Muhammed and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 878
•20 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 878
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1799
GENERAL ADMINISTRATIVE DIVISION ) Re Savita Muhammed Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date20 August 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 spouse visa – character test – application refused on the basis that the visa applicant fails the character test because of his past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s immigration misconduct – examination of the visa applicant’s conduct in Australia – necessity to balance the protection and expectations of the Australian community against the hardship to the applicant – found that the visa applicant did not fear persecution in Pakistan, that he moved frequently to avoid detection and worked unlawfully for approximately two and a half years – he has a sustained record of making false statements in his dealings under the immigration law – held that the visa applicant fails the character test – found there is a real possibility of recidivism – general deterrence outweighs the other considerations – held that the community would expect the visa applicant to be refused a visa – the best interests of the review applicant’s child do not strongly favour the award of a visa – exercise of the tribunal’s discretion is not justified – decision of the Respondent is affirmed.
Migration Act 1975 ss 499, 501, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
20 August 2004 Professor GD Walker, Deputy President Summary
1. The visa applicant, Moin Muhammad, applied for a subclass 309 spouse (provisional) visa to reside in Australia with his spouse, Savita Muhammad.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Muhammad had provided false and misleading information in relation to a business visa, made false and misleading statements in relation to a protection visa, provided false and misleading statements in relation to a bridging visa and remained in Australia unlawfully. The respondent therefore refused Mr Muhammad’s application for a subclass 309 spouse visa. This is the decision to be reviewed by the Tribunal.
Background
3. The applicant, Mrs Savita Muhammad, was born in Suva, Fiji, on 26 October 1969 and is aged 34. Mrs Muhammad came to Australia on 24 August 1986 and was granted Australian citizenship on 24 June 2002 (Exhibit R1 p232). On 22 November 1986, Mrs Muhammad married Robert Salamon, the marriage ending in divorce on 24 August 2002. Two children were born of the relationship, Angelo Salamon, born on 27 February 1987 and now aged 17, and Kane Salamon, born on 27 July 1994 and now aged 10.
4. The visa applicant, Mr Moin Muhammad was born in Karachi, Pakistan, on 28 February 1975 and is aged 29. Mr Muhammad is a citizen of Pakistan. On 25 November 1995, Mr Muhammad arrived in Australia on a business visa, issued in the name of Mr Moin Muhammad (Exhibit R1 p378). On 30 November 1995, Mr Muhammad lodged an application for a protection visa with the then Department of Immigration and Ethnic Affairs (Exhibit R1 p79). He stated in the application that he was a member of the MQM organisation in Pakistan and that he had been arrested and tortured by the authorities in that country because of his membership of MQM. He stated that if he were made to return to Pakistan, he would not be protected by the government of that country (Exhibit R1 pp47-56).
5. In late 1995, whilst living in Melbourne, Mr Muhammad met his first wife, Madeleine Prasad, born 9 September 1977, now aged 27, at a restaurant (Exhibit R1 p142).
6. On 23 October 1996, a delegate of the Minister for Immigration and Multicultural Affairs Onshore Refugee Program refused Mr Muhammad’s protection visa on the ground that he was not a person to whom Australia has protection obligations under the Refugees Convention as he does not face a real risk of Convention-based persecution on return to Pakistan and that his fear of persecution was not well-founded (Exhibit R1 pp102-109). On 30 October 1996, Mr Muhammad lodged an application for a review of this decision by the Refugee Review Tribunal (“RRT”) which on 3 March 1997 affirmed the decision refusing his protection visa application (Exhibit R1 p113). On 16 April 1997, Mr Muhammad sought ministerial intervention (Exhibit R1 p131) and on 21 April 1997, he was granted a bridging visa E, valid until 21 June 1997, pending the determination of his application for ministerial intervention (Exhibit R1 p355). He was subsequently granted a further bridging visa E valid until 23 August 1997 (Exhibit R1 p355).
7. On 29 June 1997, Mr Muhammad married Ms Prasad (Exhibit R1 p150).
8. In September 1997, Mr Muhammad met Mrs Savita Muhammad at a dinner and dance party at a restaurant in Liverpool, New South Wales (Exhibit R1 239). Mr Muhammad was granted further bridging visas E on 22 October 1997, 23 December 1997 and 20 February 1998 pending the result of his application for ministerial intervention (Exhibit R1 pp353-354). On 30 March 1998, ministerial intervention was refused (Exhibit R1 p136).
