Naufahu-Fauonuku and Minister for Immigration and Multicultural Affairs
[2001] AATA 242
•28 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1502
GENERAL ADMINISTRATIVE DIVISION )
Re SALOTE LASINI NAUFAHU-FAUONUKU
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date28 March 2001
PlaceSydney
Decision The decision under review is affirmed.
..............................................
J BLOCK
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – spouse visa – refusal on character grounds – whether failure to pass the character test – overstay of visa – work without permission – false or misleading statements to immigration authorities – whether discretion should be exercised – hardship to applicant.
Migration Act 1958 – ss 234, 235, 499, 501.
Administrative Appeals Tribunal Act 1975 – s 37
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Tuiono and Department of Immigration and Multicultural Affairs [2001] AATA 92
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker 153 ALR 463
Re Moengangongo and Minister for Immigration and Multicultural Affairs [2001] AATA 74
Re Cafarella and Minister for Immigration and Multicultural Affairs [2001] AATA 30
REASONS FOR DECISION
28 March 2001 Deputy President J Block
(a) The decision under review is the refusal, dated 15 September 2000, by a delegate of the Respondent, of an application by Tu'itokelau fauonuku ("the visa Applicant") for a spouse visa; his application was sponsored by the Applicant who is his wife.
(b) The Applicant was self-represented while the Respondent was represented by Mr Paul Hardman of Clayton Utz, solicitors. The Tribunal had before it the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with a number of exhibits, as follows:
Exhibit # Description of Exhibit Submitted by
A1 Reference from Siotame Havea, Free Wesleyan Church Applicant
A2 Reference from 'Aisake V.Eke dated 22 January 2001 Applicant
A3 Reference from Tokaukamea Puleiku dated 23 January 2001 Applicant
A4 Reference from Dr Kolini Vaea dated 26 January 2001 Applicant
A5 Reference from Mr Pasilika Naufahu and Mrs Luceane Naufahu dated 30 January 2001 Applicant
A6 Reference from Maamakamo Tapu dated 20 February 2001 Applicant
A7 Reference from Talanoa Tapu dated 19 February 2001 Applicant
A8 Reference from Tekiteki Prescott Pakalani dated 27 November 2000 Applicant
R1 Loan document with Yennora Credit Union Respondent
R2 Condition attached to Visa Respondent
(c) The T-documents refer to the Respondent as the Department of Immigration and Multicultural Affairs ("DIMA"). However, the decision under review was made by a delegate of the Respondent, and it is accordingly the Minister for Immigration and Multicultural Affairs who is cited in these Reasons as the Respondent.
I commence, in order to set the scene and by way of background by including a number of documents or extracts from documents as follows:-
(a) The Respondent's Statement of Facts and Contentions dated 22 January 2001 (which contains a helpful chrononological survey) reads as follows:References are to T documents ("TD"), supplementary T documents ("SD") and folios ("f").
The review applicant, Ms Salote Naufahu-Fauonuku, will be referred to as the review applicant.
The visa applicant, Mr Tuitokelau Fauonuku, will be referred to as the applicant.
FACTS
1. 11 March 1970 Applicant born in Tonga (f36)
2. 15 March 1976 Review applicant born in Auckland, New Zealand (f78).
3. 8 August 1989 Review applicant granted Australian citizenship (f78).
4.11 December 1997 Applicant's application for tourist visa lodged with Australian High Commission at Tonga (T6).
5.16 December 1997 Applicant granted visitor's visa. Visa is valid until 28 February 1998 (T12).
630 December 1997 Applicant arrives in Australia (T12).
7.28 February 1998 Applicant's visitor visa expires. The applicant did not depart and the applicant becomes an unlawful non citizen.
8.March to April 1998 Applicant works as a security guard in Australia (f65).
9. July 1998 to June 1999 Applicant employed full time as a labourer (f65).
10.16 April 1999 Applicant and review applicant meet and their relationship commences. At about the same time the review applicant becomes aware that the applicant is unlawfully in Australia (f66 and f80).
11.9 December 1999 Applicant and review applicant marry (f155).
12.June 2000 DIMA compliance attends applicant's address. Review applicant advised by DIMA that applicant should report to compliance within one week (T8).
13.10 July 2000 Review applicant and applicant attend DIMA office. Applicant granted BVE subject to a condition that the applicant depart Australia before 18 July 2000 (see T9 -f54 and f56).
14.18 July 2000 Applicant applies for BVE (T11). BVE granted to applicant on condition that he depart Australia before 27 July 2000 (see f61).
15.26 July 2000 Applicant signs declaration in connection with application for migration to Australia (f88).
16.27 July 2000 Applicant departs Australia (T12).
17.27 July 2000 Application for migration to Australia lodged at Australian High Commission, Suva (f73).
18.7 September 2000 Applicant interviewed by DIMA official at Australian High Commission, Suva.
19.15 September 2000 Minister's delegate refuses grant of visa to applicant under s.501 Migration Act 1958.
LEGISLATION
The Migration Act 1958 ("the Act") relevantly provides:
20. s.501(1):
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
21.s.501(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 ...22. s.499(1):
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers23. s.499(2A):
A person or body must comply with a direction under subsection (1).24.The Minister has issued written directions pursuant to s.499(1) of the Act as to refusal or cancellation decisions under s.501 of the Act. See General Direction number 17 - Visa Refusal and Cancellation Under s.501 ("the Ministerial Direction").
The Meaning of Good Character and General Conduct under s.501
25. In Irving v MILGEA (1996) 139 ALR 84 Lee J said:
"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 page 94)
26.In MIMA v Baker (1997) 45 ALD 136 in the joint judgment of Burchett, Branson and Tamberlin JJ the court considered the meaning of 'general conduct'. Their Honours held that 8 the term 'general conduct' inherently implies universality but does not necessary incorporate qualities of frequency or prevalence. Their Honours stated:
"Some instances of 'general conduct'... displayed but once or twice, may lay character bare very tellingly."
(see page 142)
CONTENTIONS
27.The respondent contends that the applicant, by reason of his past and present general conduct, is a person who is not of good character and is therefore a person who does not pass the character test as provided for under s.501(6)(c)(ii) of the Act. It is for the applicant to satisfy the Tribunal that he passes the character test (see s.501(1)).
28.The Ministerial Direction sets out certain matters to which decision makers should have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the Character Test. Paragraph 1.9 of the Ministerial Direction provides:
In considering whether a non-citizen is not of good character against sub paragraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the character test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
· …
·involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extorsion, white collar crime, fraud, breaches of immigration law; (emphasis ours)
29.The respondent relies upon the following facts in support of its contention that the applicant is not of good character by reason of his past and present general conduct:
29.1On 5 December 1997, in his application for a visitor's visa, the applicant declared that his intention visit Australia was genuine and that he would abide by the conditions of his visa.
