Makbool and Minister for Immigration and Multicultural and Indigenous Affairs

CATCHWORDS –IMMIGRATION – Partner (Temporary)/(Residence) visas – character test – assessment of good character – failure of applicant to provide information detailing previous name, marriage and children on visa application form – whether applicant knowingly deceived immigration department - seriousness of the conduct and legitimate expectation of the Australian community – whether refusal likely to prevent or discourage similar conduct of others - assessment of children's best interests – whether wording of Minister's direction requires that the applicant be given an opportunity to provide evidence before the delegate makes a determination under s. 501 - decision affirmed.

Migration Act 1958 ss. 5, 20, 31, 499, 500, 501 and 501G
Migration Regulations 1994 s. 31, Schedules 2, 4 and 6
Tradesmen's Rights Regulation Act 1946

Re Jonsson and Marine Council (No. 2) (1990) 12 AAR 323
Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355
Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27 September, 1994, Decision No. 9753)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353

DECISION AND REASONS FOR DECISION [2002] AATA 985

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2002/281
GENERAL ADMINISTRATIVE DIVISION     )

ReMOHAMMAD MAKBOOL
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  22 October, 2002
Place:  Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 1 August, 2002.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 25 June, 2002, the applicant, Mr Mohammed Makbool, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("Minister") dated 1 August, 2002. That decision was to refuse Mr Makbool both a Partner (Temporary)(Class UK)/Partner (Residence)(Class BS) Visa (Subclasses 820/801) to remain in Australia on spouse grounds on the basis that he did not pass the character test set out in s. 501 of the Migration Act 1958 ("the Act").

At the hearing, Mr Makbool was represented by his solicitor, Mr Winter, and the Minister by his solicitor, Ms Reed. The documents lodged pursuant to s. 500(6C) ("G documents") were admitted in evidence together with supplementary G documents ("SG documents") and a number documents to which I will refer in the course of these reasons. Oral evidence was given by Mr Makbool in support of his own case together with his wife, Mrs Farida Makbool, his former wife, Mrs Amina Khatoon Khan and his son, Mr Mohammed Mahmood Ahmed Makbool. Oral evidence was given by Mr Alan Smith and Mr John Ward in support of the Minister's case.

THE ISSUE

The first issue is whether Mr Makbool passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second issue is whether the discretion in s. 501(2) should be exercised to refuse to grant him the visa.

BACKGROUND

Certain factual matters were not in dispute between the parties. In view of that, and on the basis of the evidence, I have made a number of findings of fact that I will set out in the following paragraphs.

Early life in Fiji

Mr Makbool was born in Fiji on 15 December, 1953 at 6 Miles Nasinu in Fiji. At that time, he was known as Mohammed Iqbal Khan ("birth name") and was the youngest in a family of ten children. He attended primary and secondary schools until the end of 1971 when he had completed the Junior Certificate.

On 16 December, 1971, Mr Makbool married Amina Khatoon Khan in Fiji. They had two sons and a daughter; Mohammed Muckhatar Makbool born in 1972, Mohammed Mahmood Makbool born in 1975 and Sherina Khatoon Makbool born in 1979.

Period in New Zealand

Based on the evidence of Mr Makbool and Mrs Khan, I find that they and their three children spent some time in New Zealand. They overstayed their visas permitting them to remain in New Zealand. Mr Makbool attended the Department of Immigration voluntarily after receiving a request from that Department requesting that he do so. The Department permitted the family three months to finalise its affairs in that country and to leave. Mr Makbool and his family paid for their own fares to travel back to Fiji in 1978.

Application for visas on 28 July, 1987 and 11 June, 1991

On 28 July, 1987, Mr Makbool applied for a visa Class 302 (emergency – permanent visa) for himself and four dependants. He was sponsored by his brother, Mr Abdul Lateef Makbool but his application was refused on 7 October, 1988. On 11 June, 1991, Mr Makbool applied for a Subclass 105 (Concessional Family) Visa and did so using his birth name. His application was refused on 24 October, 1991.

Application for a Concessional Family Visa on 15 October, 1995

On 15 October, 1995 and again using his birth name, Mr Makbool applied for a Subclass 105 (Concessional Family) Visa to enable him and his family to migrate to Australia (Exhibit 3). Mr Makbool showed his children as having the family name "Maqbool", his father as Maqbool and his mother as Khatoon Maqbool and as having been born in 1910. He noted that his mother was widowed. Mr Makbool showed his date of birth as 15 December, 1953 and his wife's names as Amna Khatoon Khan. As requested by the application form, he named all of his nine brothers and sisters, set out their dates of birth and the countries in which they resided.

Mr Makbool's application was sponsored by his brother, Mr Abdul Lateef Makbool and required an assessment of Mr Makbool's qualifications. Mr Makbool set out his qualifications and experience in a range of work including plumbing, welding, motor mechanics, pipe laying and sanitary pipe laying.

In a letter dated 10 October, 1996, Mr Makbool was advised by Trades Recognition Australia that he was unable to satisfy the criteria established for recognition as a tradesperson in Australia under the Tradesmen's Rights Regulation Act 1946 (SG documents, page G1-1). That was so because he did not possess an acceptable formal qualification or have the required period of employment on the work ordinarily performed by a skilled tradesperson in Australia.

Department receives letter purporting to be written by Mrs Amna Khan on 18 October, 1996

A letter was received by the Department in Fiji on 18 October, 1996. It purported to have been written by Mrs Amna Khan and stated that "… she did not want the applicant issued a visitor visa without her permission because he had been having an affair with a woman named Farida from Adelaide" (G documents, page G22-178).

Mr Makbool and Mrs Khan granted a decree nisi for dissolution of their marriage in November, 1996

On 18 November, 1996, the Magistrate's Court in Suva granted a decree nisi in relation to the marriage of Mr Makbool and Mrs Khan. When that decree nisi became absolute on 18 December, 1996, their marriage was dissolved and Mr Makbool was given custody of their daughter while Mrs Khan was given reasonable access to her. All of the children remained with Mrs Khan in the home in which Mr Makbool had been born and in which they had lived all of their married life.

Application for a visa on 17 December, 1996

On 17 December, 1996, Mr Makbool applied for a Class TR Subclass 676 Short Stay (Visitor) Visa to visit Australia for tourism or other recreational activities. The Department has mislaid the original of his application but it was agreed between the parties that it was in the form of Exhibit 4. Mr Makbool also agreed that he had, when asked about his marital status in that form, ticked the box marked "Married". The other boxes from which he could have chosen were marked "Engaged", "Common law/de facto", "Separated but not divorced", "Divorced", "Widowed" and "Never married" (Exhibit 4). His application was refused (G documents, page G22-177).

