Narendra and Department of Immigration and Multicultural Affairs - [2001] AATA 670

DECISION AND REASONS FOR DECISION [2001] AATA 670

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1595

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RONALD NARENDRA
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr S P Estcourt Q.C., (Deputy President)

Date26 July 2001
PlaceSydney

Decision      The decision under review is affirmed.
  [Sgd S P Estcourt]
  Deputy President
CATCHWORDS
Immigration – Refusal of visa on character grounds – false and misleading conduct in dealing with immigration authorities – lengthy illegal overstaying of visas – working without permission for several years – interests of family – exercise of discretion to grant visa – decision to refuse affirmed.
Migration Act 1958 (C'th) – ss.234, 501

REASONS FOR DECISION

26 July 2001 Mr S P Estcourt Q.C., (Deputy President)

This is an application by Ronald Narendra for the review of a decision by the respondent to refuse a sub-class 103 visa (Parent) to the applicant's father Ajnarain ("the visa applicant") pursuant to s.501 of the Migration Act 1958 ("the Act") on the basis that he was not of good character having regard to his past and present general conduct.
The applicant's counsel conceded on the hearing of the application that the visa applicant did not pass the "character test" under s.501 of the Act as a result of his illegal overstays and unlawful work in Australia and thus the only issue is whether the residual discretion under s.501, to nonetheless grant the visa, should be exercised in the visa applicant's favour.
The visa applicant came to Australia on 2 August 1989 on a temporary visa permitting a lawful stay of one week.
He came at the invitation of one Rita Krishna to perform as a singer at her daughter's wedding. His wife joined him one day later leaving their three children in the care of his sister in Fiji.
The uncontradicted evidence of the visa applicant is that after the wedding the visa applicant told Rita Krishna that he wished to return to Fiji, but she suggested, as he was very poor, that he should stay in Australia and work to earn some money.
Ms Krishna took the visa applicant's passport, purportedly to have his visa extended and to permit him to work and took him to the post office at Parramatta to obtain a tax file number. She then took him to Parker Furniture and arranged him a job and subsequently arranged accommodation for him at Granville.
The visa applicant lived and worked in Australia on that basis for about 12 months. He said he asked Ms Krishna many times during that period about his passport but was always told by her not to worry about it, that his passport "was under extension".
Apparently about 12 months later Ms Krishna's defacto husband, Jackson Pillay, told the visa applicant that his passport was under Ms Krishna's bed and, I infer, that nothing had ever been done to extend his visa.
Mr Ajnarian then thought he would return to Fiji but someone told him that he should apply for a protection visa. This he did on 23 November 1990.
The visa applicant admitted in evidence before the Tribunal that the claims made in his application for a protection visa were not real, that he did not fear persecution in Fiji and that he applied for that visa because he thought it was a way he could stay in Australia.
He was granted a visa to stay in Australia while his protection visa was being processed, he said, and he looked at the restrictions on that visa and saw that he was not allowed to work in Australia. Nevertheless he continued to work illegally in order to send money to his children in Fiji.
The visa applicant's protection visa application took several years to process and during that time he and his wife were divorced. His wife was later deported to Fiji, obtained a sub-class 100 visa (spouse) and returned to Australia with two of her three children on 20 May 1995.
On 2 March 1995 Mr Ajnarain's protection visa was refused and on 20 April 1995 his bridging visa expired.
He then decided, he said in evidence, to return to Fiji, but as he was very poor in Fiji and didn't have a job there, he chose instead to stay in Australia. He knew he did so illegally and that he was not allowed to work, although he now expresses remorse for having done so.
On 24 February 1997 the visa applicant was detained at Villawood Detention Centre and on 15 March 1997 he was deported to Fiji.
Thus, in summary the history of the visa applicant's overstay in Australia is that he remained here, illegally to his knowledge, for two separate periods of 15½ months and 21 months respectively, he made a false application for a protection visa and he worked here illegally, to his knowledge, for a total of 7½ years.
The exercise of the residual discretion under s.501 of the Act to grant a visa in the face of bad character is guided by Ministerial Direction No. 17 which requires the Tribunal to adopt a balancing process between three "primary considerations" and a number of other considerations.
The three primary considerations are:
(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.
As the visa applicant's children are all over 18 years old the only relevant primary considerations in this case are the protection of and the expectations of the Australian community.
