Lata and Minister for Immigration and Multicultural Affairs

[2001] AATA 128

CATCHWORDS – IMMIGRATION – application for Spouse (Provisional) Visa – whether visa applicant not a person of good character – decision affirmed.

Australian Citizenship Act 1948 – s 13
Family Law Act 1975 – s 48
Migration Act 1958 – ss 20, 499, 501
Migration Regulations

Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 (Unreported, Spender, Drummond and Mansfield JJ, 14 September, 1999)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Deputy President McDonald, Decision No. 9822,    7 November, 1994)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic affairs (Unreported,  Administrative Appeals Tribunal, Deputy President Forrest, Decision No. 9753, 27 September, 1994)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported, Administrative Appeals Tribunal, Deputy President McDonald, Decision No. 10910,  2 May, 1996)

DECISION AND REASONS FOR DECISION [2001] AATA 128

ADMINISTRATIVE APPEALS DIVISION        )
  )          V2000/484
GENERAL ADMINISTRATIVE DIVISION      )

Re                  INDAR LATA

Applicant

And                MINISTER OF IMMIGRATION AND ETHNIC AFFAIRS

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)

Date  21 February, 2001

Place  Melbourne

DecisionThe Tribunal affirms the decision of the respondent dated 30 March, 2000.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 26 April, 2000, the applicant, Indar Lata, applied for review of a decision of a delegate of the respondent, the Minister of Immigration and Ethnic Affairs ("the Minister") dated 30 March, 2000.  The Minister refused a visa application made by Indar Lata's husband, Jinendra Prasad, for a Class UF Spouse (Provisional) Visa (Sub-class 309) ("Spouse Provisional Visa") under the Migration Regulations ("Regulations"). At the hearing, Indar Lata and the Minister were represented by their solicitors, Mr Krohn and Mr Rawson respectively. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents" and "ST documents") were admitted in evidence together with a volume of documents submitted on behalf of Indar Lata, photographs of damage to the business of Jinendra Prasad's parents, a letter from Dr Naidu dated 30 October, 2000, a copy of the departure card completed by Jinendra Prasad on 4 April, 1998 and an arrivals card completed by him on 22 April, 1998.  Indar Lata and Jinendra Prasad gave oral evidence in support of her case and Mr Angus Murray Pryor gave evidence in support of the Minister's case.

THE ISSUE

1. The issue in this case is whether Jinendra Prasad is a person who is not of good character within the meaning of s. 501 of the Migration Act 1958 ("Migration Act").  If he is not, he does not pass the character test but a further issue arises.  That is whether or not the discretion to refuse to issue a visa should be exercised on the basis that he does not pass the good character test.

BACKGROUND

1. 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. 

1. 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.

1. 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). 

1. 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). 

1. 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"). 

1. On 2 September, 1997, Jinendra Prasad's mother suffered from a cerebrovascular accident which affected the left side of her body (Exhibit C).

1. 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). 

1. 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). 

1. 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).

1. 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). 

1. 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. 

1. 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).

1. 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).

1. 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.

1. 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).

1. 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).

1. 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.

1. 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.

1. On 29 February, 2000, Indar Lata became an Australian citizen when she attended a citizenship ceremony. 

1. Jinendra Prasad and Indar Lata married in a traditional Hindi ceremony held in Fiji on 21 May, 2000.

THE EVIDENCE

Events in Jinendra Prasad's life before he met Indar Lata

Jinendra Prasad

1. At some time after his arrival in Australia in 1995, Jinendra Prasad borrowed money from the National Australia Bank ("NAB") to purchase a car.  His brother had an accident in the car, which was not comprehensively insured, and the car was written off.  Jinendra Prasad still owed NAB approximately $6,000.00 and was obliged to continue to make the repayments on the loan even though he no longer had a car.  The accident occurred between August and November, 1997.  He said that he was very stressed by the fact that he had to repay the loan.  At the same time, his mother was ill and he needed to send money back to Fiji.

1. His worries were such, Jinendra Prasad said, that he could not concentrate upon his studies.  He worked while he was on a student visa, he said.  During school time he worked 15 to 18 hours, and in school holidays he worked more than 20 hours at his sister's 7-Eleven shop.  After he decided that the course at the City College was a waste of time, he continued to work at the 7-Eleven shop.  In cross-examination, he said that he could not recall working more than 20 hours per week after the end of the second semester in 1997 and during 1998.  He did work 20 hours or more per week during the Christmas holidays but he only did so during holidays.  Jinendra Prasad said that he stopped altogether after his visa was cancelled in June, 1998 as the Department told him that he could not work. 

Jinendra Prasad's ceasing to study

Jinendra Prasad

1. 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.

1. 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.

1. 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)

1. 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)

1. 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. 

1. 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)

1. 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.

1. 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. 

Indar Lata's decision to become a permanent resident

Indar Lata

1. When asked in cross-examination when her relationship with her first husband had broken down, Indar Lata said that it had been more than a couple of years before she was divorced in November, 1998.  She agreed that she was still on a temporary spouse visa when it was breaking down but said that she and her first husband were not then separated.  She later said that, although they stayed together, most of the time her first husband was not with her.  That was in 1996 and 1997.  When asked why she had not told the Department that it was breaking down, she said that they were trying to work it out.  In re-examination, she said that there were several attempts to work out their marriage difficulties.  It was at the end of 1997 or at the beginning of 1998 that she realised that they had irreconcilable differences.  She told the Department that she was going through a rough time but her first husband was coming home and it was "pretty difficult".  The Department knew that things were difficult with her then husband but that she and he were trying to work things out. 

1. She agreed with Mr Rawson that she knew her marriage was over when she received her permanent spouse visa.  Mr Rawson's questions were premised on the assumption that Indar Lata had received a permanent spouse visa in April, 1998 but the print out from the Department's computer states that she was granted that visa on 9 April, 1997.  In response to Mr Rawson's suggestion to her that this would have been a relevant matter for the Department to know, she replied that she did not know about that.  When Mr Rawson suggested that the Department knew only that Indar Lata and her first husband were trying to patch things up and that she knew that she needed to inform it of any breakdown, she replied that it knew.  She did not think that she had lied as she had said that they were trying to patch things up.  That was not a lie.

