NSBB and Minister for Home Affairs (Migration)

[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, his mother remarried and moved to live in a nearby village with her husband.   NSBB remained living with his grandmother.  NSBB left school after completing Year 9, for financial reasons.[4]

   [1] On 23 January 2019 the Tribunal made confidentiality orders under s 35 of the Administrative Appeal Tribunal Act 1975 (Cth) (AAT Act) prohibiting disclosure of information tending to reveal the identity of the Applicant in this application and to allocate the pseudonym “NSBB” in place of the Applicant’s real name, in order to eliminate any prospect of the Tribunal in publishing this Decision and Reasons for Decision contravening s 4 of the Judicial Proceedings Reports Act 1958 (Vic) (JPR Act) as reference is made in these Reasons for Decision to allegations of conduct that may constitute a sexual offence as defined in the JPR Act.

   [2] Refer Witness Statement by NSBB signed 5 December 2018 (Exhibit “A1”)(NSBB’s Witness Statement). 

   [3] One of the documents lodged with the Tribunal recorded that NSBB’s father left when NSBB was three years old, but nothing turns on this discrepancy.

   [4] Refer paragraph [10] of NSBB’s Witness Statement.

2. At the age of 18, NSBB claims he was adopted by an Australian man, Mr X, who first befriended NSBB and his family while Mr X was on holidays in Fiji in about 1977.  Mr X offered to sponsor NSBB to move to Australia for a better life.  NSBB took up Mr X’s offer.[5]    

   [5] Refer paragraphs [12] to [15] of NSBB’s Witness Statement.

3. NSBB initially arrived in Australia in 1985 on a tourist visa.  Upon his arrival, Mr X arranged to obtain an Australian passport for NSBB.  A false identity, being that of [False Name], was used to obtain the passport.  Thereafter, NSBB used this passport as a means of identification during his life in Australia and thereafter, for his travel into and out of Australia.   NSBB has remained living in Australia until the present time.

4. From 1987 until 2013, NSBB assumed the false identify of [False Name].  In total, NSBB applied for four successive Australian passports using the false identity.  The most recent passport application was lodged by NSBB in 2010.  By that time, Mr X had passed away.  During NSBB’s time in Australia he has used the falsely-obtained Australian passport for various purposes including obtaining his Victorian driver licence, open bank accounts and to apply for and receive the Newstart Allowance during a short period of unemployment.  

5. NSBB initially lived with Mr X upon his arrival in Australia in 1985.  NSBB claims that shortly after his arrived in Australia, Mr X made repeated unwanted sexual advances towards him which were not welcome.[6]  He also claimed that Mr X confiscated his Fijian passport.[7] 

   [6] At the hearing, NSBB gave evidence that no sexual penetration took place between him and Mr X.  In NSBB’s Witness Statement at paragraph [19], NSBB states that he resisted Mr X’s attempts to touch NSBB’s genitalia.

   [7] Refer paragraph [22] of NSBB’s Witness Statement.

6. Two years after NSBB’s arrival in Australia, he returned to Fiji.  In order to facilitate an “arranged marriage”, NSBB was introduced to a Fijian woman known to his step-father and his mother.  Two weeks later, they married.  The marriage took place using NSBB’s false identity, i.e. NSBB signed the marriage certificate as [False Name].  NSBB and his new wife returned to live in Australia together as husband and wife, using the names [False Name] and Mrs [Christian name] followed by the surname of the [False Name].[8] 

   [8] The Tribunal will refer to NSBB’s wife as Mrs NSBB.

7. NSBB and Mrs NSBB have two children who are now 17 and 26 years of age, both born and raised in and citizens of Australia and still living at home.  NSBB’s youngest child (Daughter) lives is about to commence Year 12 to complete her second and final year of the Victorian Certificate of Education (VCE).  NSBB’s eldest child (Son) is midway through completing an accountancy degree full-time at RMIT University.

8. NSBB maintained contact with Mr X until he passed away from cancer about twelve years ago. 

9. NSBB’s fraudulent conduct remained undetected until 2013.

10. In 2013, the “real” [False Name], a firefighter from [Melbourne Suburb G], applied for the first time for an Australian passport.  This triggered an investigation conducted by the Department of Foreign Affairs and Trade (DFAT) into whether NSBB’s Australian passport had been obtained on a fraudulent basis.  DFAT and the Australian Federal Police (Police) executed search warrants at NSBB’s home to obtain relevant documents. NSBB cooperated with the investigation.  Documents were obtained and NSBB agreed to be interviewed.

