Moengangongo and Department of Immigration and Multicultural Affairs
[2001] AATA 74
•6 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 74
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/582
GENERAL ADMINISTRATIVE DIVISION )
Re KATHERINA MOENGANGONGO
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date6 February 2001
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the visa application not be refused under section 501 of the Migration Act 1958.
.............[sgd. J Block]..............
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – overstaying visitors visa – making false or misleading statement to an immigration official – failure to pass the character test – whether discretion should be exercised - hardship to applicant on health grounds if husband was refused visa – medical facilities in Tonga - best interests of the child
Migration Act 1958 – sections 234, 235, 417, 499, 501
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Camakau and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 789
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Re Maatouk and Minister for Immigration and Multicultural Affairs [2000] AATA 1023
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87
REASONS FOR DECISION
6 February 2001 Deputy President J Block
The decision under review in this matter is the decision dated 10 March 2000 by Mr Angus Pryor, Senior Migration Officer of the Respondent at the Australian High Commission in Suva, refusing the grant of a Class UF Subclass 309 Spouse (Provisional) Visa and a Class BC Subclass 100 Spouse (Migrant) Visa to Mr Keli Moengangongo ("Mr Moengangongo") who was sponsored for this purpose by the Applicant, who is his wife. I note that the first name of Mr Moengangongo is referred in the documents before me sometimes as "Keli" and sometimes as "Kele", but nothing turns on the difference.
(a) The Applicant was represented by Mr Nicholas Poynder of Counsel instructed by Kah and Associates, solicitors, while the Respondent was represented by Ms Elizabeth Warner of the Australian Government Solicitor.
(b) The Tribunal had before it the T Documents, and also the Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; in these Reasons references which are proceeded by a capital T refer to the T Documents; in addition, the following documents were tendered during the course of the hearing:
Exhibit A1 is a brief statement dated 2 January 2001 by Dr Ian Doust; Dr Doust is a general practitioner who has consulted the applicant since 1976; Exhibit A1 which is brief, reads as follows:
Katherina Moengangongo has been under my care since 1976.
At present she suffers fromHypothyroidism
Lupus erythematosis
Gestational Diabetes Mellitus.In the future she will require specialist medical supervision & treatment. These facilities will not be available in Tonga.
Furthermore she will be unable to be in direct sun light & the Tropical Climate will severely aggravate her Condition.Yours faithfully,
Ian S DoustExhibit A2 is a lengthy statement by the Applicant dated 1 September 2000; it is also set out in full as follows:
1.I am an Australian Citizen and reside at 8 Brentwood Street, Fairfield West NSW.
2.I am currently the Internet Project Officer for NSW Fisheries where I have worked for 17 years.
3.I married Kele Moengangongo on 25 September 1999, having first met him in October 1998.
4.Our first child, Jonathon Moengangongo was born on 29 March 2000.
5.When I first met Kele he was taking care of his brother's children during the day until his brother returned from work at 10.30pm. His sister-in-law works night shift and sleeps during the day and his brother works from 10am to 10pm.
6.Early in our relationship I questioned Kele on his status in Australia. He advised me that he had a visa application pending and that his family (being his brother and sister in law) were taking care of it.
7.As our relationship became more serious he told me about his overstaying after his visa expired, and his apprehension and subsequent detention by DIMA. I wasn't aware that he had given a false name at the time of apprehension. Not knowing anything at that time about immigration law I do not believe I would have thought this any more serious than the other issues.
8.At this point the family shared with me any correspondence received in relation to Kele's visa application and the appeal that followed.
9.In September 1999 when the appeal was denied at the Migration Review Tribunal, Kele and I made enquiries in person at the Parramatta branch of DlMA as to how to apply for an extension of time for Kele to remain in Australia.
10.We sought an extension for two reasons.
Firstly, Kele's passport had expired and we were still waiting for the renewed passport to be returned from Tonga.
Secondly, we had made plans to travel together to Suva to lodge a spouse visa application and then travel on to Tonga. I was pregnant at that time and I did not want to leave Australia prior to having my 18 week ultrasound and check up and without getting an approval from the doctor to travel.11.A bridging visa E was issued on the condition that we produced our tickets, the passport and paid the outstanding detention costs which Kele's family had not paid. I paid the detention costs, bought the tickets to leave Australia and when the passport arrived we returned to the Parramatta Compliance Branch of DIMA to produce the documents. The bridging visa E was issued in October 1999 on the condition that Kele leaves by 8 November 1999.
12.During all of this I had purchased a spouse application kit, sought assistance from the Immigration Advice & Rights Centre and completed the application package.
13.Prior to paying the application fee we attended the Parramatta Branch of DIMA once again to clarify whether any of Kele's past actions (in an immigration context) would exclude him from returning to Australia. This advice is given in the information kit. We were sent to the Compliance Branch again, and spoke to a compliance officer who checked his record and advised that "no exclusion period applies as the only requirement is that the detention fees be paid and you have done this, it should be fine". With this advice in hand we paid the application fee for the spouse application at the Parramatta Branch.
14.We then travelled to Suva in November 1999, lodged the application and travelled on to Tonga where I stayed for 2 months. I then returned to Australia to return to work and seek further medical attention as my pregnancy was progressing.
15.Between January 2000 and March 2000 I contacted the DlMA office in Suva on a number of occasions by phone, fax and email to check on the progress of the application. My prime concern was that my husband's application would not be finalised on time and that he would not make it back to Australia for the birth of our first child. At no time did I expect that a refusal would be received, I believed that because Kele and I had taken so much care and time to do things the right way and by getting advice from DlMA prior to lodging the application that Kele would be approved for a visa.
16.The first interview date scheduled was changed without notice. My husband arrived for interview and was told that a lunch break had not been scheduled for the interviewing officer, therefore he would have to wait until the next lot of interviews. A new date was scheduled three weeks later and my husband attended. However, I was somewhat concerned after speaking to my husband following the interview because an interpreter had not been provided and he was unsure of the result of the interview nor what the next step was.
17.I then telephoned the DIMA Suva office again to check on the result. I was told that policy did not enable them to give me the result and that I would have to wait for a letter to be sent to my husband in Tonga.
18.I then emailed the interviewing officer, who advised me that he was checking on my husbands past immigration history and that he could not comment any further.
19.My husband finally received the advice from DlMA in March 2000 and attempted to read some of the letter to me over the telephone. I understood that it had been refused but not why. I then instructed my husband to post the documentation to me to read as his English is not at a level to be able to read and understand such a document. Once I received these documents I understood the reason for the refusal and sought legal advice.
20.I was admitted to hospital for 1 week for high blood pressure problems due to stress and pregnancy, and the baby was delivered by emergency caesarian on 29 March 2000. Once well enough I sought legal advice and instructed my lawyers to lodge an appeal to the AAT on my behalf.
21.I believe Kele was encouraged and advised by his family who were also his sponsors for his initial visitors visa on which he came to Australia, to ignore certain immigration laws and remain in Australia.
22.My husband advised me that he had overstayed in Australia and worked so that he could provide financial assistance to his mother and younger siblings in Tonga who were struggling to make ends meet. He felt that he could only assist them by remaining in Australia, and he sent most of the money he earned during this time back to Tonga.
23.Tongan culture is such that they are taught to respect elders within the family unit and he would have acted accordingly should he have been advised to take certain actions or act in a certain way. It became clear to me very early in our relationship that he believed his family "were taking care of things" and that they explained only the basics to him.
24.My husband did not speak English very well when he arrived in Australia and even now has only a grasp of day to day topics and conversation. He is not highly educated even by Tongan standards and it is at times difficult to explain to him what is going on with his application. Whilst he understands in general he does not understand fully when explaining matters to him.
25.In relation to my husbands character, he is a placid and gentle man, often described by people as quiet and shy. It was a pleasure to meet a man that did not drink alcohol and that was thoughtful of others. Family plays a very important role in the Tongan culture and this is evident by my husbands' strong family values.
