Mirzadeh and Minister for Immigration and Multicultural Affairs

DECISION AND REASONS FOR DECISION [2001] AATA 1004

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/562

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Mostafa Mirzadeh
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date10 December 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Siti Kuraesin passes the "character test" under s 501(1) of the Migration Act 1958.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Sponsor – character test – past and present general conduct - Visa Applicant arrived to Australia on two occasions using false passport – where offence of providing false documents punishable under the Migration Act - Visa Applicant travelled to Australia under duress from her then Indonesian husband – where Visa Applicant overstayed in Australia - where Visa Applicant departed Australia voluntarily - character test passed

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

10 December 2001 R P Handley, Deputy President

This is an application by Mostafa Mirzadeh ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 23 April 2001 to refuse the grant of a sub-class 309 (Provisional Spouse) Visa to the Applicant's spouse, Siti Kuraesin ("the Visa Applicant").
At the hearing, the Applicant represented himself and the Respondent was represented by Murray Allatt, Solicitor of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the Applicant. Oral evidence was given by telephone by the Visa Applicant, Mojgan Zojaji, and Andrew Bayly, and in person by the Applicant and Ahmad Afaghi.
BACKGROUND
The Visa Applicant, Siti Kuraesin was born in Indonesia on 28 January 1979 and is aged 22. On 15 February 1996, she was married to Mr Darwano, by whom she had a son, Adi Setiawan, on 29 October 1996. Ms Kuraesin first arrived in Australia on 23 November 1997 using a false passport and a visitor visa valid for three months. While working illegally, Ms Kuraesin was located by Departmental Compliance Officers and detained at Villawood Detention Centre. While there, Departmental Officials asked whether she wanted to apply for a protection visa. She declined to do so because she wanted to return to Indonesia. She departed Australia on 17 April 1998.
On 25 July 1998, Ms Kuraesin again entered Australia on a different false passport with a visitor visa valid for three months. Initially, she lived in Newcastle before returning to Sydney in June 1999. On arriving in Sydney, she met Mr Mirzadeh with whom she commenced a de facto relationship. On 22 September 2000, she reported the loss of her false passport at a police station and was detained by Departmental Compliance Officers who took her to Villawood Detention Centre. She was released on 25 September 2000 on Mr Mirzadeh providing a bond. Thereafter, she was granted a number of Bridging – E visas permitting her to remain in Australia lawfully until the time of her departure on 10 December 2000.
The Applicant, Mr Mirzadeh was born in Iran on 15 May 1969 and is aged 32. He arrived in Australia on 17 February 1995 and, one month later, applied for a protection visa. He was granted permanent residence status on 20 December 1999, and he works as a self employed painter/decorator.
Ms Kuraesin was divorced from her first husband, Mr Darwano, on 11 December 2000. On 12 December 2000, Ms Kuraesin's application to migrate to Australia was lodged with the Australian Embassy in Jakarta. On 4 April 2001, Ms Kuraesin was interviewed by a Senior Migration Officer, Janet Brooks, at the Australian Embassy in Jakarta and, on 23 April 2001, Ms Brooks, acting as a delegate of the Respondent, decided to refuse the grant of a visa to Ms Kuraesin. On 1 May 2001, Mr Mirzadeh lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW
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;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 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.
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".
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.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Kuraesin is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides she 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
Mostafa Mirzadeh ("the Applicant")
Mr Mirzadeh said he arrived in Australia from Iran in 1995 and applied for a protection visa. This gave rise to him appearing in the Federal Court on two occasions and with his being granted permanent residency following a review of his application by the Refugee Review Tribunal ("RRT"). When he met his wife in June 1999, he was on a bridging visa and his status in Australia had still not been resolved. He was granted a protection visa on 20 December 1999. Mr Mirzadeh said he met Ms Kuraesin at Parramatta Railway Station when he saw her looking lost and asked whether she needed help. She told him she had just arrived from Newcastle and had nowhere to go. He therefore invited her back to his flat at Marrickville, which he shared with another man. Having himself slept two nights at a railway station when he had nowhere to go, Mr Mirzadeh said he understood how she might feel.
Mr Mirzadeh allowed her to stay on at his flat and, after a while, they began to develop a trust in one another and he found her to be a lovely person. A few weeks later, their relationship began to develop into a more serious one of love. Mr Mirzadeh felt uncomfortable that they continued to live in a flat with another man and so he decided to find another flat for the two of them. In about July 1999, and Ms Kuraesin moved to Parramatta where they lived for six or seven months before they moved once again, to where Mr Mirzadeh now lives at Merrylands.