11. The investigation led to NSBB being charged with four federal offences.  He pled guilty to all charges.  He was convicted of three offences of “make false/misleading statement re Australian Travel Doc” and one offence of “supply false details” in the Broadmeadows Magistrates’ Court.[9]  NSBB received suspended terms of imprisonment of four months for each offence; placed on two-year good behaviour bond; fined and ordered to pay costs.  NSBB’s Australian passport in the name of [False Name] was cancelled.

    [9] Refer G-Documents page 177 for “Information for courts” document issued by Australian Federal Police on 24 May 2017.

12. Apart from the four convictions referred to above, there is no evidence before the Tribunal suggesting that NSBB has been convicted of any other criminal offences, or been charged for any other alleged criminal conduct.  There was no evidence or suggestion that NSBB has ever engaged in conduct whereby he has harmed (by threats or action) another person or to otherwise disturb the peace and good order in the community.  NSBB appeared from the evidence to be a dedicated and loving father leading a quiet life in Australia and that he has positively engaged with his local church community.  NSBB was employed on a full-time basis for the vast majority of years he has lived in Australia and has duly paid taxes to the Australian Government (albeit under a false identity).

13. Following the cancellation of NSBB’s falsely-obtained Australian passport, on 17 October 2014 NSBB made an application for migration to Australia as a partner.[10]  NSBB’s wife’s status in Australia was lawful as she applied for and was granted Australian citizenship on 18 October 1990. NSBB was granted successive bridging visas to permit him to remain in Australia while his application for a partner visa was under consideration.

    [10] On 29 November 2018, the Minister’s legal representative lodged a set of documents with the Tribunal that were provided to NSBB with the delegate’s decision, in accordance with s 501G of the Act (G-Documents). Refer G-Documents pages 23 to 42 (application form signed by NSBB on 12 October 2014) and G-Documents pages 43 to 51 (sponsorship form signed by NSBB’s wife on 14 October 2014). Correspondence from the Department indicates that this application was lodged on 17 October 2014.

14. On 22 September 2017, written notice was provided to NSBB that consideration was being given to whether his application for a Partner (Temporary)(Class UK) visa (Visa) should be refused under s 501(1) of the Migration Act 1958 (Cth) (Act).[11]  NSBB was invited to comment or provide information as to whether he passed the character test or whether discretion should be exercised to refuse his Visa application, which he did on 16 October 2017.[12]

    [11] Refer G-Documents pages 76 to 79.

    [12] Refer G-Documents pages 53 to 62 (Personal Circumstances Form completed by NSBB on 9 October 2017).

15. On 21 September 2018, a delegate of the Minister for Home Affairs (Minister) decided that he or she was not satisfied that NSBB had passed the character test under s 501(6) of the Act. The delegate decided to exercise his or her discretion to refuse NSBB’s Visa application under s 501(1) of the Act (Reviewable Decision).[13] The delegate considered that the relevant ground of the character test in NSBB’s case was s 501(6)(d)(i) of the Act (i.e. there is a risk that NSBB will engage in criminal conduct in Australia). The delegate said he or she had regard to NSBB’s history of criminal offending (i.e. his fraudulent conduct) and considered the risk of him reoffending in the future.

    [13] Refer G-Documents page 12.

16. On 1 November 2018, written notice of the Reviewable Decision was delivered to NSBB by hand and he was placed into immigration detention.[14] On 9 November 2018, NSBB lodged an application for review of the Reviewable Decision by the Administrative Appeals Tribunal (Tribunal).[15]    

    [14] Refer G-Documents page 188. At the hearing, NSBB’s represented confirmed that NSBB did not dispute that he received the Reviewable Decision on 1 November 2018.

    [15] The effect of s 500(6L) of the Act requires the Tribunal to hear and determine NSBB’s application within 84 days from the date that he received notice of the delegate’s decision, otherwise the decision is taken to have been affirmed by the AAT. NSBB received the notice of decision on 1 November 2018. Accordingly, the 84^th day is 24 January 2018.

17. On 7 January 2019, the Minister lodged with the Tribunal and filed with NSBB two bundles of summonsed documents. The first bundle (Bundle 1) contained documents summonsed from the Broadmeadows Magistrates’ Court.  The second bundle (Bundle 2) contains documents summonsed from DFAT.

18. The hearing of this application took place on 15 January 2019.  Both parties were legally represented. The parties lodged documentary evidence and written submissions.  NSBB also lodged a number of witness statements.  NSBB, Mrs NSBB, Son and Daughter were called to give oral evidence at the hearing.  NSBB also lodged a number of character references. 