The first meeting of Indar Lata and Jinendra Prasad and events leading to their decision to become engaged

Indar Lata

1. Indar Lata said that she first met Jinendra Prasad in September, 1998 at an Indian dinner function.  He asked her for a dance.  She accepted and they then conversed with each other.  At the end of the evening, they exchanged telephone numbers.  They then started to contact each other and things went from there.

1. Indar Lata said that Jinendra Prasad proposed to her in February, 1999.  She accepted but said that they would have to tell their families about it.  His parents visited Australia in September, 1999 and so did her father.  Introductions to their families took place at that time and they saw a lot of them.  It was decided during their families' visits that they would marry.

1. When asked what Jinendra Prasad was doing from the time she met him in September, 1998 and during 1999, she replied "studying".  In cross-examination, Indar Lata said that her husband had told her that he was studying automotive engineering.  She believed that he had graduated in 1998 and did not know what he was studying in 1999.  She now knew that was not the case and that he had stopped studying at some time towards the end of 1997.  In cross-examination, Indar Lata initially said that she first found out that her husband had not been studying after they were legally married.  She said that she knew he worked at a 7-Eleven shop but thought that was part time.  When asked what she thought when she found out, she said that she was not affected at all.  That was his past and she was only interested in what he was now.

1. A little later in cross-examination, she said that she found out that he had not been studying when she saw that he had a Bridging Visa.  He then told her that his visa had been cancelled.  She saw his passport.  Later, again in cross-examination, she said that she had not seen that passport until after she was married and he was filling out the application form.  She denied any knowledge of his not having been a student before they left Australia. 

1. Indar Lata rejected the notion that Jinendra Prasad had lied to her.  He had not lied, she said.  He said that he had been studying.  She did not ask if he was still studying.  When she introduced him to her father in September, 1999, she told her father that he was studying as her father had asked her what he did.  Jinendra Prasad was not present during that conversation.

1. Indar Lata said that she and her then prospective husband had spoken about their futures.  When asked if they spoke about careers, she replied that he was really interested in business such as a grocery shop or a service station.  She did not know whether she had ever asked him why he had studied automotive engineering if he wanted to run a grocery shop but she said that he had also studied business.  Indar Lata said that she thought that he had been studying two courses.  She first learnt that he had not been studying business at the same time as she learnt that he had given up his automotive engineering studies.  When asked whether it concerned her that he had not told her that he had stopped his studies and planned to open a business, she said that it had but that he would probably come to Australia and study more.  Then he would open his business but not straight away.  She was "a bit worried" but not concerned; "just a bit" worried but not much; it did not affect her much.  They did not argue about it when she found out. 

1. She said that he talked about his parents and told her that his mother was sick.  His mother needed someone to care for her, he told her, and asked her whether his mother could stay with them when she came to Australia.  Indar Lata said that she told him that it was not a problem and that she would be happy to look after his mother.  When she saw him with his family in Fiji, he was very caring of them. 

1. Indar Lata said in cross-examination that she and Jinendra Prasad had decided in September, 1999 that he would apply for a spouse visa and that he would do so in Fiji.  They had decided on Fiji as Jinendra Prasad had told her that he was on a student visa.  He told her that he had to go back.  They went to the Department and found that he had to go back to his country. 

Jinendra Prasad

1. Jinendra Prasad said that he first met Indar Lata in September, 1998 at an Indian function.  She was there with a friend and he approached her for a dance.  They started to talk and she gave him her telephone number.  She also gave him her address when he asked for it and said that he could come and meet her at work.  They continued to see each other and did so almost every day.  They had lunch and dinner together and went to the movies.

1. When he met her, Jinendra Prasad said, he told Indar Lata that he was a student.  She knew only that he was on a student visa.  He did not tell her that he was studying full-time or what he did with himself during the day at school.  Jinendra Prasad said that he did tell Indar Lata that he worked at his sister's 7-Eleven shop.  He did not tell her that he had stopped studying.  Jinendra Prasad said that he did not think that it was important to tell her.  Later, in cross-examination, Jinendra Prasad said that he wanted to tell Indar Lata about his student visa but she did not want to listen to him.  She said that it was in the past and she did not want to know about it.

1. When he lodged his application in the Federal Court on 31 May, 1999, Jinendra Prasad agreed that he had known Indar Lata nearly a year.  He knew that she was a permanent resident but denied that he knew that it would be easier for him to come to Australia if he were the spouse of a permanent resident.  Jinendra Prasad denied that Indar Lata had told him anything to that effect.  He said that he knew Indar Lata had applied for Australian citizenship and that it had been approved before they travelled to Fiji.  He denied that it was important that she obtain her citizenship before they travelled to Fiji.  It was not relevant in his decision to withdraw the Federal Court application as it had already been decided in September, 1999 that they would go to Fiji and marry and that he would then stay there.  Jinendra Prasad said that they did not return to Fiji in September as he was waiting for a decision on his Federal Court application.  His parents had then said to him that he had already wasted a year waiting for the IRT decision.  They wanted him to return to Fiji. 

1. He denied that he had taken action to prolong his Bridging Visa to enable Indar Lata to obtain her Australian citizenship.  Jinendra Prasad said that he had taken action in the IRT and the Federal Court because he wanted his Student Visa back.  He knew that he had breached the conditions but had reasons for doing so.  If the decision on review were to be the same, he knew that he would have to leave and would have to do so within 28 days of the decision.  If he did not leave in that time, he knew that he would be deported. 