From the beginning of their relationship, Ms Kuraesin stayed at home during the day while Mr Mirzadeh was out working. Mr Mirzadeh supported her financially because she had no money. He was concerned that if she were to go out. she would not be safe. On 20 July 1999, Mr Mirzadeh and Ms Kuraesin underwent an Islamic marriage ceremony at Auburn Mosque. The traditional words of the Islamic marriage were read for them by a friend in Arabic, the main objective being for them to exchange vows, so that they undertook the responsibility of building a life together. Mr Mirzadeh acknowledged this was neither a formal nor a secular marriage ceremony, because Ms Kuraesin had not obtained a formal certificate recognising her divorce from her husband. However, in Islamic religious law, if a husband forces a wife to do something and they live separately from one another for a period of at least three months, then they are divorced. Thus, in Islamic religious law, Ms Kuraesin and her former husband, Mr Darwano, were no longer married. Mr Mirzadeh emphasised that while he is a Muslim, he is not a religious fanatic and is open-minded.
Mr Mirzadeh said soon after his relationship with Ms Kuraesin commenced, they went to see a solicitor for advice about their situation. The solicitor advised that for Ms Kuraesin to be eligible to apply for residence in Australia, she and Mr Mirzadeh should have lived together for at least twelve months to establish the genuiness of their relationship. Therefore, Ms Kuraesin decided not to return to Indonesia, immediately. However, having heard from her family that Mr Darwano had returned their son, Adi, to her parents, she decided she must return to Indonesia to be with him and because she also wanted to obtain a formal divorce from Mr Darwano. Also, she could not legally formalise her marriage in Australia because she had no formal identification and no divorce papers. Therefore, in September 2000, Mr Mirzadeh and Ms Kuraesin went to the Indonesian Consulate at Maroubra for Ms Kuraesin to obtain a travel document, since her passport had been stolen. The Consulate advised her that she should obtain a police certificate as to the loss of her passport which would then enable the Indonesian Consulate to issue her with a new travel document in the same false name that she used when leaving Indonesia in July 1998. The Consulate advised that she could not issue her with a travel document in her own name. Only the Indonesian authorities in Indonesia could do this.
Acting on this advice, Ms Kuraesin went to a police station to report her passport stolen. She also revealed that this was a false passport and told them her story. The police contacted the Department of Immigration and Multicultural Affairs ("the Department") who sent Departmental Compliance Officers to the police station to detain her. She was taken to Villawood Detention Centre where she was held for three days and then issued with a bridging visa E on Mr Mirzadeh entering into a $5,000 bond.
Mr Mirzadeh said Ms Kuraesin only entered Australia in the first place because she was blackmailed by her husband. He threatened to take their child away from her unless she went to Australia to work and send money back to Indonesia. Her husband's object in getting her to come to Australia was for her to send her earnings back to Indonesia to support him and their son. At the time, Ms Kuraesin was only 18 years old, had lived most of her life in an Indonesian village, and had no knowledge of Australian's migration laws. Her husband obtained a passport and visa for her and booked her on a flight to Australia. Neither on this occasion, nor on the second occasion when her husband forced her to return to Australia, was Ms Kuraesin a party to any application for a false passport or visa. These were obtained by her husband. Ms Kuraesin has never done anything criminal. When she went to the police station in September 2000, she wanted to be herself and tell the whole truth about what had happened. She did not need to return to Indonesia on the second occasion. While in Villawood Detention Centre, she was advised that she could apply for a protection visa. However, she preferred to return to Indonesia and apply for a visa to migrate to Australia through the usual channels because she wants to respect Australian law and comply with its entry requirements.
Mr Mirzadeh said when his wife applied for a divorce from Mr Darwano on the day after her return to Indonesia, she paid a fee of 450,000 rupiahs, approximately AUS$100, being the legal fee payable in order to obtain a divorce. She paid this fee because her husband did not have any money. She did not otherwise pay her husband any money.
Mr Mirzadeh said although at the time he first met his wife, he was deeply depressed, his life has since changed and developed. The depth of the love he feels for his wife has become even more apparent to him since she left Australia on 10 December 2000. He phones her every second day because they cannot do without this contact. They want to establish a family with strong bonds. Ms Kuraesin has avoided becoming pregnant because they do not want this to happen until they are living together again. Since Ms Kuraesin returned to Indonesia, Mr Mirzadeh has been to visit her twice, staying for two weeks and four weeks. In order to obtain a limited stay visa, his wife must go to the Indonesian Department of Immigration to sponsor him for a visitor visa. This costs AUS$125 and takes about three weeks. In turn, he also has to pay $125 for the issue of the visa in Australia. Mr Mirzadeh said that he has been advised that there is no right of residency in Indonesia for a non-Indonesian man who marries an Indonesian woman. On his visits to Indonesia to see Ms Kuraesin, he has therefore got to know her son, Adi, whom he is also supporting and whom he regards as part of their family. Adi treats Mr Mirzadeh as his father.