19. NSBB called Psychologist W, a registered psychologist, as an expert witness to give evidence at the hearing.[16]  Psychologist W prepared a report dated 5 December 2018.  At the hearing, the Tribunal called for and was provided with NSBB’s legal representative’s letter of instruction to Psychologist W dated 12 November 2018.[17]

    [16] Refer Exhibit “A2”.

    [17] Refer Exhibit “HD1”.

20. The Tribunal has taken into account the G-Documents and the following further documentary material:

    (a)a further psychologist’s report (addressed to Victoria Legal Aid) by Psychologist C, forensic psychologist, dated 8 September 2014;

    (b)a DFAT Country Information Report, Fiji dated 27 September 2017 submitted by NSBB; and

    (c)a further publication about the Republic of Fiji (19 pages) downloaded from DFAT’s website on 5 December 2018 and submitted by NSBB.

21. Having closely considered all of the evidence tendered and submissions made by both parties to this review, the Tribunal considers that NSBB does not past the character test under s 501(6)(c) and also under s 501(6)(d)(i) of the Act. This enlivens discretion of the Tribunal under s 501(1) of the Act to refuse to grant NSBB’s Visa application. The Tribunal is required to take into account the mandatory primary and other considerations as set out in the following ministerial direction that was issued under s 499 of the Act in exercising its discretion under s 501(1) of the Act: 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 s501CA, 22 December 2014 (Direction no.65). After taking into account the primary and other considerations set out in Direction no.65, the Tribunal considers that NSBB’s Visa application should not be refused under s 501(1) of the Act.

22. 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.

    BACKGROUND

    NSBB’s childhood and family

23. 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.

24. 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

25. 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. 

26. 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. 

27. 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.    

28. 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

29. At the age of 21, NSBB travelled to Australia to commence living with Mr X in 1985.  Previously, Mr X had lived alone.  NSBB said he did not know any other people in Australia. 

30. NSBB said that three weeks after he commenced living with Mr X, Mr X took NSBB’s Fijian passport from him and refused to give it back.  NSBB said he felt very isolated.  NSBB did not have financial resources available to him.

31. NSBB said that Mr X told him that he had a new name, [False Name], and that they would apply for a passport under this name.  NSBB said he questioned this with Mr X.  NSBB said Mr X told him to trust him; that he had “no choice” and NSBB had to use that name and the passport obtained under this name.   NSBB signed an Australian passport application under the name [False Name] and stating that he was born in Australia.[18] 

    [18] Refer Exhibit “XX-1” of NSBB’s Witness Statement.

32. NSBB stated in his Witness Statement that he was not aware that he was using the identity of a real person until he was notified during his interview with the DFAT investigator.[19]  However, at the hearing NSBB gave evidence to the effect that he knew what he was doing was wrong.  NSBB said that every time he spoke to Mr X “about fixing this mess”, Mr X told NSBB there was nothing he could do.  The Tribunal finds that NSBB was aware from the time he signed the first Australian passport application in the name of [False Name], that he was involved in a process of applying for and obtaining a passport using a false identity.

    [19] Refer paragraph [43] of NSBB’s Witness Statement.

33. NSBB said that he “felt terrible” and that he has lived in fear of getting caught for 33 years.   NSBB expressed anguish at having to live like this and said he was relieved when he was finally caught.  He stated that he had “learned from his mistake” and that he would “never do any criminal act again”.  NSBB said he was sorry for what he had done and regretted the pain it had caused his family.  At the hearing, NSBB said he would advise others who found themselves in the same position, not to have done what he had done.

    NSBB’s employment history in Australia

1. NSBB worked as a furniture assembler for four years for a furniture company.  Subsequently, NSBB worked on a full-time basis as a car assembler for an automotive manufacturer for 22 years.  From January 2012 to November 2018, before being taken into detention, NSBB worked for a meat packing company in a refrigerated room as a meat sorter.[20]

   [20] Refer G-Documents page 60.

   History of NSBB’s conduct assuming a false identity

2. NSBB signed an application for an Australian passport using a false identity, that is, the name of [False Name], and false date of birth on the following dates:

   (a)in about October 1985 (when NSBB was aged 22 years old);

   (b)12 October 1990 (when NSBB was aged 27 years old);

   (c)20 August 2000 (when NSBB was aged 37 years old); and

   (d)7 July 2010 (when NSBB was aged 47 years old).

3. The Australian Government movement records produced to the Tribunal indicate that NSBB travelled overseas on ten occasions under the passport held by him in the name of [False Name].  At the hearing, NSBB gave evidence that he travelled overseas on five occasions, although he did not appear to be sure about this.  At times when NSBB gave evidence, it seemed that his memory was quite poor.  The Tribunal finds that NSBB travelled to and from Australia under the false passport on the ten occasions shown in the movement records referred to above.[21]  At those times, he completed passenger incoming and outgoing cards using false information while signing a declaration that the information provided by him on those cards was true and correct.

