Nichifor and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 1012

DECISION AND REASONS FOR DECISION [2002] AATA 1012

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/26

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Joanne Marice Nichifor
  Applicant
           And    Minister for Immigration and Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr J Block, Deputy President

Date25 October 2002
PlaceSydney

Decision The decision under review is affirmed.

[SGD] Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse provisional visa – immigration malpractice - character test – whether the Visa Applicant passes the character test – discretion which the Tribunal may exercise where the Visa Applicant fails the character test
Migration Act 1958 sections 193, 234, 235, 499, 501, Direction No 21

Re Versace and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 562
Re Drake and Minister for Immigration and Multicultural Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

25 October 2002 Mr J Block Deputy President

The decision under review is that of the Respondent's delegate made on 26 November 2001 refusing the grant to Gabriel Nichifor ("the Visa Applicant") of a subclass 309 (Provisional Spouse) visa. In respect of that application, the Visa Applicant was sponsored by his wife, who is the Applicant.
(a) Mr George Lombard of George Lombard Consultancy Limited (and Mr Lombard is both a lawyer and a migration agent) appeared for the Applicant, while Mr Ashley Mullins of Blake Dawson Waldron, Solicitors, appeared for the Respondent.
(b) The Tribunal had before it the T-documents (T1-T35 pages 1-175) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:

Exhibit No.   Description
A1      Fax dated 11/07/2002 regarding Special Purpose Visa
A2      Witness Statement of Mrs Nichifor
A3      Submission of Macpherson & Kelly to the Refugee Review Tribunal dated 13 August 2001
A4      A report by Dr Christopher Stevens
A5      Statutory Declarations by Simon and Vicki Borg
A6      Statement by Michael Borg
A7      Statement by Martin Borg
A8      Statement by Michael and Daniela Liante
A9      Letters from the Romanian Australian Cultural Society
A10     Statement by Reverend Petru Elae Petrae, Romanian Orthodox Church, Buna Vestera
A11     Statement of Gabriel Nichifor
A12     Statutory Declaration by Elizabeth Sydney
A13     Statutory Declaration by Attila Dumitrov
A14     Further Statutory Declaration by the Applicant

I commence in order to set the background by including extracts from some of the (numerous) documents before the Tribunal.
(a) The Respondent's Statement of Facts and Contentions dated 10 September 2002, under the heading of "Facts" contains a useful chronology; that part of the Respondent's Statement of Facts and Contentions under the heading "Facts" is included as follows:

"FACTS
15.09.65         The Applicant was born in Australia.
29.03.74         The Visa Applicant was born in Braila, Romania.
10.10.99         The Visa Applicant deserted his ship "Mona Lisa" ("the ship") at Newcastle Port, Australia and travelled to Sydney by train.
11.10.99         The ship left Newcastle Port.
12.10.99         The Visa Applicant's desertion was reported to the Department of Immigration and Ethnic Affairs, by Captain Athanasios Tritsarolis.
10.99   The Visa Applicant travelled to Brisbane by train together with Mr Adrian Butnaru who also deserted the ship, where he then worked on a farm, subsequently finding employment in Mudgee at a vineyard.
14.12.99         The Visa Applicant was located and detained by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department").
22.12.99         The Visa Applicant lodged an application for a Protection visa and was released from detention on a Bridging Visa "E" class visa with a "no work" condition attached.
25.01.00         The application for a Protection visa was refused by a delegate of the Minister.
28.01.00         The Visa Applicant applied for review of the Protection visa decision to the Refugee Review Tribunal ("the RRT").
08.08.00         The Visa Applicant met the Applicant at a nightclub.
    10.00         The Visa Applicant moved in with Applicant.
25.02.01         The Applicant and the Visa Applicant married in the presence of family and friends.
20.09.01         The RRT affirmed the delegate's decision to refuse the Visa Applicant a protection visa.
22.10.01         The Bridging Visa "E" class visa expired and the Visa Applicant and the Applicant departed Australia for Romania.
19.11.01         The Visa Applicant applied for Spouse visa based on his marriage to the Applicant.
23.11.01         The Visa Applicant was interviewed by the Department in connection with the spouse visa application
26.11.01 The Visa Applicant was refused the spouse visa under section 501 of the Act.
11.01.02         The Applicant applied to the Administrative Appeals Tribunal ("the AAT") for review of this decision."

(b)      T8 is a record of an interview with the Visa Applicant which took place on 15th December 1999; it is headed "Record Of Interview With Suspected Unlawful Non-citizen" and runs from T page 27 to T page 40 (both pages inclusive); it is referred to in this decision as the "interview record" while the interview itself is referred to simply as the "interview". Each page of the interview document was signed by the Visa Applicant; each page was also signed by Minh Truong, an officer of the Department of Immigration and Ethnic Affairs (as it then was). T8 indicates that an interpreter was present, and the interpreter also signed each page. In respect of T8, I set out in this subclause (b) a number of questions and answers as they appear in T8.
"Q11    How long were you permitted to remain in Australia?
          (Interviewing officer to explain "visa period"
          ? explained [tick & initial]
A11.     jumped ship
APPLICATIONS SINCE ARRIVAL
Q12.    Have you applied for a visa since you last arrived in Australia?
A12.     Details (where, when, and what class):
          NO
ADDRESS
Q17     What is your current address and telephone number?
A17(a) Current Address:
          Different places. No permanent address.
A17(b) Telephone Number:
          Do not know the address of girlfriend. Only know how to get there.
Q21.    Can you return to that country?
A21.     Not really because of Police in Romania.
APPLICATIONS NOW
Q27.    Have you applied, or do you intend to apply, for a visa in Australia?
A27.     Yes. My girlfriend might sponsor me. Must discuss with her first.
Q28.    Do you think that you should be allowed to stay in Australia, and if so, why?
(Interviewing officer to provide list of substantive visas which may be granted to unlawful non-citizens – see Attachment 1 to this form ["Applying to Stay in Australia"]

A28.     Yes. Both parties will win. Because I'm willing to work.
Q32.    Have you worked in Australia?
A32.     Details:
          No. I went there to look for work, but has not started yet.
Q33.    Do you have any money or other assets in Australia or overseas?
A33.     $40.
Q39.    Do you want to apply for Bridging Visa E?
A39.     Can not make decision until I see my girlfriend."