Decision on 27 January, 1997 to refuse application for a Concessional Family Visa lodged on 15 October, 1995

A consequence of the decision by Trades Recognition Australia was that Mr Makbool was unable to satisfy the Points Test set out in Schedule 6 of the Migration Regulations 1994. Consequently, he did not satisfy the criteria for the visa and his application was refused. He was advised of that in a letter dated 27 January, 1997 (SG documents, pages G2-3 and G5-11).

Marriage and new documentation on 17 February, 1997

Mr Makbool obtained a passport on 17 February, 1997 (G documents, page G21-176). That was the day on which he was married to Ms Farida Bibi Jezierski (SG documents, page G4-10), who became Mrs Farida Bibi Khan and later Mrs Farida Bibi Makbool. Mrs Makbool had previously been married to Mr Adrian Jezierski but that marriage had ended in divorce on 27 April, 1995. They had one son, Jameel, who was born on 11 October, 1990.

Application for a visa on 20 February, 1997

On 20 February, 1997, Mr Makbool completed an application for a Class UF Subclass 309 Spouse (Provisional) Visa in order to migrate to Australia (G documents, pages G20-158-175). He applied in his birth name and relied on his marriage to Mrs Makbool, who was then known as Farida Bibi Khan. Mr Makbool showed personal details such as his previous marriage to Amna Khan, his children and his date of birth. Mrs Makbool reflected that information in her application, dated 17 February, 1997, to sponsor Mr Makbool for migration to Australia (SG documents, pages G3-4-9).

Decision regarding application on 11 August, 1997

Regard was had to the letter purported to have been written by Mrs Khan together with other material relating to the marriage between Mr and Mrs Makbool. On 11 August, 1997, a delegate of the Minister decided that the relationship between them was not genuine and that they did not have a mutual commitment to share their lives as husband and wife. Consequently, he decided to refuse Mr Makbool's application for a visa on the basis of the lack of genuiness of the relationship and pursuant to s. 501 of the Act. (G documents, pages G22-177-181).

Application for a visa on 31 July, 1998

On 31 July, 1998, Mr Makbool completed an application to migrate to Australia on a spouse visa (G documents, pages G19-140-157). He did so in his birth name and revealed information regarding his family as before. He again relied on his marriage to his wife who sponsored his application (SG documents, pages G8-15-19).

Events leading to decision on 16 July, 1999

There was a considerable amount of evidence from Mr and Mrs Makbool, Mrs Khan and Mr Smith regarding the events that led to Mr Smith's making a decision to refuse Mr Makbool's application on the basis that his marriage to Mrs Makbool was not genuine. From that evidence, I am able to find, and do find, that a letter was received by the Department in Fiji on 26 April, 1999. It read in part:

" I would like to lodge a complain (sic) about my husband named Mohammed Iobal Khal M/N Khatan D/B 15/12/53 – is trying to runaway to Australia with another woman and he is trying to make a new passport on someone's name with his photo on it,
I am enclosing a photo of his and in case if he lodge a form for a new passport please check this photo first. And is it possible you can stop this woman FARIDA KHATOON – F/N- MUMTAZ ALI-KABASI TAMAVUA – migrated to ADELAIDE AUST.
She is causing lot of problems in my marriage life.
I hope you will help me in this case." (Exhibit 5)

I also find that Mr Smith telephoned Mrs Khan and spoke to her both in the Department's premises and again at her home. Mr Smith understood from his conversation with Mrs Khan on the telephone on 9 July, 1999 that she was still living with Mr Makbool, that she was expecting her husband home from work that afternoon, that she knew that her husband was having an affair, that it was ruining their relationship and that she was not divorced from Mr Makbool. He asked her to go to the Department to make a statement and she attended with her son on 15 July, 1999. Mr Smith understood Mrs Khan to deny the substance of each of her previous statements to him over the telephone. On the basis of his evidence, I find that Mr Smith visited Mrs Khan later that day and spoke to neighbours and to people in premises in the area of the address given as his residence by Mr Makbool. At that time, he was accompanied by Ms Veena Singh, who was a Visa Officer and who assisted him if he required any language to be interpreted. Mr Smith understood from his conversations, including that with Mrs Khan, and from enquiries he had instigated with Suva Interpol and with the Water and Sewerage Section of the Public Works Department that Mr Makbool was continuing to live with Mrs Khan. Mr Smith visited the premises at the address given by Mr Makbool as his then place of residence but does not recall the apartments above the shops at that address (Exhibit O).

In her evidence, Mrs Khan denied that she had written the letter received on 26 April, 1999 and denied that her husband had been living with her at the time. Mr and Mrs Makbool denied that he was living with his former wife at that time. Mr Makbool's son, Mr Mohammed Mahmood Ahmad Makbool, supports their evidence both orally and in writing (Exhibit FF).

This is not a matter on which I intend to make findings other than in so far as I have made them in relation to Mr Smith's understanding of what he was told. It is not necessary to do so for whether or not Mr Makbool was living with Mrs Khan or not or whether or not he gave false information to the Department in relation to this application is not relevant to my consideration of the decision under review and it is not a matter to which I have had any regard.

I do find that, as a result of the conclusions that he drew on his understandings, Mr Smith decided to refuse Mr Makbool's application for a visa and he did so on the basis that he did not have a mutual commitment to a shared life as husband and wife with Mrs Makbool. As a consequence, he could not be regarded as the spouse of Mrs Makbool and so did not satisfy the criteria for the issue of a spouse visa (G documents, pages G19-127-130).

