3 June 2002); those clauses read as follows:
1. Ms Indar Lata (the Review Applicant), applies to the Administrative Appeals Tribunal (the Tribunal), pursuant to s500(1)(b) of the Migration Act 1958 (the Act), for review of a decision by a delegate of the respondent made on 30 March 2000 pursuant to s501(1) of the Act to refuse the application of her husband, Mr Jinendra Prasad (the visa applicant) for a Class UP Subclass 309 Spouse (Provisional) Visa.
Chronology of relevant facts
21/7/95Visa applicant arrived in Australia on a Subclass 560 Student visa valid until 17/8/97
15/8/97Visa applicant granted a further Subclass 560 Student visa valid until 2/8/98
17/10/97City College sends visa applicant a written warning regarding attendance (T115)
4/4/98Visa applicant departs Australia (T183)
7/4/98City College advises DIMA of cancellation of applicant's enrolment (T98)
22/4/98Visa applicant re-enters Australia
10/6/98Delegate cancels visa applicant's Student Visa under s116 for failure to satisfy visa condition 8202
19/6/98Visa applicant applies to Immigration Review Tribunal ("IRT") to review cancellation decision (T122)
24/6/98Visa applicant granted a BVE valid for 28 days after notification of review decision
/9/98Visa applicant and review applicant meet
27/4/99IRT affirms cancellation decision (T121-128)
31/5/99Visa applicant applies to Federal Court for Judicial Review of the IRT decision (S1-5)
11/6/99Visa applicant granted a BVE (T131-133), (T156)
6/12/99Federal Court grants visa applicant leave to discontinue (S6)
18/12/99Visa applicant departs Australia
28/12/99Visa applicant marries review applicant in Suva (T174)
30/12/99Visa applicant lodges a Subclass 309 spouse visa application (T137-174)
16/3/00Applicant interviewed by delegate in respect of visa application.
30/3/00Delegate refuses visa applicant's application pursuant to s501 (T201-205)
26/04/00Visa applicant applies to AAT for review
21/02/01Visa refusal affirmed by AAT (DP Forgie)
Application to Federal Court to review AAT decision
6/09/01Matter remitted from Federal Court to AAT by consent
23/4/02AAT holds hearing
3/6/02AAT holds further hearing
Relevant Facts
2. The respondent particularly relies on the following salient facts:
(a)The visa applicant was granted a temporary Student Visa in about July 1997 valid until 17 August 1997, which enabled him to travel to, and remain in Australia to study providing he met certain conditions of the visa which relevantly included requirements that he complete his studies in a manner prescribed by regulation including condition 8202, and that he not work for more than 20 hours per week (condition 8105).
(b)The visa applicant was granted, on 15 August 1997, a further temporary Student Visa valid until 2 August 1998 which permitted his continued presence in Australia for study on the same terms as previously allowed.
(c)Soon after, in September 1997, the visa applicant ceased attending classes at Box Hill Institute of TAFE, where he was enrolled. He took no steps to notify the respondent or the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") that he had ceased attending classes. He failed to sit his exams at the end of that semester.
Notes of an interview with the visa applicant at an interview conducted by the decision maker on 16 March 2000 [see folio 198 of T-docs] record that the applicant said the following in relation to his studies in 1997:
In 9/97 mother was paralysed. Thought she'd need $ stopped attending class, didn't attend exams - did not pass a single unit.
At the hearing before the AAT on 7 December 2000, the applicant gave the following evidence:
. . .so that the afternoon classes were all the classes that you enrolled in for that semester?---Yes,
And you completed those up to about November 1997?---Yes,
And then that was the end of the teaching year?---Yes.
You didn't sit your exams at the end of that semester?---No, I did my exams for those subjects which I did.
And then - did you pass all of those exams, Mr Prasad?---Yes, I did.
Well, what, at that point, did you have to do to complete your Associate Diploma?--Sorry?
What studies did you still have to undertake at that point to complete your Associate Diploma?---We need 30 units to complete our Associate Diploma and I did 30 units but I couldn't get the result for one unit.
So you believe that you finished your studies at the end of the semester in 1997 at Box Hill?---Yes I do [transcript page 123].(d)In about October 1997, Central College notified the visa applicant that he had failed to satisfactorily attend his course (T115) and that in the event that he did not make arrangements to pay tuition arrears owing they would report that failure to the Department. The visa applicant took no steps to rectify that failure, nor did he advise the Department that he had ceased attending classes. The visa applicant had no intention of returning to study after the first week of classes in 1998.
At the hearing before the AAT on 7 December 2000, the applicant gave the following evidence in response to a question put by the Deputy President:
Back in the beginning of '98, you have given evidence that you attended, perhaps for a short time, . . . you couldn't remember exactly how long or how many classes but you thought perhaps it was a week, did you think that it was possible after that, that you might resume attending classes at Box Hill or anywhere else?---No [See transcript at page 153].(e)The visa applicant was continuously employed during this time at a store where he would from time to time work in excess of 20 hours per week (T197). The visa applicant did not advise the Department that he was impermissibly working more than 20 hours per week during periods when classes were scheduled.
At the hearing before the AAT on 7 December 2000, the applicant gave the following evidence under cross examination:
And you knew that from time to time you were breaching the condition that said you couldn't work more than 20 hours a week?---Yes, but I think I had worked less than 20 hours during school.
