Malovini and Minister for Immigration and Multicultural and Indig Enous Affairs
[2003] AATA 446
•16 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 446
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1492
GENERAL ADMINISTRATIVE DIVISION ) Re Lorena Malovini Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date16 May 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
...............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 (provisional) spouse visa – character test – whether the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration history – discretion that the Tribunal may apply where the Visa Applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the Applicant – held that the protection and expectations outweigh the hardship to the Applicant – discretion should not be exercised in favour of the Visa Applicant – decision under review affirmed.
Migration Act 1958 ss 501, 501(1), 501(6), 501(6)(c)(ii)
Migration Regulations
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
16 May 2003 Mr R P Handley, Deputy President 1. This is an application by Lorena Malovini (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 4 September 2002 to refuse the grant of a subclass 309 (provisional) spouse visa to Helker De Oliveira Silva, the Applicant’s spouse (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Michael Jones, Solicitor, and the Respondent was represented by Elizabeth Warner, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the documents tendered by the Applicant. At the hearing, Ms Malovini gave evidence in person and Mr Silva gave evidence by conference phone.
BACKGROUND
3. The Applicant, Lorena Malovini, was born in Argentina on 20 July 1981 and is aged 21. She migrated to Australia with her parents at the age of six years. She was granted Australian citizenship on 29 November 1995. Mr Silva was born in Brazil on 28 February 1978 and is aged 25. He is a Brazilian citizen. Ms Malovini and Mr Silva were married in Australia on 7 May 2000.
4. Mr Silva first arrived in Australia on 31 January 1998 on a class 676 visitor visa permitting him to stay until 30 April 1998. The visa was subject to a “no work” condition. On 9 March 1998, Mr Silva lodged an application for a protection visa. He was granted a bridging visa A effective from 1 May 1998 which included permission to work. Mr Silva’s application was refused on 3 April 1998 and he subsequently lodged an application for a review of this decision by the Refugee Review Tribunal (“RRT”). On 12 August 1998, the RRT affirmed the decision not to grant Mr Silva a protection visa. While satisfied with the integrity of Mr Silva’s claims and that he feared serious harm from criminals if he returned to Brazil, the RRT was also satisfied that there was no real chance of his being persecuted for a reason covered by the Refugees Convention. He was not therefore a person to whom Australia owed protection obligations.
5. On 7 September 1998, Mr Silva applied to the Respondent for Ministerial intervention and for a bridging visa E. On 16 September 1998, Mr Silva’s bridging visa A expired and, on 21 September 1998, he was granted a bridging visa E valid for three months and subject to a “no work” condition. On 19 September 1998, Mr Silva and Ms Malovini met at a Seventh Day Adventist Church at Weatherill Park in Sydney and on 26 September 1998 commenced a relationship.
6. On 6 January 1999, Mr Silva applied for a further bridging visa E which was granted for a period of two months, again subject to a “no work” condition. Mr Silva acknowledged that he did not comply with the “no work” condition attached to his bridging visa E. His second bridging visa E expired on 6 March 1999 and Mr Silva did not make a further application. Mr Silva said he never subsequently had any response to his request for Ministerial intervention. Thereafter, he remained in Australia unlawfully and continued to work unlawfully.
7. On 23 September 1999, Mr Silva and Ms Malovini became engaged and they were married at Cronulla in Sydney on 7 May 2000. The Respondent does not challenge the genuineness of the marriage. On 14 September 2001, Mr Silva applied for a further bridging visa E which was granted until 21 September 2001 when he departed Australia for Brazil. Ms Malovini travelled to Brazil to join her husband on 2 December 2001, returning to Australia alone in October 2002.
8. By application accompanying a letter dated 11 February 2002, Mr Silva applied for a subclass 309 (provisional) spouse visa. Mr Silva and Ms Malovini were interviewed by a Senior Migration Officer at the Australian Embassy in Brasilia on 20 June 2002. On 4 September 2002, a delegate of the Respondent decided to refuse the grant of a subclass 309 visa to Mr Silva on the ground that he does not pass the character test pursuant to s 501(6)(c)(ii) of the Migration Act 1958 (“the Act”). On 8 October 2002, Ms Malovini lodged an application with the Tribunal for a review of that decision.