29.2The applicant did not abide by the conditions of his visa in that he did not depart Australia on the expiry of the visa.
29.3The applicant remained in Australia unlawfully for a period of two years and three months.
29.4 The applicant undertook employment during the period of his unlawful stay in Australia.
29.5Question 69 of the application for migration to Australia, lodged by the applicant with the Australian High Commission at Suva on 22 August 2000, was as follows:
'Have you, or any other person included in this application, ever:
· left any country to avoid being removed or deported?
·been excluded from or asked to leave any country (including Australia)? '
29.6In response to both questions the applicant answered 'no'. The respondent submits that these answers were false. The applicant was asked to leave Australia and if he had not left he would have been removed.
29.7At section 89 of the application the applicant made a declaration in the following terms:
'I declare that the information I have supplied, in this application is complete, correct and up-to-date in every detail.
I understand that if I give false or misleading information, my application may be refused, or any visa grated may be cancelled.'
30.Accordingly the applicant has:
·failed to comply with the conditions of his visitor visa;
·remained unlawfully in Australia for a prolonged period;
·during the period of his unlawful residence the applicant performed work in Australia; and
·given false answers in support o his application for migration to Australia.
·sworn a false declaration in support of his application for migration to Australia.
31.The respondent submits therefore that, by reason of the matters identified above, the applicant is a person who is not of good character and who therefore cannot pass the character test.
The Residual Discretion
If the Tribunal finds that the applicant fails the character test, then the question arises as to whether the residual discretion should be exercised in the applicant's favour.
32.In making this determination the Tribunal must have regard to the Ministerial Direction.
33.The Ministerial Direction relevantly provides:
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
2.2The 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 in paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 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.
34.The Ministerial Direction, at paragraph 2.3, identifies three primary considerations that must be taken into account by decision-makers when deciding whether or not the non-citizen should be permitted to enter Australia, they are as follows:
(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;
35.The respondent will address each of the primary considerations in turn.
Protection of the Australian Community
36.The Ministerial direction provides that the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
37.whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(a)The Seriousness and Nature of the Conduct
38.The applicant has engaged in conduct that constitutes at least two offence under the Act. By working in Australia, whilst an unlawful non-citizen, he has committed an offence under s.235(3) of the Act. The maximum penalty for this offence is a fine of $10 000. By providing false answers on his application for migration to Australia he has committed an offence under s.234 of the Act. The maximum penalty for this offence is imprisonment for 10 years or a fine of $110,000 or both. The severity of these penalties is an indication of the seriousness with which Parliament views conduct of this nature and is a recognition that conduct of this kind threatens the fairness and integrity of Australia's migration system.
38.1Conduct which constitutes an offence against the Migration Act 1958 attracts special attention under the Ministerial Direction in terms of the seriousness with which that conduct is viewed (see paragraph paragraphs 1.9(a) and 2.6(c) of the Ministerial direction).
38.2The applicant remained in Australia as an unlawful non-citizen for in excess of 2 years. There is no evidence that the applicant attempted to regularise his status during this period. Further the applicant did not seek to regularise his status either immediately before, or after, his marriage to an Australian citizen. The applicant's presence was only detected by reason of compliance action by the Department of Immigration and Multicultural Affairs.
38.3The conduct of those who choose to remain in Australia, in defiance of the conditions applicable to their entry to Australia, operates to frustrate the purpose of the Act. Section 4 of the Act relevantly provides:
4 Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
38.4The applicant has engaged in conduct contrary to both the specific provisions and the general object of the Act. In light of the discretion that the applicant now seeks to invoke, that is the grant of a visa to allow his entry and permanent presence in Australia under the Migration Act, the applicant's conduct should be viewed with great seriousness.
(b) Risk of recidivism
39.The applicant's conduct cannot be characterised as merely a short-lived or isolated breach of the law. Rather the applicant's conduct, in remaining unlawfully in Australia, was conduct that was prolonged and intentional. It is conceded that if the applicant were granted a visa, he would no longer be in a position to commit immigration fraud in the future. However given his previous history, there exists a real risk that the applicant will commit other forms of undesirable behaviour .
(c) General deterrence
40.Immigration malpractice, by its very nature, involves a level of pre-meditation and calculation. Accordingly, the respondent submits that the refusal of the applicant's application for migration to Australia would act as an effective general deterrent to non-citizens who may be tempted to remain in Australia unlawfully in the future. Conversely, it is respectfully submitted, the grant of a visa in this instance would effectively condone immigration malpractice in the eyes of non-citizens, as it would be tantamount to rewarding the applicant for his past misconduct. This is especially applicable to those persons who establish relationships whilst unlawfully in Australia, and then seek to obtain permanent residence on the basis of those relationships.
40.1The efficacy of Australia's migration system with respect to the grant of temporary or short stay visas, in the case of the applicant a visitor visa, depends in part upon the good faith of those who have been granted visas to depart Australia in accordance with the conditions of their visa. Those who abuse this trust should not be seen to profit from their conduct.
Expectations of the Australian Community
41.The respondent contends that the seriousness of the applicant's conduct is such that the expectation of the Australian community would be that the applicant's application for a visa should be refused. It would not be the expectation of the Australian community that a person who has engaged in conduct that amounts to a serious breach of the Migration Act 1958 should be able to benefit from that same Act by reason of a favourable exercise of its provisions.
41.1It would not be the expectation of the Australian Community that a person who remains unlawfully in Australia should be permitted to re-enter Australia on the basis of a relationship that the applicant established when in Australia unlawfully.
Best interests of the child
42.These proceedings do not involve a parental relationship.
Secondary considerations
43. Paragraph 2.17 of the Ministerial Direction provides:
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 they be given less individual weight than that given to the primary considerations.
43.1One of the considerations identified under paragraph 2.17 is the degree of hardship which would be caused to immediate family members lawfully resident in Australia and the existence of a genuine marriage to an Australian citizen. The review applicant, the applicant's wife, was granted Australian citizenship on 8 August 1989.
43.2 Paragraph 2.17(b ) provides:
... in assessing the compassionate claims of the Australian partner ... decision-makers must consider the circumstances under which the relationship was established...'