26.Religion also plays a significant role in the lives of Tongans. They help their neighbours, share what little they have, learn to respect their elders and to be fully involved in community activities. This became very apparent on my visit to Tonga.
27.Whilst in Australia my husband regularly attended a Catholic Church located in Auburn/Berala. In Tonga he also attends Church as does the majority of the community.
28.The events of the past 6 months have been very stressful and times have been very difficult for not only myself, but also my family, and my husband and his family. At a time when we should be enjoying the birth of our first child, my husband finds himself separated from his family and I find myself with the sole responsibility of caring for our child without the support of my spouse, working and supporting the family financially.
29.On top of this I have the added anxiety that my husband may not be able to return to Australia.
30.My gravest concerns should this happen are for our son's future. Given the obvious cultural and economic differences between Tonga and Australia, I could cope living in Tonga, however, for a baby it is quite a different story. My main concerns are:
Health - medical facilities are very basic; typhoid is still present and the town water is not drinkable. Children under 5 years of age cannot be immunized against typhoid. Furthermore, the nearest medical and hospital facility from my husbands village is about 20 km away and is of a very basic standard
Education - education standards are not at the same level as available in Australia. I cannot speak the language and wonder how I could possibly assist my child with homework and so on. As with all parents, I seek to have my child obtain an education of the highest standard and given the best possible opportunities.
Employment - good employment opportunities are rare, I would have difficulty finding work because I do not speak Tongan. Furthermore my husband's education level would only enable him to work on a plantation field earning about $20 per week.
Living Standards - living standards are extremely low. My husband's 2 room home does not have running water, electricity, kitchen nor bathroom facilities. The family home next door has these facilities but they are very primitive. With only $20 a week coming into the home it would not even pay for my son's milk formula let alone for other basic necessities which we take for granted in Australia. My husband's family home is a very small 3 bedroom home and there are 6 adults and 1 child already living there. Drinking water must be fetched from a communal water stand at a neighboring property.31.All I want is for my son who is an Australian to have all the comforts and privileges that he is entitled to in Australia and to grow up in a complete family unit with both parents.
32.I have lived in Australia for 37 years and would find it extremely difficult to adjust to life in Tonga. I have a career and all my family living in Australia. I am also concerned that my parents will be denied access to my son who they have helped me care for since his birth while I have been living in with them.
33.I do not consider that any benefit would be gained in denying my husband from joining his family in Australia. He regrets his past actions and the problems that they have caused us. We simply want to be reunited as a family and raise our child to the best of our abilities in Australia.
Exhibit A3 is the Birth Certificate in respect of Jonathon Kefu Moengangongo ("the child") who was born on 29 March 2000 to the Applicant, who was then aged 36, and Mr Moengangongo who was then aged 27;
Exhibit A4 is a document prepared by Mr Poynder at the request of the Tribunal and which is entitled "Summary of Dr Doust's Evidence"; it reads as follows:
Hypothyriodism is a condition resulting from an insufficiency of thyroid hormones. It can be managed by regularly taking thyroxin tablets, and it also requires annual medical tests of the thyroid. This is done by testing blood in special laboratories.
Dr Doust was aware that there are places in the world where the presence of iodine in the air makes Hypothyriodism less common. The iodine concentration in the air has a direct relationship with whether the patient's goiter is enlarged or not. This is not the problem with Ms Moengangongo.
Lupus Erythematosus is a disease involving inflammation of the connective tissues. It is prevalent in young women. It is characterised by joint pain and febrile illness, and in over 50% of cases it involves photosensitivity and a skin rash.
The skin rash and joint pain flares up from time to time.
Lupus Erythematosus is usually fairly easy to manage; however it can rapidly develop and persons with the disease can suffer from pleura, pericardium and kidney involvement which can be fatal.
Dr Doust was unable to estimate the likelihood that Ms Moengangongo would suffer renal complications in the future.
In addition Ms Moengangongo has positive antinuclear antibodies and it is expected that her condition will develop.
Dr Doust's concern was that if Ms Moengangongo's condition gets worse she will have to go on to intensive immunosuppressive therapy.
If Ms Moengangongo has a bad reaction to intensive immunosuppressive therapy it would be a similar result to anti-cancer therapy. She would have to be isolated and put in a disease-free atmosphere.
Ms Moengangongo would suffer from the higher ambient temperature and exposure to the sun in Tonga. Dr Doust was not sure the extent to which this could be resolved by wearing a hat or other shaded clothing.
Ms Moengangongo developed Gestational Diabetes Mellitus during her pregnancy. There is a further sign that she will develop Type 2 Diabetes at a later age, probably in her forties. Type 2 Diabetes is non-insulin dependent diabetes, and it is usually managed with medication such as tablets. It can often lead to insulin dependent diabetes.
Dr Doust was aware that diabetes was endemic in some countries, including Tonga. He did not know the medical services that were available in Tonga.
In answer to questions from the Tribunal, Dr Doust agreed that Ms Moengangongo does not have a promising medical prognosis, and he said that she will certainly have health problems in the future.
He agreed that she would be better off in Australia that Tonga, and that Tonga would not have a developed medical system like Australia.
He was asked to picture Ms Moengangongo at forty years of age, and he agreed that:her Hypothyriodism would get worse;
her Lupus would not improve; and
her diabetes would gradually develop from Type 2 Diabetes to Type 1 Diabetes.
Dr Doust agreed that this would all happen in the next five years.
Exhibit A5 is a statement dated 29 August 2000 by a neighbour of the Applicant, Michael Herring.
Exhibit A6 is a statement dated 30 August 2000 by the Applicant's mother, Alexandra Damjancuk.
Exhibit A7 is a statement dated 22 August 2000 by Kelekolio Nivaleti Melekiola; Mr Melekiola is the Town Officer of Lapaha, the village in which Mr Moengangongo lives.
Exhibit A8 is a brief statement dated 24 August 2000 by Father Sione Malakai Katoa; Father Katoa is the Assistant Parish Priest of St Michael Parish in Lapaha.
Exhibit A9 is a brief statement dated 24 August 2000 by Fisilau Leone, Chief Engineer of the Ministry of Works at Nuku'alofa, Tonga.
Exhibit A10 is a brief statement dated 18 August 2000 by John Valu Sikimetj, Financial Administrator & Teacher at 'Api Fo'ou College in Nuku'alofa, Tonga.
Exhibit A11 is a statement, undated, by Mr Moengangongo; the evidence before me was that that statement was prepared by Mr Moengangongo and the Applicant jointly.
Exhibit R1 is a statement by Mr Angus Pryor dated 15 December 2000.
The Tribunal was also furnished with two other documents, being:
a map of Tonga; it shows the southern most group of islands is the Tongatapu group of which Tongatapu is the largest; the capital of Tonga is Nuku'alofa and Lapaha, the village in which Mr Moengangongo lives, is about 25 minutes in distance from the capital;
an e-mail message by Dr H Betz addressed to Ms Warner dated 17 January 2001 which reads as follows:
Dear Ms Warner, first of all a small resume of our conversation:
The question is can the following diseases be treated here in Tonga :
1. Hypothyroidism
this needs only a Hormone treatment with Thyroxin according to blood test of the function of the thyroid gland -there is no problem at all in Tonga to be supplied either with the medication or with following blood tests
Close to the ocean commonly the air-concentration of Iodine is higher than at other places, Iodine is an essential part for the function of the thyroid gland. Thus the climate here is of some advantage.2. Lupus Erythromatodes
I have no information which kind of Lupus Erythromatodes has been diagnosed. In Case of a disseminatus or systemic Lupus the correct medical term would have been SLE=Systemic Lupus Erythramatodes.
Therefore I suspect Mrs Moengangongo has Lupus erythromatodes discoides, a skin condition which may flare up from time to time (usually only on the face underneath the eyes and high on the cheeks). It is not photosensitive and most likely a cosmetic problem. It can cause scarring but that would occurr in any environment.