Yes, but you knew you were breaching that condition from time to time?---Yes.
I am sorry, I don't think I heard the answer, Mr Prasad?---Sorry?
Mr Prasad, you agree that from time to time you were breaching the condition that you not work more than 20 hours a week?---Yes.
But you still applied to the IRT to review your cancellation decision?---Yes.
Notwithstanding that you knew that the conclusion of the delegate, that you had breached your visa condition, was correct?---Yes, because - but I had reasons, so I told him. [See transcript at pages 130-131].
In her decision of 21 February 2001, DP Forgie found that the visa applicant was in breach of the conditions of his student visa in regard to meeting the requirements of his course of study [see decision at paragraph 108] and in regard to impermissibly working in excess of 20 hours per week "on occasion" [see decision at paragraph 117].
The Respondent notes that even though the allegation of working in excess of 20 hours per week was not made by the delegate, the evidence before DP Forgie led the AAT to this conclusion.
In the hearing before DP Block on 3 June 2002 the visa applicant submitted that he only worked more than 20 hours per week when classes were not in session and was entitled to do so. This is in contradiction to the evidence given to DP Forgie that he worked in excess of 20 hours per week "on occasion", and his admission that he knew he was breaching the condition of his visa by doing so. The visa applicant before DP Forgie did not submit that he only worked in excess of the condition during vacation time and that he believed he was entitled to do this. Rather, he admitted that he was in breach of the condition.(f)On 4 April 1998 the visa applicant departed Australia for Fiji. On 22 April 1998 the visa applicant returned to Australia. Upon reentering Australia, the visa applicant produced his passport to an officer of the Department containing a copy of his temporary student visa. On each occasion he completed a form representing that he was a bona fide student and handed the form to a Departmental officer. The applicant did not advise the Departmental officer that he had ceased attending classes or had and intended to continue working in excess of 20 hours per week. In substance, the visa applicant represented to the Departmental officer that he was a bona fide student.
In her decision of 21 February 2001, DP Forgie came to the following finding in regard to this matter:
. . . it seems to me that Jinendra Prasad did not see himself as a student in April 1998. He saw himself as a person who had a student visa but that is a very different thing from being a student. It follows that I find that Jinendra Prasad falsely stated that he was a student on both his departure and arrival cards in April, 1998 [see decision at paragraph 116].(g)The visa applicant has admitted that he had ceased to attend classes by late 1997. Notwithstanding that fact, the visa applicant:
(i)applied to the IRT on 19 June 1998 for review of the decision to cancel his Student Visa;
(ii)applied to the Federal Court on 31 May 1999 for review of the IRT decision affirming that cancellation.
(h)Shortly after each of the above applications, the visa applicant sought and obtained a Bridging Visa permitting his continued presence in Australia until 28 days after the resolution of each respective application.
(i)The Federal Court dismissed the visa applicant's application for review of the IRT decision by consent on 6 December 1999. The visa applicant consented to an order that he pay the respondent's costs of $400.00. He has failed to do so, despite a request from the respondent's solicitor.
(j)The visa applicant's last Bridging Visa, entitling him to remain in Australia expired on 3 January 2000. Failure by the applicant to depart Australia by that date would have rendered him liable to detention and removal from Australia under the Act.
(k)The visa applicant departed Australia for Fiji on 18 December 1999. At a hearing before the IRT, he made the unsurprising admission that he did so to avoid being deported or removed from Australia (T147).
(l)On 28 December 1999, the visa applicant married the review applicant in Fiji.
(m)On 30 December 1999, the visa applicant applied for a Subclass 309 Spouse Visa on the basis of that marriage. On the application form completed by him and submitted for that purpose, he denied ever having left Australia to avoid removal or deportation. On the final page of that form, he signed a declaration that all answers given by him on that form were true and correct. That declaration was made only 12 days after he had departed Australia to avoid removal.
…
Other considerations18. Paragraph 2.17 of the Ministerial Direction mandates the taking into account of other considerations. The Ministerial Direction states the Government's view that where relevant, it is appropriate that these other considerations be taken into account but that generally they be given less individual weight than that given to the primary considerations. In respect of such considerations the respondent submits:
(a)The majority of the visa applicant's family, including his parents and two of his siblings, remains in Fiji. The visa applicant has no business interests in Australia, having resided in Fiji all of his life, except for the period when he was permitted temporary entry to Australia for the express purpose of studying. The visa applicant has two siblings in Australia, neither of whom is dependent upon him. (paragraphs 17(a), (c) and (d))
(b)The delegate of the respondent found that, on balance, the relationship between the visa applicant and the review applicant was not genuine and continuing. In any event the review applicant met the visa applicant at a time when his temporary student visa had been cancelled and the visa applicant was only permitted to remain in Australia while seeking review of that decision. The review applicant married the visa applicant in Fiji, after the visa applicant had left Australia to avoid removal, and in the knowledge that in the absence of being granted a further visa, the visa applicant had no right to return to Australia.
The respondent notes the evidence given by the review applicant that she was not aware of the visa applicant's visa status until after they were married and submits that this evidence is simply not credible in the circumstances. It should be noted that the review applicant gave inconsistent evidence as to when she became aware of his true circumstances, stating at one point that she became aware on 18 December 1999 at the time they departed Australia to travel to Fiji [see transcript at page 41] and at another that she did not become aware until 29 or 30 December 1999 after their marriage took place in Fiji [see transcript at page 52-53].