1. He did not want to leave as he wanted to stay so that he could pay his loans.  Jinendra Prasad denied Mr Rawson's suggestion that he did not want to leave Australia until he knew that he could return.  He had been waiting for the Federal Court's decision, he said.  His parents decided that he should return to Fiji and help in the family business.  In cross-examination, Jinendra Prasad repeated that his parents wanted him to withdraw the Federal Court case.  They wanted him in Fiji to help with the business and they wanted him to get married there.  Were he to continue with the case, he would have to stay in Australia and wait for the decision. 

Nitesh Krishna Moopner

1. Mr Moopner is an apprentice fitter and turner who is studying automotive engineering.  He agreed with Mr Rawson that Jinendra Prasad had also studied that course.  Mr Moopner did not know exactly when Jinendra Prasad stopped studying but said that it was just before he, Jinendra Prasad, returned to Fiji in December, 1999.  He studied until the end of 1999.  As far as he knew, Jinendra Prasad was not studying anything other than automotive engineering.  He could have been doing a bit of business management as his sister owned a 7-Eleven shop.  Jinendra Prasad worked part time while he studied.  That was the impression that everyone had of him.  He did not know that Jinendra Prasad had dropped out of study in 1997.  Mr Moopner thought that he was studying.  He would ask Jinendra where he had been and Jinendra Prasad told him that he had been to school.  There was no reason to doubt what he was told. 

1. Mr Moopner said that he knew that Jinendra Prasad was on a student visa but did not know that it had been cancelled in 1998.  When asked whether he had heard that Jinendra Prasad had gone to the IRT in 1998, Mr Moopner said that he had heard him talking about something like that but that was his personal life.  Even though he regarded himself as a fairly good friend, he did not know everything. 

1. Mr Moopner said that he first met Jinendra Prasad approximately 4 years ago through a mutual friend.  He has seen Jinendra Prasad over the years since then.  There have been social occasions and other occasions on which Mr Moopner has asked for Jinendra Prasad's assistance with the subjects he has been studying.  Jinendra Prasad, Mr Moopner said, studied automotive engineering before he did and can help him.  They would see each other once or twice a week but now no longer have much contact as Jinendra Prasad is back in Fiji.  Mr Moopner described Jinendra Prasad as a good person who is helpful and hardworking.  He had many friends and acquaintances.  After they became friends, Mr Moopner's sister married Jinendra Prasad's brother.  The marriage took place in 1999 in Melbourne where they still live.

1. In cross-examination, Mr Moopner said that he did not know that Jinendra Prasad had stopped studying.  Jinendra Prasad knew the answers to any questions he asked him about the subjects he was studying and thought that Jinendra Prasad had studied.  They never talked about their studies when Indar Lata was present.  Although they talked about what they would do in the future, Jinendra Prasad did not say much about his plans.

1. Mr Moopner said that he has known Indar Lata for the last two years since she met Jinendra Prasad.  He has seen them go out as a couple.  They would visit his house once or twice a week.  He would also see them when he visited the house of his sister and brother in law (Jinendra Prasad's brother).  When Jinendra Prasad's parents visited Australia, he met them.  Jinendra Prasad and Indar Lata behaved as a couple.  Mr Moopner also met Jinendra Prasad's parents in Fiji in 1999 while Jinendra Prasad was visiting.  Both Jinendra Prasad's mother and father were sick at the time.  His father had suffered a stroke and his mother had been ill for a longer time.  Jinendra Prasad was a "bit stressed" about his parents' health. 

1. Mr Moopner said that he felt that Indar Lata had the same personal qualities as Jinendra Prasad. 

Indar Lata's decision to become an Australian citizen

Indar Lata

1. Indar Lata said that she decided to become an Australian citizen because she had lived here for more than two years and was going to stay here.  She thought that if she were to stay, she should follow all the rules.  She said that she had not done so earlier as she had not become a permanent resident until 1998 although she had arrived on a spouse visa in 1988. 

1. In cross-examination, Indar Lata agreed that she had asked Dr Raouf Mirhom to certify a copy of the letter, which was dated 24 November, 1999 and which was signed by the Minister granting her citizenship.  He had done so on 14 December, 1999 (T documents, page 163).  She acknowledged that she and Jinendra Prasad had agreed that he would apply for a spouse visa to travel to Australia as they had already decided that they would marry.  She had the letter certified as she had been told that it would be easier to obtain a spouse visa if she were an Australian citizen.  She denied that this was the reason for her applying for citizenship and said that she had applied as she wanted to be an Australian citizen.  Indar Lata agreed that it was a happy coincidence that it would help Jinendra Prasad.

1. Indar Lata said that Jinendra Prasad knew that she had received the Minister's letter before they travelled to Fiji.  She denied that she had told him before he withdrew his Federal Court application as she did not have any knowledge about the cancellation of his visa and so could not know about the Federal Court application. 

Events in December, 1999

Indar Lata

1. Indar Lata said that she discussed the matter with her mother and younger brother, who had remained in Fiji, as well as with her father and she decided to become engaged and married in Fiji.  That involved her marrying in a small civil ceremony at the courthouse.  Only Indar Lata's parents and their brothers, sisters and cousins attended the ceremony and the small family party that followed it.  In all, there were approximately 30 people in attendance.

1. Indar Lata said that she and Jinendra Prasad did not live together after the civil ceremony as it is forbidden by their Hindu religion until after the religious ceremony.  Both are Hindus.  It was decided at the time that the religious ceremony would take place on 21 May, 2000.  As the coup intervened, the ceremony was postponed until 28 May, 2000.  The religious ceremony was postponed, she said, because she had to return to Australia.  She had borrowed $10,000.00 from the National Australia Bank for the wedding and had to make payments on time.

