Najafi and Minister for Immigration and Citizenship
[2008] AATA 647
•25 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 647
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0041
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH NAJAFI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr D Connolly AM, Member Date25 July 2008
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the direction that the application by Mr Ali Shahzad Najafi for a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa should not be refused pursuant to section 501(1) of the Migration Act 1958. .....................[sgd].......................
Mr D Connolly AM
Member
CATCHWORDS
MIGRATION – refusal to grant Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa – character test – entered country using false passport – unlawfully resided in country – worked without consent – false and misleading information in application for protection visa and to Refugee Review Tribunal – discretionary considerations – protection of the Australian community – expectations of the Australian community – best interests of the child – other relevant considerations – degree of hardship to family members – decision under review set aside – application remitted back to Respondent for reconsideration.
Migration Act 1958 – sections 501, 417, 499
Direction - Visa Refusal and Cancellation under section 501 – No. 21
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
25 July 2008 Mr D Connolly AM, Member THE APPLICATION
1. The Applicant, Mrs Elizabeth Najafi, is appealing against the decision of a delegate of the Minister for Immigration and Citizenship (“the Respondent”) dated 16 November 2006 to refuse to grant her husband, Mr Ali Shahzad Najafi, a Combined Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) visa. The visa was refused on the ground that Mr Najafi did not, within the meaning of section 501 of the Migration Act 1958 (“the Act”), satisfy the character test. The discretion available to the Respondent was exercised to refuse the visa application.
2. In the reasons given for the above decision, and so far as they are relevant to the character test, the Respondent stated:
…
15. In applying this guidance, I have considered all of Mr NAJAFI’s conduct. Mr NAJAFI has been dishonest in relation to the Australian government and the community over a period of ten years by arriving on false documents in a false identity, remaining in Australia unlawfully for close on eight years and working illegally, providing fabricated protection claims that he pursued through the RRT and to the Minister, balanced with his need to depart voluntarily and disclose his dishonesty in order to achieve his objective of living in Australia. These circumstances demonstrate to me a course of dishonest conduct by Mr NAJAFI over an extended period up until very recently, combined with a lack of genuine remorse and a tendency to blame someone else for his actions. I find that the evidence of good conduct over the past ten or eleven years is negligible when compared to the degree and duration of bad conduct of a dishonest nature over that period. I consider that his conduct over the past eleven years has “laid his character bare very tellingly”.
…
17. I find that there are not sufficient countervailing factors or subsequent good conduct to outweigh the serious nature, duration and frequency of bad conduct. I therefore find that Mr NAJAFI does not pass the character test by virtue of Section 501(6) of the Act, specifically subparagraph 501(6)(c)(ii), due to his past and present general conduct.
…
3. Although this Tribunal will consider anew the issues that arise for determination, the above findings are listed in order to outline the reasons for the Respondent’s final decision. Notably, in the time since the Respondent’s decision, a child has been born to the Applicant and Mr Najafi. That child’s interests will need to be considered in the Tribunal’s decision here.
ISSUES
4. The issues to be determined by this Tribunal are:
·Whether, having regard to the past and present general conduct of Mr Najafi, he is a person who is not of good character within the meaning of subsection 501(6)(c)(ii) of the Act.
·Whether the discretion available to the Tribunal pursuant to section 501 of the Act should be exercised to affirm or set aside the decision of the Respondent that is under review.
RELEVANT LEGISLATION AND MINISTERIAL DIRECTION
5. The provisions of the Act relevant here are:
501 Refusal or cancellation of visa on character grounds
(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.
…
(6) For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character.
…
499 Minister may give directions
(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.
…
(2A) A person or body must comply with a direction under subsection (1).
6. Direction - Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”), sets out the matters to which decision-makers are to have regard in determining whether or not to refuse or cancel a visa under section 501 of the Act. One factor to be taken into account in applying the character test, as here relevant, is contained in paragraph 1.9(b):
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.
7. If the Tribunal is not satisfied that Mr Najafi passes the character test, the issue for determination is whether the decision of the Respondent be affirmed or set aside by exercise of the discretion under section 501(1) of the Act. In making this determination, the Tribunal is to have regard to the Direction, here relevantly provided:
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. 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.