Evidence of Mr Makbool's place of residence in August, 1999

At the hearing, the originals of four letters were produced on behalf of Mr Makbool. Three of those letters were addressed to the Immigration Officer at the Australian High Commission or the Australian Embassy in Suva. One dated 3 August, 1999 was signed by Mrs S Waqa for the Principal Engineer of the Suva Water Supply in the Ministry of Works at Sambula. It referred to a conversation that had taken place with Mrs Ashwin regarding Mr Makbool and continued:

"… I wish to confirm that I personally have no idea of his present address but I gave the information from what I learnt from people around me at the time of the call.
At the moment, he is residing at 45 Moala St, Samabula.
Any inconvenience is regretted." (Exhibit X)

A second letter dated 2 August, 1999 was signed by Gyan Mala and carried the address at which Mr Makbool stated that he lived. It read:

"I Gyan Mala would like to confirm the Department of Immigration that I have sublet one of the rooms to Mr. Mohammed Iqbal Khan and Mrs Farida Khan since 24/7/98.
As I am the tenant of this flat no one has asked me regarding Mr. Khan living in this flat. He departs for his work at 6.30am and usually comes at 6.00pm. This is commercial area and few residential houses are found here and mostly working people live here. We hardly see each other.
I would like to strongly confirm that Iqbal Khan is living at 45 Moala Street, Suva." (Exhibit W)

A third letter was undated and read:

"Mr. & Mrs Iqbal Khan approached me (~~Shyam Narayan~~) Sam DATT ~~owner~~ of Danny's Auto Parts regarding if any one was asking about Mr. khan. To confirm I told them that an Indian lady and European man showed his passport photograph and were asking if he is living somewhere around here.
To be frank I am not aware of all the neighbors around here as this is my business place where I operate from 8.00am to 4.30 P.M. I did tell them that there were residential flats upstairs in the building they should ask the tenants living upstairs." (Exhibit U)

A fourth letter dated 4 August, 1999 was addressed only "To Whom It May Concern" and was written by Joe Cheng:

"I, the Shopkeeper of Cheng Store wish to confirm with the authorities concerned that I did not mean that Mohammed Iqbal Khan stays with his ex-wife. I meant that I know Mr Khan as the Shop I run is his family's and the brothers who own are in USA so Mr Khan usually collects the rent and maintains the area now and then.
For any inconvenience caused to Mr Khan is regretted." (Exhibit V)

Change of name and new documentation

On 30 August, 1999, Mr Makbool changed his name by deed poll from Mohammed Iqbal Khan to Mohammed Makbool (Exhibit M). A certified copy of Mr Makbool's birth certificate dated 2 September, 1999 and showing his new name otherwise contained all the same information as in his original birth certificate (G documents, pages G16-117 and G23-186). On 9 September, 1999, Mr Makbool obtained a new passport in his new name after telling the appropriate authorities in Fiji that he had lost his passport after he wrote off a motor vehicle. He told them that he had kept the passport in the glove box of that motor vehicle.

Visa granted to Mr Makbool on 15 September, 1999

Mr Makbool's next application for a visa does not appear in the evidence but a visa was granted to him on 15 September, 1999 enabling him to stay until 5 January, 2000 (G documents, page G12-110). He arrived in Australia on 5 October, 2000 and he was granted further visas to remain on 30 November, 1999 and 14 August, 2001. That application was made in his current name and not in his birth name.

Second marriage to Mrs Makbool

On 8 November, 1999, Mr and Mrs Makbool were married for a second time. This time, they were married in Australia but had been previously married in Fiji. They were divorced in between the two marriages. Mr Makbool's explanation for the divorce was that his wife had "… had been advised by someone … that if she married me again in Australia, without previously being divorced, it would amount to bigamy. …" (Exhibit Z, paragraph 1.17)

Application for migration to Australia by a partner

On 8 March, 2002, Mr Makbool signed a second application for two visas under consideration in this case (G documents, pages G1-1-19). His earlier application had been misplaced by the Department (G documents, page G14-113). Mr Makbool applied in his new name but showed details such as his date of birth and the names of his brothers and sister as he had earlier applications when he used his birth name. Although the years of birth varied by a year or two in some instances, he showed his brothers and sisters by the same name or by initials matching the names he showed in his 1995 application. Their countries of residence also matched. Mr Makbool also recorded the names of his parents as Maqbool and Khatoon as he had in his 1995 application. He had earlier provided the same information about his parents in a form headed, "Personal Particulars for Character Assessment" (G documents, pages G4-25-26)

Although asked to show other names by which he is "… or have been known by (including name at birth, previous married names, aliases)", Mr Makbool did not disclose his birth name. He placed a dash in the space provided for the answer. When asked whether he had previously been married or been in a de facto relationship, Mr Makbool marked the "No" box. He crossed out the section of the form asking for details of his children (including those from a previous marriage or a previous relationship).

CONSIDERATION

Framework of Act

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 visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Regulations (s. 31(2)). 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 any spouse visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.

At the time that the delegate's decision was made and of this review, criterion 4001 provided that:

"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test."

Section 501(1) of the 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."

Although this is a case in which the Minister has refused to give Mr Makbool a visa and not a case in which he has cancelled a visa, it is appropriate to note the provisions of s. 501(2) relating to cancellation. It provides that:

"The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test."

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

"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."

Procedures to be followed once the Minister or his delegate makes a decision

Section 501G sets out the procedures that the Minister must follow if he makes a decision under, among others, s. 501(1) as he has done in this case. He must give the person whose visa he has refused or cancelled a written notice setting out the decision, specifying the provision under which the decision is made and setting out the reasons (other than non-disclosable information) for the decision (ss. 501G(1)(a) to (e)). Non-disclosable information means information that, in the Minister's opinion, would be contrary to the national interest for one of the reasons specified in s. 5(1). There is no such information in this case. The Minister is also required to advise the person of his or her right to have the decision reviewed by the Tribunal and, where the person is in the migration zone, to advise of the effect of ss. 500(6A) to (6L) of the Act. As Mr Makbool is in the migration zone, the notice that the Minister gives must also:

"be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate's possession or under the delegate's control; and
(e)was relevant to the making of the decision; and
(f)does not contain non-disclosable information." (s. 501G(2))

There is no question that the Minister complied with the requirements of s. 501G in relation to the decision he made refusing Mr Makbool's visa.

Procedures to be followed before the Minister or his delegate makes a decision

Mr Winter was concerned not with the procedures following the decision but with the procedures followed by the delegate before the decision was made. He submitted that the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") had not given Mr Makbool an opportunity to satisfy the Minister that he passed the character test. He pointed to paragraph 1.1 of the Minister's Direction made under s. 499 of the Act entitled "Visa Refusal and Cancellation under Section 501" ("the Direction"). He observed that paragraph 1.1 states that the decision-maker must follow a two step process. That paragraph reads:

"Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If there is reasonable suspicion that a non-citizen does not pass the Character Test, the non-citizen must also provide evidence to satisfy the decision-maker that the non-citizen passes the Character Test."