1. Indar Lata said that she did not think that Jinendra Prasad would return to Australia with her after the legal ceremony.  She thought that the processing of the application would take a few months.  He could return with her later after the religious ceremony.  She had thought that he would return then, she said, even though she thought that he was entitled to return after the legal ceremony.  Some time later in the cross-examination, Mr Rawson reminded Indar Lata that she had said that she was not worried when she realised that he did not have a student visa.  She replied that she had not understood the question.  Indar Lata continued by saying that she was upset that Jinendra Prasad might not be able to return to Australia as she loved him.  She had understood the earlier question to relate only to whether she was worried about her husband's not telling her about his visa.  She denied that she had known all along that he had dropped out of school, that he did not have a student visa and that she had applied for citizenship as a means of enabling him to live in Australia.

Jinendra Prasad

1. Jinendra Prasad said that he decided to withdraw the Federal Court application after his father said to him that he was wasting his time.  His father asked him why he did not return and help in the family business.  That is why he withdrew the application, he said, and he returned to Fiji and married. 

1. In cross-examination, Jinendra Prasad agreed with Mr Rawson that, if he had not left Australia, he would have been deported when his Bridging Visa expired.  He denied that the possibility of his deportation was in his thoughts when he left Australia as he had left in order to get married. 

1. Jinendra Prasad said that the court ceremony on 28 December, 1999 in Suva was attended by his relatives and those of Indar Lata.  Some 15-20 people attended that ceremony but his parents could not do so as they were too sick to travel.  They did not live together after the ceremony as that was against their religion, which is Hindu. 

Mr Moopner

1. Mr Moopner said that Jinendra Prasad's returning to Fiji was important to him and that he had tried to tell him something about it.  He, however, did not take much notice of what Jinendra Prasad said.  That would have been about a year before he left. 

1. Mr Moopner knew that Jinendra Prasad had gone to Fiji to get married and that he would be returning.  He just did not know when.  He now knew that his student visa had been cancelled.  He had first learnt that Jinendra Prasad might not be able to return to Australia when Indar Lata went to see him and told him that he had to attend the hearing.  That was some three weeks before the hearing.  Before that time, he had known that Indar Lata was having trouble with the Department but did not know the nature of that trouble.  In August, 2000, he had written a letter stating that he had known Jinendra Prasad and Indar Lata, that he had seen them together as lovers in public places such as at shopping centres, Indian functions and soccer tournaments and had gone out with them to dinners and movies.  They would visit his house together and he said that the love he had seen between them was very strong.  Mr Moopner wrote that the marriage seemed to be genuine and continuing (Exhibit A, page 12).

1. When asked whether Indar Lata told him after she returned from Fiji at the beginning of 2000 that she had only just found out that her husband did not have a visa, Mr Moopner replied that he thought she had said so when she returned.  She was not very happy, he recalled.  Maybe she was angry at the time but not now.  Mr Rawson asked him whether Indar Lata had told him that the reason Jinendra Prasad was not allowed into Australia was that he had been on a student visa but had not studied for two years.  Mr Moopner replied that she had been saying something but he had not taken much notice of it.  She had said something but he could not keep everyone's problems in his head as he was studying too. 

The application for a Spouse (Provisional) Visa

The papers

1. In response to a question (number 68) whether he had ever "left any country to avoid being removed or deported", Jinendra Prasad had ticked the box marked "No" (T documents, page 147).  Earlier, he had been asked whether he had ever had a visa cancelled.  He had replied in the affirmative and, as requested, had provided further information in Part 1 later in the application form.  He had written "Student visa was cancelled due to non-attendance of classes." (T documents, pages 140 and 153). 

Jinendra Prasad

1. The notes of an interview of Jinendra Prasad by Mr Angus Pryor, the Senior Migration Officer, Australian High Commission, Suva, record: "left any country to avoid being deported?  Yes  but you said No." (T documents, page 197).  In giving his evidence, Jinendra Prasad said that he was asked the question and he told Mr Pryor about the Bridging Visa.  Mr Pryor kept repeating the question about deportation and Jinendra Prasad said that he became confused.  The Bridging Visa clearly said that he could stay for 28 days after the court's decision. 

1. Jinendra Prasad denied that he had married Indar Lata simply to obtain a visa to enter Australia.  He stated that it is a genuine marriage.

Indar Lata's return to Australia and subsequent departure to Fiji for the religious ceremony in May, 2000

Indar Lata

1. From the time she returned from Fiji after the civil wedding until the religious ceremony in May, 2000, Indar Lata said that she was working and saving money for the wedding.  While they were apart, she said, she telephoned and wrote to Jinendra Prasad.  She used Telstra phone away cards to call and would call once or twice each week.  The calls would usually last a half an hour or could extend to an hour.  It was difficult to telephone him as he did not have a telephone and he had to use a neighbour's telephone (Exhibit A, page 25).

1. Indar Lata said that she paid for the decoration of the shed that was used for the wedding as well as for the hire of a camera man and a chef.  She paid for it from the sum of $10,000.00 she had earlier borrowed.  On her arrival in Fiji for the religious ceremony, she purchased wedding costumes and gifts that are traditionally given on such occasions.  Her husband had to make similar preparations but the ceremony always takes place at the bride's home.  He paid for his contribution and she paid for hers, she said.

1. Although invitations were issued by both the bride and groom's parents (Exhibit A, pages 1-4), the religious ceremony was not held on 21 May, 2000 because of the coup.  It only proceeded a week later on 28 May after permission had been obtained from the police and the dictator.  The ceremony had to be held at that time as Indar Lata had then to return to work in Australia.  Some 300 people, comprising villagers and relatives, attended the ceremony.  Photographs of the ceremony and the earlier engagement party were taken (Exhibit A, pages 7-10).

1. The premises from which Jinendra Prasad's parents ran their business and their stock were damaged during the coup, Indar Lata said.  Photographs showed stock strewn on the floor, furniture up ended, damaged light fittings, a rock lodged in a security window and rocks on the floor of a verandah (Exhibit B).  The business, she said, is only now slowly getting back on track. 

Jinendra Prasad

1. They had a traditional ceremony on 28 May, 2000 and that was held at the home of Indar Lata's parents.  Approximately 400 people attended that ceremony.  Many people did not attend because of the political problems in Fiji at the time.  Both he and Indar Lata paid approximately $10,000.00 for their wedding.  Indar Lata borrowed her money and his father gave him his contribution. 