(c)       T4 is the Decision Record signed by Janet Brooks, a delegate of the Respondent on 26 November 2001. T pages 7 and 8 read as follows:
"DECISION RECORD FOR REFUSAL UNDER S501 OF THE MIGRATION ACT 1958
PART A:        PERSONAL DETAILS
1.        Personal particulars of visa applicant
Family Name:            Nichifor
Given Names:           Gabriel
Date and Place of Birth: 29 March 1974, Braila, Romania
Citizenship:               Romanian
Marital Status:           Married
Sex:  Male
2.        Immigration history of visa applicant
On 10/10/99 the applicant arrived at Newcastle as crew on the vessel 'Mona Lisa' and deserted the vessel the same day with another Romanian crew member. The applicant went to Sydney where he was supported by some of the Romanian community, he and his friend then went to Queensland and found work in a vineyard at Mudgee. On 14/12/99 the applicant was located and detained by DIMA officers, on 22/12/99 he lodged a Protection visa application and was released on a $2000 bond. His protection visa application was refused on 25/1/00, he then applied to the RRT on 28/1/00. The department's decision was affirmed on 20/9/01 and he departed Australia with his sponsor on 22/10/01.
PART B:        CONSIDERATION OF VISA REFUSAL
Ground(s): 501(6)(c)(ii) - not of good character because of past & present general conduct
Evidence of grounds:
Departmental file F2001/026244 contains evidence including Immigration history in Australia and a record of interview with the applicant and sponsor.
PART C:        ASSESSMENT FOR REFUSAL
501(6)(c) – Not of good character – past & present criminal or general conduct
The applicant has a poor immigration history. In summary, he deserted his vessel, became unlawful and worked without permission. He also made a protection visa application and sought review to prolong his stay in Australia. Although his claims are not completely baseless I pointed out to the applicant, that, if indeed he did have a genuine fear of returning to Romania, his vessel had called in at least 4 other countries where he could have sort (sic) protection. The applicant responded that he had no real intention of deserting but when he arrived in Australia he knew this was the country where he wanted to live and improve his way of life.
Given the above, I am not satisfied that the applicant is of good character because of her (sic) past general conduct.
PART D:        DISCRETION
In exercising my discretion I must consider the Minister's Direction No 21 made under s499 of the Migration Act 1958. The Direction is binding as to the weight to be accorded to certain matters and the considerations which should be included in my deliberations.
The expectations of the Australian community is a primary consideration most relevant to the applicant. The Australian community expects non-citizens to obey Australian laws while in Australia and the Australian community would expect that a person who has breached his trust would not be granted a visa.
Additionally, the refusal of a visa may deter others from committing similar breaches of Immigration law. It may also act as a deterrent to certain members of the community who, in this particular case, assisted and supported the applicant knowing that he was an unlawful non-citizen.
Best interests of the child is another primary consideration. There are no children to the relationship.
Other consideration. The relationship between the applicant and sponsor has been assessed as genuine and continuing. The sponsor is currently living with the applicant and his family in Romania, however she has a good job in Australia and must return by 18/02/02. The living conditions in the applicant's village are very basic and she has difficulty copying with this. The couple want to start a family as soon as possible but would prefer to have their children in Australia. The applicant was genuinely sorry for the mistakes he make in Australia.
While there are some positive aspects to this case I am of the opinion that they do not outweigh the serious nature of the applicant's breaches of immigration law.
I do not elect to exercise my discretion.
PART E:        DECISION
I have considered all relevant matters including an assessment of the Character Test within the meaning of s501 Migration Act 1958and (sic) the Ministers Direction under s499 of the Act and have decided that:-
the applicant, Gabriel Nichifor, does not pass the character test, has been unable to satisfy me that they do pass the character test and is refused the grant of a subclass 309 (Provisional Spouse) visa.
[SGD Janet Brooks]
Delegate of the Minister of Immigration and Multicultural Affairs
Position No: 28
Date: 26 November 2001"
(d)      Having been refused a protection visa, the Visa Applicant sought review by the Refugee Review Tribunal ("the RRT"). In respect of the RRT affirming the refusal, I include T page 106 to T page 109 as follows:
"The Tribunal accepts the following claims presented by the applicant, as these claims were plausible:
1.        The applicant was born on 29 March 1974 in Braila, Braila province;
2.He left Romania legally via Bucharest on 21 May 1999, and travelled on a valid Romanian passport issued in his own name on 26 April 1995;
3.His employment, educational and place or residence are accurately set forth in the protection visa application;
4.His mother, father and brother live in Romania; and
5.A migration agent assisted the applicant in the preparation of his protection visa application, which was signed by a Romanian interpreter.