Mr Mirzadeh said he would have preferred to have stayed with Ms Kuraesin in Indonesia until her visa for Australia had been sorted out. However, he needs to work in order to support them and so had to return to Australia. He is also only able to obtain a short stay visa for Indonesia and is unable to remain there long-term. Mr Mirzadeh is trying to establish his business as a painter/decorator. On each occasion when he has been to Indonesia, he has lost clients. Mr Mirzadeh said when he first came to Australia, he worked for another company as a painter and decorator, but is now self-employed. He also plans to establish another business as a computer reseller, assembling and selling computers. He has a degree in geo-technical engineering from Azad University of Shahroud. If, as he hopes, his wife can come to Australia, Mr Mirzadeh plans to assist her in undertaking an English course to give her confidence as a person and enable her to obtain a job.
Siti Kuraesin ("the Visa Applicant")
Ms Kuraesin said she first came to Australia in November 1997 because her husband threatened that unless she did so, he would take their son away from her. She believed he was capable of doing this and might hurt her son. Her husband obtained a false passport with a visitor visa for entry into Australia. She was aware the passport was false and that the visa had been illegally obtained, but she had nothing to do with this. She was not involved in making any application to the Australian Embassy in Jakarta, which she had never visited. Nor did she provide her husband with a photograph for the false passport. Ms Kuraesin said "it is common for Indonesian women to work overseas, for example as a nanny or housekeeper". At this time, she was only 18 years old and assumed she would be able to obtain work in Australia in the same way that she could in Indonesia. She was not aware that she needed a work permit in order to work in Australia.
Immediately before coming to Australia, Ms Kuraesin said her husband was unemployed and because they could not pay the rent on a house of their own, they were living with her parents in Java. She did not discuss coming to Australia with her parents and did not tell them of the threats which her husband had made. She was herself confused and did not want to worry them and she did not tell them about her going to Australia until shortly before she left nor did she tell them about the false passport. Her parents had not had much schooling and she said they would not understand about passports and visas. Ms Kuraesin told her parents that she would try and find work in a restaurant in Australia.
Ms Kuraesin said her flight arrived at Brisbane Airport where she went through Customs and Immigration. She could not recall completing an incoming passenger card on arrival, and the immigration official did not ask her anything. He just stamped her passport having checked that she had a return airline ticket in the same name as that in her passport. Ms Kuraesin said she did not know what to expect on arriving in Australia. Her husband had made contact with an Indonesian woman, Mary, and he arranged for Mary to meet her at a motel in Brisbane where he had made a booking for her. At Brisbane airport, she was met by somebody who took her to the motel where Mary was waiting for her. Mary then drove her to Sydney by car and Ms Kuraesin stayed at her house for the next two months. Mary lived in a flat in Newtown near where there were a number of restaurants. Ms Kuraesin went to three restaurants looking for work. They all asked to see her passport to check whether or not she had permission to work, and when they realised she did not have permission, they were not prepared to give her employment. Her husband had told her that if she could not find work in a restaurant or factory, she would be able to find work with Mary. But Ms Kuraesin assumed that she could easily find work in a restaurant as a result of her experience in Indonesia. When she telephoned her husband to tell him she had been unable to find work, he told her to work with Mary. She therefore did as he instructedYes, I think so.
Two months later, she was detained by Immigration Compliance Officers for working without permission, and detained at Villawood Detention Centre. She was held there for two to three months because, although she wanted to return to Indonesia, Mary would not let her have her passport. Mary came to visit her at the Detention Centre and said she could not go back to Indonesia and must try and obtain a bridging visa. Eventually, when her application for a bridging visa was refused, Mary returned her passport and Immigration Officers took her to Sydney Airport from where she flew to Indonesia.
Ms Kuraesin said her husband was angry with her when she returned to Indonesia. After about two months, and without consulting her, he obtained another false passport and visa and told her to go back to Australia. Again, he threatened if she did not do so, he would take away their son and she would never see him again. Ms Kuraesin said she had nothing to do with the obtaining of the false passport and visa and did not complete any application forms for this purpose. At that time, she had still not been to the Australian Embassy in Jakarta and was not aware of its location.