43.3Whilst the refusal of the applicant's visa will cause hardship to the review applicant the respondent submits that it must be taken into account that the review applicant was aware of the applicant's unlawful status in Australia from at least April 1999. The review applicant married the applicant, eight months later, with the knowledge that the applicant was unlawfully in Australia.
43.4Accordingly the respondent submits that the decision of the Minister's delegate should be affirmed by the Tribunal.
Dated: 22 January 2001"
It is to be noted that this document includes, at its beginning, a reference to Supplementary T-Documents, referred to therein as SD. In fact there were no Supplementary T-Documents and an amendment to the Respondent's Statement of Facts and Contentions in order to delete that reference was applied for and granted. It may be noted also that the Respondent, in that document, referred to the Applicant and the Visa Applicant as "the review applicant" and "the applicant" respectively. However, it is Mrs Naufahu-Fauonuku who is the Applicant in this matter and she is referred to accordingly, whereas, and as set out previously, her husband, the Applicant for the Spouse Visa is referred to as "the Visa Applicant".
(b) Although it may involve some degree of repetition, it is desirable, in the interests of balance, that I include the Applicant's Statement of Facts and Contentions dated 13 March 2001, and which reads as follows:
This is to review a decision of a delegate given on the 15th September 2000, refusing a spouse visa to (review applicant) MR TUITOKELAU and where the applicant (MRS SALOTE LASINI NAUFAHU - FAUONUKU) is his sponsor. The refusal was based on the finding that MR TUITOKELAU FAUONUKU was not a person of good character.
FACTS
1.11 March 1970 Applicant's husband Mr. Tuitokelau Fauonuku born in Vaotuu, Tonga (f36)
2. 15 March 1976 Applicant born in Auckland, New Zealand (f78).
8 16 July 1979 Applicant arrived into Australia with parents and sister.
4. 8 August 1989 Applicant granted Australian Citizenship (f78)
5.1992-1995 Tuitokelau Fauonuku attended Siaatoutai Theological College.
6.Dec '93-Jan '94 Tuitokelau Fauonuku traveled to Honolulu, Hawaii 2 months Visitors Visa.
7.1996 -1997 Tuitokelau Fauonuku employed as a Teacher at Kolovai Free Wesleyan Primary School (T6).
8.11 December 1997 Tuitokelau Fauonuku for tourist visa lodged with Australian High Commission at Tonga (T6).
9.16 December 1997 Tuitokelau Fauonuku granted visitor's visa for 2 months (T12)
10. 30 December 1997 Tuitokelau Fauonuku arrives into Australia (T12)
11.March -April 1998 Tuitokelau Fauonuku employed as a Night Club security guard (f65)
12.July 98- June 99 Tuitokelau Fauonuku employed as a Scaffold with MRT Constructions he did not have a tax file number, but MRT was deducting tax from his weekly salary (f65) (please see attached pay slip and employment certificate).
13.16 July 1999 Applicant meet Tuitokelau Fauonuku at a Church Youth Function (T16).
14.September 1999 Applicant and Tuitokelau Fauonuku relationship was serious (T16)
15.18 November 1999 Applicant and Tuitokelau Fauonuku moved in together at address Unit 28/17-19 Speed Street, Liverpool NSW 2170 (T16)
16 9 December 1999 Applicant and Tuitokelau Fauonuku marry (f155)
17 4 July 1999 Applicant and Tuitokelau Fauonuku received a loan $10,000.00 approved by Yenorra Credit Union (T16)
18. 9 July 1999 Applicant confronted DIMA (Parramatta) Sunith Paalpare whom stated to apply for form 1008 due to personal issues (T8).
19. 10 July 1999 Applicant returned to DIMA office Sunith Paalpare was not present but Henry Legeret assisted and interviewed Tuitokelau Fauonuku (T8).
19.1 Henry Legeret detained Tuitokelau Fauonuku Passport No. 107584 expiry 15th November 2003 and requests to see a ticket to Tonga (T8)
19.2 Henry Legeret (DIMA) issued Tuitokelau Fauonuku BVE (T9)
20. 12 July 1999 Police Record issued for Tuitokelau Fauonuku from Australian Federal Police ACT (T16)
21. 13 July 1999 Tuitokelau Fauonuku purchased a ticket to Tonga (T10)
22.18 July 1999 Tuitokelau Fauonuku applies for BVE to DIMA (Parramatta) till the 27th July 1999. Presents air ticket and DIMA officer hands back Tuitokelau Fauonuku passport.
22.26 July 1999 Police Record issued for Tuitokelau Fauonuku from Office of Minister of Police Nukualofa, Tonga (T16).
23. 27 July 1999 Tuitokelau Fauonuku departs Australia (T12)
24.22 August 2000 Australian High Commission, Suva Fiji acknowledge receipt of application (T16)
25.7 September 2000 Tuitokelau Fauonuku interviewed by DIMA official at Australian High Commission Nukualofa, Tonga (T13).
26.15 September 2000 Minister's delegate refuses grant of visa to applicant under s.501 Migration Act 1958 'character test'
27.26 September 2000 AAT acknowledge receipt of TuitokeIau Fauonuku from Applicant
28. 28 September 2000 Applicant travels to Tonga to visit Tuitokelau Fauonuku for a few days.
29. 02 October 2000 Applicant returns to Australia.
30.9 November 2000 Applicant travel to Tonga on Duty on flight WR201 depart Sydney 2155 arrival Tonga 0425
31.10 November 2000 Applicant return on Flight WR200 depart Tonga 0525 arrive Sydney 0925 (Spent 1 hour with Review Applicant at Tonga International Airport).
32.6 December 2000 Conference DIMA versus Applicant held at 1100AM level 7, Conference Room D (AAT)
33.21 December 2000 Applicant travel to Tonga to visit Tuitokelau Fauonuku for the Festive Season.
34. 6 January 2001 Applicant return from Tonga
35. 24 January 2001 Applicant received FACTS and CONTENTIONS by Clayton Utz Lawyers in for DIMA
36. January 2001 Character References; from respective people of The Kingdom of Tonga - also applicants parents.
37. 2 February 2001 AAT acknowledge receipt of Character References regarding Tuitokleau Fauonuku from some Respective Citizen's of Tonga. Acknowledged receipt of Personal letters from Tuitokelau To Applicant.
38.16 March 2001 Hearing DIMA versus Applicant. 10AM Level 5, Hearing Room 4 (AAT)
LEGISLATION
The relevant legislation & Direction 17,Subclass 309 (Spouse) Visa (1994)
39. Primary Criteria 309.211(2)(a)
The applicant meets the requirements of this sub clause if the applicant is the Spouse of:
'an Australian Citizen or ...'