PRIMARY CONSIDERATIONS
2.3 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.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government’s view that where relevant, it is appropriate that 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 may include:
(a)the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
§ in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
…
CHRONOLOGY OF RELEVANT EVENTS
8. The Tribunal is satisfied the relevant events in this matter are as follows:
Date
Event
15 October 1978
Ali Shahzad Najafi born in Pakistan.
12 November 1995
Mr Najafi travelled to Australia using a photo-substituted passport in the name of “Najam Sayed Zaidi”, entering the country using Mr Zaidi’s resident return visa.
November 1995 onwards
He lived as an unlawful non-citizen for some eight years, including the following periods of time:
- Five months from 14 November 1995 until 16 April 1996;
- Three months from 3 June 1997 to 7 September 1997; and
- Seven years and three months from 12 October 1997 until 3 March 2005.
9 April 1996
He made an application for a protection visa, which contained false and misleading statements about his persecution in Pakistan for being a Christian.
25 October 1996
Protection visa application is refused.
28 March 1997
Application for review of the decision by the Refugee Review Tribunal (RRT).
28 April 1997
RRT application refused.
3 June 1997
Minister decided not to consider exercising the discretion under section 417(1) of the Act.
21 August 1997 - 8 September 1997
Mr Najafi is held in immigration detention after being caught working at Crown Casino, Melbourne.
18 June 2001
Mr Najafi meets Elizabeth Barbagallo (the Applicant) whilst working as a security guard at Rickard Road Medical Centre, Bankstown.
20 July 2002
He married the Applicant.
4 March 2005
He voluntarily departed from Australia for Pakistan, with the Applicant. They lived in Pakistan together until January 2006.
22 March 2005
He applied for a Combined Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa.
24 January 2006
Mr Najafi was informed by letter that a delegate of the Minister intended to consider refusing to grant him a visa under section 501 of the Act.
16 November 2006
After receiving and considering Mr Najafi’s submissions, a delegate of the Minister decided to refuse to grant Mr Najafi a visa on the basis that he failed the character test.
18 December 2006
The Applicant applied for review of the decision to the Administrative Appeals Tribunal.
January – February 2007[t1]
The Applicant visits Mr Najafi in Pakistan for five weeks and returned to Australia.
16 September 2007
Aalia Batool Najafi, daughter of the Applicant and Mr Najafi, is born.
FACTUAL SITUATION AND FINDINGS OF FACT
9. The Visa Applicant, Mr Najafi, is a 30 year-old citizen of Pakistan. He first entered Australia in November 1995 using a photo-substituted passport in the name of “Najam Sayed Zaidi”, which he procured from a travel agent in Pakistan. He told the Tribunal he was approached by a man whilst waiting in a queue at the Australian Embassy in Islamabad to apply for a business visa. This man gave him the contact details of a travel agent, who offered to prepare for Mr Najafi “travel documents” to Australia for a cost of US$6,500. Mr Najafi paid the agent, raising the money partly through his own savings, family money saved for his sister’s wedding and money lent by his brother.
10. On 12 November 1995, Mr Najafi entered Australia using the false passport. He later returned the passport to its owner, Mr Zaidi, in Melbourne. Mr Najafi lived unlawfully in Australia for a total period of almost eight years between 1995 and 2005.
11. On 9 April 1996, Mr Najafi applied for a protection visa based on a bogus story about being persecuted as a Christian in Pakistan. He told the Tribunal that it was Mr Zaidi’s idea to lodge a false claim on this basis. Mr Zaidi introduced him to Tony Clark, a migration agent who, he stated, “fabricated an entire story for me”. His application was refused on 25 October 1996, and again refused by the RRT on 28 April 1997. The Minister declined to exercise his discretionary power under section 417 of the Act to grant Mr Najafi a visa.
12. Mr Najafi gave evidence to the Tribunal about working unlawfully in Australia. In August 1997 he was caught by immigration officials working at the Crown Casino in Melbourne. He was held in immigration detention for several weeks. On 8 September 1997, he was released and granted a bridging visa that was valid for one week. A bond of $3,000 was required to ensure he left the country. Mr Zaidi posted Mr Najafi’s bond and also bought him a plane ticket to leave Australia. Mr Najafi did not return to Pakistan, however, instead remaining in Australia unlawfully.