Mr Moopner

1. Mr Moopner said that he knew that Indar Lata and Jinendra Prasad had married in the Fiji Islands but did not know the exact date.  He thought that it was a genuine marriage.  She had spent so much money going to Fiji and getting married there.  Whenever he saw her, she was always talking about Jinendra Prasad.

Events since the religious ceremony

Indar Lata

1. Indar Lata said that she had returned to Australia in June, 2000 because all Australian citizens had been advised to leave Fiji after the coup.  In addition, she had to return to Australia to repay the money she had borrowed for the wedding.  As it turned out, she lost her job in Australia as she had stayed away for more than a month.  She had only been give a month's leave from her employment.  Unemployment followed for two months but then she found another job.  Although she wanted to stay with her husband, she could not as she had the loans to pay.  She borrowed the money over a five year term. 

Jinendra Prasad

1. Jinendra Prasad said that he and Indar Lata continue to have contact with each other even though they have been living apart for most of the year since they married.  They lived together at his parents' house after the religious ceremony.  Every two or three weeks, they talk to each other on the telephone.  His parents do not have a telephone, so she can call him at the home of a friend who has, or he calls her from a public telephone. 

1. Indar Lata had returned to Australia after the religious ceremony, he said, as she had to work to pay the debts she owed.  Her father did not earn a lot of money and she wanted money to pay for their wedding.  She also had to leave because of the political situation.  That situation led Australia's government to advise all of its citizens to leave Fiji.

The future

Indar Lata

1. Indar Lata said that she would prefer to live with her husband wherever they were, than live without him.  As to their living in Fiji, however, the situation there is "really bad", she said, and there are no jobs for them and no future.  If her husband is granted a visa, she intends that they find a place and that they then buy a house and start a family.  It is time that they started a family as he is 32 years of age and she is 30, she said.  She is looking forward to it.

1. The visa's being refused, she said, is not something she has actually thought about.  If that circumstance comes up, she would have no choice.  She has her loans and is an Australian citizen.  As long as the Australian government helped her, she would live with her husband.  She would not expect any life in Fiji other than a life of threat.

1. 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.

1. Were she to return to Fiji, Indar Lata said, she would have to find a job and so would Jinendra Prasad.  That would not be possible at the moment.  He would not be able to work with his parents, whose lease over the land they farm will come to an end in a couple of years' time.

1. Indar Lata considers her husband to be a very decent, caring and loving person.  He treats her very well.  Her husband gets on well with his parents and currently lives with them at Rakiraki in Fiji.  His elder brother also lives there with his own family and works in their parents' business.  Indar Lata's husband also helps his parents in that business.

1. Jinendra Prasad's mother is sick, Indar Lata said, and became paralysed in 1997.  She can do some things without help but not all things.  His father is sick at the moment as well but the cause of his sickness is mainly age related.

Jinendra Prasad

1. Jinendra Prasad said that his parents' house and shop were stoned on 19 May, 2000 during the coup in Fiji.  The shop was broken into and they were terrorised by about 20 Fijians.  Since he returned to Fiji, he has been helping in the family business by selling goods.  The lease on the family's sugar cane farm expired at the end of 2000.

1. If he were successful in his application for a visa, Jinendra Prasad said, he planned to get a job, buy a house and start a family.  If he were unsuccessful in his application, he would have to stay in Fiji.  If his wife wanted to go to Fiji, he would live with her.  He did not think that Fiji was a safe place for ethnic Indians to be at the moment.  The indigenous Fijians are taking all the land including his parents' sugar cane farm.  It is not easy to get work and many people are without jobs.  His wife would find it very difficult to find work were she to return to Fiji.  His parents' business is just a small business and not large enough to support his parents and brother as well as him.  Jinendra Prasad said that he is close to his brother and sister, who live in Melbourne.  They could visit him in Fiji if he were unsuccessful.  In the meantime, he really misses his wife and he described his being in Fiji as "like hell here".         Jinendra Prasad said that his leaving Fiji would be difficult for his parents but that it was their dream that he did so.  His parents want him to make a new future. 

Mr Moopner

1. Mr Moopner said that an ethnic Indian, who wanted to establish a home in Fiji, would not get very far because the indigenous Fijians are taking their lands away. 

CONSIDERATION

Framework of Act

1. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both.  There are classes of visa (ss. 31(1) and (2)).  Some are specified in the Act itself and some are prescribed in the Regulations (ss. 31(4) and (5) and s. 5(1)).  The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)).  For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations.  Among the primary criteria that must be satisfied for a Spouse (Provisional) Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 as specified by cl. 309.225 of subclass 309 of Schedule 2 of the Regulations.  Schedule 4 sets out the public interest criteria.  Of relevance in this case are the criteria that an applicant must either satisfy the Minister that he or she passes the character test, or that the Minister has decided not to refuse the issue of a visa despite his not being satisfied that the applicant passes the character test (or reasonably suspects that the applicant does not pass that test) (Criterion 4001).

1. Section 501(1) of the Migration Act provides that:

"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test."

1. The "character test" is set out in s. 501(6), which provides that:

"For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7)); or

(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)having regard to either or both of the following:

(i)the person's past and present criminal conduct;

(ii)the person's past and present general conduct;

the person is not of good character; or

(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)engage in criminal conduct in Australia; or

(ii)harass, molest, intimidate or stalk another person in Australia; or

(iii)vilify a segment of the Australian community; or

(iv)incite discord in the Australian community or in a segment of that community; or

(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test."

In this case, the whole focus of the proceedings was upon s. 501(6)(c) and upon whether Jinendra Prasad's past and present general conduct is such that he is a person who is not of good character.

1. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act.  The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it.  On 17 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act. They are headed "Direction – Visa Refusal and Cancellation under Section 501 – No. 17" ("Direction").

1. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble of the Direction:

"… In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.

… When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa.  Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

1. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."

1. The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6).  In introducing the directions regarding that sub-section, the Minister states in the Direction:

"1.7     Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test.  In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."

1. Only s. 501(6)(c)(ii) is relevant in this case and, with regard to that, the Minister directed:

"1.9     In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

.engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;

.continual evasion or non-payment of debt;

.continual disregard as to payments of family maintenance;

.involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or

.involvement in war crimes or crimes against humanity.

(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;

(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10…

1.11General 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 obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)." (pages 4-5)

1. In this case, the focus is upon Jinendra Prasad's past and present general conduct as set out in s. 501(6)(c)(ii) rather than upon the other criteria in that provision.  That requires a consideration of what is meant by the expression "good character".  It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:

"`Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)

1. After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:

"These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld." (pages 155-156)

1. 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)

1. 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)

1. 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)

1. Bearing all of these matters in mind, I will begin my consideration not with Jinendra Prasad's character but with the actions and statements of Indar Lata.  Mr Rawson sought to suggest that she was an unreliable witness and did so on the basis of her actions in relation to her obtaining her permanent spouse visa and subsequently her Australian citizenship.  He also relied on Jinendra Prasad's acknowledgment that Indar Lata's obtaining her Australian citizenship would be helpful in his obtaining a spouse visa. 

1. I will deal first with her obtaining her permanent spouse visa.  Some time was spent in cross-examining Indar Lata about the breakdown of her marriage and the timing of her application for a permanent spouse visa.  The questions were premised on the basis of her having obtained the permanent spouse visa on 9 April, 1998 and not, as the papers show, on 9 April, 1997.  Mr Rawson's premise had its foundation in Indar Lata's own evidence.  As the earlier date is shown on a copy of her passport and on a print out of the Department's records, I am satisfied that it is the correct date.  In light of that discrepancy, I do not place any weight on her agreement during cross-examination that she knew that her marriage was over when she received her permanent spouse visa.  She had also said that her marriage was breaking down in 1996 and 1997 but that she and her first husband were trying to work out their differences.  It was only at the end of 1997 or at the beginning of 1998 that she realised that they had irreconcilable difficulties. 

1. Under s. 48(1) of the Family Law Act 1975, an application may be made for a decree of dissolution of a marriage on the basis that it has broken down irretrievably.  Subject to s. 48(3), that ground shall be made out if, and only if, the court is satisfied that the parties separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date on which the application for dissolution of the marriage is filed (s. 48(2)).  Given that the decree nisi for dissolution of Indar Lata's first marriage was made on 18 November, 1998, her permanent spouse visa was granted some nineteen months before the decree nisi was granted and some seven months before the latest date on which Indar Lata and her first husband could have separated and begun to live separately and apart.  In view of this and without any other material to suggest that Indar Lata obtained her permanent spouse visa on a false premise, I am not satisfied that there was anything untoward in her obtaining it.

1. That brings me to Indar Lata's obtaining her grant of Australian citizenship.  She was advised on 24 November, 1999 that her application had been granted.  Australian citizenship is regulated by the Australian Citizenship Act 1948 ("Australian Citizenship Act").  Pursuant to s. 13, a person may apply for a grant of a certificate of Australian citizenship if he or she satisfies the Minister that he or she is, among other things, a permanent resident and has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application (s. 13(1)).  Indar Lata met these criteria in 1999 (or perhaps in 1998) and so was entitled to apply to become an Australian citizen.  There is no evidence as to when she lodged her application but the fact that she chose to apply when she was considering marriage to, or had agreed to marry, a non-Australian citizen should not be a matter that impinges on her credibility.  She was entitled under Australian law to take that course and did so.  Certainly, her doing so assisted in Jinendra Prasad's chances of being successful in his application for a spouse visa but it was a course that was lawfully open to her. 

1. As to her motives, Indar Lata said that she applied for a grant of Australian citizenship because she wanted to be part of the Australian community. She was not swayed from that position during the hearing. Even if she had applied because it would assist Jinendra Prasad's future application for a spouse visa, the Australian Citizenship Act does not exclude those applicants who have such a motive. Indeed, it does not prescribe any motives that a person must have in applying but only that they meet certain requirements. Section 13(1)(f) provides that the applicant must be of good character, but applying for Australian citizenship because it will also assist a person to achieve another object is not a reflection of character one way or the other.  It is no different from a person's applying for a driver's licence so that he or she may drive his or her disabled parents to their medical appointments.  The licence is no less lawfully and properly sought and granted to the person and will no doubt benefit that person simply because its being granted will, or may, have a beneficial consequence for some other person.

1. In any event, I am not satisfied that the grant of Australian citizenship to Indar Lata had any more beneficial effect in assisting Jinendra Prasad's application for a Spouse (Provisional) Visa than did the Resident Return Permanent Visa already held by Indar Lata.  Pursuant to criterion 309.211 in relation to a Spouse (Provisional) Visa, Jinendra Prasad need only to be the spouse or intended spouse of an Australian  citizen or of an Australian permanent resident (criteria 39.211(2) and (3)).  Regulation 1.03 defines an "Australian permanent resident" in the context of this case as "… a non-citizen who, being usually resident in Australia, is the holder of a permanent visa".  The expression "permanent visa" is not defined in the Regulations but is defined in the Act to mean:

   "A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely." (s. 30(1) and s.5(1))

Given that Indar Lata's visa entitled her to remain in Australia indefinitely, it must be regarded as a permanent visa and Indar Lata herself as a permanent resident on 9 April, 1997.

1. 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. 

1. 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. 

1. It is suggested that he did not take such an honourable course with regard to the events that led to the cancellation of his student visa in June, 1998.  It was found by the Minister's delegate and subsequently by the IRT that he had been in breach of the requirements imposed upon him by his course.  I do not have any evidence as to the nature of those requirements but accept that he was in breach of them.  Jinendra Prasad now accepts that he was in breach of them.  That is so even though he lodged an application to the Federal Court challenging the decision of the IRT. 