However, for the following reasons, the Tribunal does not accept any of the other claims presented by the applicant.
At the very heart of this matter is the applicant's claim that he is a Roma, and that because of his Roma ethnicity he faces a risk of Convention-related persecution. Therefore, the Tribunal is called upon to make a threshold determination as to whether or not he is a Roma.
As noted above, the applicant demonstrated a very poor knowledge of Roma traditions, values and customs.
Overall, the kind of knowledge that the applicant exhibited of the Roma culture, traditions and beliefs is not consistent with an individual who purports to be a Roma, and whose grandparents and parents were of Roma origin. He does not speak the Roma language, which is at odds with the above-cited independent evidence of Dr Morrow that language is the most important factor in Roma society. The Tribunal accepts the above-cited independent evidence because it is independent, up to date and detailed. Even if the applicant's parents tried to integrate as much as possible into Romanian society, the Tribunal does not accept that the applicant would not know at least some of the Roma language if he is a Roma. As noted above, the applicant has fair skin. It is true that the evidence of Dr Morrow is to the effect that generally Romanian Roma have very dark skin, which would suggest that some indeed have fair skin. But combined with the other credibility problems related to the applicant's knowledge of Roma culture, the Tribunal finds that the applicant's fair skin casts further doubt on his claim to be a Roma. As noted above, the applicant did not know who is the goddess of the Roma, and indeed he admitted that he knows nothing about Roma culture. He did not know what Roma believe about pregnant women. He stated that Roma have one name, contrary to the above-cited evidence of the ReligiousTolerance.org document that Roma have three names. He stated that Roma marry at a very young age. The Tribunal finds that this aspect of his claims is vague and not sufficiently-detailed to be believable. The applicant did not know what happens to a Roma person when they die. He stated that Roma bath themselves very seldom and in a bathtub. This is contrary to the evidence of the ReligiousTolerance.org document that Roma normally wash in running water, as in a shower. The applicant did not know why Roma men's and women's clothes were washed separately, whereas the ReligiousTolerance.org document states that it is because of the impurities of the woman's body. The applicant stated that Roma do not eat beef, whereas the ReligiousTolerance.org document states that the eating of horse meat is prohibited in some tribes. The applicant stated that one of the traditional occupations of Roma is boilermaker which is contrary to the above-cited independent evidence from the website to the effect that their traditional occupations are metalworking, animal training, music and fortune-telling. The applicant stated that Roma carry a gold coin against bad luck. This is contrary to the evidence from the same website that some Roma carry bread in the pockets for this purpose. He could not describe a traditional Roma dinner because he never ate one. He did not know that Roma regard dogs and cats as polluted. The applicant stated that Roma view owls as heralding bad luck. The above-cited evidence from the same website states that Roma regard owls as portents of death. The Tribunal therefore finds that this aspect of his testimony is vague and not sufficiently-detailed to be believable.
In these circumstances, the Tribunal does not accept that the applicant is a Roma, as claimed. Having rejected the applicant's core claim of being a Roma, it follows that the Tribunal does not accept that the applicant was persecuted at school because he is a Roma, that he was persecuted in military service for the same reason or that he could not find work experience after his law studies for the same reason, as claimed.
In particular, the Tribunal finds that it is implausible that the applicant would wait until May 1999 before finally fleeing Romania if he had been persecuted while at school because he is Roma. It is plausible that the applicant believed that the situation would change in Romania and that the mentality of Romanians would change. But the Tribunal does not accept that if the applicant had been persecuted since he was a schoolchild, and there was no evidence that the situation was indeed improving and in fact was continuing unabated, that he would continue to wait so long before leaving Romania. He had no difficulties obtaining his passport in April 1995, after which he could have left the country. That he waited so long before finally leaving Romania is consistent with the view that at the time of his departure he did not have a subjective fear of persecution, and the Tribunal so finds. At the hearing before the Tribunal the applicant stated that he was harmed while in school quite often, but was unable to be more precise. The Tribunal finds that this aspect of his testimony is vague and not sufficiently-detailed to be believable. The Tribunal also finds that it is implausible that if he was persecuted so much at school because he is a Roma that he would encounter no problems in this regard while studying at university for four years. That he was living with relatives who got him to school on time and that he had only one friend would have no impact on the absence or presence of harassment while at university. He also did not encounter any harassment or persecution while he was working at his casual jobs. The absence of harassment while at university and while being employed is consistent with the view that he was not regarded by his peers as a Roma because of his fair skin, and the Tribunal so finds. As noted above, during the hearing before the Tribunal the applicant stated that he visited four law offices to attempt to find work experience, three in Braila, his hometown, and one is (sic) Galati. The Tribunal finds that it is implausible that he did not attempt to find work experience in any other city or town. The Tribunal also finds that it is implausible that the applicant did not contact a Roma organisation like the Democratic Union or Roma in Romania in response to the alleged harassment he experienced, especially since he had completed four years of law studies and therefore would have known that his rights had been violated.
Taken as a whole, in light of the implausibility of many of the key aspects of the applicant's claims, some of his key claims were at odds with the independent evidence, and since some of his testimony and some of his claims were vague or not sufficiently-detailed to be believable, the Tribunal can only come to the conclusion that key aspects of the applicant's testimony are not credible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that virtually all of the applicant's claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to race or for any other Convention reason.

Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason."

Although the Visa Applicant was not the first witness to give oral evidence, and in his case by telephone link and with the assistance of an interpreter in the Romanian language (except on the last hearing day). His evidence was of such significance that I deal with it first.
(a)      The Visa Applicant was born in Braila, Romania in 1974. He was educated at a high school in Braila and where he attained qualifications as a mechanic and perhaps, although this was not altogether clear, with a focus on ship machinery. The Tribunal was informed that in Romania it is possible to obtain a high school education which focuses on a particular trade such as for example plumbing or mechanics. In the case of the Visa Applicant, the focus was that of a mechanic; (his high school might perhaps be comparable, at least to an extent with a trade or technical school in Australia).
(b)      Notwithstanding that he achieved some expertise in mechanics, the Visa Applicant after leaving school elected to study law. He was a law student at a university in another town, Iasi, for the ensuing four years. His evidence was that he wanted to study law "in order to help people". The evidence before me was unclear as to whether the Visa Applicant was awarded a degree in law. He said that under the Romanian system he had to obtain practical training and thereafter had to write a final examination and only then would he be qualified to practice as a lawyer. He said that he could not obtain a position which would give him the necessary practical training (perhaps analogous to articles of clerkship) in either Iasi (where he said that preference was given to local residents) or in Braila where, so he said, there was no work available.
(c)       In 1999, the Visa Applicant sought and obtained work as a member of a ship's crew. The shipping line was Greek but had an office in Romania. The Visa Applicant was assisted by his brother who then worked (but does not do so at present) for the same shipping line. His expertise in mechanics was such that he found work in the engine room of the "Mona Lisa". Although the Visa Applicant had a university education he did not receive commissioned rank.
(d)      The "Mona Lisa" with the Visa Applicant on board sailed to various ports in various parts of the world, and in particular the USA, the Republic of South Africa, China, Libya and Australia. I do not think it necessary to record in detail the history of his travel, and the ports (some of them attractive, such as Baltimore and Cape Town) visited by him.
(e)      On the 9 October 1999 the "Mona Lisa" arrived at Newcastle. It had to wait off-shore when it first arrived and entered the port of Newcastle on 10 October 1999. It may be noted at this juncture that evidence was given by the Visa Applicant firstly on 16 July 2002 ("first day") and also on 13 September 2002 ("second day"); somewhat unexpectedly, and as will be noted later in these reasons, he also gave evidence on the last day, and being 24 September 2002. On the first day the Visa Applicant testified that the "Mona Lisa" loaded bauxite; on the second day he said that it loaded coal. There were other discrepancies between his evidence on the first day when compared with his evidence on the second day; by way of one example only, he said on the first day that in his law class he ranked fifteenth out of sixty, whereas on the second day he said that he ranked in the middle of his class.
(f)      The Visa Applicant was given permission by the second officer to go ashore on the 10 October 1999. He could have left the ship at midday but choose to wait until 4pm when some of his shipmates completed their duties.
(g)      This is a convenient point at which to pause in order to consider the status of the Visa Applicant in Australia on 10 October 1999. He said in answer to question 7 contained in T8 that he did not obtain any Australian visa. However it was claimed that permission was given by someone on shore at the dock for the Visa Applicant, and one of his shipmates, Adrian Butnaru ("Adrian"), to come ashore. Exhibit A1 includes an email from Michael Ting dated 24 December 1999, which reads as follows:
"Having gone through the file, I note that the two PV applicants and ship deserters in question, namely [name omitted]   and Gabriel Nichifor are immigration cleared. According to Form 25-Report of Absent Members of Crew, the vessel arrived Port New Castle on 10/10/99. These 2 crew members were only absent from the vessel at the time of its departure with the remarks 'deserter'. In the claims of                  [name omitted], he also stated that an immigration officer (probably a Customer officer) had told him and others that they could get off the ship and go in town. They are therefore immigration cleared as they entered Australia with the permission of a clearance officer at a proclaimed port and should be considered as being granted Special Purpose Visas.
If you have no more comment, I would suggest Greg to process these 2 cases as applications for subclass 866.
Regards,
Michael"