The treatment for Lupus erythromatodes discoides is simply either nothing or local Corticoids or in rare cases corticoid injections, intracutaneous and such treatment is readily available here in Tonga .3. Gestational Diabetes Mellitus
Normally a transient disease, but can develop as a manifest DM, which should be so after nearly one year after delivery.
Anyway, Tonga is a place with a high incidece of DM and we have linked to the Hospital a well organised and functioned Diabetes Clinic, with all treatment facilities and a Dietician for the education of the patients.
Without further detailed information concerning the three diseases, which may show another point of view, I cannot see any reason for a higher risk for the patient living here in Tonga.
I commence by including by way of background and in order to further set the scene, three important documents and being:
(a) The Respondent's chronology of events ("the Chronology") reading as follows:
DATE EVENT DOC. REF.
23.10.72 Keli Moengangongo (visa applicant) born in Tonga f88
21.1.97 Visa applicant arrives in Australia on a Visitor's Visa Class 676P valid to 21.4.97. On 21.4.97 he applied for and was granted a further 3 month Visitor's Visa Class 686P valid to 2.7.97 f109
3.7.97 to 19.10.98 Visa applicant remains illegally in Australia f272
October 1998 Keli Moengangongo meets Katherine Damjancuk f239 f255
19.10.98 Visa applicant is detected by DIMA compliance officers in his home and taken into immigration detention f273
21.10.98 Visa application is interviewed in Villawood. Admits overstaying his visa because 'I like Australia'. Admits working illegally doing newspaper delivery ff87-99
23.10.98 After being advised that, in order to get a bridging visa, he must have a substantive visa application pending, Visa applicant lodges an application for a Family (Residence) Class AO Visa (and associated BE) claiming that he is the special need relative to his uncle, his uncle's wife and their children. As a result of having lodged the Family (Resident) Class AO Visa application, Visa applicant is granted a Bridging Visa E valid until 28 days after notification of decision on the Family (Residence) Class AO Visa. He is then released from immigration detention f103 ff118-143 f273
28.10.98 Visa applicant's migration agent writes to DIMA advising that Mr Moengangongo has been counselled by him that he does not meet criterion 3302 (ie. Application must be lodged within 12 months of expiration of previous substantive visa). This criterion is a basic condition of the visa that Mr Moengangongo has applied for. f144
2.11.98 DIMA writes to visa application advising that his application for special need relative visa has been refused principally because he could not satisfy criterion 3002 ff158-165
23.11.98 Visa applicant applies for MIRO review of decision of 2.11.98 asking that the criterion be waived due to hardship it would cause his uncle's family ff167-171
26.3.99 MIRO affirms delegate's decision refusing Family (Residence) Class 806 (Special Need Relative) Visa again on the ground that he does not satisfy criterion 3002. MIRO states it has no power to waive conditions and must apply the act and regulations as they stand. ff172-175
10.4.99 BVE expires f263
23.4.99 Visa applicant lodges application to appeal MIRO decision to the Migration Review Tribunal ("MRT") [and is thus entitled to a further BE pending outcome of MRT appeal] f263
15.9.99 MRT affirms the decision under review; stating that it is mandatory that a visa applicant meet the conditions, the MRT has no power to waive them and Mr Moengangongo does not satisfy criterion 3002. ff 176-180
25.9.99 Keli Moengangongo marries Katherine Damjancuk f224
6.10.99 (As a result of MRT decision, current BE would have expired on or around 13.10.99). Visa applicant applies for further bridging visa on the ground that his wife who is pregnant requires an ultrasound and furthermore he is waiting for his passport to be renewed in Tonga. The further BE is granted valid to 8.11.00 f181 ff183-185
5.11.99 Application for 1355 spouse visa lodged ff193-226
8.11.99 Visa application departs Australia f273
22.2.00 Visa applicant interviewed in Suva in relation to spouse visa application ff251-259 ff268-269
10.3.00 Letter from DIMA sent to visa application advising that visa has been refused and enclosing record of decision. f6 ff268-275 (decision record)
29.3.00 Birth of Jonathon Kefu Moengangongo applicant's sofc p.2
(b) The Respondent's Statement of Facts and Contentions dated 1 September 2000, reading as follows:
FACTS
1. The respondent relies on the facts set out in the reasons for the decision under review (supplementary T documents at folio 1 and following) and the respondent's chronology of events (see attached).
CONTENTIONS1.The respondent accepts the genuineness of the marriage between the visa applicant and his wife, Katherina.
Whether the visa applicant, Mr Keli Moengangongo, is of good character .
2.Having regard to his past and present general conduct within the meaning of s 501(6)(c)(ii), the visa applicant is not a person of good character.
3.The visa applicant has shown a willingness to repeatedly breach, and misuse the immigration laws of Australia to suit his own purposes over an extended period of time, as follows:
a)When his visitors visa expired on 2 July 1997 Mr Moengangongo overstayed illegally in Australia for 19 months, including working illegally, until detected by departmental compliance officers.
b)When located by departmental compliance officers he made two attempts at evading being apprehended, giving two false names to compliance officers.
c)He lodged an application for a visa that he knew he had no chance of success because (as he well knew) he did not meet a basic precondition of the visa. He carried this application through to all stages of review (MIRO and MRT) in order to qualify for a Bridging visa so that he could remain longer in Australia. This behaviour demonstrates a contempt and/or disregard for the laws of Australia in the same manner as persons who engage in other schemes which (abuse the legal and administrative system such as tax avoidance schemes.
d)He made false statements during the course of an interview with a departmental officer on 22 February 2000.
4.In addition, his behaviour in working illegally has had the effect of depriving persons entitled to work in Australia of employment opportunities.
5.Direction 17 (at T5, folio 21, see especially ff23-24) made pursuant to s499 of the Migration Act is binding on all decision makers. Part 1 provides directions on the application of the character test.
Paragraph 1.9 of the Direction sets out matters relevant to s501 (6)(c)(ii), ie. past and present general conduct, including,
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the Iaw …; and
(b)whether the non-citizen has, in connection with any application for the grant of a visa ...made a false or misleading statement …
The visa applicant's conduct has included both of the above matters.
Whether the Tribunal should exercise its discretion and grant the visa applicant a subclass 309 Spouse visa
6.If the Tribunal considers that the visa applicant has not passed the character test, it must exercise its discretion to nevertheless decide whether or not the visa (applicant should be permitted to enter or remain in Australia. Having regard to the policy directions of the Minister made under s499 as to the exercise of the discretion in s 501(1), the respondent contends that the seriousness of the nature of the visa applicant's conduct over an extended period of time whilst in Australia, in addition to the preponderance of the other primary consideration outweigh the consideration of the child of the marriage and the personal disruption caused to Ms Moengangongo in refusing a spouse visa to Mr Moengangongo.
7.Part 2 of Direction 17 provides directions on the exercise of the discretion. Primary considerations are set out at paragraph 2.3 and other considerations are set out at 2.17. No individual consideration can outweigh a primary consideration, but a primary consideration is not conclusive in itself and decision makers must take into account all relevant considerations.
primary considerations
8.There are three primary considerations: the protection of the Australian community; the expectations of the Australian community; and, where there is a parental relationship between the visa applicant and a child or children, the best interests of the child or children.
best interests of the child
9.Since the delegate's decision there is now a child of the marriage to consider whose best interests are a primary consideration. The respondent refers to the decision of DP Purvis in Ayaad and Minister for Immigration and Multicultural Affairs No N2000/129 who found that the child's,
"grandparents, uncles and aunts live in Australia [the child's] mother is able to earn an income, she …. has the capacity to care for the child. The absence of a father would be regrettable. It is trite to say that he was the author of this eventuality".
The respondent contends that this reasoning should be adopted in the present case in relation to the child of the marriage.
protection of the Australian community
10.As to the protection of the Australian community, the direction sets out three matters to consider: (a) the seriousness and the nature of the conduct; (b) the likelihood that the conduct may be repeated; and (c) general deterrence.