Whether the Direction requires the decision-maker to give Mr Makbool an opportunity to provide evidence is a matter to which I will return. Mr Winter acknowledged that in its letter dated 27 March, 2002, Mr Makbool had been given "an opportunity to comment" on:

"breaches of Australian immigration law and process, in that you gained a visa to enter Australia (on 5 October 1999) through misrepresentation of your identity
provision of false and misleading information in connection with your present application for a visa(s) to remain in Australia." (G documents, page G6-62)

He submitted, however, that Mr Makbool had not been asked to provide "evidence" as required by the Direction. When his attention was directed to the fact that the Department had sought information as well as comment in its letter of 27 March, 2002, Mr Winter submitted that "evidence" is different from "information".

When I have regard to the whole of the letter written, I am unable to accept Mr Winter's submission. It is addressed to Mr Makbool and begins by referring to his applications for Subclass 820 and 801 visas and then states that it has come to the Department's attention that the visa may be liable to be refused under s. 501 of the Act and, in particular, under s. 501(6)(c)(ii). A full copy of s. 501 is enclosed with the letter. There then follows the passage to which Mr Winter referred followed by the statement that the Minister or his delegate would have regard to those matters and to those in the Direction, a copy of which was also enclosed. The letter asked Mr Makbool to read the Direction fully and carefully and to "… address each and every topic that you feel applies to you or is relevant to your circumstances. You may also wish to provide any further information that you feel the Minister ought to be aware of and take into account." (G documents, page G6-63). It then told him that he had to "… provide any written comments and information …" by close of business on 23 April, 2002 (G documents, page G6-63). The letter clearly asked for information and clearly did so in the context of the character test and, more particularly, in the context of his past and present general conduct. While it did not use the word "evidence" but chose instead the word "information" it conveyed the sense of the Direction in that it conveyed that he should provide everything that would support the Minister's finding that he satisfied the character test. It was a sense more adequately conveyed to the non-lawyer to whom it was addressed, Mr Makbool, by the word "information" than by the word "evidence".

As I foreshadowed, I do not consider that the Direction establishes a requirement that a person be given an opportunity to provide evidence if the Minister has a reasonable suspicion that he or she does not pass the character test. What paragraph 1.1 is seeking to do is to restate the law but not to establish a new procedure.

If I should be incorrect in this view and the Direction does impose some procedural requirement on the decision-maker, it does not necessarily follow from a failure to follow a procedural directive that the decision of the delegate is invalid. Although it is not for me to determine the validity or invalidity of an administrative act, it is appropriate for me to express an opinion upon it for the purpose of considering whether or not I have jurisdiction to review a decision. I rely on the reasoning that Brigadier Brumfield, Captain Keane and I adopted in an earlier case of Re Jonsson and Marine Council (No. 2) (1990) 12 AAR 323.

At one time, failure to follow a mandatory provision might have led to an exercise of a power being found to be invalid but failure to follow a directory power would not have. Much would have turned then upon the proper characterisation of a requirement of the Direction. The distinction between mandatory and directory provisions is no longer a valid distinction to draw. That follows from the majority judgement of the High Court in Project Blue Sky Inc and Others v Australian Broadcasting Commission [1998] HCA 28, 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ, Brennan CJ dissenting). Although dissenting, Brennan CJ summarised the current position when he said:

"… A provision may require the repository or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power (Osborne v The Commonwealth (1911) 12 CLR 321 at 336-337; Buchanan v The Commonwealth (1913) 16 CLR 315 at 329): the provision does not condition the existence of the power (See, eg, Clayton v Heffron (1960) 105 CLR 214 at 246-248; Simpson v Attorney-General (NZ) [1955] NZLR 271; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367). Such a provision has often been called directory, in contradistinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory." (page 374)

Brennan CJ had distinguished this type of provision from two other types of provision, which he compared in the following passage:

"A provision which directs the manner of the exercise of a power is quite different from a provision which prescribes an act or the occurrence of an event as a condition on the power – that is, a provision which denies the availability of the power unless the prescribed act is done or the prescribed event occurs. In one case, power is available for exercise by the repository but the power available is no wider than the direction as to the manner of its exercise permits; in the other case, no power is available for exercise by the repository unless the condition is satisfied (See, eg, Spicer v Holt [1977] AC 987). A provision which prescribes such a condition has traditionally been described as mandatory because non-compliance is attended with invalidity. A purported exercise of a power when a condition has not been satisfied is not a valid exercise of the power." (page 373)

This approach is consistent with that adopted by the majority when they said:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood ([1978] 1 NSWLR 20 at 23-24. See also Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 161-162, per Gibbs J.) in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146, per Gummow J.) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377). In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' (Takser v Fullwood [1978] 1 NSWLR 20 at 24)." (pages 390-391)

Applying these principles to the Direction and the Act, I must have regard to the language of each and to the scope and purpose of the Act. In so far as the Direction is concerned, its directions are directed to the performance of functions and the exercise of powers under the Act (s. 499(1)). In making that Direction, the Minister may not give directions that would be inconsistent with the Act or the regulations made under it (s. 499(2)). The Act, in turn, gives the Minister a number of powers and, in the context of this case, gives him powers to refuse or cancel visas on the basis that he or she is not of good character as that expression is defined in the Act. It is not a power that is hedged in the Act with procedural requirements prior to its exercise although the Minister must follow certain procedures after he has exercised it. If the Direction were to require that certain procedures be followed before the power given to the Minister in s. 501 might be validly exercised it would be inconsistent with the unrestricted power given in the Act. It follows that the Direction's requirements cannot be read as limiting the exercise of the power under s. 501 and so cannot be read as requiring procedures to be followed before the valid exercise of the power under s. 501. Therefore, I have concluded that, even if the Department's letter of 27 March, 2002 did not comply with the Minister's Direction, it would not invalidate the subsequent exercise of his power by the delegate.

Even if I am incorrect and the power was invalidly exercised by the delegate, I have concluded that the Tribunal has power to review the decision. I base that conclusion upon the judgement of the Full Court of the Federal Court in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Bowen CJ, Smithers and Deane JJ. The Full Court considered a case in which a decision had been made to cancel a warehouse licence but there was no statutory power to make such a decision. The majority of the Full Court (Bowen CJ and Smithers J) held that the Tribunal had the power to entertain an application made to it to review such a decision. Bowen CJ said at pages 314-316:

"In the Administrative Appeals Tribunal Act a wide meaning is given to the word 'decision' by s3(3). In s25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words 'made in the exercise of powers conferred by that enactment'. This may mean that it must be shown there was a decision made:-
(a)in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b)in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c)in purported exercise of powers conferred by the enactment.