That message was written in answer to a message to Michael Ting reading as follows:
"Pls have a read of the attached minute. In summary all ship jumpers (ie persons leaving ships without spv) are determined to be NOT in "immigration clearance" and hence eligible only for XA 785.
Also by virtue of the fact that they are non-immigration cleared and in detention, they are not required to pay $30.
Pls proceed with the two cases in light of the advice from central office.
Regards
Satinder"
(h)      The name of the person who gave permission to land is not known. Mr Lombard explained a visa of this nature goes back in time, preceding the Migration Act 1958 ("the Act") and that there are complex issues as to its precise status. I do not consider it necessary for me to go into detail on this issue. Even though the Visa Applicant said that he did not obtain any visa, Mr Mullins accepted that he did receive a special purpose visa and I am prepared to do likewise. That special purpose visa entitled him to enter Newcastle. It endured until the earlier of the time on which he left Newcastle for Sydney (1am the following morning) or the time of departure, on the following day, of the "Mona Lisa".
(i)        The Visa Applicant knew that the "Mona Lisa" would depart Newcastle on the following day and although he was uncertain as to its next port of call, he thought it was likely that it would be a port in France.
(j)        The party of seamen and including the Visa Applicant went to the local seamen's club, which was in some way connected with the Catholic Church in Newcastle and later on in the evening to a disco where they had a few drinks. It was at this stage that the Visa Applicant and Adrian decided that they would not go back to the ship. The Visa Applicant said that he liked what he had seen of Australia and wanted to stay in the country. He said also that he had heard much of Sydney (believed by him at the time to be the capital city of Australia). In the very early hours of the following morning he and Adrian caught a train to Sydney arriving some two hours later, on the 11 October 1999.
(k)       The Visa Applicant said that he had about US$250. He did have his passport on him but his clothes were still on board the ship. Although the evidence on this point was not clear, he may have had other money at the ship. He did not want to go back to the ship to collect his clothes because he feared that he might not be able to return to the dock area.
(l)        The Visa Applicant's evidence was that his decision to desert his ship and to stay in Australia was one made on the spur of the moment and not something which had been planned. It is also possible (and indeed probable), that the Visa Applicant having heard about Australia (to its credit) had planned to desert into Australia at some earlier time. On this basis he could not take his clothes into Newcastle on arrival because to do so might have aroused the suspicions of the ship's officers. It is perhaps relevant that there were other attractive countries into which the Visa Applicant could have deserted prior to his arrival in Newcastle. He said that working in the engine room was not to his liking because it was hot and confined and that he could not see the sky or the ocean and that this was a motivating factor. The voyage at that point was already one of some considerable duration, and his discomfort in the engine room would not presumably have suddenly made its appearance. On the first day, the Visa Applicant said that when in port the seamen always slept on board. On the second day, he said that a seaman could stay in the port at night, so long as he was back on board the following day before the ship sailed, and in this case this meant the following day.
(m)     In order to travel to Sydney, the Visa Applicant and Adrian changed some US dollars into Australian dollars. On their arrival in Sydney they sought the help of a priest who refused to aid them. After a period in Sydney looking for work, the Visa Applicant and Adrian were told that work might be available in Queensland. In Brisbane the owner of a restaurant told them that they might find work picking grapes and with the assistance of a worker at a vineyard in Mudgee, the two of them found work at the same vineyard.
(n)      The Visa Applicant's evidence was that he became illegal when he deserted his ship. He said that he wanted to become legally resident in Australia and in order to do so would need to consult a lawyer, but first would have to earn the legal fees involved. While picking grapes at the Mudgee vineyard, he received about $100 per day in cash (out of which he had to pay for accommodation in a nearby caravan park). By the time of his arrest (which arose, it would seem, in consequence of a tip-off by a person or persons unknown) and detention at Villawood detention centre, he had accumulated something over $2000. His earnings from the Mudgee vineyard were not subjected to taxation.
(o)      The Visa Applicant was detained on 14 December 1999. While in the detention centre he talked to other detainees and received advice that in order to stay in Australia and in order to obtain a visa there were in fact two possible options, a protection visa or a student visa. The former method was selected by him.
(p)      On the 15 December 1999, the interview took place and the interview record was signed.
(q)      On 22 December 1999, the Visa Applicant applied for a protection visa; he was released from the detention centre with an E class Bridging Visa that prevented him from working. He also lodged an amount of $2000 by way of bond. The Visa Applicant was assisted in respect of his protection visa application by Macpherson & Kelley who were appointed to assist him (without charge) under the Immigration Advice and Assistance Scheme ("IAAAS").
(r)       Mrs Elizabeth Sydney and her son Mr Attila Dumitrov had earlier visited Villawood in order to see whether they could assist Romanian detainees. After the Visa Applicant was released from Villawood, Mrs Sydney found him accommodation with a friend for a period and thereafter with her. He remained with her until he moved in with the Applicant in October 2000. The Visa Applicant and the Applicant met at a nightclub on 8 August 2000. The relationship progressed at speed and they commenced living together in October 2000; (the Applicant had said that her mother looked askance at the speed at which the relationship developed and she herself would have preferred that it progressed rather more slowly, but they had received advice from a migration agent that it was desirable that they commence living together).
(s)       The Visa Applicant's application for a protection visa was refused on 25 January 2000 and review by the RRT was sought on 28 January 2000. The RRT (as I have said) affirmed the refusal by the decision dated 20 September 2001 after a hearing, which lasted for a few hours.