11.It is unlikely that Mr Moengangongo will breach Australian immigration laws again if given the spouse visa he seeks as this visa allows him to work and reside legally in Australia. However, the providing of false or misleading statements to migration officers when he was apprehended and in his interview with Angus Prior and his obvious disregard for, and willingness to abuse, the immigration laws of Australia are serious matters which the Respondent contends weigh strongly against the visa applicant.
Furthermore, although Mr Moengangongo is unlikely to broach immigration Iaws again if granted the visa he now seeks, the respondent contends, on the basis of the evidence of his past disregard for the law, that there is a good chance that Mr Moengangongo will breach other laws such as social security and taxation laws, in the future, if to do so would suit his purpose.
12.The Respondent adopts the reasoning of the primary decision maker on general deterrence, that is, that the effect of general deterrence that refusal of the visa may have on others who would commit similar offences is highly relevant in Tonga, "whose citizens continue to record one of the highest proportional rates of overstay. ...(quote) S1 (folio 4 )
the expectations of the Australian community
13.As to the expectations of the Australian community, the Respondent again adopts the reasoning of the primary decision maker who applied the paragraph 2.12 of the Direction 17 which states, "[t]he Australian community expects non-citizens to obey Australian laws while in Australia." The decision maker noted that Mr Moengangongo has broken immigration laws on a number of occasions.
other considerations
14.Paragraph 2.17 of Direction 17 requires decision makers to take into account other considerations which are to be given less weight than the primary considerations. In the present case the disruption to the Applicant, Katherina Moengangongo in being separated from her husband must be taken into account. However, the Respondent contends that the primary considerations above outweigh this consideration.
15.Alternatively, if Ms Moengangongo were to join her husband in Tonga, this relocation would cause disadvantage to the Applicant, but the respondent contends that the primary considerations above outweigh this consideration.
(c) The Applicant's Statement of Facts and Contentions dated 17 October 2000 reading as follows:
FACTS:
1.On 21 January 1997 Mr Keli Moengangongo arrived in Australia on a visitor's visa valid until 21 April 1997. He subsequently obtained a further visitors visa valid until 2 July 1997.
2.Mr Moengangongo remained in Australia unlawfully after 2 July 1997.
3.On 19 October 1998, Mr Moengangongo was detained by Department of Immigration compliance officers. Prior to his detention by the officers, he gave a false name to the officers to avoid being detained. When questioned, he provided his correct name and was subsequently placed in detention. He remained in detention at Villawood Immigration Detention Centre until 23 October 1998.
4.On 23 October 1998, Mr Moengangongo was granted a Bridging Visa E (BVE) and was released from detention on surety for the sum of $4,000.00 provided by Mrs lIaise Maka, being Mr Moengangongo's sister in law. The BVE visa was subject to a number of reporting conditions, and was valid until 28 days after notification of the final determination of his substantive visa application.
5.On 23 October 1998 Mr Moengangongo lodged an application for permanent residence. This application was refused on 2 November 1998.
6.On 25 November 1999 Mr Moengangongo applied for review of this decision with the Migration Internal Review Office. This application for review was refused on 26 March 1999.
7.On 23 April 1999 Mr Moengangongo applied for review of the primary decision with the Immigration Review Tribunal. This application for review was refused on 15 September 1999.
8.The BVE that the applicant held was valid until 13 October 1999.
9.In October 1998 Mr Moengangongo met the applicant, Katherina Damjancuk. He developed a relationship with the applicant and commenced residing together in the middle of 1999.
10.On 25 September 1999 Mr Moengangongo married the applicant.
II.On 6 October 1999 Mr Moengangongo was granted a further BVE valid until 8 November 1999. On 14 October 1999 the applicant paid all outstanding costs in relation to Mr Moengangongo's detention in Australia.
12.On 8 November 1999 Mr Moengangongo and the applicant departed Australia for Suva, Fiji. On 10 November 1999 Mr Moengangongo lodged an application for permanent residence at the Australian High Commission Suva. The application was for a Subclass 309 spouse visa based upon his marriage to the applicant.
13.They subsequently flew onto Tonga where the applicant stayed for a few months.
14.On 22 February 2000 Mr Moengangongo was interviewed by the Senior Migration Officer in Suva, Mr Angus Pryor.
15.On 10 March 2000 the application was refused on the basis that Mr Moengangongo did not meet public interest criterion 4001.
16.On 29 March 2000 Mr Moengangongo's son, Jonathon Kefu Moengangongo, was born at Fairfield Hospital.
17.Mr Moengangongo has no criminal history whatsoever in Australia or Tonga.
CONTENTIONS:
18.The genuineness of the relationship between the applicant and Mr Moengangongo is not in issue in this application. The only issue is whether Mr Moengangongo can be said to be of good character.
Relevant legislation:
19.Section 501(1) of the Migration Act 1958 (Cth) ("the Act") provides that
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.
[Note: 'Character test' is defined by subsection (6).]
20. Subsection (6) provides:
(6) For the purposes of this section, a person does not pass the 'character test' if
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i)the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii)vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to that community or segment or in any other way,
Otherwise, the person passes the 'character test'.
21. Section 499 of the Act provides
499. (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1)
22.Clause 4001(d) in Schedule 4 of the Migration Regulations provides that the Minister has the discretion not to refuse the grant of the visa despite not being satisfied that the applicant passes the character test;
23.The implementation of the character test may therefore involve a two stage process;
a.a determination of whether or not the person passes the character test; and
b.if the person does not pass the character test, a determination as to whether the discretion should be exercised to grant the visa in any event.
The meaning of "not of good character"
24.The question of whether a person is or is not of 'good character' is primarily an issue of fact which falls for determination by the Tribunal. It is the Tribunal's responsibility to make such a determination as to Mr Moengangongo's character at the time of the reaching of the decision. It will necessarily involve the exercise of a value judgement, weighing the combination of matters which are properly before the decision maker.
25.The meaning of the term 'good character' was suggested by Lee J in Irving as follows;
Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person. and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, (see: In Re Davis (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
26.Lee J's interpretation was approved by the Full Federal Court in MIEA v Baker, and more recently by the Full Court in Goldie v MIMA.
27.The term "good character" requires that the decision-maker have regard to the person's "past and present general conduct". While the Full Court in Baker considered that 'the person's general conduct' did not necessarily eliminate instances of conduct indulged in just once or twice, it must also be weighed up against evidence of recent good conduct.
28.The phrase also involves a consideration of whether the behaviour will be repeated. Referring to subsection (2)(a)(i) in White v MIMA, French J considered that:
character is enduring and formed by an accumulation of acts or omissions. It necessarily and implicitly involves an assessment of likely future behaviour. So in reaching his state of satisfaction under s501(2)(a)(i) the Minister may form a compendious picture based upon …..past criminal and general conduct and the likelihood of particular future behaviours derived therefrom. A fortiori, in exercising the discretion to refuse or cancel a visa in such a case, the Minister would have regard to the want of good character and the risk of future adverse behaviour. As I said, in effect, in Powell v Administrative Appeals Tribunal (1999) 161 ALR 15, the exercise of the discretion involves, inter alia, a weighing up of the nature of the character deficiencies and their implications for the public interest in the future.
29. In Goldie, the Full court took the following view of the provision:
The concept of 'good character' in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
30. The role of the Tribunal in this matter will, therefore, be to consider the factors which reflect upon the enduring moral qualities of Mr Moengangongo, with in particular reference to his past and present general conduct, and having regard to whether he is likely to re-offend at some time in the future.
31.In dealing with the issue of good character, the Tribunal is not entitled to take into consideration notions such as the protection of the Australian community, the expectations of the Australian community, and its international obligations. These factors have no bearing on Mr Moengangongos' enduring moral qualities, although they will be relevant at the second stage identified in Ram, as to whether the discretion to waive should be exercised if he has been found to be not of good character.