Relevant, "other considerations" in this case include the degree of hardship which would be caused to immediate family members lawfully in Australia (including Australian citizens), whether the immediate family members are able to travel overseas to visit the non-citizens, the nature of the relationship between the non-citizens and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere; the family composition of the non-citizen's family, both in Australia and overseas, and any evidence of rehabilitation and any recent good conduct.
A consideration of the first of the primary considerations, namely the protection of Australian community, involves, under Direction No. 17, a consideration of:
(a)The seriousness and nature of the conduct.
(b)The likelihood that the conduct may be repeated.
(c)The likelihood that the visa refusal would prevent like offences by other persons.
The Australian Government, according to Direction No. 17, regards serious offences against the Migration Act as very serious. That is not surprising.
Even were it possible, (and it is not in my view), to characterise the visa applicant's illegal overstays in Australia, and his illegal working in Australia, as other than very serious misconduct, it cannot be overlooked that his application for a protection visa involved him in making false claims to migration officials in order to allow him to stay in Australia.
Section 234 of the Act makes it an offence, in connection with an application for a visa, to make a false or misleading statement or to furnish a document containing a false or misleading statement.
That a breach of s.234 of the Act is a serious offence is clear from the penalty provided by the section, namely 10 years imprisonment, or a fine of $110,000 or both.
It is unlikely that the visa applicant would repeat the conduct given that his application is now for a permanent visa, however the remaining consideration of general deterrence is relevant. If the visa applicant is refused entry because of his breaches of this country's migration laws others may be less minded to do so.
As to the expectations of the Australian community, it must be trite to say that the community expects non-citizen to obey its migration laws and to be open and honest with migration officials in relation to visa applications.
As Deputy President McMahon said in Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 @ 155-156:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia."
The Australian community would not expect that false claims of persecution and illegal overstays and work in Australia would be rewarded with the grant of a visa, after the non-citizen has been apprehended and deported, (notwithstanding expressions of remorse).
As to the "other considerations" to be taken into account under Direction No. 17 it is important to observe the visa applicant's family circumstances.
The visa applicant is a divorced man who lives alone in Fiji apart from a room-mate. He has three children. His son Ronald and his daughter Anjila are Australian citizens living in Sydney. His eldest daughter Romindra is married and lives with her parents-in-law about 18 miles away from the visa applicant.
Mr Ajnarain also has 9 brothers and sisters living in Fiji all of whom are married.
The applicant gave evidence that he and his sister Anjila maintain regular telephone contact with their father and the applicant himself has been twice to visit him in Fiji for reasonably lengthy periods. Mr. Narendra is not however, on his wage as an apprentice fitter and machinist, able to afford to keep going back to Fiji on a regular basis. He did say, though, that he would be able to return if his father were sick or in an emergency.
It is clear that Mr Narendra, and I infer his sister Anjila, love their father and miss him very much and it is equally clear that Mr Narendra is completely devoted to his 2 children in Australia.
I have no doubt that, notwithstanding the presence of Mr Ajnarain's daughter and her family and his many brothers and sisters in Fiji, and notwithstanding his son and daughter have the company of their mother in Australia, a continued forced separation will cause him and Mr Narendra and his sister Anjila considerable anguish which amounts to hardship. I am not persuaded however that this consideration, or indeed any relevant "other consideration" tips the balance in this case in favour of exercising my residual discretion to authorise the issue of a visa to Mr Ajnarain regardless of his bad character.
I should say that in considering the other relevant matters under Direction No. 17, I am satisfied that apart from his conduct and character in an immigration sense he is a man who enjoys good character and has never been in trouble with authorities in Australia or Fiji.
It follows from all that I have said, that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt Q.C., (Deputy President)
Signed:         ............K L Miller..........................................
  Personal Assistant
Date/s of Hearing  12 July 2001
Date of Decision  26 July 2001
Counsel for the Applicant        Mr J Sabharwaz
Solicitor for the Applicant         Harish Prasad & Associates
Counsel for the Respondent    Mr R Hollands
Solicitor for the Respondent    DIMA Refugee and Humanitarian Litigation