The words 'purported exercise' in (c) are used as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred.
The context of the Act appears to me to point against the adoption of interpretation (a). The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in may cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).
...
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v. Carr (1979) 22 ALR 417. I would adopt interpretation (c).

...
Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it."

Applying the principles expressed in the Brian Lawlor case, the delegate's decision expressed is a reviewable decision even if it was not properly made. This is certainly the practical result. There has been a decision with the practical consequences that Mr Makbool does not have a visa to remain in Australia and is in detention.

The Direction

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 16 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.

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

"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 a 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 crimes committed, the non-citizen's links to Australia and any relevant international law obligations."

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 to remain in the community."

The Direction – good character

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 paragraph, the Minister states:

"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."

Section 501(6)(c)(ii) is relevant in this case. In relation to that section, the Minister directed that:

"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 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
·the seriousness of the offence with which the applicant has been charged; or

(b) resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. 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)."

The authorities – good character

In this case, part of the focus is upon Mr Makbool's past and present general conduct as set out in s. 501(6)(c)(ii). 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 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)

After considering the 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)

A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27 September, 1994, Decision No. 9753) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910). 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)

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 good character 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 proved 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)

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) 56 ALD 321. 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 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 (sic) it is unnecessary to pursue this question." (paragraphs 8 and 24, pages 324 and 327)

Does Mr Makbool satisfy the character test?

As Mr Winter submitted, I find that Mr Makbool has a history of continuous employment in Fiji where he was employed for approximately 20 years by the Public Works Department as a plumber and driver. Since arriving in Australia, he has been employed within a couple of days of being permitted to work according to the terms of his visa. He was first employed at Lear International making seats for Holden. He now has a half share in a business called Curry Away where he works from 4.30pm to 10.00pm each day except Monday. In addition, he has purchased a truck and operates a transport business under the name of Maq Transport. He transports meat for the Master Butchers Co-operative on a contract basis. I find that his supervisor in that work, Mr Christopher Richmond, has found that "most of the feedback … from those customers is he is a very friendly obliging operator with a good sense of humour." (Exhibit E) Should Mr Makbool be able to undertake future contract work, Mr Richmond would have no hesitation in welcoming him back.

In his personal life, I find that Mr Makbool has worked to build a house for himself, his wife and his daughter. He has also assisted in the construction of a second dwelling built on the same block of land. That dwelling is owned by a member of his wife's family. Based on her evidence, I find that Mrs Makbool has four brothers, all of whom live in Adelaide with their families. She also has five sisters, two of whom live in Adelaide with their families. Based on the statement of Mr Shahid Ali, which was not contradicted, I find that he had known Mr Makbool for approximately 23 years. Taking his evidence into account together with that of Mr and Mrs Makbool and the photographs of family occasions, I find that Mr Makbool has been accepted by Mrs Makbool's family in Australia and is included in family gatherings and family enterprises such as the building enterprise. He is regarded by Mr Shahid Ali as a good person and is accepted by him as a genuine person.

Based on the statements of two of Mrs Makbool's brothers, Mr Shahid Ali and Mr Ahmed Ali, and one of her sisters, Mrs Abida Dajani, together with the evidence of Mr and Mrs Makbool, I find that they believe that a person known to the family suffers from mental illness. I will refer to her as "Alpha" in order to protect her identity as she was not called to give evidence and so not afforded an opportunity to respond to the allegations. Alpha has been hospitalised on occasion and continues to be treated with medication. I further find that they believe that mental illness has caused her to make false accusations to outsiders about the behaviour of members of the family, to impersonate members of the family and to exhibit violent behaviour and an uncontrollable behaviour.

Mr and Mrs Makbool blame Alpha or an unknown third party for making false allegations to the Department and so causing the Minister's delegate to refuse Mr Makbool a visa in response to his applications in the past. Mr Shahid Ali believes that Alpha's "… constant attempts to hurt her family members due to her mental condition" led Mr Makbool to "… act so out of character by providing and false or misleading information to the Department …" (Exhibit CC, paragraph 9). Based on their evidence, I also find that Mr and Mrs Makbool blame Alpha for the Department's identifying Mr Makbool as the person who had previously applied for visas in his birth name. They believe that she must have told the Department that he had done so for, apart from her, they were the only people who knew that he had changed his name.

Just as I have not made any findings of fact regarding the letters purporting to be sent by Mrs Khan to the Department in Fiji, I do not intend to attempt to make any findings of fact as to whether or not Alpha gave the Department any information or did not. I am not in a position to attempt to do so for Alpha was not called to give evidence and I have only the allegations of Mr and Mrs Makbool in relation to that aspect. Quite apart from that, it is not necessary to do so for I do not consider that any actions that may have been taken by Alpha, and I do not know if there are any, are relevant to my decision. What are relevant are the actions of Mr Makbool for it is his character that is under consideration. Before leaving this matter, though, I would venture one comment. I have described the contents of the various applications made by Mr Makbool in both his names with some care. It is apparent from his latest application that, although he used his new name, he also revealed personal information, such as the names of his parents and brothers and sisters and his date of birth, that identified him as one and the same person. Furthermore, the sponsor for a spouse visa of Mr Khan and of Mr Makbool was Farida Bibi Khan. Therefore, his own application was, with even a cursory cross matching of information, sufficient to identify him as one and the same person. Revelation of his identity was not dependent upon the Department's receiving information from an outside source. That much is apparent from the face of the documents but it is apparent from the file note of Mr Ward that he had cross checked such information and come to the same conclusion (G documents, pages G14-113-114 and later G5-26-27).

Returning to Mr Makbool's actions, I find that he gave false answers or omitted to provide full answers to the questions asked in the application. He failed to reveal his previous name, his marriage or his children. According to the Direction, he has failed the character test in the absence of countervailing evidence. That countervailing evidence in this case is that he wanted to obtain a visa to further his own interests to live in Australia. He felt that he was entitled to live with the woman who had now become his wife. Both Mr and Mrs Makbool felt that he would never be able to achieve his wish for his previous two visa applications had been rejected for reasons that were, in their opinion, without foundation. The Department would never listen to them for it would always listen to those who provided it with false information. The effect of their evidence is that their love for each other justified Mr Makbool's actions.