Is Mr Moengangongo not of good character?:
32.The factors which weigh against Mr Moengangongo relate to his conduct in remaining unlawfully in Australia after his visitor's visa expired, and in making a false statement to a DIMA officer in relation to remaining in Australia. He also undertook some casual work in a newspaper recycling business.
33.The Tribunal should place little weight what Mr Moengangongo apparently said in the interview with Mr Pryor on 22 February 2000. Mr Pryor considers that Mr Moengangongo lied to him in relation to whether he worked in Australia. As no interpreter was provided to the applicant, we submit that the applicant did not understand many of the questions asked of him. The interview notes do not indicate whether Mr Moengangongo was asked whether he requests or requires an interpreter (T251) whilst the record of interview which appears to be transcribed from these notes (T268) states that Mr Moengangongo did not request nor require an interpreter.
34.The factors in favour of Mr Moengangongo are as follows;
a.His conduct in making a false statement to a DIMA officer was a "one off" instance which is unlikely to be repeated.
b.He stayed in Australia only on one occasion without a valid visa. He complied with his visa conditions subsequent to release from detention.
c.He voluntarily approached DIMA following the refusal of his review application at the Migration Review Tribunal and departed from Australia within the time period provided by his BVE.
d.He has never been convicted of any crime in any country.
35.The circumstances of this matter do not suggest that the enduring moral qualities of Mr Moengangongo are those of a liar or someone who has little respect for the immigration laws of Australia. His overall conduct has been of honesty and integrity. Further, his recent conduct cannot be criticised.
36.Mr Moengangongo deeply regrets his actions. The circumstances surrounding the statement made to the DIMA officers were in part attributable to fear and confusion at the time. However Mr Moengangongo does not regard this as an excuse for his actions and he acknowledges that he deliberately tried to mislead DIMA officers.
37.There is almost no likelihood that Mr Moengangongo will repeat his conduct. His action in misleading DIMA officers was an isolated instance of bad conduct. The applicant contends that such conduct does not lay his "character bare very telling". At all other occasions in his dealings with DIMA officers Mr Moengangongo has acted truthfully and his conduct does not demonstrate a propensity to lie.
38.The absence of any criminal history for Mr Moengangongo is significant. As stated in Irving, absence of a criminal conviction will be an important source of primary information about the person's character.
39.The fact that Mr Moengangongo has never been formally charged with an offence is significant. The applicant fully co-operated with the DIMA officers at the time of his detention and all subsequent dealings with DIMA.
40.Mr Moengangongo freely admitted at the time of his interview with compliance officers, that he had worked whilst in Australia (T95) and again stated this in his application for permanent residency on Form 887 (T124). As provided in his statement Mr Moengangongo sought to work casually to assist with his brother's living expenses and also to forward money back to his family in Tonga. He worked casually for 6 months and did not recommence working after being released from detention.
41.The application for permanent residency has not been questioned by the Respondent. Mr Moengangongo's brother required his assistance to take care of his children and the only option to remain in Australia was through the lodgement of a valid application for permanent residence. Whilst the application could not be approved due to the item 3002 of Schedule 3 of the Migration Regulations, it appears that Mr Moengangongo had been advised that he could eventually seek ministerial intervention under section 417 of the Migration Act.
42.The applicant contends that the fact that Mr Moengangongo did not pursue ministerial intervention to remain in Australia and utilise such an appeal to remain in Australia is indicative of his desire not to abuse Australia 's immigration system. Instead he chose to leave Australia and apply for migration notwithstanding that he would be separated from the applicant at a time when she was pregnant and needed his comfort and support. We contend that such actions are indicative of Mr Moengangongo's good character and are not consistent with the actions of many other persons in Australia who chose to deliberately prolong their stay in Australia by applying for ministerial intervention.
43.In deciding whether Mr Moengangongo is or is not of good character, the Tribunal should find that the weight of evidence favours a finding that he is of good character.
Should the discretion be exercised in favour of Mr Moengangongo?:
44.In the event that a finding is made by the Tribunal that Mr Moengangongo is not of good character, the Tribunal should exercise its discretion to waive the character requirement.
45.Ministerial Direction No 17 sets out the following primary considerations to take into account when determining whether the discretion should be exercised:
< The protection of the Australian community
< The expectations of the Australian community< In all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children
Protection of the Australian community:
46.The applicant contends that the first primary consideration, protection of the Australia community, is aimed almost exclusively at conduct involving crime and disorder, particularly relating to drugs and violence. While "making a false or misleading statement in connection with entry or stay in Australia" in included in the list of 'serious offences' at paragraph 2.6, this should be seen in the context of the other serious offences included in the list, which all involve very serious and abhorrent crimes. In this context, it must be concluded that any such serious offences against the Act would have to be very serious indeed, and at least have led to charges and conviction, which is not the case here.
47.As has already been suggested, there is almost no likelihood that Mr Moengangongos' conduct will be repeated. The applicant contends that it is a relevant factor that the visa sought by Mr Moengangongo is a temporary visa, and DIMA therefore has the further opportunity to reassess his character at the time it is considering granting a permanent visa whilst he is in Australia.
48.The applicant contends that a deterrent message has already been sent as Mr Moengangongo has spend considerably more time than usually required awaiting the final outcome of his visa application. Furthermore, it is contended that if the decision to refuse Mr Moengangongo's application is affirmed, he would have great difficulty in returning to Australia.
49.The deterrence factor should not be given undue weight as it would not only continue to punish Mr Moengangongo but also the applicant, his child, and all related family members in Australia.
Expectations of the Australian community:
50.The second primary consideration, the expectations of the Australian community, is almost impossible to accurately gauge. Mr Moengangongo has not been involved in any fraudulent immigration practices.
51.He was detained for four days once it was determined that he was unlawful. He thereafter remained lawful in Australia until the time of his departure, at all times complying with the strict reporting conditions placed on his visa.
52.He has been in a relationship with an Australian citizen since October 1998, and now has a child who is an Australian citizen. As stated previously, the genuineness of the relationship has not been questioned by DIMA
53.The applicant contends that the Australian community would consider that Mr Moengangongo has already been punished for remaining unlawfully in Australia, and has been punished for such actions by having to leave Australia to lodge his application for migration. Importantly, his past actions have in turn resulted in him not being able to be present to witness the birth of his first child and be with his wife at a time she required his presence.
The Best Interests of the child:
54.It is contended that the best interests of Mr Moengangongo's son, Jonathon, an Australian Citizen, are a very important consideration in this matter.
55.The Ministerial Direction provides that the child's best interest will be served if the child remains with its parents. Notwithstanding that Mr Moengangongo has spent little time with his son, it cannot be disputed that it is beneficial for the child to be raised by both parents.
56.Mr Moengangongo has been separated from his child not by choice, but by the refusal of his visa application.
57.Whilst it may be easy for the child to adapt to new surroundings at an early age, the direction provides that regard must be had to the standard of the health support system as well as the educational facilities in Tonga. Obviously, that the standard of living in Sydney is superior to that in Tonga. The applicant contends that the child should not be deprived of such a standard of living that he is entitled to in Sydney.
Other Considerations
58.It is submitted that there would be considerable hardship to the applicant if her application is refused. She has committed herself to her relationship with her husband and at the time of establishing the relationship, she did not know that her husband's character would be of concern to DIMA.
59.Whilst the applicant was aware of her husband's immigration matter at the time of their marriage, at no stage of their relationship did the applicant assist her husband to disregard immigration laws or engage in any immigration malpractice.
60.The applicant contends that she in fact 'took over' from her husband's family in assisting him with his immigration matters once his application at the MRT was refused. In the period after their marriage she assisted her husband with obtaining a further BVE to avoid him being unlawful, she paid his detention costs and sought the assistance of DlMA officers in relation to the requirements for the application for migration.