(a)       The Visa Applicant's protection visa application was founded on the assertion that he is a "gypsy" and that gypsies are a persecuted minority in Romania.
(b)       I should here mention that Mr Lombard told me that the word gypsy has a pejorative connotation in Romania, and that "Roma" is the preferred description. There is however no such pejorative connotation in English and as the transcript reveals the term "gypsy" was used more often than not thereafter. It is convenient to do so in these reasons, and for which Mr Lombard noted that he and his client consented. It is of course not used in any pejorative sense.
(c)       The RRT had found that the Visa Applicant's claims were not truthful inter alia because he knew nothing of gypsy culture. The Visa Applicant's evidence was that while his mother was a gypsy, his father was not and that his mother's family resented her marriage to a person who was not a gypsy. His parents decided that it would be best if he were bought up as an ordinary Romanian attending local school and subsequently university and thus entirely so as to ignore the fact that he did have some gypsy heritage on his mother's side. This then according to the Visa Applicant was the reason why he knew nothing of the gypsy culture, customs or language.
(d)       Mention was made at the hearing of appearance. The RRT had noted that according to a Dr Moreau, gypsies are usually darker in colouring whereas the Visa Applicant is apparently lighter in colouring than would be the case with most gypsies. I do not propose to regard physical appearance as a factor; the Visa Applicant's evidence was that if one walked down the streets of a Romanian city or town, one would not know whether a passer-by was or was not fully or partly of gypsy origin.
(e)       The Visa Applicant said that even though he was brought up as a Romanian and even though he went to a Romanian school and a Romanian university he was still insulted on the basis that he was a gypsy. He said that Braila is a small town and that everyone knew of his gypsy heritage. (Braila is not as small as all that; according to the Visa Applicant, it has a population of between 200,000 – 300,000 people).
(f)        Let me assume though that the Visa Applicant was at the receiving end of an occasional insult; that was hardly sufficient to categorise him as a refugee. Persecuted minorities do not generally become law students. The reasons why the Visa Applicant's claims are inherently improbable are firstly that he did not apply for a protection visa until he was detained and then only because it was the better of two options put to him by his fellow detainees. In the second case, the Visa Applicant lied to the department at the interview (T8). He claimed at that interview that he had a girlfriend who would sponsor him. In evidence before the Tribunal, he said that the girlfriend was an invention. He was invited by Mr Lombard (in a leading question) to indicate that he was remorseful. He did not accept that invitation; his evidence was that he could not see that what he done was so reprehensible; as he put it he did not steal or commit any crime. He had decided to settle in Australia and he was working only in order to obtain the legal help, which would make him "legal". Other answers at the interview were also untruthful; he said that he had not worked and that he was merely looking for work. He said also that he did not wish to return to Romania because he feared the Romanian police. He said in evidence that this arose in particular because of his desertion of his ship. When it was pointed out to him that he deserted a Greek and not a Romanian ship, he said that he had breached a contract made in Romania thus rendering him liable to action at the hands of the Romanian police. There was no evidence before me as to the fact that the Romanian police took any action against him (and indeed it would be surprising if they had since his desertion of a Greek ship would probably have amounted at most to a breach of civil and not criminal law). It is particularly relevant in this context that his reason for his reluctance to return to Romania was not according to his answer, because he was a refugee. That claim arose as something of an afterthought after his detention and at the suggestion of his fellow detainees. The RRT findings quoted earlier in these reasons set out in details their reasons why they did not believe that he was a gypsy and persecuted as such, and I consider that their findings were correct. I find, on the balance of probabilities, that the Visa Applicant knew that he was not a refugee and that his conduct in applying for a refugee status was false and misleading within section 234 of the Act. So for that matter were the various untruthful answers given at the interview, and in evidence before the Tribunal.
(g)       I consider that the Visa Applicant's evidence before me was at at times untruthful; there were inconsistencies as I have said; his evidence on the last day was particularly untruthful.
Mr Lombard furnished statements (many of them) and he furnished submissions. He sent (to the Tribunal) reports on Romania designed to indicate that gypsies are badly treated in Romania. Curiously enough both sides sent reports concerning Romania to the Tribunal but neither sought to tender any of those reports, which were thus not in evidence before me. I note in this context (for what it is worth, and to an extent marginal in this context, that it may be relevant) that in Re Versace and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 562, I was required to consider evidence of this nature. I found in that matter that although there is room for improvement for Romania in the area of human rights, real and substantial progress has been made in recent times, and perhaps motivated in part by Romania's desire to join the European community.
The Visa Applicant, in essence, used his mother's gypsy origin as a flag of convenience. It is likely indeed that his fellow citizens of Braila neither knew nor cared about his part gypsy origin. If he was brought up and educated as Romanian, what was there to indicate that he did have a gypsy mother? There was no evidence by either of his parents, or for that matter anyone else, which would support his claim that he was badly treated as a gypsy in any manner whatever.
(a) It is of course clear that a protection visa application cannot constitute a breach of section 234 of the Act so long as the Visa Applicant believes that it is truthful. The RRT found that his application was not truthful; that is a conclusion with which I agree. The Visa Applicant was also in breach of section 235 of the Act; the fact that he was in breach for a comparatively short time cannot assist him to any marked extent simply because his work ceased only in consequence of his detention.
(b) In his conduct towards the Australian Immigration Authorities, the Visa Applicant has consistently behaved opportunistically and untruthfully. He is after all an educated person. It is hard to accept that he seriously believed that he could achieve Australian residence simply by paying a suitable lawyer. He said more than once that he knew nothing of Australian law; he said moreover that he would not have been so treated had he entered Romania illegally. Whether this is so or not, is unclear, but in any event is not to the point.
(c) Did he desert his ship seeking to remain in Australia as part of a pre-conceived plan? It is hard to know where the truth lies. In his favour is the fact that he did not take his clothes, although as I have said, to do so might have been dangerous as indicative of an intention to desert. On the other hand, and with no disrespect to Newcastle, it is hardly likely that a few hours in its dock area (Seamen's Club, Roman Catholic Church and a disco) would have caused him, without more, to decide that Australia (and Sydney in particular) would be the place for him to settle.