40. 309.211(3)(a)(i)
The applicant meets the requirements of this sub clause if:
the applicant intends to marry
'an Australian Citizen'
41. Note: 309.211
If the applicant referred to in sub clause 309,211(3) the marriage must have taken place before the applicant can be granted a visa of this sub clause: [see clause 309.224]
42.Criteria to be satisfied at time of decision 309.22,309.221 the applicant continues to satisfy the criterion in clause 309.211. Circumstances applicable to grant 309.4, 309.411 (2) (a) the applicant must be:
'outside Australia, when the visa is granted'
43. Transitional Provision 4005(8)(b)
… 'Is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian Community...'
44. 4006A(11)(I)(a)
'Is free from tuberculosis'
45. 4009(23)(a)(b)
If granted a visa;
'intends to live permanently in Australia'
… 'the applicant could obtain support in Australia from other members of the family unit'
46.Migration Act 1958, Direction under section 499, Direction No.17, 501-No.17 dated 16 June 1999 by Philip Ruddock (MIMA)
Prelimary Part 1
'if the non-citizen does not pass the character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations'
47. Paragraph 501.1.7(6)©
'in reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct'
48. 501.2.17(a)(b )(h)(i)(j)
'in considering whether to refuse a visa, other factors, although not primary considerations, may be relevant …'
(a) 'the disruption to the non-citizen's family, business and any other ties to the Australian Community'
(b) 'the genuine marriage to, de factor or interdependent relationship with an Australian Citizen or permanent resident'
(h) 'any evidence of rehabilitation and any recent good conduct'
(i) 'whether the application is for a tempory or permanent resident...'
(j) 'the purpose and intended during of the entry to or stay in Australia including any significant compassionate circumstances …'
49. 501 (6)(d)
'whether the non-citizen has been removed/deported from Australia or removed/deported from another country or...'
50. 501.1.11
'general conduct also includes recent good conduct'
51. 501.1.10(b)
'resulted in the non-citizen being acquitted of a criminal offense or where there has' been no conviction recorded'
52. 501.2.2
'.. but should also adopt a balancing process which takes into account all relevant considerations ...''
.
53. 501.2.16(b)
'the duration of the relationship including the number and length of any separation and reason/s for the separation, the hypothetical prospect for developing a better/strong relationship in the future (whether or not there has been significant recent contact) would normally be given relatively less weight that the proven history of the relationship based on past conduct'
(please see attached letters and telephone bills)
Some MIMA cases pointing out views of good character under s.50l
54.In Goldie v MIMA (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ) Speaking generally of 5.501, the Full Court said;
[8] 'The concept of 'good character' in s.501 is not concerned with whether an applicant 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 scene of his' or her enduring moral qualities ...'
… short term entry permit may not justify the conclusion that he is not of good character with s.501(2) ...[24] ...the tribunal may well have set too high a standard in determining, on the basis upon which it acted; that he was not a person of good character ...
However no challenge being made to the tribunal's decision on this ground, so it is unnecessary to pursue this question.
55. In Wati v MIMA (10 November 2000) 136/SA Forgie stated:
'…actions in entering Australia were not consistent with the public good in so far as the administration of its Migration Laws are concerned. It is a serious breach of those laws. It does not automatically follow that refusing him a visa is necessary for the protection of The Australian Community...'
56. In Irving v MILGEA (1996) 139 ALR 84 Lee J said:
'enduring moral qualities of a person' the Act 114 of 1998. Mr B.J McMahon (DP) of Mr. Dumbrell v MIMA (6 June 2000) states; The section no longer speaks of 'good character' as such, but of a statutorily defined 'character test' which is to be looked at in its interaction with the operation of the Migration Act.
57. In MIMA v Baker (1997) 45 ALP 136 Baker said:
'bad character should not be forever assumed on the basis of one incident'
Also 153 ALR 463 at 470 where the Court said;
… 'the category that most naturally forms a dichotomy with criminal conduct, under the heading of general conduct is conduct in general. The root meaning conveyed by the adjective general, as is made clear by the New Shorter Oxford English Dictionary (1993), is the idea of universality. In s.501(02), it expresses a contrast with the particularity inherent in the reference to 'criminal' conduct. We do not think there is any warrant for extracting, from the board word "general" a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual.
CONTENTIONS
Preliminary (Part 1) 1.11
58. 'general conduct also includes recent good conduct'
Applicant relies upon the following facts (character references) in support of its Contentions that Tuitokelau Fauonuku is of good character of his past and Present conduct. Tuitokelau is currently one of the Youth Leaders of his village Vaotuu Tonga, teaching many Youth of his village and surrounding villages the Values of Christianity Life and the importance of the Christian Values.
58.1 '…involved in activities indicating contempt, or disregard, for the law …'
'Breaches of the immigration law...'
'…provided a bogus document or made a false or misleading statement …'Tuitokelau at the time of signing application form Tourist Visa 48R was honest at the time and had no intension of staying in Australia as stated on his application.
Tuitokelau was employed at the time and engaged as well in Tonga.
Tuitokelau was pressured by brother, sister-in-Iaw, aunty and other family members at the time to stay in Australia.
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 the 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
PROTECTION OF THE AUSTRALIAN COMMUNITY
(a)The Seriousness and Nature of the Conduct
59.Tuitokelau is guilty of living and working in Australia illegally whilst on a Tourist Visa. He is very sorry that he has broken that Australian law. Tuitokelau stated at the interview on the 7th September 00 his very sorry for his past actions. During his stay within the Australian activities, kidnapping or blackmailing. We both hope that the Australian Community will not hold that against him. We both hope that the AAT will focus on the fact that he is very remorseful for his past actions and focus on his recent conduct.
59.1Tuitokelau did not intentionally disregard Australia's Immigration laws. The respondent contends that Tuitokelau made false and misleading statements. At the time he filled out the application forms he was nerves and was not thinking right. He did not intend to give false evidence or misleading statements on his application because he knew if any evidence of misleading information was presented it would be harder for him to return also he had nothing to hide about his past and present behavior whilst amongst the Australian Community.
59.2 Tuitokelau past conduct should not be taken into account with his present conduct.
(b) Likelihood that conduct may be repeated (Risks of recidivism)
60.Tuitokelau is guilty of a desire to be united with his family in Australia. He is very sorry he did not return after his visa expired and took the wrong path which has got us into this situation. Tuitokelau did overstay his visa and he did work illegally and he hopes the Australian Community will not hold that against him.
MIMA delegate stated in his report;
'By the very nature of this application, the applicant would not repeat his past actions of illegal overstay and work without permission were the applicant to be granted a permanent visa to Australia...'