   [21] Refer G-Documents pages 419 to 423.

4. At the hearing, NSBB was asked whether he remembered Mr X giving him a passport application form to sign in 1985 when the first falsely-obtained passport was obtained.  NSBB answered, “yes” and he confirmed that he remembered signing it.  NSBB was asked whether he remembered noticing that his name of the form was different from his own name.  NSBB responded, “yes”.  NSBB was asked whether he asked Mr X about why the name was different.  NSBB responded to the following effect:

   Yes and he said that was the only way to keep me in Australia.  I didn’t know what to think, I just went along with it.

5. NSBB was asked whether he was concerned about the passport application. NSBB responded, “yes”.  NSBB was asked whether he had a conversation with Mr X about how he got the passport under a different name.  NSBB responded, “Yes, and he told me to mind my own business”.  When NSBB was asked why he went along with it, he answered:

   I was young.  I had to make a decision.  I didn’t know much about Australia.

6. NSBB was asked whether Mr X had approached him sexually at about this time to which NSBB answered, “yes”.  NSBB was asked why he did not call out for help and return to Fiji to live with his grandmother.  NSBB responded:

   I was scared.  I was lost and didn’t know what to do.  I kept to myself.

7. NSBB was asked whether Mr X ever told him who the “real” [False Name] was, to which NSBB responded, “No, he never told me”.

8. NSBB and his wife were married in Fiji.  They both gave evidence which the Tribunal accepts, that a few days after the ceremony later they attended the relevant government office to register their marriage. 

9. On 14 August 2013, DFAT seized a document when a search warrant was executed at NSBB’s home entitled “Certificate of Marriage” in the names of [False Name] and [Mrs NSBB’s maiden name] dated [x] December 1987 issued by a Marriage Officer at the “Crown Law Office, [name of village omitted]” in Fiji.[22]  On this certificate, the bridegroom’s birthplace was entered as “[Melbourne Suburb G]”; the bridegroom’s father was entered as “[False Name’s father’s name]” and bridegroom’s mother is “[False Name’s mother’s name]”. 

   [22] Refer G-Documents page 451 (Statement of [DFAT Senior Investigator] signed 4 October 2013 and page 65 (copy of the Fijian Certificate of Marriage).

10. The Tribunal notes that inconsistent evidence was given by NSBB about the state of his wife’s knowledge about NSBB’s name leading up to their marriage.  In NSBB’s Witness Statement, he stated as follows:[23]

    When I met and married [Mrs NSBB], she knew me as [False Name].  She was not aware that my real name was [Real Name]. I felt awful signing the marriage certificate as my name was listed as [False Name].  I felt like I was in a cage and I did not know how to get out…

    [23] Refer paragraph [34] of NSBB’s Witness Statement.

11. However, when NSBB was interviewed by DFAT and the Police in August 2013, the following exchange took place between NSBB and one of the DFAT senior investigators suggesting that his wife knew NSBB under the name [Real Name] at the time they were married, as the marriage ceremony itself took place using this name (emphasis added):[24]

    [24] Refer G-Documents page 242.

    [DFAT investigator]:    So this occurred, this marriage in Fiji?

    [NSBB]:  That’s right, yeah.

    [DFAT investigator]:    So why are these details incorrect?

    [NSBB]:Because with the, there was a wrong certificate was given there to do that.

    [DFAT investigator]:    The wrong certificate?

    [NSBB]:Yeah.

    [DFAT investigator]:    But…

    [NSBB]:Because to apply whatever for the marriage certificate, you have to give your passport, and whatever was in the passport that’s what they fill in there.

    [DFAT investigator]:    So why couldn’t you get married under the name of [Real Name]?

    [NSBB]:They did everything there in my [Real Name] name.  That was the legal way done.  But when the certificate was written, they wrote whatever was in the passport.  The ceremony and everything took place as [Real Name].

12. Clarification in relation to this inconsistency was sought from NSBB at the hearing.   NSBB was asked in what name he was introduced to his wife, when he first met her.  NSBB answered to the following effect, “[False Name]. I said to my wife my name is also [Christian name of Real Name].  I explained to her then my name was [Real Name] and it was changed to [False Name]”.  NSBB was asked whether his wife questioned why the marriage certificate was issued under the name “[False Name]” to which he responded to the following effect, “At the time she thought my name was changed and she signed it”.    NSBB gave evidence that he told his wife that the name in his passport was “[False Name]”.