(a)         The Applicant gave evidence in point of time before the Visa Applicant. She is of Maltese ancestry; she has visited Malta twice and has otherwise travelled quite extensively.
(b)         When she met the Visa Applicant, she was working as a Customer Service Officer for a company in Sydney. She spoke of meeting the Visa Applicant at the nightclub and the manner in which the relationship ripened. She said that she previously had a de facto relation with a man (who proved not to be right for her), that she was a good judge of character and that she was satisfied that the Visa Applicant was not in effect using her.
(c)         When after the RRT decision the Visa Applicant had to go back to Romania, she decided to accompany him. She did so in particular to ensure that a spouse visa application would be properly filed in Romania. The Visa Applicant had spoken to her about making an application to the Federal Court, but she could not afford the cost. At that time they were living together as man and wife on her earnings.
(d)         From a very early stage the Applicant knew of the Visa Applicant's residency difficulties. She accompanied him in order to obtain advice from two migration agents (including one who described the whole situation as a "mess"). She went with him to the RRT; she characterised the conduct of the presiding member as "mean".
(e)         When she decided to accompany her husband to Romania, the Applicant gave notice to her employer. Her employer thought sufficiently highly of her to keep her job open for her for a specified period. It was of course she who paid for the tickets although after their departure the Visa Applicant received the release of his bond money of $2000.
(f)          The Visa Applicant spent a period of nearly two months in Braila in the home of her parents-in-law. She visited Bucharest, and also Belgrade in connection with the spouse visa application. She said that she spent most of her time in Braila in winter and in a home that did not always have sufficient hot water and where toilet paper could not be flushed down the toilet. Her distaste for Romania can only be described as profound; she found it bleak, backward, dirty, full of beggars and moreover a place where in general terms the standard of living is far below what she was accustomed to. She did not find it romantic and she made no attempt whatever to learn Romanian. She knew from an early point in time that she could not possibly live in Romania. She believed that the spouse application would succeed; as she saw it, the Visa Applicant and she were lawfully married and his past immigration conduct was something entirely separate. She too could not accept that her husband's conduct was reprehensible; at page 55 of the transcript for the first day she said:
"THE WITNESS:   Yes but you see, look at it like this: he did things
wrong, I'm not saying he didn't break the law migration-wise but I look
him as a human being and the way he treats me and that's how I judge
my husband, he's never stolen, raped, attacked, never did anything
wrong as a human being, that's how I judge him."

(g)      When the spouse visa application was refused (and this occurred while the Applicant was in Romania) she decided, in consultation with the Visa Applicant, that she should return to Australia in order to resume her employment.
(h)      Since her return to Australia, the Applicant has maintained contact with the Visa Applicant. He works for his parents in their bee keeping enterprise but receives no remuneration. She sends him money periodically.
(i)        The Applicant gave evidence that she has been depressed since leaving Romania and that her depression (for which she receives medication) is caused by the separation.
(j)        I should say that in broad terms, I accept the evidence of the Applicant. I have reservations as to her views as to the fairness of the RRT hearings; the decision itself leads me to think that there is no basis for complaint by her in this regard. I think that she is a decent person who has been supportive of her husband in difficult circumstances. But it must be remembered that from the outset she knew that he was in Australia illegally; in marrying him she took a risk.
(k)       She was asked whether if the decision went against her she would return to Romania. The answer was a very firm no. She thought it possible that they might be reunited in another English speaking country. Malta was ruled out as a possibility. Romania has apparently applied for membership of the European union. Mr Lombard informed me that that entry into the union is years off; I do not doubt Mr Lombard's statement in this context.