61.If this application is refused, the applicant contends that she will have no option but to live in Tonga for the sake of keeping the family unit together. If this situation arises she will have to leave all of her family and friends in Australia, including grandparents who have played an important role to date in raising Jonathon. She would also have to resign from an employer with whom she has been with since September 1980, and effectively stop a career involving Internet & web design/maintenance.
62.Once in Tonga she would then have to raise a child in a country where the standard of living is considerably lower and English is not the first language and live without many necessities that are taken for granted in Australia.
Conclusion:
63.The applicant contends that Mr Moengangongo should not be found "not to be of good character", It is submitted that his general conduct outweighs the isolated incidents of bad conduct. His "enduring moral qualities" are not so deficient that it is for the public good to refuse him entry to Australia.
64.If the Tribunal finds that Mr Moengangongo is not a person of good character, then it is submitted that it should exercise the discretion in his favour as it would be in the best interests of the child and mother to have his father with him in Australia, and severe hardship would be caused upon the applicant if the decision is affirmed.
65.Accordingly, the applicant respectfully submits that the Tribunal should set aside the decision under review, and remit the matter to the Minister, with the direction that Mr Moengangongo meets the requirements of the character test under section 501 of the Act.
(d) The fact that I include the content of the above documents in these Reasons should not be construed so as to mean that I necessarily agree with all of it. As these Reasons will make clear, there are aspects with which I do not agree.
(a) Dr Doust was the first person to give evidence, he did so by telephone. I have previously set out both his statement (Exhibit A1) and a summary of his evidence (Exhibit A4); as the treating physician in respect of the Applicant, his evidence must be accorded considerable weight. The evidence of Dr Doust can usefully be considered in conjunction with the evidence of Dr H Betz, originally from Hamburg, Germany and now practising in Tonga, who also gave evidence by telephone link and from Tonga. Dr Betz has had considerable experience in Tonga; on the other hand he has never met the Applicant.
(b) Dr Doust described the Applicant as obese and that description was apt. She is obese because she suffers from hypothyroidism which results from an insufficiency of thyroid hormones. She is on a moderate to heavy dose of Thyroxin tablets. Dr Doust considered that it is likely that this condition will become worse and that it will be necessary for her dosage to increase. Dr Betz in turn testified as to the ready availability of Thyroxin tablets in Tonga.
(c) There was considerable discussion of the Applicant's lupus erythematosus. There are, according to the evidence before me, two types; disseminatus or systemic lupus is one of those types and, of the two, the more serious; the preferred medical term is systemic lupus erythromatodes, commonly referred to as "SLE". The second type, which is less serious, is lupus erythromatodes discoides. Dr Doust's evidence was that the Applicant suffers from both types and that this was indicated, inter alia, by the presence of positive nuclear antibodies. Dr Betz considered that the presence of positive nuclear antibodies did not, without other tests, point to any such conclusion. He did not know whether other tests had been performed by Dr Doust. Dr Doust considered that the Applicant's condition under this head will lead to renal problems.
(d) The Applicant developed gestational diabetes mellitus during her pregnancy. Dr Doust considered that she is likely to contract type 2 diabetes probably in her 40s. He considered also that while this type of diabetes is initially non-insulin dependent; it may in time become insulin dependent.
(e) Dr Doust's prognosis for the Applicant's future health is pessimistic. He considers that within the next five years she is likely to develop severe problems arising from one or more of the conditions diagnosed by him.
(f) I found the evidence of both medical practitioners credible; each in his own way was impressive. Dr Doust knew nothing of conditions in respect of medical treatment in Tonga while Dr Betz was of course knowledgable about this aspect. He said that there are about 30 doctors in Tonga of whom 8-12 are specialists. He said also that treatment of the kind which might be required by the Applicant was available in Nuku'alofa excluding, however, in respect of renal problems and where patients have to fly to New Zealand for treatment funded in part by aid from the Australian and New Zealand governments.
(g) The Applicant gave evidence as to the primitive nature of medical facilities generally in Tonga. She has visited Tonga three times and once for an extended period. There is no medical facility in Lapaha. The treatment which she received in Nuku'alofa when she needed medical attention was rudimentary. It may be that she was unfortunate in her search for suitable medical care. But even Dr Betz accepted that medical facilities in Australia are vastly superior to those in Tonga; as he put it Tonga is a third world country whereas Australia is a first world country.
(h) The Tribunal considers that it should accept the evidence of the treating physician, Dr Doust. Moreover, the Tribunal is prepared to accept that it will be difficult for her to obtain suitable medical attention in Tonga.(a) The Applicant gave evidence in support of her statement, which is Exhibit A2. She is, as appears from clause 2 of her statement, currently the Internet Project Officer of New South Wales Fisheries. Although she did not obtain any tertiary education, she has, over the years, attended a number of computer courses, resulting in the attainment of a position of importance within the organisation and where she has worked for many years. Her evidence was also credible.
(b) The Applicant described Lapaha as a village whose inhabitants engage principally in agriculture of a subsistence nature. Mr Moengangongo works on his family's plantation. She spoke of the planting of watermelons at a cost of approximately $1000 which yielded in the end $2000. There are no medical facilities in Lapaha. Her husband does not have a car and there is no possible prospect of his being able to acquire a car in order to travel to the main hospital in Nuka'alofa.
(c) Mr Moengangongo is nearly 10 years younger than the Applicant. He had a very limited education and did not complete High School. He has no skills in the nature of a trade.
(d) The Applicant spoke of Mr Moengangongo as a very simple and quiet man whom seldom, even when amongst Tongans, says very much. They met at an RSL club originally and after which a relationship between them developed.
(a) It is clear then that to require the Applicant and the child to settle in Lapaha or elsewhere in Tonga is simply not practicable in any meaningful way. If they join Mr Moengangongo in Lapaha there would be no work for the Applicant; it is highly doubtful whether there would be work for her in Nuku'alofa; the need for computer expertise in Tonga would be small. They would not be able to afford a car or, for that matter, much else even if they utilised her accumulated superannuation fund.
(b) A move to Tonga would be impractical and indeed imprudent for medical reasons, and as to which see clause 30 of Exhibit A2; in any event it is clear that Tonga would be greatly inferior to Australia as a place in which to bring up the child.
(c) The Respondent accepts, as do I, that the marriage between the Applicant and Mr Moengangongo is genuine.(a) Mr Moengangongo gave evidence by telephone link from Tonga assisted by an interpreter in the Tongan language. In respect of his evidence:
i) He came to Australia originally in January 1997 on a visitor's visa. It was extended once and expired in July 1997.
ii) Mr Moengangongo then went to Parramatta with his sister-in-law in order to obtain another visa. However, he was too late and then made up his mind to stay in Australia; the fourth paragraph of Exhibit A11 reads as follows:
Before I came to Australia I thought that life in Tonga was O.K. But after seeing how good people live in Australia and what a good life they have I did not want to go back. In Australia people can get a job and buy food and clothes and other things that you can never have in Tonga. I also wanted to stay in Australia to be with my brother and his family.
(b) It is plain that the Applicant overstayed his visitor's visa for reasons of his own, and not because, as he claimed in evidence before me, that he wished to earn money to send back to Tonga to support his family in Tonga. Nevertheless, I have no reason to doubt his evidence that he did indeed provide support of this family. It is to be noted that Ms Warner accepted that overstaying a visa is not of itself a criminal offence even though the person in question becomes a non-citizen and, as such, liable to deportation.
(c) Mr Moengangongo accepted that for about 15 months he worked illegally for a recycler. He was employed on the basis that he usually worked either three or four days in a week gathering paper and bottles from designated places for recycling purposes. For a four-day week he received $300. That work was in breach of section 235 of the Migration Act 1958 ("the Act"). As to whether tax was deducted from his earnings for this menial work is doubtful in the extreme. Mr Moengangongo himself had no idea at all about whether tax had been paid. The nature of the employment and the fact that he received a round number amount leads me to infer that no tax was paid.