Relevant Law and Policy
9. Under s 501(1) of the Act, 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. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…
10. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes 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.
11. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..
12. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
13. The issue for the Tribunal to determine in this case is, therefore, whether Mr Silva is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Helker De Oliveira Silva (the Visa Applicant)
14. In an unsigned statement (A1), Mr Silva said he was born in Anapolis in the State of Goias in the centre of Brazil where he lived with his parents. He was brought up in the Seventh Day Adventist Church and has been a practising member all his life. He arrived in Australia on 31 January 1998 in order to escape the threats being made to his life in Brazil. He chose to come to Australia because his parents had friends through the Church who lived in Australia. The details of the situation from which he was seeking to escape are set out in his protection visa application. Mr Silva said he told the truth in this application and at the hearing of his appeal at the RRT.
15. In his protection visa application (T5 p48), Mr Silva said he was a student at the State University of Anapolis studying for a bachelor degree in business administration. He worked part-time as a university driver in order to help support himself. His responsibilities included the delivery and transport of parcels, packages and people. One of those for whom he was required to drive was Antonio Sales, “one of the Directors of the administration of the university”.. After driving and making deliveries for Mr Sales for some time, Mr Silva became suspicious that Mr Sales was involved in drug trafficking. When Mr Sales left documents in the university car Mr Silva was driving, which implicated Mr Sales in such activity, Mr Silva photocopied those documents and took them to the Federal Police. However, corrupt police notified Mr Sales, Mr Silva’s unit was ransacked, his car was smashed up and he narrowly avoided being caught, managing to escape to the nearby city of Goiania. Mr Silva consulted a solicitor who advised him to seek refuge outside the capital. He was only 19 years old at the time. He had completed approximately one and a half years of his degree program, was hoping to pursue a career in business management, and was particularly interested in transportation.
16. After arriving in Australia and lodging a protection visa application, Mr Silva got a job working in dispatch. He met Ms Malovini on Saturday 19 September 1998 at the Seventh Day Adventist Church at Weatherill Park in Sydney. On 7 September 1998, he had applied for Ministerial intervention following the rejection of his appeal by the RRT. He also applied for a bridging visa E knowing that his bridging visa A would expire on 16 September 1998. In signing the application for the bridging visa E, Mr Silva acknowledged that conditions would be applied to the visa with which he would be required to comply. A bridging visa E was subsequently issued to Mr Silva at the Department’s Parramatta office on 21 September 1998 and was subject to a number of conditions including a “no work” condition. Mr Silva acknowledged that he was informed of this condition when he collected the documents. He thought of complying with the condition and stopping work, but he was living alone, he had no other means of support, he could not return to Brazil and he needed to survive. He therefore continued working although he said it was against his principles to do so and he knew it was wrong.
17. Mr Silva’s first bridging visa was valid for three months. When he applied for a further visa, having had no response to his request for Ministerial intervention, he still hoped that his situation would be resolved. A second bridging visa E was granted to him also with a “no work” condition. When he collected the visa from the Department’s Parramatta office on 6 January 1999, Mr Silva signed a form acknowledging a “no work” and other conditions to which the visa was subject (T11 p73). Mr Silva said in evidence that when he signed this form, he knew he was going to continue working. He said he was not comfortable with this but his situation had not changed and he had to work to support himself.
18. Mr Silva said he made a mistake about the expiry date of the second bridging visa and forgot to apply to renew it. When he realised, he thought that by applying again, his situation would not improve and he was frightened of being arrested by Departmental officers. He knew that he was remaining in Australia and working unlawfully and was not comfortable with this. Mr Silva said he never received an answer to his request for Ministerial intervention.
19. Mr Silva said he and Ms Malovini were married on 7 May 2000. He did not return to Brazil after the wedding because he was not ready. He had a serious relationship and he could not make that decision immediately. If he was going to go back, he was going to do so carefully and take it seriously. He also wanted to organise his life with his wife. It was not until September 2001 that he decided to return to Brazil and resolve his situation. Mr Silva acknowledged that he had worked until shortly before he left Australia.
