Melissas and Minister for Immigration and Multicultural Affairs
[2001] AATA 934
•9 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 934
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/582
GENERAL ADMINISTRATIVE DIVISION )
Re PHUNG MELISSAS
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date9 November 2001
PlaceMelbourne
Decision The decision under review is affirmed.
[Sgd S P Estcourt]
Deputy President
CATCHWORDS
Immigration – visitor visa – refusal – false and misleading documents – whether person of good character – discretionary consideration – decision affirmed.
Migration Act 1958 – s501
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR @ 155
Goldie and Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
REASONS FOR DECISION
9 November 2001 Mr S P Estcourt QC., (Deputy President)
This is an application to review a decision of the respondent to refuse the grant of a long-stay tourist visa (Visitor Class TN Subclass 686) to the applicant's father ("the visa applicant").
On 1 March 2000 the visa applicant, Mr Van Tuan Nguyen, lodged a long stay visa application at the Australian Consulate General in Ho Chi Minh City in Vietnam stating the reason for his visit to Australia as the wedding of his daughter, the applicant, to Mr George Melissas.
The application (Exhibit 7, page 45) which was signed by the visa applicant on 1 March 2000 was accompanied by a number of supporting documents, including a copy of a Business Permit, dated 8 September 1999 (Exhibit 2, page 64) which stated that the visa applicant traded in electrical appliances from the address of 315 Da Nang – Cou Tre.
Before the Tribunal the visa applicant's sister gave evidence that the visa applicant had never sold electronics at that address.
Also in evidence before the Tribunal was a case note of a conversation on 22 March 2001 between the applicant's then fiance and now husband Mr George Melissas and an embassy official, Ms Stephanie Toohey (Exhibit 5).
In that case note Ms Toohey recorded that Mr Melissas explained that the original of the Business Permit was unavailable because it was fraudulently made and was a bogus document.
Further as to that a letter from the applicant to the respondent's delegate dated 12 April 2001, (Exhibit 1, pp.174-175), contained the following statement:
"I also understand that the business licence which has been provided to you was provided by a third party attempting to assist the applicants in their application and this was done without the applicants full knowledge of the consequences."
On the basis of that evidence, the Tribunal finds that the Business Permit which accompanied the visa application was false to the knowledge of the visa applicant albeit without "full knowledge of the consequences."
On 25 April 2001 a delegate of the respondent refused to grant the visa applicants application on the grounds that he was satisfied that the visa applicant did not operate an electronics business and that the business licence was a bogus document. He thus found that the visa applicant failed the "character test" provided by s501 of the Migration Act 1958 ("the Act") and he declined to exercise his residual discretion to grant the visa.
In the Tribunal's views that decision was entirely correct.
The relevant provisions of s501 of the act are:
"501.(1) 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 …
…
501.(6) For the purposes of this section a person does not pass the character test if …(c)having regard to …
(ii)the person's past and present general conduct;
the person is not of good character."
Thus it can be seen that the exercise of power under s501 of the Act involves, first, a consideration of whether the visa applicant is of good character and second, the question whether a discretion not to refuse to grant the visa applied for should nevertheless be exercised in favour of the applicant in the event of his or her failure to pass the character test.
The meaning of "good character" as used in s501 of the Act was explained by the Full Federal Court in Goldie and Minister for Immigration and Multicultural Affairs (14 September 1999) FCA 1277 at paragraphs 5 -7, where Spender, Drummond and Mansfield JJ 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 sense 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."
As to the term "general conduct" used in s501, the Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 said @ 470:
"We do not think there is any warrant for extracting, from the broad word "general", a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but one or twice, may lay character bare very tellingly."
The Tribunal is in no doubt that the visa applicants knowing provision of a bogus document to assist in the success of his visa application is general conduct which renders him of bad character in an immigration sense even though he may in other respects be a man of good character and albeit he was not fully aware of the consequences of what he was doing.
Turning then to the exercise of the residual discretion under s501, the Tribunal is bound to consider a number of factors specified by the Minister's Direction No. 21 which is made under s499 of the Act, and which provides guidance to decision-makers including the Tribunal.
The Direction requires the Tribunal to balance a number of "primary considerations" and or number of "other considerations".
The "primary considerations" are:
(a) the protection of the Australian community;
(b)the expectations of the Australian community; and
(c)the best interests of any child or children of the visa applicant.
The first primary consideration comprises three aspects:
(a)the seriousness of the conduct;
(b)the likelihood of recidivism; and
(c)general deterrence.
The "other considerations" are:
"(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
'Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that:
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State."
Article 17.1 provides that:
"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation."(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501."
The Tribunal is of the view that a consideration of all the evidence tendered and the submissions made on behalf of the applicant and the visa applicant leaves no other decision than that the protection of the Australian Community and its expectations outweigh any other considerations in this case.
The provision of false and misleading material in connection with a visa application is a crime the seriousness of which can clearly be seen from the penalty provided by s234 of the Act, namely,10 years or $10,000 or both, and whilst there is no suggestion of recidivism in this case general deterrence will plainly be served by the failure of this and other similar applications becoming known. This will have a positive effect on subsequent applicants.
Further, the Australian community in the Tribunal's view, would expect in the absence of some special circumstances, of which there appear to be none in this case, that persons who provide false documents to assist the success of their visa applications should be refused admission to Australia when they are detected in their false and misleading conduct. It may be in this case that the business licence "was provided by a third party attempting to assist" the visa applicant, but the applicant submitted the document.
It is trite to say that the community expects non-citizens to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
As Deputy President McMahon said in Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR @ 155 -156:
"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."
The Tribunal does not consider that the primary consideration of the best interests of any child of the visa application is enlivened in this case which involves a visitor visa only and the "other considerations" in this case must be addressed from the viewpoint that whilst the visa applicant is prevented from visiting his, now married daughter, in Australia she and her husband and child are free to visit him in Vietnam. These considerations do not outweigh those of the protection of the Australian community and its expectations.
It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: ............K L Miller.........................................
Personal AssistantDate/s of Hearing 22 October 2001
Date of Decision 9 November 2001
Representative for the Applicant Mr George Melissas
Solicitor for the Applicant
Counsel for the Respondent Mr Richard Knowles
Solicitor for the Respondent Clayton Utz
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