General Deterrence
61.Many non-citizen enter Australia seeking a relationship with Australians to obtain residence within Australia. I formerly disagree with this and believe that Australian Law should be looked into seriously further in these cases. Like many applicants come to Australia enjoy the lifestyle, friendliness and hospitality of the Australians and remain here unlawful. The MIMA delegate should look into the matter and see if the relationships are genuine before allowing a non-citizen back into Australia.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
(a) 62.Tuitokelau is very sorry to the Australian Community for his past actions. We acknowledge and respect the expectation of the Australian Community. At the time of our relationship things were very complicating to sort out after I became aware of his status in Australia because I had already fallen in love with Tuitokelau. I acknowledge the actions that I have taken is my own fault which I am facing at present. I thought as an Australian I had the right to sponsor my husband so that he could get an Australian resident visa. This process of legalizing Tuitokelau's status has put us in debt. I would never be able to honour our financial commitments if I had to live in Tonga.
62.1I acknowledge the fact the Australian Community would not allow a non-citizen to re-enter Australia after their past actions. Tuitokelau is very remorseful for his past actions and plead that you forgive him and allow him to re-enter Australia so that we may start a family. As per Frederic Le Play (1806-1882) Believed that the Family was the MORAL CELL of SOCIETY. 'Society is based upon achievement…'
(b) Best interest of the child
63.These proceedings do not involve a parental relationship, However we are putting having children on hold due to the unstable situation at present. Many non-citizen enter Australia engage in a relationship with an Australian and have children in order for their partner to return. We have both agreed not to have any children during this situation even though I would love to have children at present. We believe that we should not be discriminated against in this section because we do not have any children.
SECONDARY CONSIDERATIONS (Other Considerations)
64. Paragraph 2.17 of the Ministerial Direction provides:
'When considering the issue of a visa refusal or cancellation other matters, although not primary considerations, may be relevant. It is government view that where relevant it is appropriate that these matters be taken into account…'
64.1 MIMA delegate states 15th September 2000
'I have taken into account the following considerations in assessing the present general conduct of the applicant'
64.1.a.The applicant is sponsored by his spouse. Based on the information provided with the application and the applicant's responses to the questions at interview, I am satisfied the relationship between the applicant and spouse is genuine.
64.1.b.Statutory Declarations submitted with the application attest to the applicant's good character and strong Christian Values.
64.1.c.The applicant has expressed remorse for his actions.
The extent of disruption of the non-citizen's family, business and other ties to the Australian Community.
65.One of the considerations identified under Paragraph 2.17 is the degree of hardship which would be caused to immediate family members citizen's of Australia and the existence of 'a genuine marriage' to an Australian Citizen.
Applicant was granted Australian Citizenship on the 8th August 1989.
if Tuitokelau is not granted a visa, it means that I will have to join him in Tonga. Which means that I will not be with the people and country that I have grown up to love and respect.
This will effect me emotionally knowing that the country that I have grown up to love has rejected It's own kind simply because my husband is not Australian. If I move to Tonga they will not consider me as a Tongan, due to the language and cultural differences.
65.1Applicant arrived into Australia on the 16th July 1979
65.2MIMA delegate 7th September 2000 stated that applicant was aware Tuitokelau's status in Australia from April 1999. I was not aware till a couple of months into the relationship that Tuitokelau was unlawful-citizen in Australia. Not in April 1999 as stated by MIMA delegate in the interview report.
65.3Tuitokelau admitted at the interview that he was employed during his stay. Which states that his honesty during the interview to the MIMA dele!gate shows clearly of his nature and present conduct.
65.4Tuitokelau also mentioned that he did not have a Tax File Number but was issued a TFN by his employers MRT Corporation P/L. Tuitokelau had Tax deducted from his weekly salary. (please see attached copy of pay slip )
65.5 All our financial joint accounts are under both our names and both signatory need to sign before either could withdrawal any money. We also have a loan account valued at $10000.00 also my telephone bills and everyday living expenses that I am in debit too. (please find attached is my telephone bill notice).
66This process of legalizing Tuitokelau's status has put us in debit. I would never be able to repay all my debits if I had to move back to live in Tonga.
67.If I move to Tonga this means I would have to leave my parents, sister, brother, friends and extended families, work and my country for a country that I have never familiarized my life style or ever adapting too their traditions and culture aspects.
68.I am dependant on Tuitokelau for emotional support and love that he gives me. I also need him to help me with our financial debits that we have endured in Australia during and after his departure. He has proven that he is a great support to the Tongan Youth in Sydney and in Tonga showing them the values of life.
69.Tuitokelau would also like to contribute to his families in Australia. In Tongan he has nobody to support him, as he is the last remaining relative in Tonga. His Eldest brother is living in America with their mother. His second eldest brother & family lives here in Sydney. His father has past away. Both my parents live in Sydney also my sister and brother whom both look up to me.
70.Please have compassion on my grounds so that Tuitokelau and I do not have to be separated. It would cause me extreme hardship if I had to move and live in Tonga. Tonga's salary is not even equal to what I am currently receiving at the moment. If we had to live in Tonga our debits would be difficult to repay, as for Tonga's very day living expenses is much higher that Australia. Also the fact that I will never be able to own my own home in Tonga due to the fact that Tuitokelau is the Youngest of 3 brothers. If I live in Tonga I will never forgive myself if I have children over there knowingly that Australia would have more to offer my children in education and financially which I could never share with them because they will be considered as a foreign though their mother would be an Australian.
71.Our hopes for our future in Australia were to live in Preston nearby my parents. Have 2-3 children. Tuitokelau has always dreamed owning his own Scaffold Company, try to pay off all our debits. Be able to start living; a family life together.
72.At the moment so many lives have been torn apart due to similar situations. On the other hand the Australian Government is renowned for reuniting families and friends from around the world with their loved ones living in Australia. We both apologize to the Australian Community and Tribunal Appeal for Tuitokelau's past actions. We ask The Tribunal to look favourably at our request to have my husband, Tuitokelau's visa Application reviewed and accepted. I do not regret marrying Tuitokelau Fauonuku because his such a loving, honest, trustworthy person. Tuitokelau is a strong Christian believer many who know him socialize and discuss matters and issues of the bilie due to the knowledge that he has. He has lead many Youth Groups in choir and biblically drama's. I believe that Tuitokelau would be an asset to the Tongan Community, in Sydney helping out with the Youth groups and church members.