(d) There was considerable evidence (and cross-examination) as to the question of whether or not Mr Moengangongo gave the immigration officers one or two false names when he was arrested in October 1998 and placed in detention. This occurred at night; Mr Moengangongo said that he was frightened and confused. He said also that he gave one false name only, that of his half brother who was legally resident in Australia. The Respondent contends that he gave one false name (Ioane Atelea) and when that was queried on the basis that that person had already left Australia, gave another (Ioane Ateleamaka). This evidence in turn gave rise to other evidence as to Tongan names. Mr Moengangongo's half-brother (by their mother) apparently has three names; Ioane is his given name; Atelea is his father's name; and Maka is his mother's maiden name. Tongan custom apparently demands that where a child is born to an unmarried mother, it adopts the surname of its mother. Therefore, because Ioane was born before his mother was married, he uses his mother's surname. Mr Moengangongo said that, in effect, he gave two variations of his half-brother's name.
One thing is absolutely clear, that is that Mr Moengangongo did give at least one false name to the authorities. He was not, as Ms Warner correctly contended, too confused and frightened to attempt to attempt to escape his predicament by giving his legally resident brother's name as his own. On a balance of probabilities, this conduct was in breach of section 234 of the Act.
(e) Subsequently the Applicant made applications designed to achieve resident status for himself in Australia. For this purpose he used the services of an immigration agent. Those applications, which were not untruthful, were bound for legal reasons to fail. It is unnecessary for me to detail those reasons given that the Respondent elected (correctly and fairly in my view) not to contend that any of those applications were in any way unlawful.
(f) After Mr Moengangongo went back to Tonga, he applied for a spouse visa. At an interview with Mr Pryor in Tonga on 22 February 2000, he was asked whether he had worked unlawfully in Australia whilst in this country. He said that he had not. He admitted that Mr Pryor had offered him the services of an interpreter but had not accepted those services because, as he put it, he was "shy". In his evidence before me he apologised for fact that he had lied to Mr Pryor; in the light of his evidence it became unnecessary to call Mr Pryor. His witness statement, which was accepted into evidence (Exhibit R1), reads in the third, fourth and fifth paragraphs as follows:
I specifically recall my interview with Mr Moengangongo. At the start of the interview, as was my usual practice, I asked him words to the effect of whether his English was okay and whether he needed an interpreter. He indicated that his English was okay and he did not require an interpreter. Never at any stage during the interview did I have concerns that he had not adequately understood my questions in English or any impression that he was not understanding the questions I asked.
In addition I recall that I had no difficulty in understanding his English. He spoke reasonably clearly and with adequate grammar and vocabulary.
I am certain that there was no misunderstanding due to language when I asked him about whether he had worked in Australia. In fact, I asked him about this twice and he denied that he had worked in Australia on each occasion.
The balance of probabilities is that Mr Moengangongo's statement to Mr Pryor was in breach of section 234 of the Act.
(g) Mr Moengangongo was not at home when the Tribunal called him at the time appointed for this purpose; nor was he there when the Tribunal again attempted to contact him about 30 minutes later. When contact was eventually made, he said that he had been out visiting his uncle in hospital, some distance away, and that his return was delayed because of rain. In cross-examination he said that he had been to visit his uncle and then said he had done so in order to take his uncle food; when asked whether his uncle did not receive meals at the hospital, he said that he did but that they were small. He then agreed that he had visited his uncle in the company of others who could have taken the food and finally admitted that he had gone simply because he wanted to visit his uncle.
To behave in this fashion in relation to so important a call was either indicative of a lack of care or of stupidity. The Applicant herself characterised it as the latter. She also drew the Tribunal's attention to the fact that Tongans generally do not regard time in the same way that Australians do. The Tribunal does not think that anything more need be made of this incident.
I turn now to consider the direction under section 499 of the Act and which is entitled "Visa Refusal and Cancellation under section 501 of the Migration Act 1958" (referred to in these Reasons as "Direction 17"). Clause references in this paragraph 8 and also paragraph 9 relate to numbered clauses in Direction 17. I deal in the first instance with the character test:
(a) In the first place, and in relation to clause 1.8, subclause (d) is not applicable (in relation to mitigating circumstances) because clause 1.8 is concerned with section 501(6)(c)(i) of the Act and this case is concerned rather with section 501(6)(c)(ii) of the Act.
(b) The fourth dot point of clause 1.9(a) reads as follows:involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law;
And clause 1.9(b) reads:
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;
It is to be noted that these provisions apply in "the absence of any countervailing factors" although no guidance is given as to what factors would be countervailing for this purpose.
(c) Clause 1.11 provides that general conduct also includes recent good conduct. Mr Pryor was prepared to treat the payment of the costs of detention of Mr Moengangongo as a factor in his favour. When asked who had paid those costs, Mr Moengangongo answered that his brother had done so. The Applicant interjected to say that she had paid them and that she had used a credit card for this purpose. It is hard to see how this factor could count towards the good conduct of Mr Moengangongo when he did not even know who paid the costs. Nor can it be said that they were paid on his behalf, with his wife acting as his agent, since he clearly did not authorise or request the Applicant to make payment of the amount involved, and equally clearly has no means with which to reimburse her.
(d) It is to be noted that the decision of Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 indicates (at paragraph 40) that recent good conduct relates to good conduct in an immigration sense
(e) Mr Poynder argued that the various and numerous character references submitted on behalf of Mr Moengangongo (and being Exhibits A5 to A10) could constitute good conduct within clause 1.11. I disagree. In any event, they are cast in very general terms testifying as to Mr Moengangongo's quiet and peaceful nature; none of them makes reference to his breaches of Australian migration law; it is clear that the character references, which were admitted in evidence, do not advance the matter in any material fashion.
(f) I am bound then to conclude that Mr Moengangongo fails the character test. This is so because the false information provided to the authorities would (on a balance of probabilities) be in breach of section 234 of the Act; the maximum sentences which could be imposed are such that, in accordance with Direction 17, I must treat the relevant conduct as serious; (see in particular clause 2.6(c)). The fact that the recipients of the false information may have known that it was false is not to the point. In addition, and although Direction 17 does not direct me to treat it as serious, his illegal work would (on the balance of probabilities) be in breach of section 235 of the Act.
(g) Mr Poynder contended that I should take into account the fact that Mr Moengangongo was not prosecuted for any of these offences. This also is not to the point. In Re Camakau and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 789, Deputy President Purvis found that illegal employment was not conduct of such a nature that it resulted thereby in the character test not being passed. Paragraphs 42 and 43 of his decision read as follows:
42. Persons who endeavour to avoid the structures of the migration legislation, by acting in breach of it, are not those who would be readily accepted by the Australian community. Non compliance with the law is not to be countenanced or condoned by the Respondent, its delegate or, indeed, the Tribunal. In this matter, the Applicant was well aware that he had overstayed his visa, that he was in the country without authority and was aware of his acting contrary to the migration legislation and the Regulations by engaging in gainful employment. On the other hand he did, be it after a number of years, seek to rectify his migration status and sought permission to work, which permission was granted. Whilst the initial conduct of the Applicant is such as to attract adverse comment and attention, his more recent behaviour in obtaining permission to work and making application firstly, for refugee status and later, for permission to reside in the country, are acts favourable to him. He left the country of his accord and made his application from Fiji.
43. In all the circumstances of this matter, the Tribunal is of the view that the Applicant should not be regarded as a person not of good character.
In this case, though, I have also found that on a balance of probabilities, it is likely that Mr Moengangongo breached section 234 of the Act, which places this case, when compared with Re Camakau, in a different category. That said, I do not think that Mr Moengangongo's overall conduct was as serious as that of many other applicants who appear before this Tribunal. It does however fall within the provisions of Direction 17, which does not provide for differentiation by degree.
(a) I turn next to consider the discretion contained in Part 2 of Direction 17. I commence of course by a reference to the primary considerations; clause 2.3 reads as follows:
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 relationship between a child or children and the person under consideration, the best interests of the child or children.