. . . So on the day that you got married to your husband you thought he was a student?---Yes.
And when did you find out otherwise?---After I got married.
Yes, how soon after?---A day or so.
So, probably around 29 or 30 December- - - ?---Yes.
- - - perhaps while you are sitting around the application form and filling it out?---Yes, that is the time, yes.
And then for the first time he told you that he wasn't really a student and that he dropped out over two years ago and that he had his student visa cancelled?---Yes.
And you didn't think anything of that?
. . .
What I am putting to you, Ms Lata, is that you have known since some time prior to your departure in December last year from Australia that you needed - that your fiancé was not a student and that he needed, in order to stay in Australia, to become your husband?---No, I didn't know that until after my marriage - got married - I knew that he wasn't a student.
Now, Ms Lata, if Mr Prasad is not allowed to return to Australia, would you return to Fiji to live with him?---Yes, I am prepared to live in Fiji but if only the Australian Government helps with my loan and my expenses in Fiji.(c)As can be seen from the above extract, the review applicant, who is of Fijian origin herself, has indicated she might be prepared to return to Fiji to live with the visa applicant (paragraph 17(b)), but that this would create hardship for her because of difficulties she would then face in paying certain debts.
It is the respondent's submission that the evidence given by the review applicant in regard to her debts at the hearing of this matter on 23 April 2002 was inconsistent and unconvincing. Further, it is evidence only of hardship of the review applicant's own making. Accordingly, it should not be relied upon by the Tribunal as evidence of hardship relevant to the discretion to be exercised by the Tribunal.
(d)The respondent submits that any evidence of recent good conduct by the visa applicant should be considered in the light of his preparedness to give misleading evidence before the Tribunal in regard to the review application itself, as found by DP Forgie (paragraph 17(h)).
The respondent submits that these considerations support the conclusion pointed to by the primary considerations that the visa applicant should be refused admission to Australia.
Previous Tribunal Decision19. It is noted that this matter has returned to the Tribunal for consideration following a remittal from the Federal Court by consent of the parties. The respondent did not consent to the remittal as a result of any concerns in relation to the findings of fact made by the previous Tribunal, which the respondent submits were sound and without error. The respondent consented to the remittal of the matter only on the basis of a narrow technical legal error disclosed in the reasons of the previous Tribunal. At paragraph 124 of its Reasons, having found that the visa applicant was "not a person of good character" the previous Tribunal stated as follows:
That means that I must consider whether Jinendra Prasad should be issued with a visa even though he does not satisfy the good character test.
20. On the basis of the judgment of Spender J in Ross v Minister 107 FCR, this would appear to be a misstatement of the task facing the Tribunal. In that case, Spender J found that a similarly worded submission to have misdirected the Minister in equating a power to cancel a visa with an obligation to cancel. According to Ross, section 501 of the Act provides the Minister with a discretion to cancel a visa in circumstances where a person fails the character test. In such circumstances, the Minister can exercise his discretion to cancel. By analogy with this reasoning, s. 501 of the Act provides the Minister with a discretion to refuse a visa with this reasoning in circumstances where a person fails the character test. In such circumstances the Minister has a discretion to refuse a visa.
21. It was on the basis of a perceived error of this kind that the respondent consented to the remittal of the matter to the Tribunal for reconsideration. The respondent did not perceive that there was any error in the treatment of the merits of the case by the previous Tribunal.
Evidence of 3 June 2002
22. At the hearing before DP Block on 3 June 2002 the visa applicant provided evidence of recent good character in relation to his activities in caring for his sick father and supporting the family generally. The visa applicant testified that he could not look for work because of the care he was giving to his father. He also testified that he could not find work in Fiji but would be able to return to work at his sibling's 7-Eleven store in Melbourne and would continue to support his family by sending money home.
23. The respondent submits that in cross examination the visa applicant admitted that both he and his wife owe substantial amounts of money and would still be relying on members of the family to assist financially. The visa applicant agreed that if his wife was to travel to Fiji and assist with caring for his parent, he would be able to look for work. There is, the respondent submits, no evidence that the review applicant could not travel to Fiji to be with the visa applicant.
25. Moreover, the applicant's evidence of recent good conduct relates only to his interaction with and attitude towards members of his own family and does not bear on his willingness to put his own interests above those of the Australian community, as found by DP Forgie.
25. The respondent contends that hardship to the applicant and sponsor is outweighed by the countervailing considerations in this case.
In respect of the second applicant's submissions, I include only clauses 16 to 20, reading as follows:
…
III: REPLY TO THE RESPONDENT'S CASE ON THE CHARACTER TEST
A: Studies16. The heart of the respondent's submissions are set out in paragraphs 5, 6 and 7 of his submissions. The respondent first relies upon "blatant disregard for Australia's immigration laws in knowingly failing to comply with the conditions of his student visa, and failing to bring that failure to the notice of the respondent or the Department." Mr Prasad, as submitted above, was not in breach of the work condition of his visa. He complied for 2 years with the conditions relating to course requirements and only for a semester when he had serious external worries did he fail to meet those requirements. The Migration Act imposes no obligation on a person to report to the Department that he is not complying with conditions on his visa. In any event, students are aware that their attendances and progress are monitored by the Immigration Department. As submitted above, it was not Mr Prasad's freely chosen and deliberate course to abandon progress in his studies. This was something he found to his distress had occurred as a result of pressures upon him. He had invested time, effort and money over two years in his course which he had undertaken in the desire to get a qualification. The unhappy end of Mr Prasad's studies was a misfortune, not an indication of bad character within the meaning of the Act.