When Ms Kuraesin arrived in Sydney on 25 July 1998, she was given an incoming passenger card to complete. Because she did not know how to do this, a fellow passenger assisted her in filling out the card. She was aware, however, that she was arriving on a visitor visa, valid for a stay of three months, and that she was not permitted to work. At Sydney Airport, she was met by Mary who drove her by car to Newcastle where Mary was living. In Newcastle, Ms Kuraesin went to see a solicitor for advice on obtaining a working visa. He told her that this would be very expensive, and when she asked Mary to lend her money for this purpose, Mary refused. About a week after arriving in Newcastle, Ms Kuraesin started working with Mary which she did for about three weeks. During this time, she went to see a Chinese Migration Agent, Michael, on Mary's advice. He took her passport and said he would organise a work permit for her. However, Michael disappeared shortly afterwards without returning her passport.
Ms Kuraesin stopped working with Mary after about three weeks, but continued to stay at Mary's house in return for doing the cooking and other household chores. Mary would give her $50 or $100 most weeks, most of which she sent to her husband in Indonesia. Ms Kuraesin continued doing this for about ten months. She said she had not told anyone of this before because she had not been asked although she did tell her solicitor, James Dagnall about this in December 2000. He told her not to worry about that part and did not include it in her statement. Finally, she telephoned the Department of Immigration at Parramatta and spoke to a female officer there. She told the officer that she wanted to return to Indonesia but she did not have a passport, nor money for her ticket. The officer told her to come to Parramatta for an interview at the Immigration Office. Therefore, in June 1999, Ms Kuraesin left Newcastle and went by train to Parramatta. It was there that she met Mr Mirzadeh at the railway station when she was feeling lost and did not know where to go.
Ms Kuraesin said Mr Mirzadeh approached her at the station and asked her if she was alright. She told him she did not know where to go. She acknowledged that she did not tell him of her intention to go to the Department of Immigration. She said she was confused and did not want to be taken back to Villawood Detention Centre. Because he was kind and she had no money and nowhere to go, she went with him to his flat in Marrickville which he shared with another man. Ms Kuraesin said although, initially, she did sleep in the same room as Mr Mirzadeh, they did not start having a sexual relationship until after about a week. Because she felt he was such a good person, she wanted to stay with him and she told Mr Mirzadeh everything about her history and what had happened to her. She thought about her husband in Indonesia and was worried that if she went back to Indonesia, he would merely send her back to Australia, again with no money. So she decided to stay with Mr Mirzadeh and cooked and looked after him. They exchanged Islamic wedding promises at Auburn Mosque where they went with a friend of Mr Mizadeh's who read the words of the Islamic marriage ceremony.
About three months after they started living together Ms Kuraesin and Mr Mirzadeh went to see a solicitor for advice about their situation. He advised them to live together for at least twelve months in order to establish the genuineness of their relationship which would support her application for a visa. They followed this advice, living first at Parramatta after moving from the flat in Marrickville, and then at Merrylands. Ms Kuraesin said she was aware, at that time, that Mr Mirzadeh was not a permanent resident.
After more than 12 months had passed, Mr Kuraesin decided she should return to Indonesia, having been told by her mother that her husband had returned her son to them saying he no longer wanted to care for him. Her husband had then left. Her son was also sick. Ms Kuraesin said she loves her son more than herself, so she decided she must return to Indonesia and lodge her application to migrate to Australia from there. She went with Mr Mirzadeh to the Indonesian Consulate in Maroubra because she did not have a passport, it never having been returned by Michael. She was told at the Consulate that even though the passport was false, she had to return to Indonesia using the same name. She was advised to obtain a police certificate to the effect that the passport was lost which would then enable the Consulate to issue her with a travel document. She therefore went to a police station on 22 September 2000 where she reported her passport as lost, acknowledging that it was a false passport. Ms Kuraesin said she wanted to tell the whole truth about herself and who she was. As she realised would happen, the police telephoned the Department who sent Compliance Officers who detained her and took her to Villawood Detention Centre. She was detained there for three days before being released on 25 September 2000 on the basis of a bond given by Mr Mirzadeh. On her release, she was granted a bridging visa to enable her to obtain a travel document. Because this took longer to obtain than was anticipated as a result of the Indonesian authorities, a number of further bridging visas were issued to her and she finally left Australia on 10 December 2000.