20. Mr Silva emphasised that when he came to Australia he feared for his life. He still has that fear and it is not easy for him to live in Brazil. Although his fear is not as great as it was before, he has not returned to his home town of Anapolis but is instead living with his sister in a larger city, 60 to 70 kilometres away. However, he is still not comfortable and does not have peace of mind even in that city. He does not live an active life and show himself in the city. He is not working currently and is being supported by his sister. His wife sometimes also sends him money. The only work he has done since returning to Brazil is working for three months for a cousin in a cosmetics business – in dispatch. However, he did not feel comfortable working in this business, because everything in the factory involved dispatch and receipt. People were constantly coming from different localities for these purposes and he did not want to expose himself to those who might be from Anapolis which was not very far away. He was frightened of being recognised.
21. Mr Silva said he felt threatened working in the factory and left. When his cousin offered him a different position in the business, he was still not happy with it because he would still come into contact with people from different localities. Mr Silva said in Brazil it is different from Australia. You cannot trust the police. The only people he can trust are his family. Although he feels more secure in the city where his sister lives, he has also thought of leaving there because it is close to Anapolis. For the same reason, he could not return to the same university. For the moment, he has to stay in Brazil but is frightened of continuing his studies at another university because of Mr Sales’ influence.
22. Mr Silva intimated that apart from working for his cousin, he has not actively sought other employment because he does not like to be seen in public, preferring to maintain a quiet and inactive life.
23. After hearing Ms Malovini’s evidence, which suggested that Mr Silva had been actively seeking work in Brazil and that there were other reasons for his leaving his employment at the cosmetics factory, these matters were again put to Mr Silva. He admitted lying to the Tribunal about the reason for his leaving that employment and did not reveal that the main reason was that his cousin’s partner wanted to employ his son in the position. However, it was true that he was afraid of being recognised. Mr Silva also admitted that he had looked for other jobs in the city where his sister lives and that he had exaggerated his fear. He did this because he thought it would help him. He said it was not so much lying as omitting to tell the truth.
24. Mr Silva said his wife travelled to Brazil to join him in December 2001 and stayed with him at his sister’s place. She accompanied him when he went to the Australian Embassy to apply for the visa. He said his wife was not comfortable in Brazil because she did not speak Portguese even though she is learning. She had given up her work and study in Australia because of him. She did not know anybody in Brazil. He said it would very difficult for her to live in Brazil and he would not be able to look after her needs because he does not have work. Even if he was able to obtain work, he would not be able to earn enough to support her undertaking further study while he was also continuing with his studies. Although he made a commitment to support his wife when they married, he does not think that he can meet that commitment presently.
25. Mr Silva said he is an active member of the Seventh Day Adventist Church. In an average week, he goes to church on Wednesdays and Sundays and on Saturday morning he attends classes at the Church for the youth. He was brought up in the Church and has a good knowledge of it. He believes marriage is a holy institution blessed by God which must be taken very seriously. Marriage is a lifetime commitment never to be broken. He recognises that the Church teaches that a person should obey the law and speak the truth, and admits that he did not comply with the law in Australia by working without permission and remaining in Australia unlawfully. He said he never felt comfortable about this and promises he will never do this again. It was totally against his principles to do this but he had no alternative given the situation. He is very remorseful and asks for forgiveness.
Lorena Malovini (the Applicant)
26. Ms Malovini said she and Mr Silva first met at the Seventh Day Adventist Church in Weatherill Park where there was a conference being held that she attended. He was there with friends. She was 17 years old at the time and in year 11 at school. She said she is a member of the Ashfield Seventh Day Adventist Church. Her mother became a Seventh Day Adventist a few years after they came to Australia. Ms Malovini is not baptised into the Church but she follows its principles and observes the Sabbath.
27. Ms Malovini said she saw Mr Silva again about a week after the Weatherill Park Conference and thereafter their relationship developed. Ultimately, it became serious; they were engaged in September 1999 and married in May 2000. She said in the early part of the relationship, she knew nothing about migration and did not take much interest. When, in about March 1999, Mr Silva told her about his situation, she was concerned, but being in love, their relationship was more important to her.