73.Tuitokelau is truly remorseful for his past actions an not obeying the Australian law and the standards required by the Australian Community. Unfortunately what has happened is in the past has happened, I ask for your compassionate in this cases so that we may start our relationship and building our family for our future and children's future. I do hope that the Tribunal will see the compassionate reason outweighing the primary Considerations."
(c) The Visa Applicant in his Spouse Visa application (T16) ticked the "No" box in respect of all of the questions set out in clause 69 which appears at T16, page 81; the fifth and sixth questions in clause 69 are as follows:
"Have you, or any other person included in this application, ever:
· left any country to avoid being removed or deported? No 4
· been excluded from or asked to leave any country
(including Australia)? No 4"
(d) Question 36 of the Spouse Visa application (T16, page 77) sought information (name and country of residence) in respect of all of the Visa Applicant's siblings; the information provided was as follows:
Full Name Sex Date of birth (day/month/year Marital Status Country of residence If in Australia Immigration status eg: permanent Migrating with You?
TEVITA FAUONUKU m 12/10/65 Married U.S.A. Yes No 4
KOLONEISINI FAUONUKU M 4/ 7/67 MARRIED australia PERMANENT Yes No 4
KAFOATU FAUONUKU F 10/12/69 SINGLE TONGA MIGRATING Yes No 4
NICHOLAS FATAI M 28/11/82 SINGLE u.s.a. Yes No 4
ASIPELI FATAI M 2/ 6/84 SINGLE U.S.A. Yes No 4
Kalisi fatai F 19/ 9/85 SINGLE U.S.A. Yes No 4
It is to be noted that the Visa Applicant's sister, Kafoatu Fauonuku ("Kafoatu"), was reflected as resident in Tonga although there was a notation to the effect that she was "migrating". In respect of the evidence of the Visa Applicant taken by telephone link to Tonga:-
(a) The Applicant advised the Tribunal at the commencement of the hearing that the Visa Applicant is fluent in English and that no interpreter would be needed. During the course of his evidence, the Visa Applicant on occasions asked the questioner to speak more slowly; he also asked on occasions that the question be repeated. The telephone connection to Tonga was not of the highest quality and this may have accounted, at least in part, for the Visa Applicant's request. However, I did on a number of occasions make it clear that if so desired, an interpreter in the Tongan language would be sought and, if not immediately available, an adjournment would be granted to the extent necessary in order to obtain one. On each such occasion I was informed by the Applicant and the Visa Applicant that there was no need for an interpreter. I note also in this context that Maamakamo Latu Tapu, Secretary of the Wesleyan Church, Newtown, who gave evidence later in the day, said that for a period towards the end of 1999, the Visa Applicant substituted for her in relation to her church youth group and that he gave his talks and lectures in both Tongan and English.
(b) The Visa Applicant said that he originally came to Australia in December 1997 on holiday and in order to visit his family in Australia. His family in this context included a brother (then resident in Queensland, but subsequently resident in Sydney), his sister Kafoatu, who had preceded him to Australia, and aunts and uncles. He had, for this purpose, obtained a two-month visitor's visa. The T documents include (at T6 page 40) an acknowledgment in Tongan (and in respect of which an English translation was provided), the import of which was that the Visa Applicant acknowledged that he would not be allowed to request permission to stay in Australia. The Visa Applicant was cross-examined at some length as to whether he read the acknowledgment before he signed it. Although the Visa Applicant sought to suggest that he had signed it without reading it, the Tribunal doubts whether this was so.
(c) The Visa Applicant, before he came to Australia on his visitor's visa, was employed as a primary school teacher. He had been educated in Tonga. His education included, in addition to schooling, a period at a college. After leaving the college he worked in the Department of Works as a payroll officer for two and a half years. He then left that position in order to study at a Theological College; that study culminated in employment as a teacher, first at his own village of Vaotuu, and thereafter as a primary school teacher in another village.
(d) The Visa Applicant did not return to Tonga when his two-month Visitor's Visa expired. He said that he wanted to return to Tonga and that he was supposed to return to Tonga, but that his family "forced" him to stay in Australia. He said that his family threatened that they would not send him money if he returned to Tonga; apparently he had received money from them for schooling; as to why this threat had any potency at that time, given that his schooling was in the past, was never made clear. The Tribunal does not accept that there was any force or that there were any threats. The truth lies in the Visa Applicant's statement that opportunities for him in Australia were much better.
(e) Within about a month of his arrival in Australia, the Applicant found work in Australia as a day labourer. He said that for him to stay in Australia required him to earn money and that his family were concerned about him not working. Although his evidence was in some respects confused (and indeed contradictory) as to precisely what jobs he had and when, he seems clear that he worked illegally in Australia, as a labourer, as a security guard and as a scaffolder with Comscaff during the period which commenced one month after his arrival in Australia and ended in June 2000, when he first obtained a bridging visa. The Visa Applicant said that at present he is not working; the Applicant, in her evidence, said that he is working an agricultural plantation which is owned by a brother resident in the United States of America.
(f) The Visa Applicant gave different and contradictory answers as to when he told the Applicant that he was illegally in Australia. He said at first that he told her shortly before their wedding in December 1998; he also said that he told her after they were married but, finally, admitted that she knew prior to their marriage. The Applicant, whose evidence on this aspect is to be preferred, said that he told her some three months before their marriage.
(g) The Visa Applicant was living with his wife, the Applicant, and also Kafoatu, his sister, in Liverpool when DIMA visited his home; at that time the Applicant was on holiday in Los Angeles with her mother to celebrate her mother's birthday. That visit by DIMA resulted in applications by the Visa Applicant for two successive bridging visas granted on 10 July 2000 and 18 July 2000 respectively, and in each case conditional upon his departure from Australia before 18 July 2000 and 27 July 2000 respectively.
(h) The Applicant referred on a number of occasions to the fact that the Visa Applicant departed Australia voluntarily and of his own free will on 27 July 2000. That contention was of course untenable; the Visa Applicant left Australia because he was obliged to do so; so much is obvious from the terms on the bridging visas. In fact, and notwithstanding the marriage of the Visa Applicant and the Applicant in December 1998, and notwithstanding her full knowledge of his illegal status and the fact that he was working illegally, no attempt was made by either of them to regularise his status. His departure from Australia followed only after the DIMA visit in June 2000 and after they had received legal advice that the spouse visa must, of necessity, be applied for outside Australia.
The spouse visa application was prepared by the Visa Applicant and the Applicant together before his departure to Tonga; it was thereafter signed in Tonga. The answers to question 69 referred to in clause 2(c) of these Reasons were not true; the Visa Applicant admitted that they were answered untruthfully because it was thought that "no" answers would advance his cause.