Before she left Australia, Ms Kuraesin said she spoke to her parents about divorcing her husband in Indonesia. Therefore, on the day after she arrived back in Indonesia, on 11 December 2000, Mr Darwano came and signed the divorce papers and she lodged them together with the fee of 450,000 rupiahs. Mr Darwano had already remarried. Ms Kuraesin paid the fee because Mr Darwano did not have any money, but she did not otherwise give him money.
Mr Mirzadeh has visited Ms Kuraesin in Indonesia on two occasions. He has become like a father to her son, who is always asking about him. Ms Kuraesin said she did not marry Mr Mirzadeh in order to stay in Australia. She never wanted to cheat the Australian government and has never applied for Medicare or Social Security benefits. She has never been charged with any criminal offence, either in Australia or Indonesia. Ms Kuraesin said she never wanted to come to Australia in the first place: she only came because of the threats made by her husband to take her son away.
Ahmad Afaghi
Mr Afaghi made a statutory declaration on 29 November 2000 (T31, p152). He said he met Mr Mirzadeh in January 1998 at a Persian community fair in Ryde. Since then, they have become friends. Mr Afaghi said he went overseas for five or six months in March 1999, and, when he returned, he met Mr Mirzadeh and his wife in their flat at Parramatta. Mr Afaghi said he was very happy for Mr Mirzadeh that he could have a good future. He has no doubt that the relationship between Mr Mirzadeh and Ms Kuraesin is a genuine one. After their marriage, Mr Afaghi and his family, including three children, have established a good family relationship with Mr Mirzadeh and his wife.
Mojgan Zojaji
Ms Zojaji made a statutory declaration on 29 November 2000 (T31, p151). She said she first met Mr Mirzadeh in 1997 when he came to her shop ("Little Persia") in Parramatta. Since then, he has become a family friend. At the time Mr Mirzadeh and Ms Kuraesin were married, they were living in Marrickville. Shortly afterwards, they moved to Parramatta where she visited their home when they had a small party. Subsequently, they moved to Merrylands. Ms Zojaji said Ms Kuraesin is a very shy lady. She said Mr Mirzadeh treated his wife with great respect and Ms Zojaji was happy seeing them together. She could see the love in their eyes and the change in Mr Mirzadeh. Mr Zojaji said she usually saw them when they visited her shop because she works long hours, seven days a week, and is very busy.
Andrew Bayly
Mr Bayly made an undated statutory declaration in late November 2000 (T31, p150). He said he has known Mr Mirzadeh, who used to work for him, for a couple of years. He said he had no doubt Mr Mirzadeh's relationship with Ms Kuraesin was a loving and genuine one.
SUBMISSIONS
Respondent
First, with regard to the oral evidence, Mr Allatt said he had been able to confirm that the port of arrival on Ms Kuraesin's first visit to Australia was Brisbane and not Sydney as stated by the Senior Migration Officer, Janet Brooks, in the notes of her interview with Ms Kuraesin dated 18 April 2001 (T38). Mr Allatt noted Ms Kuraesin had knowingly used a false passport and visa on each of the two occasions when she had entered Australia. Although Ms Kuraesin claimed that on her first visit to Australia, an incoming passenger card must have been completed for her by somebody else, she did acknowledge that on her second visit an incoming passenger card was completed for her with the details from her passport. On both occasions, her clear objective in coming to Australia was to overstay and work without permission. Thus a serious offence was committed on both occasions. Mr Allatt said it was surprising that Ms Kuraesin had not previously revealed that she had spent ten months on her second visit "keeping house" for Mary in Newcastle, and it was surprising especially that this information was not included in the statement prepared for her by a solicitor.
Mr Allatt submitted that Ms Kuraesin does not pass the character test having regard to her past and present general conduct. Ms Kuraesin has committed migration fraud by entering Australia with false travel documents on two occasions. Whether she herself obtained the false documents was not significant, although, Mr Allatt noted, the documents appeared to have used a standard passport-sized photograph, which suggested Ms Kuraesin would have posed for such a photograph. Mr Allatt said by entering Australia using false papers, Ms Kuraesin committed an offence under s 234 of the Act punishable by a term of imprisonment of up to ten years. He submitted that this was sufficient to justify a finding that Ms Kuraesin does not pass the character test. He referred the Tribunal to para 1.9 of Direction No. 21, noting that even the use of the document knowing it to be false is sufficient to find that a person has provided a bogus document, thereby establishing a matter which can constitute a failure to pass the character test.