28. Ms Malovini finished Year 12 in 1999 and then enrolled in an architectural technology diploma at Ultimo TAFE. This is a two year program but she only completed about six months because she did not enjoy the course, it involved a lot of work and she was very stressed at the time.
29. Ms Malovini said her husband did not return to Brazil after the wedding in May 2000 because she was studying and did not want to go with him to Brazil at that time and in any event they could not afford it financially. He returned to Brazil in September 2001 so that he could apply for a spouse visa and return to Australia lawfully. She followed him to Brazil in December 2001 and lived with him at his sister’s house. He was afraid of returning to live at his parent’s house in Anapolis.
30. Ms Malovini said she hated living in Brazil. She was only six when she came to Australia from Argentina so she regards Australia as her home. She does speak Spanish fluently, including with her mother at home, but she does not speak the language in Brazil – Portuguese - so she had great difficulty communicating, even with Mr Silva’s family. Moreover, she could not work or study and she missed her family in Australia. She tried to find work teaching English but did not succeed, in particular, because of her lack of Portuguese. Ms Malovini said she is studying Portguese at home, although most of the time she and her husband speak in English.
31. Ms Malovini said her husband has worked for only three months since being back in Brazil. He was fired from his job working in dispatch for a cosmetics company co-owned by a distant cousin of his when the cousin’s co-partner wanted to replace Mr Silva with his son. Ms Malovini thought that her husband also did not get on particularly well with this co-owner. She said the cosmetics company was a bit like Avon and there were a lot of people attending the factory from Anapolis. Ms Malovini said her husband had actively looked for other jobs, for example in sales and customer service. One of the difficulties he faced in obtaining work was that in Brazil most businesses work a six day week from Monday to Saturday which would have required him to work on the Sabbath. This was not a problem with the cosmetics company because it was co-owned by Seventh Day Adventists who would not work on Saturdays.
32. Ms Malovini said she was interviewed with her husband at the Australian Embassy in Brasilia. The interviewer was intimidating, aggressive and overriding. It was an unpleasant time. She and her husband had not realised that her husband’s breaches of immigration law would be considered so seriously. They were very shocked when the interviewer gave them a notice saying that rejection of her husband’s spouse visa application was being considered. Ms Malovini said her husband had worked in Australia because he had no other means of supporting himself. When they were married, her parents were unemployed and could not assist. If there had been another option, he would have taken it. She knows that Mr Silva felt bad about working and at least did the right thing by paying his taxes. He has told her that he would never do this sort of thing again. He is very serious about his religious beliefs in the Seventh Day Adventist Church.
33. Ms Malovini said she stayed for ten months in Brazil returning to Australia in October 2002. She has now commenced a Bachelor of Design Technology at the University of Western Sydney and is working part-time one and a half days a week for her brother doing the accounts for his panel beating business. Ms Malovini said she does not know what she will do if her husband is not permitted to come to Australia.
SUBMISSIONS
Applicant
34. Mr Jones, for the Applicant, submitted that Mr Silva does not fail the character test. He referred the Tribunal to the Federal Court’s explanation of what constitutes good character in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, where the Court spoke of good character in terms of a person’s “enduring moral qualities”. Mr Jones noted that Mr Silva had freely admitted breaching Australia’s immigration laws by working without permission for approximately two and a half years and being in Australia unlawfully having allowed his bridging visa E to lapse. Mr Jones suggested that Mr Silva’s failure to keep renewing his bridging visa E was more akin to an administrative failure given that Mr Silva never received a response to his request for Ministerial intervention. Mr Jones said that working without permission, whilst an offence under s 235 of the Act, is a strict liability offence attracting a penalty of a fine not exceeding $10,000. This is one of the lowest penalties in the Act. Mr Jones suggested that a breach of the section is more in the nature of an administrative breach. In any event, Mr Silva has promised that he would never again work without permission or breach Australia’s migration laws and he was contrite in so saying.
35. With regard to Mr Silva’s admissions in relation to his recent work in Brazil, Mr Jones contended that Mr Silva’s original evidence merely stressed one part of the story – that he was afraid – which he believed to be of his advantage, and omitted another part which he did not consider significant. Mr Jones contended that Mr Silva’s fear is genuine as the RRT found in its decision.