B: Passenger Card
17. The second matter urged against Mr Prasad is his alleged representation, in his answers on passenger cards "that he was a bona fide student".
18. Given that one of the questions on the passenger card relates to "usual occupation" and that Mr Prasad had been beyond doubt attempting to pursue his studies in Australia for two and a half years, an answer which was influenced by the phrase "usual occupation" should not be considered by the Tribunal to have been dishonest for an attempt to deceive.
C: Application to review cancellation of Student Visa
19. The respondent complains of Mr Prasad's "persistence with prolonging the practical effect of his visa cancellation by pursuing applications to the IRT and the Federal Court until he was ready to depart Australia, marry and apply for a spouse visa when the applicant knew and admitted that he had failed to comply with the conditions of his visa."
20. As submitted above, Mr Prasad has consistently given evidence that in seeking review he acted on legal advice. When he discontinued he acted in good faith on legal advice. Had he been attempting to prolong to the last possible moment a hopeless application, he would not have withdrawn his application for review to the Federal Court at the time that he did.
3(a) Oral evidence was given on the first day by the applicant. In respect of her evidence, some considerable time was spent on an examination of her financial affairs. It appears that she has managed to accumulate a burden of debt to various creditors, which, having regard to her earning ability, can only be described as astonishing. Her precarious financial position can be attributed, in part, to legal expenses; it can probably also be attributed, in part, to her expenditure of some $10,000 on her wedding in Fiji to the visa applicant. As to how a person of her limited financial resources and limited earning power was able to persuade a bank lender to provide her with $10,000 in respect of wedding expenses, was not in evidence before me. It is relevant, in my view, that a considerable amount is owed to Centrelink. Clause 80 of the original decision reads as follows:
…
80. Indar Lata said that she is prepared to live in Fiji but only if the Australian government is prepared to help her repay the money she has borrowed and the expenses she would incur. Her only asset is a 1984 Toyota Corona. She owes $3,000.00 on credit cards. The repayment on the NAB loan is $330.00 each month and she also pays $240.00 to Centrelink each month to reduce a debt she owes it because she received an unemployment benefit to which she was not entitled. There is approximately $4,000.00 outstanding on the debt to Centrelink. The debt arose from events occurring in 1995 and 1996 and she said that she received a letter from the Department of Social Security telling her that she owed $10,000.00. She said that the letter did not state the basis for the debt and she just started paying $60.00 each week. Although she did not seek review of the decision, she said that she sought legal advice as to her liability to pay the amount. Indar Lata said that she knew that she was not entitled to the money but not why she was not entitled to it.
(b)It will be noted that the Centrelink debt would appear to relate to the payment of moneys received by the applicant and to which she was not entitled. She said in evidence before me that the Centrelink debt was originally $10000 but that it has been reduced by periodic payments to a "couple of thousand". There was no evidence before me as to how she came to receive those moneys in the first place.
(c)Her statement before Deputy President Forgie, that she would be prepared to live in Fiji conditionally on financial assistance from the Australian Government in order, inter alia, to pay her debts, does not reflect well on her, more particularly, having regard to the fact that she herself came to Australia originally on a spouse visa referrable to her first husband.
(d) Having regard to the manner in which she was cross-examined, there does not appear to be any outstanding issue as to the genuineness of the marriage between the visa applicant and the applicant. Deputy President Forgie held that the marriage was genuine and I agree. The applicant gave evidence of regular communications following her return to Australia after her marriage to the visa applicant in Fiji.
(e) Deputy President Forgie, in the original decision, went into some detail as to the extent of the applicant's knowledge of the visa applicant's status at various relevant times. I find it difficult to believe that the applicant, herself a spouse visa entrant into Australia, was not aware of the true position.
(f) In general terms, I did not find the applicant's evidence impressive. It seems likely that she obtained money (from Centrelink) to which she was not entitled. It must be remembered, though, it is not the character of the applicant which is (except, perhaps peripherally) in issue before me, but rather the character of the visa applicant.
4(a) The visa applicant gave evidence by telephone linked to Fiji. In respect of his evidence, his original schooling took place in Fiji. He was not sure about when he completed secondary school. He first said that this occurred in 1987 or 1989, but then agreed, having regard to his date of birth in 1967 and to the probability that he left school at the age of 18 years, that the correct date might have been 1985.
(b) The visa applicant was clearly not an outstanding student. He described himself as average; I would think that "indifferent" is more apt. He passed only one half of his six final subjects and failed to obtain a university entrance.