With regard to the exercise of the discretion under s 501 (1) of the Act not to refuse the grant of a visa and, in particular, the primary consideration of the Protection of the Australian Community, Mr Allatt referred the Tribunal to para 2.6 (c) of Part 2 of Direction No. 21 and the seriousness attributed to the making of a false and misleading statement in connection with entry or stay in Australia. In Ms Kuraesin's case, he contended this could be inferred from her presenting a false passport on arrival on the two occasions. He acknowledged, however, that on the second occasion, Ms Kuraesin had complied with the terms of the bridging visas granted and departed Australia as required.
Mr Allatt contended that refusing Ms Kuraesin a visa would deter others from breaching Australia's migration laws. He also suggested there was a real likelihood that Ms Kuraesin might engage in future dishonest conduct. With regard to to the expectations of the Australian Community, the second primary consideration, Mr Allatt submitted the Australian Community would expect a person who has obtained entry on two occasions through the use of false passports, who had stayed in Australia unlawfully and had worked without permission, would not be permitted to obtain the benefit of a visa leading to permanent residency.
With regard to the third primary consideration, the Best Interests of the Child, Mr Allatt submitted that this was not relevant here because it was implicit in the wording of the Direction that the child or children contemplated would be in Australia at the time. In this case, Ms Kuraesin's son, Adi, is a child with no connection to, or association with, Australia. Mr Allatt noted that the natural father resides in Indonesia, although there is no evidence as to current access arrangements.
Finally, with regard to Other Considerations, Mr Allatt said that, assuming the marriage is genuine, the Respondent accepts that refusal of a visa to Ms Kuraesin would cause hardship to Mr Mirzadeh. Mr Allatt said the Indonesian police certificate dated 20 June 2001 (A3) indicates that Ms Kuraesin has no recent criminal history. However, he said there is no other evidence relating to rehabilitation or recent good conduct. The visa sought by Ms Kuraesin is a temporary visa lasting two years, on the expiry of which the holder can apply for the grant of a permanent visa. Accordingly, Mr Allatt contended that a heightened test of good character should be applied. He acknowledged that refusal of the visa would also cause hardship to Ms Kuraesin, although he noted that she has no other family in Australia. Furthermore, when Ms Kuraesin entered Australia on the second occasion in 1998, she would have already been warned of her liability for deportation should she again be detained. Notwithstanding this, she re-entered Australia. Mr Allatt concluded that, in the Respondent's view, the two primary considerations - the Protection of and Expectations of the Australian Community – outweigh any possible Other Considerations, namely the genuiness of the relationship and hardship to the parties, and, therefore, the discretion should not be exercised not to refuse the grant of a visa.
Applicant
Mr Mirzadeh summarised the events that had occurred both in Indonesia and Australia. In Indonesia in 1997, Ms Kuraesin was threatened by her husband that he would take her child away unless she went to Australia. She was forced by him to come to Australia without any knowledge of its migration laws. At that time, she was 18 years old, with only limited education and with no idea of what would be required of her in Australia. On arrival in Australia, she had no option but to disembark from the aeroplane. She assumed she would be able to find work easily, for example working in a restaurant, on the basis of her limited experience in Indonesia. She had no prior knowledge of the work Mary was involved in and did not want to undertake this sort of work. After her detention, and when she was in Villawood Detention Centre, Ms Kuraesin was advised that she could apply for a protection visa but chose instead to return voluntarily to Indonesia.