Dr Stevens (whose report is Exhibit A4) gave evidence as to his treatment of the Applicant. I have no reason to doubt that his evidence was accurate as regards her depressed state. I have some doubts as to whether he could have formed a valid assessment of the Visa Applicant on the strength of a comparatively short telephone conversation.
I do not think that the evidence of Mrs Sydney and her son Mr Attila Dumitrov advanced the matter to any extent. They acted as good Samaritans in order to help the Visa Applicant as they helped other members of the Romanian community in difficulty. Mrs Sydney's statement speaks of a relationship between her and the Visa Applicant's mother, which would suggest that she knew the Visa Applicant's mother before she met the Visa Applicant. That is not so; she met the Visa Applicant's mother on a visit to Romania after she had met and helped the Visa Applicant. Their evidence is limited by the fact that they do not address the Visa Applicant's conduct in relation to the Act.
Many of the exhibits consist in effect of references by persons whose statements were accepted because they were not required for cross-examination. They consist of friends and relatives who speak well of the Visa Applicant. They all suffer from the same defect; they do not address on the migration conduct which lead to this hearing.
(a)       Mr Lombard contended that the reference in the delegate's decision to the fact that "his claims are not completely baseless" should be construed as a reference to the fact that in broad terms he had told the truth. This is in my view, an odd way in which to construe the words "not completely baseless" and does not given sufficient emphasis to the way in which word "completely" is used. It is clear that the decision-maker meant that there were some truthful aspects whereas his claims were largely untruthful.
(b)      The RRT in its detailed reasons found the Visa Applicant's claims were not worthy of credibility. When one reads the RRT decision as a whole, it seems clear that the RRT gave careful consideration to the case and deliberated over it for some considerable time. I have quoted a part only of the RRT decision and in particular its findings. The RRT did not accept that the Visa Applicant was persecuted as alleged. The RRT found it implausible that the Visa Applicant would wait until May 1999 before finally fleeing Romania. Indeed, the RRT found that virtually all his claims were not credible.
(c)       Perhaps the most salient factor against the Visa Applicant in this context is the interview and the untruthful statements made by him at it, and concerning it in evidence before the Tribunal. I will revert to these aspects further when I deal with the Visa Applicant's further evidence given on 24 September 2002.
(d)      I think it likely on the balance of probabilities that the Visa Applicant deserted his ship in Newcastle as part of a plan to seek residence in Australia. It is unlikely that a few hours in Newcastle (in the dock area of Newcastle) caused him to become enamoured of Australia in the manner indicated by him. And in any event, his focus was always on Sydney which suggests that he had received favourable information as to Sydney. After some few hours in Newcastle he took a train to Sydney; he left Sydney only because he could not find work in Sydney and after his release from Villawood stayed in Sydney until he left Australia, although it is true to say that this may be so because he found refuge firstly, with Mrs Sydney's friend, then Mrs Sydney and thereafter with the Applicant.
(a)       When the matter could not be completed on the second day, it was adjourned for final submissions to a date to be arranged; the 21 October 2002 was subsequently allotted for this purpose. I had advised the parties that if possible I would hear their final submissions at an earlier date. A matter listed before me on 23 and 24 September 2002 was postponed and by agreement with the parties the matter came before me on 24 September 2002 for the purpose of closing submissions.
(b)      Notwithstanding that the Applicant's case had been closed (excepting only for final submissions) Mr Lombard sought leave to recall the Visa Applicant and with Mr Mullins' consent, leave was granted. Mr Lombard asked the Visa Applicant a number of questions referable in particular to T8. I might here note that on this occasion the Visa Applicant did not have the assistance of an interpreter. As it was not anticipated that there would be any further evidence from the Visa Applicant, the services of an interpreter had not been arranged. Mr Lombard assured me that the Visa Applicant's English was sufficiently fluent, and at his express request, I agreed to allow the Visa Applicant to give further evidence without the aid of an interpreter. I note that I think Mr Lombard was correct; the Visa Applicant had no difficulty in giving evidence in English on the 24 September 2002.
(c)       It will be recalled that the Visa Applicant had answered question 33 at the interview by inserting "$40.00". He said that he had answered in this manner because his remaining money was deposited with a friend and fellow worker (named Gica) at the Mudgee vineyard who also lived at the same caravan park. He said that he thought, notwithstanding the terms of the actual question, that he was being asked what money he had on him.
(d)      The answer to question 33 was rendered even more improbable in the light of his answer to question 38. Question 38 asks whether he has or could buy his own ticket. His answer was as "No". He said it had been the correct answer to that question because he wasn't sure he could get his money back from Gica. (That answer was of course silly.)
(e)      Question 32 at the interview was again canvassed. It asked him whether he had worked in Australia and his answer was that he had not, and that he was looking for work. He explained that answer on the basis that he misunderstood the question. He said that at the time when he was picked up he was on his way to work but not in fact at work. He put it on the basis that there was then a misunderstanding. The answer recorded makes it clear that his evidence in this context was simply ludicrous. He had previously said, as the answer to question 32 indicates, that he went there to look for work but had not started yet.
(f)       He was asked why he had given his saved money to Gica; he said that he did not want to be robbed. When asked why Gica did not face the same danger, his answer was that Gica put the money in his bank.
(g)He was asked again about the "girlfriend" answer; he said that he was told by fellow detainees that he needed to have someone who might get him out of Villawood and that was why he made up the story of having a girlfriend.
(h)It is my view that the Visa Applicant's evidence on 24 September 2002 was, if anything, counterproductive.
(a)      Mr Mullins conceded having regard to Exhibit A1 that the Visa Applicant did for a period have a special purpose visa. That visa ended according to Mr Mullins (and as I have said) when the Visa Applicant left for Sydney or when the ship departed on the following day.
(b)      Mr Lombard referred to MSI-321 (entitled Detention of Unlawful Non-Citizens). However MSI-321 applies at this point in time but not at the relevant time; and when, so I was told, MSI-300 was in force; however neither party could produce MSI-300, and I do not think that it can affect the matter in any material way.
(c) Mr Lombard referred me to section 193 of the Act which denies certain rights to persons colloquially known as "boat people". They are not entitled to be told the consequences of detention and they are also not entitled to be told of available visas, other than temporary protection visas. The Visa Applicant's evidence was that he received only a plastic envelope; according to Mr Lombard he would have received only information as regards a temporary protection visa. Having held a special purpose visa (however briefly) he had rights, which according to Mr Lombard, were denied to him.
(d)      I previously noted that the Visa Applicant was informed of possible visas for which he could apply by fellow detainees and being in particular either a protection visa or a study visa. He chose to apply for a protection visa; Mr Lombard contended that he did so in accordance with advice from Macpherson & Kelly who also assisted him in his subsequent application to the RRT. However, that contention cannot be valid in the light of the Visa Applicant's own evidence.
(e)      Mr Lombard conceded that the Visa Applicant had been untruthful as regards to the girlfriend but not about anything else. He felt that the fact that the Visa Applicant had held a special purpose visa, however briefly, in the circumstances set out previously in these reasons should be regarded as a mitigating factor. In my view, many of his answers at the interview were untruthful; moreover I do not agree that the special purpose visa situation has the mitigating effect for which Mr Lombard contends.
(a) Mr Lombard, as I have said, sought to contend at the words "not completely baseless" be construed in a manner which I cannot accept.
(b) At T page 8 Ms Brooks noted "that there are some positive aspects" but they did not outweigh the serious nature of the Visa Applicant's breaches of immigration law. If there were positive aspects there do not appear to have been many.
(a)       Mr Lombard contended in relation to the protection visa application that although it did not succeed it was not untruthful. This was so, he said, because the Visa Applicant identified as a gypsy and was persecuted as a gypsy.
(b)      Mr Lombard's contention was altogether untenable. The Visa Applicant's evidence was that while he had a gypsy mother, his parents made every possible effort to conceal his part gypsy origin. He did not identify as a gypsy; on the contrary the reverse is correct. The RRT for the reasons set out previously found that his claims to have been persecuted as a gypsy were untrue. As I have indicated, the RRT decision is a lengthy and carefully reasoned decision.
(c)       Mr Lombard stated that I should categorise his offences as "de minimis". Specifically in the context of clause 2.6(c) of Direction 21, he argued that the word "attracting" in relation to a sentence of twelve months or more should be construed so as to refer to a case which had or would be likely to bring about such a sentence. I do not agree that that word can or should be construed in this limited fashion.
On the balance of probabilities, the Visa Applicant has committed breaches of both sections 234 and 235 of the Act. In particular breaches of section 234 attract a penalty such that I must find that the Visa Applicant fails the character test. I note in this context that there was no evidence of recent good conduct. (I note also that the Visa Applicant was guilty of breaches of taxation law. As I indicated at the hearing, I cannot regard them in a serious light; after all he could not furnish a tax file number. Of course his employer in Mudgee was at least equally guilty.)
I turn now to consider the discretionary powers contained in part two of Direction No 21; Direction – Visa Refusal and Cancellation under section 501 – No 21 (referred to as Direction 21). References in this clause to numbered clauses should be construed as references to numbered clauses in Direction 21.
(a)      Clause 2.3 provides that the three primary considerations are as follows:
"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 expectation 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."
Clause 2.3(c) is not relevant.