13. In June 2001, Mr Najafi met the Applicant whilst working as a security guard at a medical centre in Bankstown. The Applicant was working as a receptionist at the same centre. They were married in July 2002.
14. From early in their relationship, the Applicant was aware that her husband was living in Australia unlawfully. She was also aware that his protection visa application had been rejected. After their marriage, the Applicant became aware that her husband arrived in Australia using a false passport.
15. The Applicant told the Tribunal she was keen to take steps to “regularise [her] husband’s status” after their marriage, and sought legal advice on the matter in 2003. The Applicant explained that she did not act earlier because she was not aware of the seriousness or urgency of the situation.
16. On 4 March 2005, Mr Najafi and his wife voluntarily left Australia and travelled to Pakistan. The Applicant told the Tribunal they were prompted, in part, by a desire to live a “more settled and honest life”. Mr Najafi also wanted to introduce his new wife to his extended family. In Pakistan, Mr Najafi lodged an application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa.
17. The Applicant and Mr Najafi lived in the city of Lahore for 11 months. Overall, the Applicant had a difficult experience, describing to the Tribunal her trouble coping with the heat, the lack of hygiene in food preparation, the security situation and the lack of electricity and water on occasions. She was frequently sick with gastric-related illnesses. She explained she was unable to work or go out alone, partly because she spoke little of the Urdu language. Her husband acted as her “constant translator”.
18. In January 2006, the Applicant returned to Australia to care for her mother, Rosa Barbagallo, who was diagnosed with cancer in late 2005. Mrs Barbagallo has also been receiving treatment for Generalised Anxiety Disorder with Panic and Agoraphobia – Chronic and Recurrent Type and co-morbid Major Depressive Illness – Chronic Type, since 1994 (Exhibit A6). In a report produced by way of cross-examination of Mrs Barbagallo’s psychiatrist, Dr Leslie Lim, it was noted that since February 2007 “Mrs Barbagallo’s mental state has deteriorated to the point where she is constantly depressed and anxious”. The Applicant has been the primary carer for her mother over the past seven or eight years, even though she has two sisters. The Applicant currently lives in Mrs Barbagallo’s house and does most of the cooking and cleaning, as well as administering her mother’s medication and other general care duties. The Applicant also pays the household bills.
19. The Applicant fell pregnant during a five-week visit to her husband in January 2007. Their daughter, Aalia Batool Najafi, was born on 16 September 2007. Aalia has lived with the Applicant in Australia since she was born. Mr Najafi remains in Pakistan. He is currently working as a sous chef at a hotel in Bhurban, a tourist area. He lives in Bhurban in a dwelling shared with several other employees of the hotel. In February 2008, following the first hearing day, the Applicant returned to Pakistan to introduce Mr Najafi to his daughter.
APPLICATION OF THE ACT AND DIRECTION TO MR NAJAFI’S CASE
The “Character Test”
20. The Respondent, in support of the submission that Mr Najafi does not pass the character test under subsection 501(6)(c)(ii) of the Act, made the following contentions concerning Mr Najafi’s breaches of immigration law:
·Mr Najafi travelled to Australia on a photo-substituted passport in the name of Najam Sayed Zaidi and entered the country on Mr Zaidi’s resident return visa.
·Mr Najafi lived in Australia as an unlawful non-citizen for some eight years, including the following periods of time:
-Five months from 14 November 1995 until 16 April 1996;
-Three months from 3 June 1997 until 7 September 1997; and
-Seven years and three months from 12 October 1997 until 3 March 2005.
·Mr Najafi worked in Australia unlawfully. He was detained after being located working unlawfully at Crown Casino on 21 August 1997. The Respondent contends that it is likely Mr Najafi also worked unlawfully the rest of the time he was in Australia as an unlawful citizen. Mr Najafi confirmed this to the Tribunal.
·Mr Najafi made a false claim for a protection visa (signed 9 April 1996) which he pursued through review at the RRT and an application for Ministerial Intervention under section 417 of the Act. Mr Najafi himself admits these claims were false.
21. When considering the character test in section 501 of the Act, 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 fact while the latter is a review of subjective public opinion.
(See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-2).