9. On 20 April 1998, Mr Muhammad’s bridging visa E expired. On 21 April 1998, he lodged an application for a further bridging visa E which was refused on the same day. He was subsequently detained at the Immigration Detention Centre at Maidstone, Victoria (Exhibit R1 p169). On 23 April 1998, Mr Muhammad lodged an application for a bridging visa E which was granted on 24 April 1998, subject to his agreeing to depart Australia within 14 days of a refusal by the minister to intervene. Further bridging visas E were granted on 26 May 1998 and 27 July 1998. On 28 August 1998, ministerial intervention was refused (Exhibit R1 p154).
10. On 2 September 1998, Mr Muhammad was granted a further bridging visa E. On 15 September 1998, he was granted a further bridging visa E valid until 16 September 1998 (Exhibit R1 p351). On 17 September 1998, having failed to depart Australia, Mr Muhammad became an unlawful non-citizen.
11. On 28 May 1999, Mr Muhammad divorced Ms Prasad and in September 2000, Mrs Muhammad having separated from her then husband, Mr Muhammad and Mrs Muhammad commenced living together (Exhibit R1 p251).
12. On 7 March 2001, Mr Muhammad was granted a further bridging visa E, valid until 5 July 2002, to enable him to join a class action in the Federal Court. On 7 March 2002, Mr Muhammad and Mrs Muhammad were married according to Islamic Law at Villawood, New South Wales, (Exhibit R1 p278) and on 5 July 2002, Mr Muhammad departed Australia (Exhibit R1 p350). On 27 September 2002, Mr Muhammad lodged an application for a subclass 309 spouse visa application at the Australian High Commission in Islamabad (Exhibit R1 p229). On 5 March 2003, Mr Muhammad was interviewed at the High Commission (Exhibit R1 p358). At that interview, he told the interviewer that when he came to Australia, it was not with the intention of conducting business as “he did not really work for the carpet business” (Exhibit R1 p358). He also admitted that he worked without permission in contravention of the bridging visas that he held and during the time that he remained unlawfully in Australia.
13. On 26 April 2003, a senior migration officer of the migration section at the Australian High Commission in Islamabad advised Mr Moin Muhammad that she was considering refusing his application because of his past and present general conduct and inviting him to comment and/or provide further information (Exhibit R1 p363). Mrs Muhammad responded by undated letter, stating that her husband was very sorry for the mistakes that he had made and that a lot of his mistakes were made because he did not know the laws of Australia and was in with a “wrong group of friends” and that he did not leave Australia because of the problems with his former wife and because he was now living with Mrs Muhammad and supporting her financially (Exhibit R1 pp365-368). Mr Muhammad also responded by undated letter (Exhibit R1 p369). On 11 July 2003, Mr Muhammad withdrew from the class action in the Federal Court.
14. On 15 September 2003, a delegate of the respondent decided to refuse Mr Muhammad’s application on the ground that he did not pass the character test and having exercised her discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse the visa. On 13 November 2003, Mrs Muhammad lodged an application for a review of this decision by the Tribunal (Exhibit R1 p3).
15. At the hearing, Mrs Muhammad was represented by John Parnell, of counsel, instructed by Immicare, and the respondent was represented by Ben Cramer, solicitor, of Blake Dawson Waldron, solicitors. 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 evidence tendered by the parties at the hearing. Oral evidence was given in person by Savita Muhammad, Anita Kumar, Ragini Khandelwal and Doris Chand. Mr Mohammad gave evidence by conference telephone from Pakistan.Relevant Law and Policy
16. 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 is met. The relevant ground in the current matter is paragraph (c)(ii), as follows:
(c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
17. 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. Section 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”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
18. 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 the 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, they exercise the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
19. The issue for the tribunal to determine in this case is, therefore, whether Mr Muhammad is not of good character having regard to his past and present general conduct. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Evidence
20. In her oral evidence Mrs Savita Muhammad described how she met the visa applicant late in 1997. At that time she was married to Robert Salamon, with whom she had two children, Angelo (born 22 December 1987) and Kane (born 27 July 1994). In March 2000 she left her husband and in September of that year moved in with her sister and with the visa applicant. In August 2001 her marriage to Robert Salamon was dissolved by the Family Court and custody of both children was granted to the father. Savita Muhammad married the visa applicant on 7 March 2002, and on 24 May 2002 Mrs Muhammad was granted Australian citizenship. While the Family Court’s custody order granted access rights to Mrs Muhammad, she stated that her ex-husband “made problems”, and caused the issue of certain apprehended violence orders “to make trouble”.