(c) The applicant then obtained work as a mechanic. His employer sponsored him to two years study at the Fiji Institute where he obtained a trade certificate and whereafter he returned to work for the same employer, until he came to Australia on a student visa. (As to how he obtained a student visa in the light of his mediocre academic record, was not in evidence before me.) I do not think that it is necessary for me to deal in detail with the visa applicant's evidence before me as to his progress in studies in Melbourne, at Box Hill Institute of TAFE ("Box Hill") and the City Institute. I can, however, usefully refer in this context to clauses 25 to 32 of the original decision, reading as follows:
…
Jinendra Prasad's ceasing to study
Jinendra Prasad25. In giving his evidence, Jinendra Prasad said that he was supposed to finish his course for an Associate Diploma in Mechanical Engineering in August, 1997 but by then he was five units short. He was short because he had been taking some diploma subjects as well. At the time, he was also enrolled in the City College. He did that because he wanted to do a business management course but found the standard of the course not to be very good. In his view, the lecturers were not very interested in the students. He found that most of the students were working full time. He thought that the course was a waste of money and so he stopped attending classes. At the same time, he enrolled in the remaining five subjects at the Box Hill TAFE. He attended classes to the end of 1997.
26. In cross-examination, Jinendra Prasad said that he attended all classes at the Box Hill TAFE until the end of the semester in November, 1997. He was five subjects short of completing his associate diploma and he was enrolled in those subjects. Jinendra Prasad said that he passed all those subjects. He needed 30 units for his associate diploma and had passed 29. While he completed the thirtieth, he did not get the result in it as the lecturer resigned. He believed that he had completed all of the course work. The subjects he enrolled in during 1998 were for a diploma, which was a course separate from the associate diploma. Although he attended classes for a couple of weeks, he just stopped going. He agreed that he did not attend classes after the first week of 1998. His mother's health and the pressure of his loans were his reasons for ceasing his studies. These matters "really stressed" him.
27. The IRT set out a letter that it had received from Box Hill and that was dated November, 1998:
"Re: International Student – Jinendra Prasad, date of birth 29.8.67
Further to your telephone request, to follow is a summary of Jinendra's study history with Box Hill Institute of TAFE.
In July 1995, Jinendra commenced study in the Associate Diploma of Engineering – Mechanical, a two year course. According to his official Statement of Results, he has successfully completed 24 modules, and there are an additional 4 modules for which results are to be confirmed.
By July 1997, Jinendra had completed his initial 2 years of study, although had not successfully completed all requirements for the award of Associate Diploma. As he did not pay further fees or apply to this office for renewal of his student visa, it was expected that he had completed his studies at the Institute, although there was correspondence with him regarding tuition fees which were outstanding from semester 1. This continued into 1998.
In June 1998, it came to the attention of this office that Jinendra had attended some classes at Box Hill Institute but neither paid international tuition fees nor formally enrolled.
Apparently he had enrolled in August 1997 at another college.
Since Jinendra's attendance Box Hill Institute this year came to light, there have been numerous discussions with him about his enrolment, fees and visa status. Tuition fees for 1998 have not yet been paid in full.
…" (T documents, pages 125-126)
28. The IRT continued:
"Further evidence on file from the Box Hill Institute of TAFE dated December 10 1998 shows that the Applicant had enrolled in a total of 58 units. Of these he had passed 24 units, failed 13 units and withdrew from 19 units. The Admissions officer stated that the Applicant's attendance had been very low (around 20% most of the time since 1998) and the Institute generally expected 80% attendance level." (T documents, page 126)
29. After the first week of study in 1998, Jinendra Prasad said in giving evidence, he did not think that it might be possible that he might attend further classes either at Box Hill or elsewhere. He did not think that it was possible because he was very upset about the loans he had to repay. All the worry meant that he could not concentrate. The loan from the NAB had been taken out in 1996 and he had incurred the visa card debt when he had returned to Fiji to visit his mother in 1998. He was not able to send money home to his parents to assist them and his father could only send him money occasionally. His brother, he continued, was also studying and they used the money their father sent to pay his brother's school fees. Jinendra Prasad did not want to ask his parents for his money as they had medical expenses to cope with.
30. In answer to Mr Rawson's question whether he had ceased studying to avoid paying fees or to receive a refund of fees, Jinendra Prasad said that he was not thinking about a refund. The IRT's reasons for decision tend to suggest that the opportunity for Jinendra Prasad to obtain refunds may have been limited for not all of the cheques he gave Box Hill were honoured. Although the correspondence to which the IRT referred is not included in the T documents, I will set out that passage from its decision:
"A further letter dated 23 November 1998 from the Admissions Officer of Box Hill Institute of TAFE shows that the Applicant had applied for re-admission to Box Hill Institute and was rejected on the grounds of unsatisfactory progress and attendance and repeated payment problems. The evidence shows that a further cheque submitted by the Applicant to the Box Hill Institute had been dishonoured and he still owed outstanding fees. …" (T documents, page 126)
31. After he stopped studying, he worked only 16 to 18 hours each week before the Department told him to stop altogether. He had stopped studying for a few weeks before he returned to Fiji on 4 April, 1998. On that day, he recalled, he completed a departure card stating that he was a student. Jinendra Prasad agreed that he was not then a student. He also agreed that he had again described himself as a student on an arrivals card when he returned to Australia on 22 April, 1998. Jinendra Prasad agreed that he had not told any officer of the Department that he was no longer a student and that the Department would have the impression that he was a student. He said that he returned to repay his loan to NAB and a visa card debt, and he wanted to talk to his sister about that debt. Jinendra Prasad said that he did not intend to mislead the Department but he wanted to repay his loan. His sister was repaying his visa card debt for him.