22. The concept of good character is concerned with the issue of whether the Visa Applicant, “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” (Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324). Although the term “general conduct” implies universality, it is sufficient if some incidences of general conduct be displayed but once or twice, thereby “lay[ing] character bare very tellingly” (see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195).
23. Mr Najafi admits to breaching Australia’s migration laws on several occasions. He travelled to and entered Australia using a false passport and a visa which did not belong to him. He admits to living in Australia unlawfully for close to eight years. Noting paragraph 1.9(b) of the Direction, which refers to false or misleading statements made in connection with a visa application, the Tribunal considered Mr Najafi’s bogus protection visa application based on his claimed persecution as a Christian. Despite knowing these claims were untrue, he pursued his case to the RRT, where it was again rejected.
24. Mr Najafi also admits to working unlawfully in Australia. Even after he was located and detained for working unlawfully at Crown Casino, he did not leave the country. He chose instead to deceive the Australian authorities by making arrangements to leave the country, but staying and continuing to live and work unlawfully in Australia.
25. The Applicant submitted that, in Mr Najafi’s favour, evidence of good conduct should be considered. Instances of such good conduct include voluntary departure from Australia, voluntary reporting to the immigration authorities, showing contrition and remorse for his unlawful activities in Australia, and maintaining gainful employment. The Tribunal also notes that no evidence of any criminal convictions, either in Australia or Pakistan, was put before it.
26. These facts, however, do not displace the serious and repeated misconduct of Mr Najafi. Several of his offences attract significant terms of imprisonment under the Act. His conduct, in its seriousness and duration over a period of years, shows an “enduring moral quality” that falls squarely outside the meaning of “good character”. The Tribunal has no hesitation in concluding that Mr Najafi does not satisfy the character test in subsection 501(6)(c)(ii) of the Act.
Discretionary considerations
27. Having decided that Mr Najafi does not pass the character test, the Tribunal must now determine whether the discretion to refuse the visa should be exercised, having regard to the three primary and other considerations outlined in Part 2 of the Direction.
Protection of the Australian Community
28. When considering the protection of the Australian community, the factors relevant to an assessment of risk 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 the visa refusal may prevent or discourage similar conduct (general deterrence).
29. As regards the seriousness and nature of Mr Najafi’s relevant conduct, the Tribunal notes that examples of “very serious” offences include serious crimes against the Act, such as the using or possessing of a visa granted to another person, presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia (paragraph 2.6(c) Direction). Mr Najafi’s conduct, in entering Australia using a false passport and the return resident visa belonging to Mr Zaidi, and knowingly making false claims both in his original application for a protection visa and later to the RRT, clearly falls within this definition. The Tribunal regards the sum of these matters as very serious misconduct indeed.
30. Turning to the likelihood of repeating his misconduct, the Tribunal notes that Mr Najafi has shown a tendency towards deliberately provided false information to the Australian authorities, beginning with entering Australia using a false passport, and continuing with his bogus protection visa application. In addition, after being detained for working illegally in August 1997, Mr Najafi deceived the authorities by making arrangements to leave Australia, when he clearly had no intention to do so. Although the Tribunal is not prepared to go so far as to express an opinion that Mr Najafi is likely to again engage in such conduct if he were permitted to re-enter and remain in Australia, the Tribunal is of the opinion that there is at least a real risk that Mr Najafi may engage in such conduct in the future.
31. As regards the issue of general deterrence, the Tribunal is satisfied that the decision to refuse Mr Najafi’s visa is likely to have the effect of discouraging other persons from engaging in similar conduct. If a visa is granted, those people using unlawful means to enter and remain in Australia will be encouraged in their endeavour. Conversely, the goal of minimising unlawful conduct will be assisted if those who have sought to avail themselves of such conduct do not succeed.
Expectations of the Australian Community
32. The Australian community expects non-citizens to obey Australian laws while in Australia (paragraph 2.12 Direction). The Australian community also expects visa applicants to be truthful and candid in relation to the information they provide to the Australian immigration authorities. Mr Najafi has shown no such honesty. His repeated deception of the Australian migration authorities has been outlined in some detail above. The expectation of the Australian community would be that a non-citizen who has not obeyed Australian laws would not be allowed to remain.