21. On 5 July 2002, the visa applicant departed for Pakistan, and Mrs Muhammad followed on 6 November 2002. Between 5 July and 6 November she kept in touch with him through telephone calls, cards and internet communications. She telephoned or received a call from him about twice a week.
22. Before she left for Pakistan, her ex-husband collected her son Kane, who had been living with her pursuant to a subsequent custody order. Kane went to live with his father and that was the last time Mrs Muhammad saw him.
23. In 2003 Mrs Muhammad spent a six-month period in Pakistan, returned to Australia for two months, and then went to Pakistan for a further two months. During that period both children had been living with their father in Bass Hill, New South Wales, and Mrs Muhammad’s only contact with them has been by telephone, partly because of the existence of apprehended violence orders. Since the lifting of those orders, she says she has still not approached her ex-husband in person to discuss custody because of the bitter relations that now exist between them.
24. She has made an application for legal aid and certain proceedings are pending in the Federal Magistrate’s Court seeking access to the children every second weekend. At present she does not know the whereabouts of the children or their father.
25. During her stay in Karachi, Mrs Muhammad lived with Moin Muhammad at his parents’ house. The visa applicant is the principal of a private English primary school. Mrs Muhammad suffered from bouts of sickness in Pakistan and said that one doctor had mentioned the possibility of a malarial infection. No medical evidence was tendered however, to show that these sicknesses were significantly more than the indispositions that people commonly experience when relocating to other countries and having to adapt to different water and food. At other times she and her husband went for drives and visited his family and friends. She herself made only one or two friends because of language difficulties. When led she somewhat reluctantly conceded that she felt some tension over the ethnic clashes that were occurring in Pakistan at the time and said that some of her husband’s friends had queried as to why he had married a Hindu.
26. Mrs Muhammad would prefer not to live in Pakistan, mainly because of the consequent separation from her children and because of the risk of sickness. She also would prefer not to live in Fiji, although her mother is there, as is one of her sisters. She also spent a fortnight in Fiji in February/March 2004. She gave the reason that taking the children there would separate them from their father.
27. When asked whether she knew that Moin had visa problems at the time she married him, she replied somewhat hesitantly and ambiguously “Yes, because you can’t take back what has happened. You just have to deal with problems”. Her contact with him is now mainly through telephone calls up to three times a week, and besides that he sends her greeting cards from time to time. She describes Moin Muhammad’s character in positive terms, saying that he is helpful, particularly in familial matters, such as taking people to the doctor or hospital when they are sick, and taking care of her sister’s children when she visited Fiji in 2000.
28. That picture is consistent with the oral character evidence given by Anita Kumar, Ragini Khandelwal and Doris Chand, but not with certain reports made to the department by his first wife Madeleine and her mother, Mrs Pearl Prasad. According to a file note, Mrs Prasad telephoned an investigations officer on 11 September 1997, a little over two months after Moin and Madeleine had married, complaining that Moin was treating her daughter badly and that she was considering raising the matter with her member of parliament. The couple at that time was living with her. She now believed that Moin had only married her daughter because he hoped to obtain permanent residence through her (Exhibit R1 pp156-158). On 28 July 1998, a compliance officer recorded that Mrs Madeleine Muhammad complained that her husband had struck her and had made threats against her family and herself. She felt that her husband had changed since their marriage (Exhibit R1 p189).
29. Moin Mumammad gave oral evidence via a telephone connection with Karachi. An Urdu interpreter was sworn in order to assist whenever the witness appeared to be having difficulty understanding particular terms or expressing himself. He was taken first to the allegation of giving false information in connection with his application for a visitor visa 48R at Bangkok on 19 November 1995. He described how he had left Karachi on 22 September 1995 with some friends because, at the time he finished his university studies, conditions in Pakistan were bad. He and his friends made plans to leave Pakistan and “make our life”. He left Karachi in the company of his friend Baba, who helped organise the visa in Bangkok. Baba’s brother had a carpet shop in Bangkok and said he wanted to extend the business to Australia. A friend of the brother was the one who actually applied for the visa.