32. Jinendra Prasad agreed with Mr Rawson that he had been in breach of his student visa conditions in that, from time to time, he had worked more than 20 hours per week. He also agreed that he had applied to the IRT to review the decision to cancel his student visa even though he had been in breach of its conditions. His reasons for being in breach were his mother's health and the accident with his car. He denied that he was not surprised when the IRT affirmed the cancellation decision. Jinendra Prasad said that he talked to a lawyer who told him that may be he had a chance at the Federal Court."
(d) It was never clear to me why the visa applicant, despite his lack of success at Box Hill, nevertheless, embarked on another and second course of study at City College. He complained about the lack of interest shown by his lecturers, and said, "they did not care whether students attended". Given that his student visa was cancelled because of his own poor record of his attendance, that complaint, as to poor standards, is surprising.
(f) The visa applicant said that his poor record of attendance arose from financial worries and worries about his mother's serious ill-health. The financial worries arose, in part, from his purchase of a motor vehicle which, while being driven by his brother, was involved in an accident. It was not comprehensively insured and he was obliged to continue to make payments for the car. During the hearing before me, and having regard to references to the fact that the motor vehicle had been purchased on hire purchase, I noted that it would have been usual for a hire purchase seller to insist on comprehensive insurance. Its absence was not explained. I think that Deputy President Forgie put it fairly in clause 112 of the original decision, reading as follows:
…
112. Jinendra Prasad said that his worries were such that he could not concentrate on his studies. Whether or not there is merit in that could depend upon what sort of student he was and there is conflicting evidence on that matter. On his evidence, he had a good record. The matters set out in the IRT's reasons for decision suggest otherwise. There is no evidence as to how many units he had to pass to gain his Associate Diploma in Mechanical Engineering and so no way in which I can assess whether he was close to attaining that qualification. I am satisfied, however, that he would appear to have successfully completed fewer than half of the units in which he enrolled. No evidence was given as to why that was so. It could have been caused by many factors including lack of aptitude or lack of application. If lack of application, it could have been caused by his not concentrating because of his anxiety about his loans and his mother. His failure could have been caused by his failing to attend classes. At the same time, his failure to attend classes could have been caused by his failure to pass all his subjects. The IRT referred to Box Hill's statement that his attendance rate had been "around 20% most of the time since 1998" (see paragraph 28 above). There is no evidence that it fell below par in 1997 or in the previous years although the evidence suggests that his pass rate was poor in the years preceding 1998. Jinendra Prasad's anxieties about his mother and loan preceded the time at which Box Hill noted he displayed a poor attendance record. Through all the years he spent in Australia and in which he studied, Jinendra Prasad worked at his sister's 7-Eleven store. That did not seem to affect his attendance at lectures prior to 1998. Another possible reason for his not attending a high percentage of classes in 1998 is that he had not paid his tuition fees.
(f) My own view of the problems is that the visa applicant was an indifferent student and that he may not have had the intellectual ability to pursue the studies upon which he embarked. There was evidence at the original hearing as to difficulties in relation to tuition fees; although some amounts were paid, it is possible (and the evidence in this regard is not clear) that there may, perhaps, be some outstanding amounts. It is also possible (although Deputy President Forgie does not appear to have thought so) that his work for his sister interfered with his studies.
(g) The visa applicant at the original hearing, in relation to the question of work while in Australia, said in evidence that he exceeded the prescribed 20-hour per week limit "from time to time". I refer in this context to clause 32 of the original decision which has been set out previously in this decision.
I refer also in this context to clause 2(e) of the respondent submission, set out previously in this decision, which sets out in detail the relevant exchange between Mr Rawson, for the respondent, and the visa applicant.
(h) In evidence before me, the visa applicant, in effect, contended that he did not work more than 20 hours per week during term time. I refer in this context to clause 10 of the second applicant's submissions. In effect, the visa applicant contends that the evidence at the original hearing was misunderstood. I do not accept that contention; nor do I accept that the visa applicant has "given consistent evidence about this" (clause 10 of the second applicant's submissions). The questions at the original hearing were simple enough and not such as to give rise to a misunderstanding.
I think it likely that the visa applicant did, from time to time, exceed the prescribed 20-hour per work limit. The Tribunal wonders why there was no evidence as to this relevant aspect before it. The applicant's legal advisers have prepared their client's case with meticulous care; the applicant's submissions are together aptly described as comprehensive. The visa applicant was an employee, working for his sister in her 7-Eleven store. There surely would be records and documents, including (presumably) tax records, which would record the precise hours worked. PAYE tax may have been deducted. Those records could have been disclosed or, alternatively, their absence could have been explained. It is possible that he was a cash employee for whom there are no tax records at all. The respondent, too, could have issued a summons, calling for production of the relevant records and, if none were produced, might have asked me to draw an adverse inference from their non-production. In the end result, the evidence before me differs from that before Deputy President Forgie and it is inconceivable that both are correct and true. Since there is so little concrete evidence before me, it would not be fair for me to say anything more than that there is a real possibility that he did, from time to time, exceed the prescribed weekly work limit, and, if so, may have breached s.235 of the Migration Act 1958 ("the Act"). If this is so, this factor must count against the visa applicant. On the other hand, the penalties prescribed for breaches of s.235 of the Act are in no way as severe as they are for breaches of s.234 of the Act. And if it is true to say that it happened only "from time to time, the probabilities are that it would not elicit a sentence which could be described as severe.