Best Interests of the Child
33. Mr Najafi and the Applicant have a daughter, Aalia, who was born in Australia on 16 September 2007. Mr Najafi had never met his child prior to the Applicant’s recent visit to Pakistan. The Tribunal notes that the birth of Aalia took place exactly a year after the decision of the Respondent on 16 September 2006, and that the best interests of Aalia were not a consideration in the decision now under review.
34. A child’s best interests will generally be served if the child remains with its parents (paragraph 2.15 Direction). The Tribunal is not aware of any “countervailing considerations” in this case which would displace that general rule (see paragraph 2.15 Direction).
35. The Respondent submitted that it was open to the Applicant to relocate with Aalia either to Pakistan to be with her husband, or to a third country. The Applicant told the Tribunal she has made some preliminary investigations into relocating to Canada, where Mr Najafi has relatives. However, she had not sought professional advice about this option, being convinced no third country would accept her husband, with his chequered immigration record. The Tribunal was told it was most likely, if Mr Najafi’s visa were refused, that the Applicant would move to Lahore in Pakistan with Aalia to be with her husband.
36. Evidence was submitted by both the Applicant and Mr Najafi about the educational and medical support systems available in Pakistan, as well as the living conditions in which Aalia would grow up.
37. Mr Najafi told the Tribunal that he would organise rented accommodation in Bhurban, a suburb of Lahore, for his family. This accommodation would most likely consist of a one room dwelling with a bathroom. Hot water would be available, but only when the electricity is working, and it is sometimes disconnected for four to six hours a day. Occasionally there is no electricity all night due to “load shedding”.
38. As regards health facilities, Mr Najafi is currently covered by his employer’s health cover. This would remain the case so long as he continued working as a sous chef at the hotel in Lahore. Mr Najafi’s health cover entitles his family to some free doctors’ consultations, as well as some free prescriptions. Any additional medical services would require up-front payment. The Tribunal accepts that Pakistan’s health services are not comparable with the standards of those available in Australia.
39. Education standards would be dependant on the type of schooling which Aalia would receive. Mr Najafi told the Tribunal that he is not financially strong enough to provide his daughter with a private education. The Applicant, herself a high school teacher, gave evidence about the poor standards of English she witnessed being taught to her nephews, who attend school in Pakistan.
40. It was submitted by the Applicant that Aalia would also be affected by removal from her family in Australia, especially her grandmother, with whom she shares a very close bond. She has also developed bonds with her two aunts, Ms Romeo and Ms Nallos, and to a limited extent, her cousins. The Applicant contended that Aalia would be “trading one family she knows for one she doesn’t” in Pakistan.
41. Whilst noting that Aalia is still a very young child, and is therefore adaptable to new environments, languages, cultures and people, the Tribunal accepts that removal from her Australian family, particularly her grandmother, is not in her best interests. The Tribunal accepts that Aalia and her grandmother have an unusually close bond, which has developed as the Applicant and Alia have lived with Mrs Barbagallo who has helped care for Aalia on a daily basis since she was born.
Other relevant considerations
42. Paragraph 2.17 of the Direction refers to other matters, although not primary considerations, which may be relevant. One such consideration is the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including Australian citizens (paragraph 2.17(c) Direction).
43. It was submitted by the Applicant that her mother, Mrs Barbagallo, would be caused serious hardship if Mr Najafi’s visa application were refused and the Applicant were to leave Australia. The Applicant is Mrs Barbagallo’s primary carer, and this was corroborated by the evidence of her sisters to the Tribunal. When the Applicant moved to Pakistan for 11 months in 2005, Mrs Barbagallo had lived alone, and was observed by her daughters to be depressed, unmotivated and “often crying”. Ms Romeo told the Tribunal that her mothers’ outlook had improved significantly since the Applicant returned home, and that they “take care of each other”. The Tribunal was told that Mr Najafi had developed a close relationship with Mrs Barbagallo and was of great help to her. If he returns to Australia the family will live with Mrs Barbagallo. However, it was submitted by the Respondent that if the current application were unsuccessful and the Applicant went to live with her husband overseas “there is no clinical reason preventing Mrs Barbagallo’s other daughters … from assisting Mrs Barbagallo with her daily needs. Further, it was submitted that whilst Mrs Barbagallo’s care needs would likely increase as Mrs Barbagallo’s condition deteriorated, “there [was] no evidence that were [Elizabeth] required to care for her mother on a full-time basis, that she would be able to do this without assistance from other family members”.