Clause 2.3 of Direction 17 should, of course, be considered in conjunction with clause 2.5 of Direction 17 which reads as follows:
The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
I commence my referring to clause 2.3(c). It is clear that the best interests of the child would be served by his living with the Applicant and Mr Moengangongo and in Australia. It cannot be doubted that life for the child in Tonga would not be nearly as advantageous, for a variety of reasons, as life in Australia.
(b) I refer next to the question of protection of the Australian community; see clause 2.3(a) read with clause 2.5. In this context:
(i) The risk of recidivism is, as Ms Warner fairly conceded, virtually nil;
(ii)I doubt whether the Australian community requires protection against Mr Moengangongo. It is in this context that I am permitted, I believe, to take into account the fact that Mr Moengangongo's breaches of migration law were at the low end of seriousness within clause 2.6(a). Ms Warner contended that his breaches of migration law and also taxation law, might be indicative of the possibility of further breaches of, for example taxation law, in the future. I do not agree; as his evidence indicated, Mr Moengangongo is a very simple person; I do not have any doubt that he had no idea whatever of the tax implications of his work in recycling.
(c) The expectations of the Australian community are generally that non-citizens must obey Australian law while in Australia. But that said, I agree with Deputy President McMahon's comments in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 to the effect that the Australian community would expect that its law be enforced humanely. I refer in this context to clauses 33 and 34 of his decision reading as follows:
33. Direction No 17 requires me to take account of the expectations of the Australian community. Unfortunately, paragraph 2.12 does not spell out what these expectations are. It is in these words:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.
34. Paragraph 2.12 gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely.
That said, numerous cases have stated that applicants who breach Australian law cannot expect to be rewarded by the grant of visas.
(d) The question of deterrence is not an easy one. Mr Poynder contended that the Respondent had put forward no evidence that refusals of visas act as a deterrent. Ms Warner, in turn, made a statement from the bar table as to the deterrence aspect. In Re Maatoukand Minister for Immigration and Multicultural Affairs [2000] AATA 1023 given recently, I indicated that concrete evidence on a question such as this will be difficult to obtain. I said at paragraph 8(d):
Mr Turner dealt with the question of general deterrence also at some length. He said that although there have been a considerable number of these "similar fact situation" cases, the Respondent has not produced any evidence as to show that refusals of visas have resulted in any diminution in the number of these cases; he contended also that that it is likely that evidence of this nature could be made available. Mr Cureton in turn noted this aspect had not been raised by the Applicant in his Statement of Facts and Contentions.
The Tribunal has, on reflection, grave doubts as to whether there is or could be concrete evidence as to this aspect. This would require evidence as to visa applications which would not or might not have been made if the applicants were aware at the time of the applications that subsequent refugee applications would not succeed, or evidence of applications which were not made because the applicants became aware of the fact that refugee applications are likely to fail. When one considers the matter with these aspects in mind, one can readily see that Mr Turner's argument cannot be tenable. This aspect can perhaps be expressed with more force in the negative. If visa applicants received visas notwithstanding the fact they had repeatedly contravened the Act, other visa applicants would receive entirely the wrong message, and arguably would be likely to and would be encouraged to embark on conduct of a similar nature. These "similar fact situation" cases do result in considerable expense to Australia. It may be that certain Australian embassies could do more to make applicants aware of the fact that false refugee applications are not likely to succeed.(e)As to the considerations which are not primary considerations, I note merely that to decline a visa would undoubtedly cause hardship to each of the Applicant and Mr Moengangongo. I do note, however, that the Applicant was fully aware of Mr Moengangongo's immigration problems. Indeed, it must be said that she clearly played a lead role in the applications which were made after she and Mr Moengangongo had become involved with each other. I do not think that it is necessary for me to consider further, and in detail, the provisions of clauses 2.13 to 2.16 (inclusive) of Direction 17.
(f)Ms Warner contended that this case falls squarely within the same facts as were applicable in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935; Deputy President Purvis in that matter said at paragraph 49:
The Directions require the Tribunal to consider the best interests of the daughter of the Applicant and Mrs Ayaad, this as a primary consideration. Heavenleigh is presently living with her parents in New Zealand. Her mother is nine years older than her father. Her mother has been twice married. Her grandparents, uncles and aunts live in Australia, other relatives reside in New Zealand. Her mother left the Applicant in New Zealand to travel to Australia to give birth to the child in order that her parents, brothers and sisters would be nearby. She is able to earn an income, she has property and has the capacity to care for the child. The absence of a father would be regrettable. It is trite to say that he was the author of this eventuality.
My own view is that Re Ayaad is distinguishable on the basis that the conduct of the visa applicant in that case was materially worse than that of Mr Moengangongo and so that, at least for the purposes of the Part 2 discretion, the conduct in question could be said to fall into a different category.
(g) In Re Leha, Deputy President McMahon took into account Mrs Leha's health problems. Paragraph 41 of his decision in Re Leha reads as follows:
The most important secondary consideration concerns the health of Mrs Leha. In the first week in February 1999 they received the letter stating that the first Spouse Visa application was invalid and cancelling Mr Leha's Bridging Visa. On 14 February 1999 Mrs Leha was admitted to Westmead Hospital for pneumonia and diabetes. She then developed an empyema requiring major chest surgery at that hospital. Just prior to her return to work, she was involved in a car accident on 9 June 1999 which delayed her return to work until 12 July 1999. These medical conditions had not been evident before receiving this correspondence from the Department. Mrs Leha said that she had been aware she had asthma since she was about 18 years old but had never been hospitalised for it, nor had it ever prevented her from carrying out any activities. Since February 1999 her health has given cause for major concerns. Her asthma has become much worse and she is now on five different medications for this complaint. She has been on two medications since the same time for her diabetes. Until September 1999 she was able to control that condition by diet only. Since then, the diabetes has been uncontrolled even with medications. She considers the stress and the worry brought on by the sudden breach of their sense of impending security is responsible for much of her condition.
(h) Ms Warner contended that the health of the Applicant is such that it should be distinguished from Re Leha. While it is true that the Applicant's health problems are, according to the medical evidence, in the main such that they will become serious only in the future (but within five years) and while her health difficulties are not as stark as those of Mr Leha, they fall, in my view, into broadly the same category. The Applicant is presently not well; according to Dr Doust, her health can be expected to deteriorate quite markedly within, as set out previously, five years. And there is another and equally salient aspect which is I think is of particular relevance in this case. If indeed the prognosis for the Applicant is as unfavourable as Dr Doust suggests, then the presence of Mr Moengangongo as a carer for the child will become ever-increasingly important. It is to be noted in this context that Mr Moengangongo has some considerable experience in the care of children, having spent his first few months in Australia caring for his brother's children.
I was referred to two international conventions by Mr Poynder, and having regard to the fact that Direction 17 obliges me to take into account Australia's international obligations. Having regard to the decision to which I have come, it is unnecessary for me to elaborate further.
It is in all these circumstances that I have come to the conclusion that it is proper for me to exercise my discretion in favour of the Applicant. The decision is a narrow one and has been influenced, as these Reasons demonstrate, in large part by the Applicant's poor health and poor prognosis for the future; I have taken into account also, as set out previously, the fact that Mr Moengangongo's presence may well be needed, and sooner rather than later, for the purposes of the care of the child. Were it not for these considerations, I might, in line with Re Ayaad, have come to a different conclusion.
The decision under review is therefore set aside and the matter is remitted to the Respondent for reconsideration with a direction that the visa application not be refused under section 501 of the Act.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: ..........[sgd. M Ryan]......................................
AssociateDates of Hearing 17 & 18 January 2001
Date of Decision 6 February 2001
Counsel for the Applicant Nicholas Poynder
Solicitor for the Applicant Kah & Associates
Solicitor for the Respondent Ms Elizabeth Warner
(of the Australian Government Solicitor)
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