36. Mr Jones submitted that if the Tribunal finds that Mr Silva does not pass the character test, then the Tribunal should exercise the discretion in s 501(1) so as not to refuse the grant of a visa to Mr Silva. Having regard to the guidance provided by Direction No 21, Mr Jones submitted that the immigration offences committed by Mr Silva are not so serious that the Australian community would seek to exclude him. There is no pattern of offences and all the evidence suggests that Mr Silva has learned a salutary lesson and would never commit such breaches again. Moreover, since Mr Silva’s reasons for coming to Australia were genuine, there is little likelihood of a refusal having any deterrent effect.
37. Mr Jones submitted that the Australian community would take a humane view of Mr Silva’s situation and would not expect that a visa would be refused. With regard to the other relevant considerations, Mr Jones pointed out that Ms Malovini is an Australian citizen and very close to her family in Australia where she is studying and working. It would be very difficult for her to live in Brazil because she does not speak Portuguese. Both she and Mr Silva believe that marriage is for life and the genuineness of their relation is not an issue.
Respondent
38. Ms Warner, for the Respondent, submitted that Mr Silva does not pass the character test because he is not a person of good character having regard to his past and present general conduct. His evidence to the Tribunal demonstrated his willingness to make false and misleading statements in respect of his visa application in order to gain a benefit for himself, despite strong protestations of remorse and regret. Essentially, he was willing to lie to gain an advantage, an important matter which should be taken into account in considering his "enduring moral qualities” (Goldie)(supra).
39. Ms Warner contended that Mr Silva’s evidence was vague in many particulars and unconvincing. His claim that he forgot to renew his bridging visa E was implausible. When he applied for the second bridging visa E, his first bridging visa E had already lapsed by sixteen days but he was, nevertheless, granted the visa. There was a good prospect of his being granted a further bridging visa even if the application was late. Moreover, Mr Silva worked in direct contravention of the “no work” condition imposed on his bridging visas E knowing, at least on the occasion of the issue of the second bridging visa E, that in signing the form he was acknowledging that the issue of the visa was subject to his complying with this and other conditions. He knew he would continue to work anyway and so signing this acknowledgment amounted to making a false and misleading statement.
40. Ms Warner said the factual issues about which Mr Silva lied may not have themselves been significant. Nevertheless, the fact of his lying to the Tribunal while at the same time seeking to present himself as a church going religious person, clearly indicates his willingness to deceive. All these matters should be taken into account in assessing his moral character.
41. With regard to the exercise of the Minister’s discretion under s 501(1), Mr Silva’s willingness to lie in order to gain an advantage should be taken into account in assessing the seriousness of his misconduct. Such lying indicates his ongoing willingness to make false and misleading statements, offences regarded by the Government as very serious. Despite Mr Silva’s statements in evidence that he would never lie again, he did so in the course of the hearing which suggests a considerable risk of recidivism. Ms Warner contended that the Australian community would expect that such a person would be denied a visa.
42. With regard to the other considerations, Ms Warner said that the Respondent acknowledges the hardship to Ms Malovini which would be caused by refusal of the visa. However, she is young – aged 21 – and intelligent and would be able to adapt if she went to live with her husband in Brazil even if this proves difficult. Ms Warner submitted that the hardship to Ms Malovini is far outweighed by the primary considerations of the protection of and the expectations of the Australian community, having particular regard to Mr Silva’s conduct in giving evidence before the Tribunal.
APPLICATION OF THE LAW AND FINDINGS
43. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Silva passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie (supra), the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).
44. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Silva, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
45. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or 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 and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
46. The Tribunal finds that, by his own admission, Mr Silva lied in the course of giving evidence at the hearing. While the matters in respect to which he “omitted part of the truth” were not in themselves significant, the fact of his doing so when considered in the light of his earlier statements that he would never lie again – in relation to his acknowledgment of his “no work” condition to which his second bridging visa E was subject – significantly undermines his credibility. His acknowledging that his conduct in working when subject to a “no work” condition and remaining in Australia unlawfully and continuing to work unlawfully after the expiry of the second bridging visa E was wrong, and that he would never repeat such conduct, rings hollow when he was willing to tailor his account to the Tribunal to his own advantage.