(b)      Clause 2.3(a) must be considered in conjunction with clause 2.5 which provides as follows:
"2.5     The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)       the seriousness and nature of the conduct;
(b)       the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)       whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."

(c)       Dr Stevens formed the view based on his telephone conversation with the Visa Applicant that there was little risk of recidivism. Although I think he was not in any position to form that view, I nevertheless think that it is likely that he may have been correct. The Visa Applicant if granted a visa to come to Australia, would have no reason to re-offend. All of his conduct, illegal as it was, was directed to one aim and that is to achieve residency status in Australia. To do so he was prepared to lie (repeatedly) and to work illegally. I do not believe that he could ever have seriously thought that all he had to do was earn money to pay a lawyer to obtain residence for him. He was after all, and for four years, a law student. He cannot in my view be so naive. I draw attention also to his answer to question 28 at the interview as to why he should be allowed to stay in Australia. I indicated at the hearing that I did not think there was any great risk of recidivism. Mr Mullins said there can never be no risk in the light of conduct of this nature. On balance and while the risk cannot be entirely discounted, I do not think it is a serious one.
(d)       As to deterrence, Mr Lombard argued that there was no evidence put forward by the Respondent as to the deterrent effect of refusing a visa in these circumstances. Mr Mullins pointed out that in the nature of things, empirical evidence of this nature is unlikely to be available. I think that the matter can best be put in another way and that is that to grant a visa to someone who behaved as did the Visa Applicant would send entirely the wrong message.
(e)       As to clause 2.12 of Direction 21, I do not believe that the Australian community would consider it reasonable that a visa be granted in these circumstances. On the contrary, the Australian community would expect me to refuse the grant of a visa to the Visa Applicant. Mr Lombard contended that there are no relevant opinion polls as to the views of the Australian community.   That is not the point. The Australian community does in general terms expect non-citizens to obey its laws, and the Applicant has on the contrary repeatedly breached its laws.
(f)        The offences committed were serious within clause 2.6(c) of Direction
21.
(g)       As to clause 2.17 of Direction 21, I accept that to refuse a visa would cause hardship to the Applicant especially in her depressed mental state. She has made it clear that she would not join the Visa Applicant in Romania; she said that this was so because of Romania's depressed economic climate and the fact that she would be unable to obtain suitable work there. It must be remembered, however, that she was fully aware of the relevant circumstances in the week after meeting the Visa Applicant. As I have said she accompanied him on visits to migration agents, one of whom described the situation as a "mess".

(h) Particularly as regards clause 2.17(b) of Direction 21, Mr Mullins accepted that the marriage is genuine as do I. (Mr Mullins originally when the hearings first commenced had certain reservations in this regard or at least wished to ask some questions on the subject). There is no reason at this time to doubt the genuineness at this time of the marriage.

Although each case must be treated on its merits, consistency is desirable. I refer in this context to the decision of Brennan J as President of this Tribunal in Re Drake and Minister for Immigration and Multicultural Affairs (No. 2); at pages 639 and 640 he said:
"The creation of a jurisdiction in this Tribunal to review the decisions of the Minister, and the statutory requirement that the Tribunal be constituted by a presidential member sitting alone, results in the appointment of a number of presidential members to decide the cases brought to the Tribunal from decisions of the Minister under ss 12 and 13 of the Migration Act. The procedural advantages which the Tribunal enjoys in the production and testing of evidence frequently result in the Tribunal's findings of fact (including its estimation of the risks of recidivism) being different from the findings of the Minister, and that is an intended consequence of the vesting of the jurisdiction in the Tribunal. But the possibility of a presidential member of the tribunal attributing to a particular kind of offending conduct a gravity different from the gravity attributed to the same conduct by another presidential member, or by the Minister, adds to the prospect of inconsistency in decision-making. In the deportation jurisdiction, the Tribunal (unlike the Tribunals of some countries) cannot be constituted by members drawn from a constant panel whose standards and values may provide a constant reference point for decisions. The Minister and each presidential member may perceive Australia's interests differently and may differ in their perception of the way in which offending conduct adversely affects those interests. Such differences will lead to inconsistency in making decisions.
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.
The possibility of inconsistency in exercising the deportation power arises from two sources: the Minister's entitlement to change the standards and values to which he has regard, and the possibility of disparity in the standards and values adopted by the Minister and by the several presidential members who constitute the Tribunal to review his decisions. The courses which may lawfully be taken and which are desirable to diminish the possibility of inconsistency in making deportation decisions should be examined.
Sections 12 and 13 of the Migration Act require the Minister to determine whether or not to deport an immigrant or alien whose criminal conviction exposes him to that jeopardy. The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:
"… that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statue (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake's case, supra, at 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to board and binding rules (as some discretions may be: see, eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A letter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case."
There have been numerous decisions (including some by me) refusing a visa in circumstances analogous to the circumstances in this case. To grant a visa in these circumstances would run directly contrary to them.
This is not a case where the discretion can be exercised in favour of the Visa Applicant, and the decision under review is therefore affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.
Signed: H Sim         .....................................................................................
  Associate
Dates of Hearing  16 July 2002, 13 and 24 September 2002
Date of Decision  25 October 2002
Solicitor for the Applicant         Mr George Lombard
Solicitor for the Respondent    Mr Ashley Mullins, Blake Dawson Waldron

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Nichifor and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1012

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Versace and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 562

Huddart Parker Ltd v The Commonwealth [1931] HCA 1