(j) Similarly the answer in relation to Kafoatu referred to in clause 2(d) was also untrue; she was at that time in Sydney. She too came to Australia on a visitor's visa; she too overstayed and became illegal; indeed she was detained in the Villawood Detention Centre and is currently in Australia in connection with a pending "last remaining relative" application. Given that the Visa Applicant (her brother) is in Tonga, her prospects of success in respect of that application may be doubtful.
(k) In general terms, I must find that the Visa Applicant's evidence was in some respects unreliable; this is so having regard to the fact that he was sometimes untruthful and sometimes evasive.
In respect of the evidence of the Applicant herself:
(a) She was born in New Zealand to parents who had emigrated to New Zealand from Tonga. When she was very young, her family again emigrated to Australia, where she was educated. After schooling in Sydney she took a course which qualified her to handle ticketing and reservations at an airline. She is currently employed by Royal Tongan Airlines in that capacity; on Saturdays she deals with outgoing and also incoming passenger at the airport. She also occasionally acts as a flight attendant. Before achieving a relatively senior position at Royal Tongan Airlines she was employed by Thomas Cook (dealing with foreign exchange) and prior to that by Qantas, again in the reservations area.
(b) The Applicant said that although she speaks Tongan (but not completely fluently), she is not able to read and write in that language.
(c) She described the Tongan community as very close-knit and prone to mix with each other; she said that before meeting the Visa Applicant at a church function she did not mix much in the Tongan community. She is a Roman Catholic; however she was married to the Visa Applicant by an minister of the Wesleyan Church.
(d) The Applicant has travelled widely, including three trips to Tonga, one before her marriage and two (brief trips) after her marriage. As an airline employee, travel costs for her are relatively cheap. In addition she is of course, of necessity, aware of the implications of visas and the fact that the conditions of issue of visas must be honoured.
(e) The Applicant presents as accomplished and the Tribunal accepts that she is a valued employee of Royal Tongan Airlines. She said that she would unquestionably be employed by Royal Tongan Airlines in Tonga were she to settle there. However, she altogether refused to consider a move to Tonga because she would earn less and because she does not like the way in which women are treated in Tonga.
(f)She was asked to consider the possibility of being reunited with her husband in each of New Zealand (the country of her birth) and the United States of America, given that the Visa Applicant has siblings who reside there and might be able to procure residency rights through them. Her attitude was simply that she could see no reason why she should leave her home and family in Australia and would not be prepared to contemplate a move to any of those countries, including Tonga. It was noted that Royal Tongan Airlines flies (inter alia) to Honolulu. Having accepted that she is a valued employee of Royal Tonga Airlines it seems at least possible (and perhaps probable) that employment could be gained with that airline in those countries, or if not that airline, another.
(g)The Applicant was involved in the preparation of the spouse visa application and was aware of the fact that certain answers were untruthful.
(h)The Applicant raised two aspects which were, at least in my experience, novel. She said that her husband deserved credit for the fact that unlike so many others from Tonga and elsewhere, he did not make a protection visa application; she admitted though that he was not a refugee. It is perhaps of interest to note that the false protection visa route is so well known and prevalent that there seems to be a considerable degree of general awareness of it. There is, of course, no merit in such contention; to fail to commit a crime (however prevalent) cannot be worthy of praise. Her second point was that she could have had a baby which would have increased her prospects considerably. Such a contention is inaccurate, but not totally so. I granted visas in Re Moengangongo and Minister for Multicultural Affairs [2001] aata 74 and in Re Cafarella and Minister for Multicultural Affairs [2001] aata 30, in the latter case because the baby was living in adverse circumstances in the Philippines and, in the former case where the Applicant's health was a relevant factor; in other words those cases turned, as always, on their own particular facts.
Although the Applicant is qualified and presentable, she is capable of behaving foolishly. She has run up debts totalling some $15,000 to $20,000 including a large telephone bill. She said that she needs the presence of the Visa Applicant in Australia to help her pay these debts. A lease of the house in Liverpool was taken in the joint names of the Visa Applicant and the Applicant, for a period of six months, at a time when the Visa Applicant was an illegal non-citizen of Australia. (The Tribunal noted in passing that the taking by the Visa Applicant of a leasehold interest in residential property might have implications under the Foreign Acquisitions and Takeovers Act 1975; however the Respondent did not make this contention and the Tribunal does not think it proper to pursue it.) A large loan was taken by them from a credit union, utilised, so she said, to pay Kafoatu's legal expenses (in order to procure her release from the Villawood Detention Centre) and to pay the costs of her stay in that Centre. The Applicant now lives with her parents; however they are not prepared to assist her financially, so she said, because she is married and her husband should bear this responsibility. It is relevant to note that the credit union loan was obtained on 4 July 2000, after the DIMA visit in June 2000 and at a time when it was clear that the Visa Applicant would not be able to remain in Australia.
(j)There was a great deal of evidence as to a meeting with the immigration authorities and a file note by those authorities. That file note (T8 page 51) reads (in the second paragraph) as follows:
"I then spoke to Michelle Campbell and Jennifer Walters who told me that Mr. Fauonuku (who was originally a person wanted by the Field Team to be detained as an unlawful non-citizen) had been instructed, via Lasini, to report to a Compliance office within one week of their visit (this event happened two weeks ago), and had not done so yet (I was later to discover that Lasini was making the telephone call nearby, and that she and her husband were waiting within close proximity of the office). Lasini went on to tell me that her husband was departing so that she could sponsor him as a spouse visa. I told her that if he were detained that this may affect his application and that given he had ignored the advice to contact a Compliance office, he had made himself liable to detention. Lasini then told me that he was waiting downstairs, and asked whether he could have a BVE for three weeks. I stated that I would consider this after I had heard from her husband."
The Applicant said that she did not know either Michelle Campbell or Jennifer Walters but that she did know Henri Legeret and Sunitha Paalpare. As to precisely what was said and to whom was the subject of some debate but the Tribunal does not think it necessary to deal with it in any detail.
(k) The Tribunal accepts that the Applicant knew the Visa Applicant was illegally in Australia three months before she married him. She did nothing whatever about regularising his position until after the DIMA visit in June 2000. She was complicit in the false answers in the spouse visa form; she was also heavily involved in relation to Kafoatu who was (and may still be) also an illegal non-citizen of Australia.