Another aspect of the countervailing evidence is not a matter on which Mr Makbool placed any weight. This was the evidence of the four letters dated in August, 1999 attesting to his place of residence at an address other than with his wife. Those letters were not available to the Department when the decision was made on 16 July, 1999. If they had been made available to the Department before it made its decision or had been produced in the context of an application for review, they would have been relevant in determining Mr Makbool's place of residence at the time and so in determining whether or not Mr and Mrs Makbool's relationship was genuine at the time. Mr Makbool chose not to present the letters at that time but to change his name. Mrs Makbool justified her husband's actions by saying that the review process was too expensive.

Taking all of these matters into account, I have concluded that Mr Makbool does not pass the character test. His actions in providing false information to the Department and in choosing to do so rather than to follow the review process with regard to an earlier decision show a person who is prepared to falsify documents to further his own ends. They show that he will do what is necessary to further his own interests and those who are intertwined with those interests i.e. Mrs Makbool and her son and their daughter. His interests do not, on the evidence, appear to extend to his former wife or to his children from that marriage. Certainly, his children from that marriage are no longer young children but, in claiming, as he does, that a new name meant a new man and in omitting them from the application, he is effectively denying his three older children. His actions show that he will do what is necessary to further his own interests and to put his own interests above his wider duty to the Australian community to abide by the law.

As I said in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339:

"54. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some other contexts. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met. Fairness and equity are of such importance that it seems to me that I must conclude that the traits she has shown in seeking to avoid their application to her outweigh the good traits she shows as a loyal and caring wife to her husband and as a respectful and gentle person to her friends. Consequently, I find that, for the purposes of the Act, she is not of good character. I repeat what I said earlier and that is that this finding does not mean that she is of bad character."

In my view, a similar conclusion must be made in relation to Mr Makbool. He has shown concern for Mrs Makbool and for his wife's family as well as for her son and their daughter. Those are matters that concern him and his interests directly but they do not outweigh the lack of concern that he has exhibited for the wider Australian community. I have concluded, therefore, that Mr Makbool does not pass the character test.

THE DISCRETION

70. Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:

"… note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (paragraph 2.2)

71. The three primary considerations are:

"(a)the protection of the Australian community and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children." (paragraph 2.3)

The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Makbool's conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.

Of particular significance in relation to the seriousness and nature of Mr Makbool's conduct, I must have regard to:

"(c)serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia." (paragraph 2.6)

In assessing such matters, regard must also be had to any relevant factors put forward by Mr Makbool as mitigating factors (paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.

Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:

"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. 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 would expect that the person would not be granted a visa or should be removed from Australia. …" (paragraph 2.12)

In relation to the third primary consideration, the Minister stated that, in general terms, a child's best interests are served if he or she remains with its parents. Countervailing considerations to which he refers are not relevant in this case. The matters to which the Minister has directed a decision-maker's attention in considering the best interests of the child are:

"(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(a)the age of the child;
(b)whether the child is an Australian citizen or permanent resident;
(c)the likely effect that any separation from the non-citizen would have on the child;
(d)the impact of the non-citizen's prior conduct on the child;
(e)the time (if any) that the child has spent in Australia;
(f)the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(g)any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(h)any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances." (paragraph 2.16)

In looking at the best interests of the child, regard must also be had to the High Court's judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child ("the Convention") in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:

"Article 3
1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.     …
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1.States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2.For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…"

The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:

"No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it." (page 365)

The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. Each of those other considerations is given less weight than is given to the primary considerations. Examples of other considerations are set out by the Minister and, of these, the following are relevant in the circumstances of this case:

"(a)   the extent of the disruption to the non-citizen's family, business and other ties to the Australian community;
(b)     …
(c)     …
(g)family composition of non-citizen's family, both in Australia and overseas;
(h)…
(i)…
(j)…
(k)any evidence of rehabilitation and any recent or good conduct;
(l)whether the application is for a temporary or permanent visa;
(m)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(n)…" (paragraph 2.17)

Mr Makbool was quite entitled to change his name as he did. Whether he also wanted to deny parts of his previous life including his marriage and his children is also a matter for him and his own values unless it impinges upon and affects others in the community in which he seeks to live and impinges upon their laws and values. For the reasons that I have given above, Mr Makbool's actions have impinged upon the proper administration of Australia's migration laws. Furthermore, by his actions he has sought to gain an advantage by presenting himself as a person who did not have a previous history of dealings with the Department. He maintained that false persona after his arrival for it was necessary for him to do so in order to maintain the fiction that he had had no dealings with the Department prior to 1999. His conduct has involved a serious breach of Australia's migration laws and the community's expectation that persons wishing to enter this country will disclose their situation without guile.

In one sense, it could be said that Mr Makbool has misled the Department in only the one set of circumstances. That is so if it is said that his subsequent denial of being the person known by his birth name was necessary to maintain his original deception. Even if he has been engaged in only the one deception and has not, as I find, any previous convictions, it does not necessarily follow that he will not again seek to deceive again or to break Australia's laws. In some circumstances, a person's personal circumstances are such that desperation drives them to deceive when they have led, and continue to lead, an otherwise impeccable life. All depends upon those circumstances.

In Mr Makbool's circumstances, he had previously had a considerable number of dealings with the Department. He had been refused visas and had been given reasons for those refusals. One was that he did not satisfy the Points Test. There was evidence from Mr Makbool and Mrs Khan that he later undertook a further course but there is no evidence that he ever made a further application, or that he arranged for a member of his family to make a further application, for a visa based on his additional trade qualifications. One of his visas was refused on 11 August, 1997 on the basis that he and Mrs Makbool did not have a genuine marriage. Another was refused on the same basis on 16 July, 1999. Understandably, Mr Makbool was not happy with such a decision but he did not choose to avail himself of the legitimate review rights that he had to challenge the decision with the Migration Review Tribunal. Quite apart from the formal review process (and it is not clear from the material in evidence whether he was notified of his rights), he did not choose to produce to the Department to enable it to reconsider the issue the four letters that he produced at the current hearing. Mrs Makbool gave as the reason for rejecting the review processes, the fact that they were too expensive. Mr Makbool did not give a reason but I find that he considered that the Department would always have regard to information that the Department received about him and not to the information that he gave it. On the basis of the evidence of Mr Smith, I am satisfied that the Department quite regularly received in Fiji what might be called "dob in" letters from the community about visa applicants. Taking into account the evidence of Mr Smith and having regard to the decision records, I am satisfied that he did not take such letters at face value. In Mr Makbool's case, he used it to initiate enquiries and formed his view on the basis of those enquiries.