47. Dishonesty of this kind must obviously be taken into account in assessing Mr Silva’s character and, in particular, his “enduring moral qualities” (Goldie)(supra). As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at paragraph 35:
The observance of truth in dealing with officials in migration matters (particularly where the truth is only known 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.
In the Tribunal’s view, scrupulous honesty in the visa application process is of critical importance and Mr Silva’s dishonesty, in conjunction with his breaches of Australia’s immigration law, leads the Tribunal to conclude that he does not pass the character test.
48. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) of the Act to decide whether or not to refuse the grant of a visa to Mr Silva. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
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 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or
children and the person under consideration, the best interests of the child or children
Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”.. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
49. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
50. With regard to the first primary consideration, Mr Silva acknowledged that he worked in contravention of the “no work” condition to which his bridging visas E were subject. In the case of the second bridging visa E issued on 6 January 1999, he acknowledged in writing the condition knowing that he was going to continue working. In total, Mr Silva worked without permission from after the expiry of his bridging visa A on 16 September 1998 until shortly before he left Australia on 21 September 2001. He also remained in Australia unlawfully after the expiry of his second bridging visa E on 6 March 1999. His excuse that he mistook the dates and forgot to renew his visa is somewhat implausible: he still had not had a response to his request for Ministerial intervention; and his experience in relation to his second bridging visa E was that the visa was issued to him even though his first bridging visa E had expired sixteen days earlier. Most particularly, however, Mr Silva made false or misleading statements in giving evidence to the Tribunal. As stated above, this significantly undermines his credibility and suggests that there is a risk of his re-offending if he believes that this would benefit his situation. The refusal of a visa in such a situation will have a deterrent effect in respect of others contemplating similar misconduct. Thus, while the Tribunal does not consider Mr Silva’s misconduct to be of the most heinous nature, nevertheless, it is of a serious nature which dictates against the exercise of the s 501(1) discretion in his favour.
51. With regard to the second primary consideration of the expectations of the Australian community, the Tribunal considers that the Australian community would expect that a visa should be refused in such a case involving both breaches of Australia’s immigration law and dishonesty in the visa application process.
52. The third of the primary considerations, the Best Interests of the Child, is not relevant here.
53. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
54. There is no dispute that Mr Silva and Ms Malovini have a genuine marital relationship. Ms Malovini acknowledged that she was aware of the unresolved nature of her husband’s status in Australia by about March 1999 and well before they were married in May 2000. Nevertheless, the Tribunal finds that there will be significant hardship to Ms Malovini if Mr Silva’s application for a visa is refused. The Tribunal finds that she would have significant difficulty living in Brazil where she would be separated from her family in Australia and would be prevented from completing the tertiary studies upon which she has recently embarked. Because she does not speak Portguese, she would have difficulty communicating in Brazil and this would militate against her finding employment and undertaking further study. Nevertheless, given that she speaks Spanish fluently and that she is learning Portguese, there is a reasonable chance that she will, in time, master the language so that she would be able to overcome the difficulties associated with communication.
55. Mr Silva’s family are entirely in Brazil. The Tribunal finds it difficult to make any realistic assessment of Mr Silva’s situation in Brazil given his admitted exaggeration of his current fears for his safety. While the situation in Brazil may not be consonant with that in Australia, the Tribunal is not satisfied that Mr Silva would not be able to undertake further study at another university elsewhere in Brazil. As to any evidence of rehabilitation or good conduct, his credibility in this regard has been undermined by his lying to the Tribunal although the Tribunal accepts his and Ms Malovini’s evidence that he is a member of the Seventh Day Adventist Church.
56. Weighing up the primary and other considerations, the Tribunal is of the view that the protection of and expectations of the Australian community outweigh the hardship that will be caused to Ms Malovini by refusal of a visa to Mr Silva and concludes that the Minister’s discretion in s 501(1) of the Act should not be exercised in his favour.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 23 April 2003
Date of Decision 16 May 2003
Solicitor for the Applicant Mr M Jones
Solicitor for the Respondent Ms E Warner
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