1. It was submitted on behalf of the Minister that Jinendra Prasad lodged that application, and even the earlier application in the IRT, in order to gain additional time in Australia and that he did so even when he knew that he did not have any chance of success.  I accept that his remaining in Australia was an outcome of his applications for he was granted a Bridging Visa on each occasion on the basis of his having made the applications.  That in itself does not necessarily reflect on his character one way or another.  It all depends upon his motives in applying to the IRT and to the Federal Court.

1. In relation to his application in the IRT, Jinendra Prasad said that he considered that he had a good chance of being successful because of the mitigating circumstances surrounding his failure to comply with the conditions of his student visa.  Having listened to the whole of his evidence, I accept that he felt great anxiety as a result of his mother's illness, and as a result of having to repay the loan for his car when he no longer had that car available for his use.  His mother's illness was not of a minor nature but a cerebrovascular accident affecting the left side of her body.  I accept that his debts were significant for a person of limited means who could work for only 20 hours each week.  I accept that he could not look to his parents for a great deal of money to fund his studies after his mother became ill for they had medical expenses to meet.  Although Jinendra Prasad said that they sent some money, I accept that neither he nor they provided enough to fund Box Hill's fees for I accept that some of his cheques were dishonoured and that he still owes Box Hill some amount by way of fees for his tuition.

1. Jinendra Prasad's returning to Fiji in April, 1998 when he was in financial difficulties could be seen as ill-advised and contrary to his evidence that he was anxious about his financial difficulties.  After all, he had to borrow more money on his visa card and put himself further into debt in order to undertake the trip.  As I find later, he had not paid his tuition fees.  On another view, his trip may be seen as an indication of the level of his concern for his mother and of his need to see her at that time.  Weighing against that latter view is that his trip took place some seven months after she became ill.  I will return to the circumstances of Jinendra Prasad's trip shortly.

1. 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. 

1. Although I am satisfied that his apparent poor pass rate in previous years had not caused him to fail to attend his lectures at Box Hill in the years prior to 1998, I am unable to find why Jinendra Prasad failed to attend more than 20% of the classes at Box Hill in 1998.  There are many possible reasons on the evidence as to why he could have done that.  He fixed upon one (i.e. lack of ability to concentrate because of his anxieties) but his past study records and his failure to pay the fees are the basis of equally valid explanations for his behaviour.

1. Jinendra Prasad said that he thought that his anxieties would be enough to persuade the IRT to restore his student visa.  I accept that he thought that.  He said that he had received advice that he might be successful and there was no evidence to the contrary. That the reasons for his failing to meet the requirements might be irrelevant in the decision whether or not to cancel his student visa does not detract from the genuiness of his belief that he thought that his reasons would be relevant and would persuade the IRT, and ultimately the Federal Court, to restore his student visa. 

1. Mr Rawson submitted that Jinendra Prasad falsely stated that he was a "student" on his departure and arrivals cards when he visited his mother in April, 1998.  He agreed that he was not studying at the time and I accept that the word "student" incorrectly described his occupation at the time.  Whether or not this is a matter that should be weighed in the balance against him in considering the quality of his character depends upon the whole context in which the statement was made.  At the time, he was on a student visa.  He was not studying and he said at the hearing that, at the beginning of 1998, he did not think it possible that he might attend classes at Box Hill or elsewhere.  On one view, that could be thought to be a statement made with the benefit of hindsight for I find on the evidence that he was engaged in further discussions with Box Hill from June, 1998 until some time later in that year.  On another view, it could be said that the further discussions were all "show" and was simply done to make him appear as if he were interested in resuming his studies and that he had always been a student who minded to resume his studies.  When his previous poor study record, the anxieties he faced, his inability to pay the outstanding fees, and his poor attendance record at Box Hill and City College are taken into account, I find that his approaching Box Hill is an indication of Jinendra Prasad's trying to manipulate events to suit himself rather than simply an indication of unrealistic expectations and an unrealistic view of his own abilities.  That conclusion is supported also by Jinendra Prasad's failure to pay the fees to Box Hill.  He had not paid the fees at the time he returned to Fiji and, as is apparent from the dishonoured cheque and outstanding fees as late as November, 1998 indicates that he did not mind to pay those fees.  He cannot be criticised for treating his mother's health as a priority but his doing so some seven months after her illness struck underlines his lack of commitment to paying his outstanding fees and so retaining his status as a student. 

1. In view of these findings, 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.

1. Jinendra Prasad was in breach of Australia's immigration laws when he failed to comply with the conditions of his visa and when he incorrectly stated his occupation to be that of "student".  On the basis of Jinendra Prasad's own evidence, I also find that he was in breach of Australia's migration laws when he worked more than 20 hours per week on occasion in his sister's 7-Eleven store.  I am unable to find on how many occasions this occurred for I do not have any material such as pay slips, pay records and the like.  Breaches of Australia's immigration laws and false or misleading declarations on approved forms are matters that the Minister requires be taken into account in considering whether a person passes the character test.  I do take them into account.  They do not reflect well on his character.  They indicate behaviour, such as a certain lack of truthfulness and certain disregard for Australian laws, from which it may be necessary to protect the Australian community for its safety or welfare.  If these were the only matters of concern, I would give greater weight to Jinendra Prasad's claim that his behaviour was dictated by his anxieties about his mother's health and financial problems.  Unfortunately, they are not.

1. Jinendra Prasad's statement that he did not tell Indar Lata that he was on a Bridging Visa, but on a Student Visa, has caused me considerable concern.  He stated that he told her when they met that he was on a Student Visa and she stated that he told her that he was studying.  That was in September, 1998 and so after the cancellation of his Student Visa.  By that time, his statement was false and he knew that he was on a Bridging Visa that permitted him to remain in Australia for 28 days after he had been notified of the decision on review.  He was never on a Student Visa nor studying.  At most, he was engaging in discussions with Box Hill about the payment of his fees and his re-enrolment. 