Even taking the frustration that Mr Makbool must have felt, his view that others were giving the Department false information and the love that he professes for his wife into account, I do not regard his actions in misleading the Department as an isolated instance of deceitful behaviour that is unlikely to be repeated in the future. Instead, I find that Mr Makbool set upon a course that was intended to frustrate the Department's ability to check his past. It was a course of action that went far beyond any need to counteract false information given to the Department. He chose to ignore legitimate channels through which to present the letters and to provide information but he chose to ignore those channels. Taking the overall history into account, I have concluded that, were Mr Makbool to be faced with a similar situation in the future in which he perceived his interests as being frustrated by others, he would choose to manipulate the circumstances to suit himself. Certainly, there has been no evidence of this to date in his work with the Master Butchers Co-operative, from whom he received a good reference, or from Dr Mudaliar, who as the President of the Fiji Social and Cultural Club of South Australia, has found Mr Makbool "… to be reasonable, rational, hard working and a caring person …" (Exhibit C). There has been no evidence of it in his associations with his wife and her family. Equally, though, there is no evidence that his interests have yet been thwarted.

The next issue that I must consider is whether refusal of a visa to Mr Makbool will discourage similar conduct to that in which he has engaged to enter Australia. Unlike the case of Ly and Minister for Immigration and Multicultural Affairs, this is not a case in which there is evidence that the Australian High Commission considered applications for visas in what seemed to be a cursory manner even though it knew that many attempts were made to gain visas through false documentation. On the basis of the evidence of Mr Smith, I am satisfied that the Department's officers based in Fiji considered that there were "… numerous cases of men marrying Australian citizens to gain entry into Australia and then divorcing the women after they have obtained Australian citizenship, re-marrying their original wives and thereby getting their wives and children into Australia" (Exhibit 5, paragraph 15). Whether or not this is so it is not necessary for me to decide but I do find that this belief made the officers in the Department vigilant. I also find that lack of care on their part played no part in enabling Mr Makbool to gain a visa. On the contrary, it was the fact that they scrutinised his applications and reached their decisions, whether correct or not, that led to his taking steps to circumvent their scrutiny. If it were known that, having circumvented that scrutiny, Mr Makbool were permitted to remain in Australia, it is reasonable to expect that others would be encouraged to circumvent the proper scrutiny of their applications. On the basis of Mr Smith's evidence, I find that the Indian community is relatively small in Fiji and so the success or otherwise of a circumvention of Australia's immigration laws is likely to become more widely know than might be the case in some other countries. That is to say, a refusal of Mr Makbool's visa is likely to have some deterrent effect upon the behaviour of others.

I find that Mr Makbool has a good relationship with Mrs Makbool's son, Jameel Tariq, who is now 11 years of age. Jameel is the son of Mrs Makbool's previous marriage to Mr Adrian Jezierski. Mrs Makbool said that Mr Jezierski's health would not permit him to care for his son and there is no evidence to contradict that. Were Mr Makbool to return to Fiji without his wife and the children, I find that the closeness of the bond that is developing between Mr Makbool and Jameel would be damaged. Jameel would be affected by the loss of the family unit that Mr and Mrs Makbool have developed in Australia. He would once more be in the position that he was before Mr Makbool came to Australia for his mother states that his natural father does not have contact with him.

I find that Jameel has been attending school in Adelaide and Mrs Makbool plans for him to stay at the same school, which is a private school offering both primary and secondary education. Were Mr Makbool to return to Fiji, Jameel's education in one stable environment would be disrupted if his mother were to accompany her husband and to take her son with her. There are schools in Fiji and whether or not Jameel would receive a better education suited to his needs in Fiji or in Australia is something that I am unable to assess on the evidence that is available to me. His needs were not canvassed and, while I am satisfied on the evidence, that primary, secondary and tertiary education is available in Fiji, I do not have evidence to indicate the level of that education. In the absence of any evidence that it is inadequate, I find that it is adequate even if it is not the best available to Jameel.

Were Mrs Makbool to return to Fiji with Mr Makbool, Jameel would also be taken out of his extended family of aunts, uncles and cousins. There is evidence of the interaction of the wider family group and I am satisfied that most live within fairly close proximity to each other. This would be a disadvantage to Jameel. Presumably, he would have some contact with his father's children in Fiji but they are significantly older than he is and it could not be expected that a close companionship would develop between Jameel and Mr Makbool's older children.

Were he taken from Australia, Jameel would be uprooted from Australia where he has spent most, if not all, of his life. He is used to the Australian way of life and to the Indian-Australian way of life in Australia. Jameel has not been raised in the Fijian way of life and, were he to move to Fiji with Mrs Makbool, would have to uproot himself and leave behind all that he has known in Australia. Whether or not moving to Fiji would have any long term negative effect on Jameel's interests is difficult to say. He is at a stage with his schooling where a change of system would not be detrimental to his long term education. There is no evidence to suggest that he is in need of special health care that is not available in Fiji.

That brings me to Mr and Mrs Makbool's daughter, Saadia, who was born prematurely on 3 September, 2002. She remains in the Women's & Children's Hospital in Adelaide. On the basis of a letter from Professor Haslam, the Head of Neonatal Medicine at the hospital (Exhibit B), I find that Saadia suffered respiratory distress on her birth and spent five days in intensive care. As at 28 September, 2002, she was still receiving special nursery care but was then thriving and, although being fed mostly by tube, was slowly learning to suckle. She was expected to be in hospital for another three or four weeks before being permitted to go home. On the basis of Professor Haslam's letter together with the evidence of Mrs Makbool, I find that Saadia is not expected to suffer from any long term difficulties as a result of her premature birth.

At this stage of her life, I find that Saadia has not developed any close ties with Australia or with Fiji. It is simply too early in her life to have done so. Naturally, it is preferable for her long term development that she grow up in a caring, stable and loving family environment but the location of that environment is not relevant. There are educational and health facilities in both Fiji and Australia and there is no evidence that suggests that she will have any long term needs that cannot be met in either country.