30. After the visa applicant had obtained the visa, he gave his “friend” (one of the group who had left Karachi on 22 September) his money, which the friend then took to Australia for the purposes of the business. Moin Muhammad himself left for Melbourne a month later. In his oral evidence, he said that the sum of money consisted of $US8,000 cash currency. He said that he had obtained it from his parents.
31. Asked about his activities in the carpet business in Bangkok, he said he used to sit in the carpet shop of Baba’s brother and sometimes took part in commercial carpet displays or exhibitions. Baba gave him a letter of introduction which he took with him to Melbourne (Exhibit A11) and the addresses of some Melbourne businesses that might be prospects for carpet purchases.
32. In order to form a clearer picture of the Bangkok episode, which is relevant to the ground of providing false or misleading information and a false document, it is necessary to supplement the visa applicant’s oral evidence by reference to a statement lodged in connection with his protection visa application by his then migration agent, Anthony L Clarke of Melbourne (Exhibit R1 pp 40-65). In that statement dated 29 November 1995, the visa applicant related that he had met in Karachi a man named Shehnshah, and two others named Ishtiaq and Zia. He described Zia as simply “Junaid’s cousin”. Junaid was, the visa applicant said, a fellow MQM member. Shehnshah had told Junaid that he was planning to go to Bangkok “with his cousin Zia” and had an uncle there who would help to arrange a visa for Australia. Junaid told Shehnshah that he and Moin Muhammad, as well as Ishtiaq, were interested in joining such an enterprise. Shehnshah, Ishtiaq and Moin went together to the Thai Embassy and received Thai visitor visas on 19 September 1995. “Shehnshah’s cousin Zia obtained his visa a few days before. The four of us left Pakistan on the same day, 22/9/95 and arrived in Thailand a few hours later” (Exhibit R1 p48).
33. Ishtiaq was unable to obtain a visa for Australia in Bangkok and returned to Pakistan. Shortly afterwards the Thai police “raided” the hotel in Bangkok where the remaining three were staying a week before their visas were to expire and warned them against overstaying. At about that time, Moin Muhammad telephoned Pakistan to speak to his uncle “to arrange money for my ticket to Australia” (Exhibit R1 p74).
34. In later signed documents and in his oral evidence, Moin Muhammad described a man who he repeatedly referred to as his “best friend” or as a “friend” (Exhibit R1 p370), who once in Melbourne, absconded with the money Moin had entrusted to him.
35. Certain difficulties with the visa applicant’s account should be noted at this stage:
·It was not until specifically asked at the hearing that the applicant specified the amount of money as being US$8,000 – surely a substantial sum in any country and worthy of specific mention.
·In cross-examination he said that he had been given the money by his parents, but earlier stated had he had telephoned his uncle from Bangkok to obtain the money for his fare to Australia (Exhibit R1 p74).
·He referred a number of times to the “friend” or “best friend” who had taken the money, but did not name him until specifically asked at the hearing, when he gave the man’s name as Zia.
·But in connection with his protection visa application from November 1995 he described Zia in a sentence relating how he had “also met two others Ishtiaq Hussain and another (Junaid’s cousin) [meaning Zia], who came from another area to be underground” (Exhibit R1 p48). This indicates that he had only just met Zia, who could scarcely be described as his “friend”, and certainly not as his “best friend”.
·The visa applicant offered no explanation as to why it was necessary to carry such a large sum in cash, a particularly hazardous move when travelling, or as to what the money was intended to be used for when the friend arrived in Melbourne. The visa applicant’s counsel suggested that cash transactions are common in south Asia, but this seems inadequate to explain the situation, especially as no specific transactions were apparently contemplated.
·The visa applicant’s statement in his oral evidence that he and his friends left Pakistan “to make our life”, coupled with the fact that they sought only short term visitor visas for Thailand, is not easy to reconcile with the visa applicant’s assertion that he left Bangkok for Australia solely for a business trip and that he planned to return to Bangkok; or with his representations in his Australian visitor visa application that he had a job to return to in Bangkok and was on two weeks’ leave (Exhibit R1 p36).