1. Jinendra Prasad said that he tried to tell Indar Lata of his correct status but she said that she did not want to know.  That is consistent with her statement that his past was not of interest to her.  His friend and relative, Mr Moopner, said that he did not know of Jinendra Prasad's not studying but seemed to know very little about him.  In some relationships and friendships, it may be that personal matters are not discussed.  It is most unusual however that matters affecting the future of two people are not discussed in the course of their friendship or relationship when they intended their futures to be shared.  I find that Indar Lata and Jinendra Prasad had discussed their plans to have children, buy a house and start a business in the future.  Jinendra Prasad's ability to gain a permanent visa in Australia affected their ability to carry out their plans for I find that they intended to fulfil their plans in Australia.  I also find that they spent a considerable amount of time together during the day after they met.  In the case of Jinendra Prasad's evidence, I find that they had lunch and dinner together every day.  I find that Indar Lata thought that Jinendra Prasad had graduated in 1998.  That does not mean that he could not be studying another course.  Taking all of the evidence together, however, I find that either Indar Lata knew that Jinendra Prasad was not studying by the time she and he agreed to marry in September 1999 or she was reckless as to whether he was or not.  I do not give any weight to the evidence of Mr Moopner as I do not accept that he did not know of Jinendra Prasad's status when he and Jinendra Prasad spent a considerable amount of time together as friends (as well as being related to each other and doing the same course, albeit in different years).

1. If I am correct in my view, both Jinendra Prasad and Indar Lata have continued to evade Australia's immigration laws. By marrying, lodging the visa application form and claiming that Indar Lata was unaware of Jinendra Prasad's status, they sought to have the Minister exercise any discretion under s 501 in their favour. In doing so, they sought to manipulate Australia's immigration laws to their own advantage. If I am incorrect in my view, I find that Jinendra Prasad has been prepared to mislead both his future wife and his closest friend. If he is prepared to do that, I find that he is prepared to mislead the Australian community whose members mean less to him. In either case I find that Jinendra Prasad's actions in this regard should be regarded as weighing against him in an assessment of his character.

1. Some attention was also given to Jinendra Prasad's withdrawal of his application in the Federal Court.  It occurred shortly after Indar Lata had received notification that her Australian citizenship had been accepted.  Jinendra Prasad said that he withdrew on the advice of his father.  As his father told him, he might well have been wasting his time in pursuing the Federal Court application.  For the reasons I have previously given, I do not accept the submission made on behalf of the Minister that Indar Lata's citizenship would have assisted his application.  Even if it had, I do not accept that the withdrawal of the application should be regarded as reflecting poorly on his character.  By this time, he and Indar Lata had agreed to marry with the approval of their parents.  The situation had changed for him.  He was to marry an Australian citizen and he had an opportunity to apply to come to Australia as her spouse.  As I have found that the Federal Court application was pursued with an honest belief in its prospects of success and as I am satisfied that his marriage has been entered for reasons unconnected with his wishing to return to Australia, I do not accept that his withdrawal should be taken to reflect adversely on his character.

1. In so far as his marriage is concerned, both Jinendra Prasad and Indar Lata professed their love and affection for each other.  Both speak of their plans for the future.  Some fifteen months passed between their meeting and their marriage.  Her father and his parents met each other and their child's intended at the end of the first year.  Two ceremonies were held and traditional practices followed.  The expenses incurred by Jinendra Prasad's family and by Indar Lata were substantial.  In the absence of any evidence that their marriage was not entered for any reasons other than their mutual love and affection, I am satisfied that they entered it for those reasons and that it is a genuine marriage.

1. I have looked to date at each of the matters relied on by the Minister.  Some of the matters do not reflect adversely on Jinendra Prasad's character.  Others do and they are his breach of his student visa by working longer than the permitted hours, his failure to study as required by that visa, his false statement on his arrival and departure cards and his attempt to mislead the Department and this Tribunal either about the disclosure of his status to Indar Lata or his failing to disclose it to Indar Lata.  I am satisfied that Jinendra Prasad has, at various times while he has been in Australia, attempted to subvert Australia's immigration laws.  He has done so not simply on one isolated occasion but has shown a pattern of doing so.  This is a breach of the trust imposed to him by the Australian community when he entered Australia.  It persuades me that he is a person who has shown that he is likely to put his own interests before that of the Australian community he seeks to join.  I am satisfied he is not a person of good character.

1. 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.  I have found that he and Indar Lata have entered a genuine marriage but I have also found that she knew of his not being a student at some time before she married him or agreed to marry him.  Even if she did not expressly know, I find that she would have deliberately shut her mind to the fact if she did not.  On her own evidence, she said that she thought he had graduated in 1998.  He had time to see her frequently and she knew he worked.  All of these factors pointed to him not being a student.  It presented her as a person who is not naive but as a person who is aware of what is happening around her.  She has formed a genuine bond with Jinendra Prasad but, I find, was not blinded by the emotions of the relationship.  If she was blinded, it was because she chose to be. 

1. I find that life would be difficult for Indar Lata and Jinendra Prasad if they were required to live in Fiji even though I find that both Indar Lata and Jinendra Prasad's parents live in that country.  On the evidence, employment opportunities are few.  They agreed to marry and embarked on their marriage, however, knowing that there was no guarantee of their being able to start married life together in Australia or, at least, reckless as to whether they could or not.  In view of that, I do not consider that their personal difficulties are such that he should be accepted by the Australian community for whose laws he has shown serious disregard.

1. For the reasons I have given, I affirm the decision of the respondent dated 30 March, 2000.

I certify that the one hundred and twenty six preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed:   

...............................................

A R Horne   Associate

Dates of Hearing  4 and 7 December, 2000
Date of Decision  21 February, 2001
Solicitor for the Applicant                 Mr Krohn
Solicitor for the Respondent             Mr Rawson