Oral evidence was given by each of the Applicant's parents Mrs Luceane and Mr Pasilika Naufahu who testified as to the correctness of Exhibit A5 and also another letter which appears at T16 page 114. Neither is very fluent in English; each said that their daughter helped them with these letters. "Helped" would seem to be an understatement; it is likely the Applicant prepared them. Each said that he or she, as the case may be, became aware of the Visa Applicant's difficulties and irregular status in Australia after the marriage. The Applicant's mother said also that there is a family relationship (albeit not a very close one) between the Visa Applicant's family and her family.
The evidence of Maamakamo Latu Tapu, Secretary of the Wesleyan Church in Newtown was that she first met the Visa Applicant at an annual Wesleyan Church conference (before he ever came to Australia) and spent some time with him. She said that after his arrival in Australia, he attended church regularly and, as set out previously, helped her in her youth organisation for a period in late 1999. That church help could be treated as some evidence of good character were it not for the fact that it is not recent. This witness described the Visa Applicant as truthful and religious; she said that she was surprised by the suggestion that he might have committed offences under the Migration Act 1958 ("the Act").
References produced on behalf of the Visa Applicant (Exhibits A1 to A8) do not advance the matter to any extent. They are, as Mr Hardman pointed out, personal references even though some of them appear on official letterheads. The Tribunal was told the Visa Applicant cannot now obtain a good job in Tonga because when he overstayed in Australia on the expiry of his Visitor's Visa he breached his conditions of employment as a primary school teacher. The Tribunal wondered whether qualified teachers were not in demand in Tonga. The Tribunal was told that his breach in relation to his teacher obligations had a flow-on effect to government offices who also would not in consequence employ him. Those allegations do not appear to accord with the references, which in any event do not deal with his conduct in relation to the Act.
This brings me to consider Direction – Visa Refusal and Cancellation Under Section 501 – No. 17 ("the Ministerial Direction") made under section 499 of the Act and which is binding on me. Clause references in this clause 8 should be construed as references to clauses in the Ministerial Direction.
(a)The primary consideration under clause 2.3 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."
(b)Clause 2.3(a) must be considered in the light of clause 2.5 which provides that the relevant factors 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)."
(c) I do not think that there is a great risk of recidivism although, as Mr Hardman pointed out, the Visa Applicant's evidence before the Tribunal indicated a willingness to be untruthful where he thought untruthfulness would assist him.
(d)On a balance of probabilities the false answers in the Spouse Visa application constitute breaches of section 234 of the Act; the maximum penalties are such that clause 2.6(c) applies. In addition, the Visa Applicant was, because he worked unlawfully in Australia for a period in excess of two years, guilty of breaches of section 235 of the Act. The penalty for breach of section 235 of the Act, while substantial, is not such that a twelve month imprisonment sentence is competent. However, and as I noted in Re Tuiono and Minister for Immigration and Multicultural Affairs [2001] AATA 92, the wording of clause 2.6(c) "including, but not limited to, …", and these offences too can be regarded as serious.
(e)As to the expectations of the Australian community and the question of deterrence, I set out clauses 10(b) and 10(c) (confined in the case of clause 10(c) to the first paragraph and the first two sentences of the second paragraph) of my decision in Re Tuiono, and thus again endorsing the decision of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, as follows:
"10.(b) As to the expectations of the Australian community, clause 2.12 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. This statement has been repeated in numerous cases, on occasions coupled with a reference to the fact that the Australian community expects that the Act will be interpreted in a humane fashion; (see, for example, Deputy President McMahon's decision in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34); this latter statement has generally been included in cases involving children or ill-health. In this case it is clear that the Visa Applicant's disregard for Australian immigration laws has endured over many years.
Mr Sikahele asked me to accept that Exhibit A1 (the petition) is indicative of the views of the Australian community. This cannot be tenable, both having regard to the limited number of signatures (approximately 60), and the unsatisfactory nature of the preamble. In fact, when one considers Exhibit A1, it is clear that the focus is to some considerable extent on the Applicant. Put in other words it would seem that a number of the Applicant's friends and fellow churchgoers wished to support him in his desire to bring his wife back to Australia.
I think it relevant to refer to the words of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, where he said (at paragraph 47):These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
(c) What then of deterrence? Numerous cases of this kind have indicated, in the clearest possible terms, that it is necessary to send a strong message to persons who breach Australia's immigration laws, that their breaches will not be rewarded by the grant of a visa.
It was in this context that Mr Sikahele advanced two particular arguments. The first was that, albeit after a number of years in Australia, the Visa Applicant went back to Tonga of her own free will and at no cost to the Australian government, (her husband having paid the airfare involved). …"
In this case, of course, the Visa Applicant went back to Tonga because he had no option but to do so. His bridging visas were so conditioned. As I said earlier, the Applicant's contentions that he went back to Tonga of his free will are without foundation.
(f) There was no evidence before me of recent good conduct. I must thus come to the conclusion that the Visa Applicant does not pass the character test.
(g) I then consider the discretion in Part 2 of the Ministerial Direction. As a secondary consideration, hardship to the Applicant is relevant. This, however, is not a case where the hardship factor is as serious as it is in many other cases of this nature. The Visa Applicant is qualified to earn a living in Tonga and I find it difficult to believe that work of some worthwhile kind is not available to the Visa Applicant, who has displayed a considerable degree of versatility in his ability to handle clerical, teaching and labouring work. The Applicant would, she said, be employed by Royal Tongan Airlines in Tonga and I entirely accept that this is so. Each of them would earn less than they would in Australia. It was the Applicant who refused to consider the possibility of being reunited with her husband in Tonga or New Zealand or the United States of America. The hardship factor while it does exist is, in fact, in this case, attributable to the Applicant's own personal choice. The hardship factor does not in my view outweigh the primary considerations.
If only as a matter of completeness, and because the decisions in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 and Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 were cited by the parties in their Statements of Facts and Contentions, I refer to them. Here again it is convenient to do so by setting out clause 11 of my decision in Re Tuiono which reads as follows:
"Mr Loftus, in his closing submissions, referred me to numerous decided cases, and in particular to the statement by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 as to the desirability of consistency in decision making. He referred me also to the Full Federal Court decisions as to character in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463; and Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; I note that all of these cases were decided before Direction 17 came into force, and it is possible that they are no longer as relevant as they were on the basis that Direction 17 now constitutes the regime, (binding on the Tribunal), within which a matter of this nature must be decided."
This is then not a case where the discretion can be exercised in favour of the Applicant and, accordingly, the decision under review must be affirmed.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 16 March 2001
Date of Decision 28 March 2001
Representative for the Applicant Self-represented
Representative for the Respondent Mr Paul Hardman
(Clayton & Utz Lawyers)
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