36. Moin Muhammad arrived in Melbourne from Bangkok on 25 November 1995. He says that he tried to telephone his “friend” [Zia] by telephone from the airport, but was told by the person who answered the call that his “friend” had indeed been staying at that address but had left two weeks before. Some Indian and Pakistani contacts in Melbourne advised him to apply for a protection visa, which he did five days after arriving. He did not leave Australia until 5 March 2002, after exhausting all avenues for extending his stay, almost two and half years of which was unlawful. He said in oral evidence that he stayed in Australia to recover his money and to look around. Here again, some significant points in his evidence should be noted:
· At no time has Mr Muhammad claimed that he made any attempt to engage in the carpet business in Melbourne, such as by contacting some of the prospects whose names and addresses he had allegedly been given.
· There is little evidence of any attempt by him to recover the money, at least not such as would be commensurate with the size of the sum involved.
· He made no attempt to return to Bangkok, though there appears to be no reason why he could not have done so. One would expect that a person coming for a short business trip would have a return ticket or an open return, and in that case one would expect him to use it. On the other hand, if he had only a one-way ticket that would be further evidence that he had no intention of leaving Australia at the expiration of his visa.
37. At his interview on 5 March 2003, he said that he did not intend to conduct business, that he was not really in the carpet business at all and that he simply wanted to go [to Australia] (Exhibit R1 p358). When asked about that statement in cross-examination he did not deny making it but simply said “I didn’t mean it”, an implausible assertion.
38. Mr Muhammad then related the circumstances of his troubled marriage to Madeleine Prasad. In the interview of 5 March 2003 he stated twice that one of the strains in that marriage was her refusal to return to Pakistan with him. When asked about Mrs Pearl Prasad’s claim that he married Madeleine for permanent residence reasons and had threatened violence against her family, he denied the allegations. In relation to their claim that he had used physical violence against Madeleine, he replied “No, she beat me up”. There is considerable medical and psychiatric evidence about Madeleine Muhammad’s psychological and other problems, but nowhere is there any reference to her physically attacking her husband.
39. His application for a protection visa was rejected by the minister’s delegate and on 3 March 1997 the Refugee Review Tribunal affirmed that decision. Tribunal member Domenico Calabro noted that Mr Muhammad had refused to answer the Tribunal’s questions about his membership of the MQM movement in Pakistan. He pointed out, however, that Mr Muhammad was able to complete his university studies in Pakistan and he did not accept the applicant’s claims of detention or torture. Moin Mohammad had also been unaffected by an army crackdown on MQM in Karachi. Also relevant was the fact that he had been able to obtain a passport in his own name and to leave Pakistan using that passport, even though he had a high profile in Karachi, being a well known rally driver who had been seen on television several times. The tribunal’s conclusion that Mr Muhammad faced no real risk of persecution if he were to return to Pakistan is supported by the fact that he had unsuccessfully pressed Madeleine to go back to Pakistan with him.
40. Late in 1997, about three months after his marriage to Madeleine, Mr Muhammad met Savita Salamon, who was at that time married to Robert Salamon and had two children with him. The applicant told Savita Salamon that he was from England and was visiting friends in Australia (Exhibit R1 p359), but she soon became aware of his visa status. By the time they were married in March 2002, Mrs Savita Muhammad was fully acquainted with his situation and had in fact helped him to obtain legal advice about how to rectify it. She later told him about the Muin/Lie class action concerning protection visas, which he joined for a time, therefore assisting him to end two and a half years of unlawful residence. There is no evidence to suggest that theirs is anything other than a genuine marriage.
41. Mr Muhammad’s unlawful residence began on 17 September 1998 with the expiry of a bridging visa E issued on 15 September 1998. That visa was valid for one day, until 16 September, and was designed to enable him to leave Australia. He obtained it by producing an air ticket to Karachi (Exhibit R1 pp194-196). He did not use that ticket, but remained unlawfully in Australia. Originally he said that he did not leave because he was depressed, but when asked at the hearing about his reasons for not departing, he replied “I forgot. There were so many visas”. That a person who had been jousting with the immigration authorities for three years, had a one-day bridging visa to leave the country and a valid air ticket for his departure the next day would simply forget to leave is simply not credible and is in itself a strong pointer against the reliability of Mr Muhammad’s evidence.