When Ms Kuraesin returned home to Indonesia, her husband threatened, not only, once again to take her child away, but also to inform her parents of the nature of the work she had undertaken in Australia. This would have been utterly shocking to her parents and could have resulted in their terminating their relationship with their daughter. Ms Kuraesin therefore believed she had no choice but to return to Australia a second time. On arrival, fellow passengers helped her complete an incoming passenger card because she does not write English well. Mr Mirzadeh said there is no evidence that she sought to mislead Immigration Officers, other than in relation to her use of a false passport and visa which, as with the first false passport and visa used in 1997, were obtained by her husband without any part being taken by her.
On arriving in Australia on the second occasion, Ms Kuraesin was again met by Mary. However, initially, Ms Kuraesin did not work but sought advice on obtaining permission to work. On her second attempt at obtaining advice, her passport was taken by Michael, a Migration Agent who apparently later disappeared with her passport. This placed Ms Kuraesin in a very difficult position and she did not know what to do. After working with Mary for three weeks, she chose instead to keep house for Mary for a period of ten months before taking action by contacting the Department at Parramatta and travelling from Newcastle to Sydney.
With regard to Direction No. 21 and the "character test", Mr Mirzadeh submitted that Ms Kuraesin had not been removed or deported from Australia. He said she had departed from Australia voluntarily on both occasions because she wanted to return to Indonesia. On the second occasion she complied with the terms of her bridging visas and returned to Indonesia with a view to making a migration application following the correct procedure.
With regard to Ms Kuraesin's general conduct, Mr Mirzadeh noted that when his wife went to report the loss of her passport at a police station in September 2000 and revealed that this had been a false passport, she was totally honest, and gave a full account of what had occurred. It was not necessary for her to have done this: she could merely have told the police that her passport had been stolen without revealing that it was false or telling the police of her previous entry and overstay in Australia. Mr Mirzadeh noted that the additional information Ms Kuraesin had given about the ten months she had spent "keeping house" for Mary in Newcastle, had not been revealed before because she had never been asked about her time in Newcastle. Mr Mirzadeh said his wife is a simple person who would not respond if she was not specifically asked about something.
With regard to the exercise of the discretion under s 501(1) and reference to Part 2 of Direction No. 21, Mr Mirzadeh pointed to a number of mistakes in the record of interview by the Senior Migration Officer in Jakarta. In particular, he noted that his relationship with his wife became serious after three weeks, rather than three months, that she had first entered Australia via Brisbane rather than Sydney, and that the fee paid by her when she obtained her divorce certificate was 450,000 rupiahs, equivalent to about AUS$100, rather than a fee equivalent to $450.00. Mr Mirzadeh said his wife would ordinarily talk in terms of rupiahs rather than dollars, so that there appears to have been a communication problem between her and the Migration Officer.
With regard to the primary considerations, Mr Mirzadeh emphasised that his wife has never done anything to harm the Australian community and pointed to the character references which had been tendered. He said there is no evidence to indicate that she will repeat any unlawful conduct. Indeed, she is seeking a visa which is temporary in nature and valid for two years and, therefore, it is important that she should maintain her on-going good conduct. While Mr Mirzadeh acknowledged that the refusal of a visa might deter others, he said, nevertheless, it should also be recognised that everybody makes mistakes. His wife has acknowledged her mistakes and is now trying to gain entry in the correct and proper way, by complying with Australian law. She is a "straight forward honest person, who wishes to be true to herself". In Mr Mirzadeh's view, the Expectations of the Australian Community would take account of these matters.
With regard to the Best Interests of the Child, Mr Mirzadeh said there is a strong tie between him and Ms Kuraesin's son, Adi. Adi treats Mr Mirzadeh as his father, and Mr Mirzadeh in turn is committed to Adi as his child and to having a strongly knit family. Ms Kuraesin returned to Indonesia primarily because she did not want her son to continue living with his grandparents and because of her love for him. He would have a better education and future in Australia. Mr Mirzadeh and Ms Kuraesin have avoided her becoming pregnant until they are able to live together again.
Finally, with regard to Other Considerations, Mr Mirzadeh said because he has no family apart from his wife, she is extremely important to him. His plan has always been to have a normal family. He submitted that the Tribunal should take account of compassionate considerations in its assessment of Ms Kuraesin's conduct.
APPLICATION OF THE LAW AND FINDINGS

