NSBB and Minister for Home Affairs (Migration)

Case [2019] AATA 59

NSBB and Minister for Home Affairs (Migration) [2019] AATA 59 (23 January 2019)

Division:GENERAL DIVISION

File Number:           2018/6560

NSBBRe  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member K Parker

Date:23 January 2019

Place:Melbourne

The Tribunal sets aside the decision under review made on 21 September 2018 and in substitution decides that the Applicant not be refused a Partner (Temporary)(Class UK) visa under s 501(1) of the Migration Act 1958.

[sgd]........................................................................

Member K Parker

MIGRATION – applicant moved to Australia at the age of 21 and adopted false identity – obtained Australian passport on four occasions using false identity – remained in Australia unlawfully - married Fijian citizen using false identity – Fijian wife moved to Australia using applicant’s false identity, took up residence and became Australian citizen – applicant and wife raised two children in Australia now aged 17 and 26 – use of false identity discovered by authorities 28 years after applicant’s arrival in Australia – applicant convicted of four federal offences – applicant received a suspended four-month imprisonment term for each offence – whether there is a risk that the applicant will engage in criminal conduct in Australia – no history of other criminal offending – consideration of mitigating circumstances – protection of the Australian community – whether Australian community would expect refusal of visa application– best interests of applicant’s daughter who is a minor – impact on family members – applicant’s wife has health issues – applicant employed and paid taxes during majority of life in Australia and has not caused personal harm to others – decision set aside

Legislation
Administrative Appeal Tribunal Act 1975 (Cth) s 35
Judicial Proceedings Reports Act 1958 (Vic) s 4

Migration Act 1958 (Cth) ss 234, 499, 500, 501, 501G

Cases

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96

Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411

Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 44

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014

Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Member K Parker

23 January 2019

INTRODUCTION

  1. The Applicant, NSBB,[1] is a 55-year old citizen of the Republic of Fiji (Fiji).  NSBB was born in Fiji.[2]  As a child, NSBB was cared for by his Fijian grandmother and for the first 14 years of his life, also by his Fijian mother.  NSBB’s father left the family before NSBB was born.[3]  When NSBB was in his early teens,…

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Details
AGLC
NSBB and Minister for Home Affairs (Migration) [2019] AATA 59
Case
[2019] AATA 59
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by NSBB of a decision to refuse him a Partner (Temporary) (Class UK) visa under section 501(1) of the *Migration Act 1958* (Cth). The decision was made by the Minister for Home Affairs. The Tribunal, presided over by K Parker M, was required to determine whether NSBB passed the character test as defined by section 501(6) of the Act and, if not, whether to exercise the discretion to refuse the visa.

The primary legal issue before the Tribunal was whether NSBB passed the character test as defined in section 501(6) of the *Migration Act 1958* (Cth). This involved considering whether NSBB met any of the conditions that would lead to him not passing the character test, such as having a substantial criminal record or otherwise not being of good character. If NSBB did not pass the character test, the Tribunal then had to consider the exercise of discretion under section 501(1) of the Act, taking into account the considerations outlined in Direction No. 65, including the protection and expectations of the Australian community, the best interests of minor children, and the impact on family members.

The Tribunal considered evidence regarding NSBB's background, including his upbringing in Fiji and his move to Australia. It also considered evidence from his wife, Mrs NSBB, detailing his character, his role as a husband and father, and the potential impact of his removal from Australia on her and their children. The Tribunal noted that a character reference from NSBB's employer was afforded minimal weight as it did not disclose knowledge of his offending conduct. Applying the principles from *Minister for Immigration & Multicultural & Indigenous Affairs v Godley* [2005] FCAFC 10, the Tribunal determined that NSBB did not pass the character test. However, in exercising the discretion under section 501(1), the Tribunal found that while the protection and expectations of the Australian community weighed in favour of refusal, these were outweighed by the best interests of NSBB's minor children and the significant impact on his family members.