42. It is also notable that at no time has he given as a reason for not wishing to leave that he feared persecution if he returned to Pakistan at that time, September 1998. A more likely explanation is that he was acting on the advice of his recent acquaintance Salim Abbasi who he met in Sydney. Salim told him to stay in Australia and move from city to city, and that if he did so he would never be caught. Salim worked for a factory and was able to arrange employment for Mr Muhammed. He also allowed the visa applicant to live with him and his wife (Exhibit R1 pp358, 359).
43. Other evidence on the character issue showed that the visa applicant has no criminal convictions in Australia or Pakistan. There are also letters, which of course could not be tested, from a number of the teachers employed at the visa applicant’s school in Karachi. While one could not rely too heavily on untested testimonials from people who are, after all, the visa applicant’s employees and subordinates, it is nevertheless quite believable that Mr Muhammad has a good side, that he is a good teacher and primary school principal and that he can be helpful and responsible in familial situations. Nevertheless, in the central disputed issues in this case, the numerous inconsistencies and improbable assertions in his evidence make it impossible to treat him as a reliable witness.
44. The visa applicant admitted working for one and a half or two years in Australia, and that for part of that time he did so illegally. When asked how he supported himself for the other five years or so, he said that Madeleine did not support him but that he lived on his savings until Savita commenced to support him. The source of those savings was not given.
Application of the Law and Findings
45. As was stated above, the first issue for the tribunal to decide is whether, pursuant to s 501(6)(c), Mr Muhammad passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldiev 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…
46. In Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
47. Secondly, the tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the tribunal decides that, in its view, the visa applicant, Mr Muhammad, does not pass the character test, the tribunal will proceed to consider the exercise of the discretion in s 501(1) to not 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.
48. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of his or her past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a) and 1.9(b) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)).
49. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
50. Before making a decision on whether Mr Muhammad passes the character test, it is appropriate to set out the relevant findings of fact. I find that Mr Muhammad came to Australia entering in 1995, entering on a business visitor visa obtained from him with the assistance of an acquaintance and relying on knowingly false statements about his business and his intentions in Australia. Five days after his arrival in Australia, and acting at the suggestion of some Indian and Pakistani contacts, he applied for a protection visa on grounds which he knew to be false, or so greatly exaggerated as to amount to being false. Mr Parnell contended that this was simply a case of a protection visa application that failed, but it goes much further than that. His conduct, statements and the general course of events strongly point to the conclusion that the visa applicant did not fear persecution if he returned to Pakistan, and did not in fact face a significant risk of such persecution.
51. I find that he refrained from departing on 16 September 1998, with the intention of moving from place to place so as to avoid detection by the immigration authorities. I find that he worked illegally for various periods during his six and a half years in Australia and remained unlawfully in Australia for approximately two and a half years. He has a sustained record of making false statements of fact or intention in his dealings under the immigration law and he continued to make false statements during the hearing in this tribunal when under oath. I find that he does not pass the character test in section 501(6).
52. Having decided that Mr Muhammad does not pass the character test, the tribunal must then consider the exercise of the discretion under s 501(1) to decide whether to not refuse the grant of a visa to Mr Muhammad. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
53. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
54. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
55. Paragraph 2.5 identifies the factors relevant to assessing the level of risk to the community of the entry or continued stay of a non-citizen. They 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).
56. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
57. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
58. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Migration Act 1958. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Migration Act 1958, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. The findings set out above comprise several different instances of such false or misleading statements, including in the hearing before this tribunal itself. The visa applicant and one of his character witnesses state that the violations of the Act occurred because “he was naïve”, but if he was naïve it was only in thinking that he could infringe the Commonwealth’s migration law over a long period with impunity. Further, as his evidence before the tribunal shows, he is still prepared to make false or misleading statements in connection with a visa application. That circumstance also raises the real possibility of recidivism. The visa applicant has made it clear that if he obtains the temporary spouse visa which is the subject of the present application, he will follow it with an application for permanent residence. In light of his sustained and present conduct, I find that there is a serious risk that he will make further false and misleading statements in connection with any application for permanent residence.
59. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. The department states that the Islamabad immigration office has a particularly high rate of fraudulent applications and attempted fraud, but that there is an effective information network in Pakistan which quickly disseminates the latest intelligence concerning the operation of migration laws in Australia and other countries that accept immigrants. Even if that were not so, I would still find that the general deterrence factor, while not decisive, is a significant consideration weighing against the grant of a visa in this case. Anything that can be seen as rewarding sustained and serious immigration breaches such as has occurred in this case would only invite further unlawful behaviour.
60. As regards the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction 21 states in part that:
Visa refusal … 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.
61. In my view the community expects that the migration program will be administered with integrity and humanity. In a situation where the number of visas available to prospective immigrants is necessarily limited, that implies that applicants who honestly comply with the law should be preferred over those who do not, and that applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction. In this case I believe the community would expect that in light of Mr Muhammad’s multiple and long-term breaches of the law, and his apparently continuing disposition to engage in them, would lead to the refusal of a visa.
62. The third primary consideration is the best interests of the child. The tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
63. While Mr Muhammad has no children of his own, Mrs Savita Muhammad has two children from her previous marriage. Angelo Salamon, who lives with his father, will soon be aged 18, so the main concern is Kane Salamon, aged ten. The original Family Court orders gave custody of both boys to their father, but under a later order Mrs Muhammad has custody of Kane, and under the present orders is not permitted to take him outside Australia. Although Mrs Muhammad has custody of Kane, she has not in fact seen him since she departed for Pakistan in 2002 and he too, since then, has been living with his father. Currently there are proceedings pending in the Federal Magistrate’s Court under which she seeks access every second weekend. Mr Moin Muhammad has not taken any part in those proceedings and I note that he did not mention Mrs Muhammad’s children or his relationship with them in his submissions to the department giving his reasons why his visa application should not be refused. He has spent only a few months with Kane and while the relationship appears to be quite good, it should be borne in mind that Kane is living with his own father and has spent most of his life with him, including since his parents separated. There is no evidence to indicate that Kane is not properly cared for by his father. Mr Parnell on behalf of the applicant contended that it is in Kane’s best interest that his mother should live in Australia, but that consideration must be qualified to some extent by the concern that Mrs Savita Muhammad may not be an altogether positive influence. As Mr Cramer pointed out, her credit is questionable. She has a criminal conviction for goods in custody, she was committed for trial in the New South Wales District Court on 21 October 1997 on a charge of making a false and misleading statement with intent to obtain a financial advantage (the evidence does not indicate the outcome of those proceedings), she has had apprehended violence orders issued against her, she has been bankrupt, she uses aliases and has used two different tax file numbers simultaneously. Added to these concerns is the relatively unusual circumstance that the Family Court originally awarded custody of both children to their father, Robert Salamon. Further, Mrs Muhammad was overseas, away from Kane, for most of 2003 and has had relatively little contact with him in recent years. On balance I find that the considerations concerning the best interests of Kane do not strongly favour the award of a visa in this case.
64. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
65. The refusal of a spouse visa in this case will cause disruption to the marriage of Moin and Savita Muhammad. While Mrs Muhammad could relocate to Pakistan to live with her husband, she prefers not to be so far away from her children and is concerned about her risks of sickness if she lives in that country. It would appear that she could also live in Fiji with her husband, but Mr Parnell argued that as an Australian citizen with the right to live here she should not be expected to do that. Nevertheless, the Fiji option would be less disruptive to her relations with her children. It must be also be born in mind that Mrs Muhammad was fully aware of her husband’s unlawful residence before marriage and indeed actively assisted him to obtain legal advice about the best way to go about seeking a visa and on participation in the class action. I therefore find that the other considerations under paragraph 2.17 of Direction 21 in the circumstances of the present case carry little weight.
66. In light of all the evidence, and after weighing the primary considerations and other considerations, I find that an exercise of the discretion in favour of granting a visa in this case is not justified.
67. I therefore affirm the decision under review to refuse a visa to Mr Muhammad.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 5 and 6 August 2004
Date of Decision 20 August 2004
Counsel for the Applicant Mr J ParnellRepresentative for the Applicant Immicare Immigration Advisory Service
Representative for the Respondent Mr B Cramer, Blake Dawson Waldron,
Solicitors
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