Mrs Makbool, I find, has suffered a serious health problem in the past. On the basis of her evidence and that of Dr Mudaliar, who is also her treating General Practitioner, and Dr Mark Morton, who is the Senior Consultant Physician in Obstetric Medicine at the Women's & Children's Hospital, I find that Mrs Makbool suffered an intracranial haemorrhage in October, 1990. She required neurosurgery where the arteriovenous malformation was resected. Despite the successful excision of the arteriovenous malformation, Mrs Makbool has continued to suffer from intermittent myalgic headaches since her surgery. Mrs Makbool suffers from hypothyroidism for which she is treated with Thyroxine.

In a letter dated 6 August, 2002, Dr Mudaliar wrote:

"… I have Mrs Makbool since December 1989 and her three (3) brothers and two (2) sisters since mid 1990's. In early 1990's she, with the help of her family members used to manage Star of India restaurant in Prospect and later Imran's Fastfoods in the Central Market. Currently, with the involvement of her husband, Mr Mohammad Makbool and a sister, Mrs Makbool is involved in a family business in northern suburb of Adelaide. To put it bluntly, Mrs Makbook is not capable of managing her small business as a result of the residual damage to her brain as a result of that ICH in 1990. She depends heavily on her close relatives to advise her on the nitty gritty of her business etc. To date there has been no medical indication to have her IQ checked formally but from my professional dealings with her, she would be lucky to achieve 87 points on a score of 100%. Mrs Makbook has been under my professional care since 26th November 1996.
…
May I please be permitted to mention here that when you have a situation where four (4) brothers and three (3) sisters and their families, both immediate and extended, live in a radius of less than 20 kilometres, arguments, differences, disagreements and 'general politics' is inevitable and unfortunately this family is not exempted from those vices.
In summary Mrs Makbool needs help, assistance and guidance to survive in Adelaide.
As the treating family General Practitioner, I would be extremely grateful to the relevant authorities should you please be in a position to consider Mrs Makbool's case sympathetically. We Australians have a reputation to be kind, fair and humane to all our citizens and residents." (Exhibit C)

I accept that Mrs Makbool suffered a very serious condition in 1990 and that she suffered brain damage as a result. I also accept that she has been very dependent upon her extended family to assist her in the operation of her small business. I also accept that she is also dependent upon Mr Makbool in managing her affairs as well as being emotionally dependent upon him. She would find it very difficult to cope were Mr Makbool not with her.

I have already made findings regarding Mr Makbool's work in Australia and that work has included his interest in Curry Away and Maq Transport. He has worked hard to establish himself. There is no evidence as to the extent of the loans he has obtained to build his house and to establish his business interests although I find that he did obtain a loan to purchase his truck.

This is a difficult case. As Dr Mudaliar asks me to do, I would want to be "kind, fair and humane to all our citizens and residents" (Exhibit C). The dilemma that I face is that it is impossible to attempt to do so in relation to all people at all times. There are occasions on which the interests of some outweigh the interests of others so that the fairest decision can be reached for all. Mrs Makbool's personal situation is difficult for her but I would note two things. The first is that health care is available in Fiji and in Australia. While neurosurgery is available in Australia, Mr and Mrs Makbool fear that it is not available in Fiji. Their fears may be justified for there is nothing in the literature regarding Suva's new private hospital that suggests that it does extend to that type of service and that a medical evacuation would not be required were Mrs Makbool to suffer a further intracranial haemorrhage (Exhibit 7). There is no evidence of what treatment is available in the public hospital system.

The second thing that I would note is that I am satisfied that she was well aware of her medical condition when Mr Makbool falsely completed his visa applications. She not only knew of her condition and of his omitting details of his past but approved of his doing so. Although I note Dr Mudaliar's assessment of her IQ, she gave no indication that she did not fully understood what Mr Makbool was doing. She no less than Mr Makbool regarded his adoption of a new name as a renouncement of the past. It was she who advised him that she had been told that this was the appropriate course of action. It was she who advised him that they had to divorce and remarry in Australia (Exhibit Z, paragraph 1.17).

Taking all of the circumstances into account, I have decided that the discretion should not be exercised in favour of Mr Makbool. On this occasion, the seriousness of Mr Makbool's conduct, the need to protect the legitimate expectations of the Australian community and the need to deter similar conduct outweigh the personal difficulties that will face Mr Makbool and his family. Ultimately, the extent and nature of those personal difficulties will depend upon the decisions that are subsequently taken by Mr and Mrs Makbool. There will no doubt be difficulties that will face both them and the children should they decide to return to Fiji as a family. In so far as the children are concerned, they are not difficulties which I am satisfied will adversely affect their interests. Certainly, there will be differences between an Australian and Fijian way of life but, in the context of the evidence in this case, it is not possible to make a finding as to whether one way of life and the facilities available to the children in one country are more suited to the children's upbringing than in the other. I am satisfied that their best interests are best served by remaining in a stable family unit. In the first instance, that family unit is that established by Mr and Mrs Makbool but there is also a family unit in Australia in which Mrs Makbool has already raised Jameel for a considerable number of years. That family unit would continue even if Mr Makbool were to return to Fiji alone.

I am satisfied that Mrs Makbool's interests would, on balance, be best served by remaining in Australia where there can be greater certainty that appropriate health care is available. In the circumstances of this case, her interests do not have quite as much weight as they might in others. As I have found, she has assisted her husband in his actions and is not in the position of a spouse who has entered and built upon a relationship completely oblivious to the shaky foundation's of her husband's past. Instead, she has been actively involved in the very construction of those shaky foundations. I note Dr Mudaliar's comment about her reduced level of functioning since suffering an intracranial haemorrhage in October, 1990 but, even taking that into account, I am satisfied that she was completely aware that she was circumventing Australia's migration laws and that she felt justified in doing so. On this occasion, her interests, and those of the rest of the family, do not outweigh the seriousness of Mr Makbool's conduct, the need to protect the legitimate expectations of the Australian community and the need to deter similar conduct.

For the reasons that I have given, I affirm the decision of the respondent dated 1 August, 2002.

I certify that the ninety-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed:           .....................(Signed).........................................
  P. Paczkowski  Associate
Date/s of Hearing  3 & 4 October, 2002
Date of Decision  22 October, 2002
Counsel for the Applicant            Mr P. Winter
Solicitor for the Applicant           Winters
Counsel for the Respondent        Ms E. Reed
Solicitor for the Respondent        Sparke Helmore

[2002] AATA 985

22 October 2002