As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Ms Kuraesin passes the "character test" having regard to past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, 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…
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, Ms Kuraesin 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.
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 is paragraph 1.9(b), which directs the decision-maker to consider 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.
The Tribunal finds, relying on Ms Kuraesin's evidence, that on the first occasion she came to Australia in November 1997, she came on the instructions of her husband who threatened he would take away their son if she did not comply. Mr Darwano's objective in so instructing his wife was related to his then unemployment in Indonesia and his further instruction that she should send her earnings in Australia back to Indonesia to support him and their son. Ms Kuraesin was aware that it was not uncommon for Indonesian women to work overseas as housemaids or nannies, and send their earnings back to Indonesia for the support of their families. The Tribunal also accepts that it was her husband who provided her with a false passport and visa.
The Tribunal notes Ms Kuraesin was 18 years of age at that time and accepts her evidence that she had no knowledge of Australia's immigration laws and was not aware that she would need permission to enable her to work lawfully in Australia. Ms Kuraesin's husband, Mr Darwano, arranged for her to be met by Mary in Brisbane and, it appears, she was significantly reliant upon Mary, with whom she lived, over the next few months. Thus, when Ms Kuraesin found she was unable to find work in a restaurant because a work permit was required, it was Mary upon whom she relied to find her other work. It was Ms Kuraesin's evidence that Mary was also responsible for withholding Ms Kuraesin's passport when she was detained at Villawood Detention Centre and that this delayed her departure for Indonesia.
The Tribunal accepts Ms Kuraesin's evidence that when she returned to Indonesia on the first occasion, her husband was angry with her and, when he had obtained another false passport with visa, he again instructed her to go to Australia to earn money to support their family. On this occasion, he threatened that if she did not comply, not only would he take their son away so that she would never see him again, but he would also reveal the nature of her work in Australia to her parents, who might well be so shocked that she would, in effect, be disowned by them. The Tribunal finds, once again, that Ms Kuraesin took no part in obtaining the false passport and visa. When she arrived in Australia on the second occasion, on 25 July 1998, she was again met by Mary who took her to Newcastle where Mary was at that time living. Ms Kuraesin sought advice about obtaining a work permit but, on the second occasion, her passport was taken by the Migration Agent whom she consulted, and, when he disappeared, her passport was not returned. Ms Kuraesin therefore worked with Mary for about three weeks until she decided that she was no longer prepared to do this, and for the next ten months, essentially she worked as Mary's housekeeper. Mary gave her small amounts of money from time to time, most of which she sent to her husband in Indonesia.
Eventually, Ms Kuraesin contacted the Department's office in Parramatta and, on their advice travelled by train from Newcastle to Sydney. There she met Mr Mirzadeh at Parramatta railway station when she was confused and lost and did not know where to go. His understanding of her predicament and kindness in offering help, led to her accepting his offer of accommodation and from there their relationship developed. The Tribunal accepts that their marital relationship is a genuine loving one. It is an archetypal story of two lonely people in a foreign country finding companionship and love in adversity. From then on Ms Kuraesin stayed with Mr Mirzadeh and did not work. Instead, he provided for her financial support and she in turn supported him by maintaining their household. They underwent a Muslim religious ceremony at Auburn Mosque on 20 July 1999 in which they exchanged marriage vows, although their marriage could not be formalised because, at that time, Ms Kuraesin did not have any formal papers acknowledging her divorce from her first husband.
The Tribunal accepts Mr Mirzadeh's and Ms Kuraesin's evidence that they consulted a solicitor about their situation who advised that they should live together for at least twelve months in order to establish the genuineness of their relationship and support Ms Kuraesin's application for permanent residence. At this time, Mr Mirzadeh was himself not assured of permanent residence because his application for a protection visa was not finally resolved until the RRT handed down its decision and he was granted permanent residence on 20 December 1999. The Tribunal finds that when, in September 2000, Ms Kuraesin attended a police station to report the loss of her passport and explained her circumstances, including that the passport was false, she did so with the intention of giving an honest account of her situation in the knowledge that she would be detained and thereafter she would have to return to Indonesia. Indeed, this was what she desired in order for her to be reunited with her son and to enable her to obtain a formal divorce certificate from her first husband, so that she could be formally married to Mr Mirzadeh. The Tribunal also accepts Ms Kuraesin's evidence that she wished to make an application for permanent residence in Australia using the proper channels.
With regard to paragraph 1.9 of Part 1 of Direction No. 21, there is no dispute that Ms Kuraesin provided a bogus document - a false passport and visa – on each of the two occasions when she entered Australia. In the Tribunal's view, there were countervailing factors, namely her husband's threats and, at least on the first occasion, in that she was an inexperienced 18 year old who knew nothing of Australia's laws and restrictions on working. On the second occasion when she arrived in Australia in July 1998, while she was still only 19 years old, she at least had some knowledge of the system, albeit that she was still acting under the duress of the threats made by her husband. The Tribunal accepts that Ms Kuraesin did not come to Australia as a matter of choice. In the Tribunal's view, Ms Kuraesin was caught up in a chain of events which were not of her making and, having met Mr Mirzadeh, she acted on the advice they received in then living with him for at least 12 months, during which time she did not work, nor seek any government benefits. The Tribunal accepts that after this twelve months had passed, she took steps to tell the truth about her situation with a view to both formalising her marriage to Mr Mirzadeh and also her status in Australia.
The Tribunal noted information provided by the Indonesian Embassy at the Tribunal's request, in relation to the status of male non-Indonesian citizens who marry female Indonesian citizens and are seeking residence in Indonesia. Contrary to the belief of Mr Mirzadeh and possibly the advice he may have received, the advice received by the Tribunal from the Indonesian Embassy is that:
Every single Australian Citizen who marry to [sic] an Indonesian citizen may obtain a permanent residency status sponsored by his Indonesian spouse.
The Tribunal notes Mr Mirzadeh has a business as a painter/decorator in Sydney and has other business plans. He is an intelligent, articulate and well-educated man with a degree in Geochemical Engineering who is committed to advancing his career in the support of his family. In the Tribunal's view, having now adopted Australia as his country, he should be permitted to build on the foundations he has laid, secure in the long sought after family to which he has committed himself.
The Tribunal concludes that the countervailing factors are so strong in Ms Kuraesin's case, that it should overlook the breaches of Australia's migration laws and the bogus documents which she provided. The Tribunal was impressed by Ms Kuraesin's evidence and by Mr Mirzadeh's account of his wife's situation, all of which leads the Tribunal to conclude that Ms Kuraesin is of good character and therefore does pass the "character test".
The decision under review should be set aside and the matter remitted to the Respondent for reconsideration with the direction that Siti Kuraesin passes the character test under s 501(1) of the Act.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing   6 & 7 November 2001
Date of Decision   10 December 2001
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr M Allatt, Australian Government Solicitor

[2001] AATA 1004

10 December 2001

Key Legal Topics

Areas of Law

Immigration & Refugee Law

Legal Concepts

Character Test

Refusal of Visa

False Documents

Judicial Review

Protection Visa