Accordingly, the Tribunal set aside the Reviewable Decision and substituted a decision that NSBB not be refused a Partner (Temporary) (Class UK) visa under section 501(1) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Accordingly, the Tribunal sets aside the Reviewable Decision and in substitution decides that the Applicant not be refused Partner (Temporary)(Class UK) visa under s 501(1) of the Act. BACKGROUNDNSBB’s childhood and family In approximately May 1963 NSBB was born in a village in Fiji. NSBB described his family as “poor”. NSBB was mainly raised by his grandmother, who he described as “an angel”. NSBB’s was an only child. NSBB described his mother as being physically unwell and frail. NSBB’s mother remarried when he was in his early teens. NSBB said his step-father had an alcohol problem and was violent towards his mother. At the hearing, NSBB gave evidence that his mother immigrated to a country in the Northern hemisphere when he was 24 years old. By that time, NSBB was living in Australia. His mother remains living in this country and is in her 80’s. NSBB said his grandmother has now passed away. At the hearing, NSBB also made historical reference to having an Uncle in Fiji, but that he is also now deceased.Involvement of Mr X Mr X is an Australian citizen who visited Fiji as a tourist in 1977. NSBB said that he befriended NSBB and his family when NSBB was about 14 years old and that NSBB became “pen pals” with Mr X when he returned to Australia after his holiday. Subsequently, NSBB said that he visited Mr X in Australia in December 1981 and stayed at Mr X’s home for about three months, returning to Fiji in March 1982. NSBB was 18 years old at the time of this initial visit to Australia. At about this time, Mr X made a proposal to NSBB’s family to adopt NSBB and sponsor him to move to Australia. NSBB said his family agreed to go through a formal adoption process in Fiji. A document described by NSBB and his representatives as an “adoption order” seized by DFAT when a search warrant was executed at NSBB’s home in August 2013 – refer paragraphs [10] of these Reasons for Decision. However, this document is not an order of any court. It is a court document entitled “Consent to Adoption Order” and is dated 14 April 1982. It indicates that an application for the adoption of NSBB by Mr X was purportedly made in Fiji. However, it is not determinative of whether it resulted in the requested adoption order being made by any court or other authority. Nevertheless, this court document indicates that it was signed by NSBB’s Fijian mother in Fiji before a public notary (name illegible). The document states as follows:I, the undersigned [NSBB’s mother] father’s name [name omitted] of [address omitted] in the Dominion of Fiji, Domestic Duties being the lawful mother of [NSBB] father’s name [name omitted] hereby state that I understand the nature and effect of the adoption Order for which application is made and that in particular I understand that the effect of the Order will be permanently to deprive me of my parental rights, and I hereby consent to the making of the Adoption Order in favour of the applicant.The father of the said [NSBB] has deserted me and my child in or about 1963 whereafter he has lived separate and apart from us. He has made no contribution to the maintenance of the said [NSBB] since 1963.NSBB’s move to Australia in 1985

Evidence

Evidence Before The Court

NSBB has lived in Australia with his Mrs NSBB for more than 30 years and with Son and Daughter for their entire lives. Son and Daughter have not ever lived in any other country. NSBB’s immediate family members are Australian citizens, albeit only by reason of NSBB’s fraudulent conduct.Evidence given by NSBB’s wife Mrs NSBB made a witness statement in support of NSBB’s application for review.[42] Mrs NSBB stated that she is presently working as a part-time aged care worker. Mrs NSBB said she has been married to NSBB for the past 30 years and has known him to be a “loving and devoted husband” and a “wonderful father” to their two children. Mrs NSBB said both of her children were Australian citizens.[42] Refer Exhibit “A3”. In Mrs NSBB’s witness statement, she stated that she was involved in a car accident in October 1993 and was “very sick” “with headaches, shoulder pain and back aches”. Mrs NSBB said she was required to resign from her full-time job because she could not do much physical work and because of the effects of the pain medication. Mrs NSBB said NSBB helped her through that process by “tending to her needs”, “taking care of her young son”, “cooking, shopping” and “by doing extra work at home as well as at his job”. Mrs NSBB said she was a “stay-at-home” mother for 14 years, during which time she said that NSBB supported their family’s financial needs. In Mrs NSBB’s witness statement, she stated that when she first found out about her husband’s past on 31 August 2015, she was diagnosed with high blood pressure and took tablets. She said she was unable to work or take care of her children. She stated that NSBB “took her to the hospital”, “tended to all of her needs”, “took care of their children” and “supported them financially”. Mrs NSBB described her husband as a good person who would never again commit an offence while in Australia. She said that her husband had told her that what he did was wrong and that he wished he could go back in time, so he could do the right thing according to law. She said that he appreciated the serious consequences attached to committing an offence and that this gave her confidence that he would not reoffend. Mrs NSBB said that her husband was sorry for what he did and the negative impact it has had on their lives. Mrs NSBB said that her husband is a dedicated Christian and gave donations generously to assist the “poor and needy” and to provide food and clothing for “those in third world countries”. Mrs NSBB said her husband was a “humble and sincere man” and that he was a nurturing person who valued people and would do whatever he could to help them. She said that when her children were at primary school, he participated in a school working bee. Mrs NSBB also said he also helped out at church by painting the building, gardening and participating in early morning prayers for the sick. Mrs NSBB stated that it would “crush her deeply” if her husband was not permitted to remain living in Australia. She said her husband is “her best friend and supporter in life”. Mrs NSBB stated that she had cried herself to sleep each night, awaiting her husband’s return. She said that they have planned their lives together. She said that it would affect her “psychologically and physically” and that her condition (of “high blood pressure, arthritis and dizziness”) would deteriorate, if she is separated from NSBB. Mrs NSBB said she would “not be able to cope on her own”. She said she had no extended family in Australia.