4(a) I turn to deal in this clause 4 with the visa application and the respondent's contention that the visa applicant failed in his spouse visa application to specify the fact that he left Australia to avoid deportation. It is in this context that I refer to clauses 106 and 107 of the original decision, with which I entirely agree; those clauses read as follows:…
106. Returning to Jinendra Prasad, I do not accept Mr Rawson's submission that he incorrectly answered question number 68 in the application for a Spouse (Provisional) Visa. In effectively stating that he had not left any country (including Australia) to avoid being deported, I am satisfied that he was making an accurate statement. At that time, I am satisfied that he was still lawfully in Australia on a Bridging Visa. Certainly, that visa only had a few days remaining and, had he remained beyond its expiration date, he would have been liable for deportation. Any departure then would amount to his leaving to avoid being deported. To say that he left to avoid being deported when he was lawfully present in Australia on a valid visa would be tantamount to saying that every person who visits Australia and leaves before the expiration of his or her visitor's visa does so to avoid being deported. Such a conclusion is contrary to the clear intent of question number 68. It follows that I am satisfied that Jinendra Prasad's answer to that question was not incorrect.
107. I also note that Jinendra Prasad had written on the form that his "Student visa was cancelled due to non-attendance of classes." (T documents, pages 140 and 153). He provided this further information after acknowledging on the form that a visa he had held in the past had been cancelled. In doing so, I find that he was quite open as to his situation when he completed his application form for a Spouse (Provisional) Visa.
(b) I note in this context, for the sake of completeness, that, in the spouse visa application, the relevant box does not appear to have been ticked with either a "Yes" or "No". But the statement referred to in clause 107 of the original decision was sufficient, in my view, to clear up any ambiguity.
5(a) I refer in this clause 5 to the landing and departure cards signed by the visa applicant in April 1998, referred to in clause 9 of the original decision. In both cases the visa applicant specified that his usual occupation was "student".
(b) The card was signed in April 1998 after the visa applicant had abandoned his studies, but before the termination of his student visa in June 1998.
(c) When one considers the visa applicant 's position at that time, it is not easy to decide what the correct description would have been. He was not retired and he was not out of work because he was not then seeking employment. He could, perhaps, have described himself as a "casual worker in a 7-Eleven store", but the visa applicant struck me, in giving evidence, as unsophisticated. At that stage he was in possession of a student visa, and so he did have some claim or colour of right (albeit perhaps marginal) in respect of that description. The original decision indicates that, before Deputy President Forgie, the visa applicant appears to have accepted that he completed the cards incorrectly. But, for the reasons set out previously, the offence cannot be categorised as serious. Apart from any other considerations, there was no prejudice to the respondent, in contrast with the position where a question as to convictions is improperly answered or denied.
6(a) The application for review of the visa cancellation to the IRT was made, so it was contended, on legal advice. The visa applicant was not examined as to the nature of that advice.
(b) It was contended, on behalf of the visa applicant, that the application was legitimate, as was the subsequent application to the Federal Court, which was dismissed by consent on the basis that the visa applicant had to pay the (surprisingly low) amount of $400 in costs.
(c) The visa applicant knew perfectly well that he had not attended classes. It is difficult for me to imagine what possible grounds they were for his applications to the IRT and the Federal Court. The IRT dismissed his application for review in what might be described as summary fashion.
(d) It is possible, and indeed probable, that the visa applicant did, in this context, receive guidance and probably financial assistance; that financial assistance was presumably provided by the applicant, who may also have provided encouragement in the taking of these steps.
(e) This Tribunal has in the past held that an application is not false and misleading, even if unsuccessful, so long as the facts alleged are true. What if applications are made without hope of success purely for purposes of delay? Can it be said that those applications are, taken in context, misleading? It is unnecessary for me to decide this question and Deputy President Forgie does not appear to have taken these aspects into account as a factor against the visa applicant. I propose to treat these aspects as neutral, while noting that I have a suspicion that the applications in question were launched in order to achieve delay.
7(a) Deputy President Forgie, in clause 123 of the original decision, found as a factor against the visa applicant that he failed to study as required by his visa. His failure to do so was, it is true, in breach of the Migration Regulations. But, that said, it would not be right to regard that breach in too serious a light. The world is full of tertiary education "drop-outs". This visa applicant was, in my view, unable to keep up with his course of study and, in effect, "dropped-out".
(b) When the visa applicant "dropped-out", he should no doubt have notified the authorities and, in effect, voluntarily surrendered his study visa. This point was not dealt with before me as a matter which was serious and it would not be fair for me to take it into account against the visa applicant at this stage.
(c) Deputy President Forgie also found that the visa applicant was prepared to mislead his future wife. I doubt it; he is far too unsophisticated.