44. Mrs Barbagallo would also suffer hardship if separated from Aalia. The Tribunal has accepted they share an unusually close bond. Mrs Barbagallo told the Tribunal that, if Aalia were taken away, she “would not know what she would be capable of doing”. The Tribunal concedes that it may be possible for Mrs Barbagallo to travel to Pakistan to visit her daughter and grandchild (at considerable expense), however, the Tribunal notes that such travel, given Mrs Barbagallo’s ongoing medical problems, would be unreasonable.
45. Ms Romeo, the Applicant’s sister, gave evidence about the hardship she would experience if the Applicant and Aalia left Australia. Ms Romeo had been “a mother as well as sister” to the Applicant, there being 14 years age difference between the two. She told the Tribunal that, without children of her own, she had become extremely attached to Aalia and treated her as “my own daughter”.
46. It was submitted that the Applicant, herself, would suffer hardship under such an arrangement. As noted earlier, the Applicant found it difficult to adapt to the conditions in Pakistan during the 11 months she lived there in 2005. The Applicant’s weight, of over 100 kilograms, presents unique problems when coping with such conditions. The Tribunal accepts that this living arrangement, though not impossible, would be uncomfortable for the Applicant.
47. In the alternative, should the Applicant choose to stay in Australia, it was submitted that her mental health would suffer. Dr Ishrat Ali, a psychiatrist who has been treating the Applicant since July 2007, gave evidence to the Tribunal about the Applicant’s current treatment for depression. Dr Ali has diagnosed major depression with dysthmia (Exhibit A3). Medication has not been prescribed for the Applicant, but this is primarily because she is breast-feeding at this time.
48. Dr Ali told the Tribunal the Applicant’s depression is being exacerbated by the absence of her husband, and that her condition would benefit from the support of Mr Najafi in Australia. Dr Ali’s is of the opinion that “there is no other relative who can play that role and provide the support” (Exhibit A3). The Tribunal notes, however, the Applicant’s assessment that her outlook has improved since the birth of Aalia.
49. Paragraph 2.17(b) of the Direction notes that decision-makers must consider the circumstances in which the relationship was established, and whether the Australian partner knew the non-citizen was of “character concern” at the time of entering into the relationship. The Applicant was aware of most of her husband’s migration offences before being married. However, it was only after their marriage that Mr Najafi told his wife that he had entered Australia on a false passport. The Tribunal finds that Applicant was certainly put on notice that Mr Najafi was a character concern before their marriage, however, she was not entirely aware of his misconduct until after their marriage.
CONCLUSION
50. Having regard to each of the three primary considerations, the Tribunal decides that the first primary consideration (protection of the Australian community) and the second primary consideration (the expectations of the Australian community), which point towards a refusal of Mr Najafi’s visa application, are outweighed by the third primary consideration (best interests of the child), which strongly points against such a refusal.
51. Further, the other considerations in the Direction, particularly the hardship which would be experienced by Mrs Barbagallo if the Applicant and Aalia were to leave Australia, also point against the exercise of the discretion to refuse Mr Najafi’s visa application.
52. The Tribunal concludes that, notwithstanding Mr Najafi’s serious misconduct in travelling to Australia on a false passport and entering the country using another person’s visa, living and working unlawfully in Australia, and providing false information to the immigration authorities and the RRT in connection with his protection visa application, that the correct or preferable decision in this case is that Mr Najafi’s spouse visa should not be refused in exercise of the discretionary power conferred by section 501(1) of the Act. The Tribunal has reached this conclusion chiefly on the basis that such a decision would be in the best interests of Aalia, the child of the Applicant and Mr Najafi, who is now 10 months old.
DECISION
53. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the direction that the application by Mr Ali Shahzad Najafi for a Combined Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visa should not be refused pursuant to section 501(1) of the Act.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member.
Signed: ...............[sgd................................................................
AssociateDates of Hearing 23 & 24 January 2008, 20 February 2008
Date of Decision 25 July 2008Solicitor for the Applicant Mr R Turner, Parish Patience Immigration Lawyers
Solicitor for the Respondent Mr G Johnson, DLA Phillips Fox
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