Decision

Reasons for decision

NSBB gave evidence that he was not involved directly or indirectly in any business undertaking in Australia. There was no evidence before the Tribunal indicating that NSBB would be able to establish that the “employment link” requirement in paragraph 12.4(1) applied to NSBB. Accordingly, this factor is not a relevant consideration in this application. It was not contended to the contrary, by either party to this application.CONCLUSION The Tribunal considers that NSBB does not pass the character test as defined in s 501(6) for the reasons set out in these Reasons for Decision. This enlivens discretion under s 501(1) of the Act to refuse NSBB’s Visa application, but only after the Tribunal has taken into account the primary and other considerations set out in Direction no.65 when exercising that discretion. The Tribunal concludes that the two “primary considerations” of (a) the Protection of the Australian community; and (b) the expectations of the Australian community; both weigh in favour of refusing NSBB’s Visa application under s 501(1) of the Act. However, the Tribunal concludes that those two primary considerations are outweighed by the third “primary consideration” of ‘best interests of minor children (in this case, Daughter) in Australia affected by the decision’, which the Tribunal has concluded weighs heavily against refusing NSBB’s Visa application under s 501(1) of the Act. One of the “other considerations” being the ‘impact on family members’ also weighs significantly against refusing NSBB’s Visa application under s 501(1) of the Act. The remaining “other considerations” neither weigh for or against refusing NSBB’s Visa application under s 501(1) of the Act. In exercising discretion under s 501(1) of the Act, the Tribunal is satisfied that NSBB’s Visa application should not be refused under s 501(1). Accordingly, the Tribunal sets aside the Reviewable Decision and in substitution, decides that the Applicant not be refused a visa under s 501(1) of the Act.

Ratio Decidendi

Legal Principle Established

The Tribunal has considered a reference provided by the Human Resources Manager of the company who employed NSBB as a meat worker.[28] The Human Resources Manager stated in this reference that NSBB was “a very competent and hardworking employee who we see to be great asset to the company. He has built a great working relationship with management and his peers. He is a very loyal and honest man, with a good and trust worthy character”. The character reference does not disclose that the Human Resources Manager had been informed about or possessed any knowledge about NSBB’s criminal offending and other serious conduct. For this reason, the Tribunal will afford it minimal weight.[28] Refer Exhibit “XX-5” of NSBB’s Witness Statement.CONSIDERATION The Tribunal notes the observations of the Full Court of the Federal Court of Australia decision in Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10 (Godley) in relation to the approach that should be taken to interpreting s 501 of the Act. Madgwick, Lander and Crennan JJ in their joint judgment held:[45]In its present form, s 501 of the Act empowers the Minister to refuse to grant a visa to a person or cancel a visa that has already been granted to a person. Section 65 of the Act requires the Minister to grant or refuse to grant a visa depending upon whether the Minister is satisfied (or not) that the criteria referred to in s 65(1)(a) of the Act have been made out. The power to refuse to grant a visa under s 501(1) of the Act would, at least in general, be logically exercised only where the applicant for the visa had otherwise made out the criteria for grant of a visa.[46]In some circumstances, the power may be exercised by the Minister’s delegate (s 501(1) and s 501(2)), but in other circumstances only by the Minister personally (s 501(3)).[47]Whether and how the Minister exercises the discretion in s 501(1) depends upon whether the applicant for the visa or the visa holder passes the ‘character test’ and s 501(6) provides a regime whereby a person either does or does not pass the character test.[48]It is clear that a person does not pass the character test if any one or more of the conditions set out in paras (a), (b), (c) and (d) of s 501(6) are fulfilled. For example, if a person has a substantial criminal record, as defined by s 501(7), the person thereby does not pass the character test. Whether or not a person has such a substantial criminal record can only be determined by means of an objective finding by the Minister. Such a finding is therefore implicitly required. If the Minister makes such a determination then, clearly, the person referred to in s 501(1) could not satisfy the Minister that the person passes the character test. In those circumstances, the Minister would then have to exercise his or her discretion as to whether to refuse to grant a visa to the applicant.[49]Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of par (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.[50]If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.[51]If, on the other hand, the Minister does not decide that the person comes within any of paras (a), (b), (c) or (d) then, by force of s 501(6), the person has passed the character test. That is so because of the concluding words in the subsection ‘Otherwise, the person passes the character test’. It follows that, absent any determination or decision by the Minister that the person comes within any of the paragraphs of s 501(6), the person has by force of the express provisions of the subsection passed the character test.[52]In those circumstances, the requirement of s 501(1) that the person satisfy the Minister that he or she passes the character test can require no more than the person passing the character test by reason of the terms of the section itself. Whether the applicant for the visa does or does not pass the character test is something to be determined by the Minister by reference to paras (a), (b), (c) and (d) of s 501(6).Issue 1: does NSBB pass the character test as defined by section 501(6) of the Act?