8(a) Deputy President Forgie referred, in the original decision, to the question of what is meant by good character; clauses 97, 98 and 99 of the original decision read as follows:
…
97. A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 9753, 27 September, 1994) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 9822, 7 November, 1994) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Decision No. 10910, 2 May, 1996). In Prasad, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)
98. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)99. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Unreported, Spender, Drummond and Mansfield JJ, 14 September, 1999). Speaking generally of s. 501, the Full Court said that it:
"… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the Tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the Tribunal's decision on this ground, so it is unnecessary to pursue this question." (paragraphs 8 and 24)
(b) Deputy President Forgie did not have before her, as I have, evidence of recent good conduct. I refer here to his devoted care, in very difficult circumstances, of his ill and bed-ridden father, requiring far more than ordinary filial devotion. The respondent did not seek to query that evidence by the visa applicant, who testified as to the night and day care devoted by him to his father; the respondent contends, in any event, (see clause 24 of the respondent submissions) that it relates only to conduct towards members of his own family and is thereby limited in its effect.
(c) As to what precisely is meant by "recent good conduct", as referred to in Direction - Visa Refusal and Cancellation under s.501 - Nº 21 ("the Direction"), is not clear. It has been suggested that it is limited to "good conduct" in an immigration sense, but that term, too, is imprecise. Assume, by way of hypothesis, that the visa applicant performed recent charitable work while in Fiji, that presumably is good conduct in an immigration sense since it indicates that the person involved displays concern for others. Why then is concern for a sick family member (albeit a close family member) to be regarded differently?
9(a) Focusing on the decision of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, referred to previously in these reasons, I do not think that it can be said that, in respect of the visa applicant, his enduring moral qualities are "… so deficient as to show it is for the public good to refuse entry". There are factors against him, it is true. It is very possible (and indeed quite likely) that there were breaches of s.235 of the Act; I have some residual reservations as to his applications to the IRT and the Federal Court. The manner in which he completed the arrival and departure cards, in April 1998, was dubious but not, in my view, serious. Nothing was said about taxation obligations in the hearing before me. I do not think that his study behaviour and the manner in which he dealt with his courses at the institutions involved do him credit. However, Australia granted a student visa to a visa applicant whose qualifications for tertiary education were, at best, meagre. None of these considerations on the evidence before me can be regarded in too serious a light; on any basis they are at the very low or non-serious end in relation to matters of this nature. Against this must be set the fact that he, as I have found, completed his spouse visa application honestly; even more to the point is the recent good conduct, to which I have referred.
(b) Having regard to clause 1.9 of the Direction, one has to say that it is possible that, within clause 1.9(a), there have been breaches of immigration law, but they would not appear to be serious. I do not categorise the offence as serious for reasoning set out previously. As to clause 1.9(c) and in respect of the landing and departure cards, clause 1.9(d) of the Direction does not apply. Clause 1.11 of the Direction expressly directs me to take into account recent good conduct.
(c) On balance then, I do not find that the visa applicant is not of good character on account of his past and present criminal or general conduct. That is not to say that he passes the relevant test with flying colours. There are both positive and negative factors and in my view the balance is (but by a narrow margin only) in favour of the visa applicant.
10(a) I propose, in case I am wrong in my assessment of the character test, to consider the discretion contained in Part 2 of the Direction. In this clause 10, clause references should be construed as references to numbered clauses in the Direction.
(b)The primary considerations are set out in clause 2.3, which are:
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.
In this case, clause 2.3(c) is not relevant.
(c) Clause 2.3 must be considered 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).
As to clause 2.5(a), I do not, as I have noted, consider that there have been serious crimes against the Act. Certainly, there are none attracting a sentence of 12 months imprisonment. Clause 2.6(c) is not so limited; however, the breaches to which I have referred cannot, in my view, on any basis, be categorised as serious.
(d) There is, then, no risk to the Australian community. I consider moreover that the prospects of recidivism are small; there would be no need for the visa applicant to re-offend. (I refer here to clause 2.3(a) read with clause 2.5(a) of the Direction).
(e) As to deterrence (clause 2.6(c) of the Direction), the applicant contends that this is not the sort of case which would attract attention. That is not the point. To grant visas to offenders, would, in my view, send entirely the wrong message. However, deterrence is not a major factor in this case.
(f) Clause 2.12 of the Direction deals with the expectations of the Australian community. I am inclined to the view that opinion might be divided but the majority view would be that I should interpret the Direction in humane fashion and that a visa should not be refused where the relevant offences are so (comparatively) minor.
(g) As to hardship within clause 2.17 of the Direction, I accept that to refuse a visa could result in hardship to the applicant. I accept that, for her to return to Fiji, would be difficult, both because of the economic climate in that country, and the prejudice against Fijians of Indian origin. This factor is not strong, however; I consider that it is likely that the applicant knew of the visa applicant's circumstances; after all, she herself was a spouse visa emigrant from Fiji. This factor is not a strong one in favour of the applicant.
(h) On balance (albeit a narrow balance), the discretion should, in my view, for these reasons, be exercised in favour of the visa applicant. The decision in this matter is one which is, in my view, finely balanced; in cases such as this, the compassionate view is, I believe, to be preferred.
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 sub-class 309 spouse visa, under s.501(1) of the Act, should be exercised in favour of Jinendra Prasad.
I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J. Block(sgd) Catherine Thomas
ClerkDates of Hearing: 23 April 2002
3 June 2002
Date of Decision: 11 September 2002
Counsel for the applicant: Mr A. Krohn
Solicitors for the applicant: Mr P. Shulman, Messrs ZolisSolicitors for the respondent: Ms S. Law, Mr M. Brereton, Australian Government Solicitor
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