13. When Mrs NSBB gave evidence at the hearing, she said that she did not question the reference to a different name on the marriage certificate.  She said she was very young at that time (i.e. only 20 years old when she was married).  Mrs NSBB said she did not know that her husband’s passport had been falsely obtained until the time of the DFAT/Police investigation.

14. NSBB supported his wife’s application for visas permitting her to live and work in Australia and ultimately to become an Australian citizen, using the false identify of [False Name].  NSBB applied for a Victorian Driver Licence using the false identity of [False Name].  NSBB lodged tax returns on about 30 occasions using a false identity of [False Name].  NSBB used his false identity to apply for and receive the Newstart Allowance from Centrelink for a period of about two years while he was temporarily unemployed.

    NSBB’s criminal record

15. In September 2014, NSBB was convicted of the four federal offences referred to in paragraph [11] of these Reasons for Decision.  NSBB was sentenced to a suspended imprisonment term of four months for each offence.  He was released by the Broadmeadows Magistrates’ Court upon NSBB giving security by a recognisance in the sum of $1,000, payment of costs, and on condition that he “be of good behaviour” for a period of two years.  NSBB did not contravene the good behaviour bond.

16. NSBB has no other criminal convictions in Australia.  He said he was not convicted of any crimes when he lived in Fiji. 

    RELEVANT LAW

17. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test as defined by s 501(6).

18. Section 501(6) provides that a person does not pass the character test if one of a number of circumstances apply to the person as prescribed in subsections (a) to (h) of this provision. Subsections (c) is of potential relevance and applies where the decision-maker is satisfied that person is not of good character having regard to their past and present criminal conduct and/or general conduct. Subsection (d)(i) is also relevant, and relied upon by the delegate when he/she made the Reviewable Decision, being that there is a risk the person would engage in criminal conduct in Australia.

19. A person affected by a decision under s 501(1) of the Act to refuse to grant a visa may file an application for review with the Tribunal under s 500(1)(b) of the Act.

20. Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions. On 22 December 2014, the Minister issued Direction no.65 under s 499(1).[25]

    [25] Refer G-Documents pages 113 to 145.

    Direction no.65

21. Part 6 of Direction no.65 provides a preamble to the directions. Paragraph 6.1(1) of Direction no.65 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.  General guidance is provided in paragraph 6.2 of the Direction no.65.  Relevantly, paragraph 6.2 provides:

    (1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3) The principles provide a framework within which decision-makers should approach their task of deciding…whether to refuse…a non-citizen’s visa under s 501(1)… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and B…

22. A set of overarching principles are established in paragraph 6.3 of Direction no.65 as follows (as relevant) (emphasis added):

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

23. Paragraph 8 of Direction no.65 requires the Tribunal in deciding whether to refuse to grant  a visa to take into account the primary and other considerations set out in Part B, as relevant to each individual case and also that:

    (a)(emphasis added) “Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of the visa, whereas a visa applicant should have no expectation that a visa application will be approved”;

    (b)the Tribunal should give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations; 

    (c)primary considerations should generally be given greater weight than the other considerations; and 

    (d)one or more primary considerations may outweigh other primary considerations.  

    ISSUES TO BE DECIDED

24. The issues to be determined by the Tribunal, namely:

    (a)whether NSBB passes the character test as defined by s 501(6); and

    (b)if not, whether discretion should be exercised to refuse NSBB’s Visa application under s 501(1) of the Act.

    CHARACTER REFERENCES

25. The Tribunal has considered and taken into account the various character references provided by NSBB in support of his application, including the character reference provided by [Senior Pastor] of [Church] (undated).[26] The Senior Pastor attests to NSBB being a “very respectful, caring, compassionate, loving husband” and “wonderful father to his children” who has a reliable, trustworthy character and who he says is “a person of integrity”.  The character reference does not disclose that the Senior Pastor 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.

    [26] Refer G-Documents page 71.

26. The Tribunal has considered a character reference provided by [Pastor] of a Christian centre.[27]  The Pastor discloses that NSBB has shared with him “the issues he is facing with the immigration department”.  The letter does not indicate that NSBB has informed the Pastor or that he has any knowledge of the four criminal convictions recorded against NSBB or the reasons why there had been “issues with the immigration department”.  Accordingly, the Tribunal will afford limited weight to this character reference.  However, the Tribunal notes that the [Pastor] stated the NSBB is “very much involved in the life of the church” and attended church activities more than twice a week.  The Pastor also stated:

    When there is a church working bee, [NSBB] and his family are always there to help voluntarily with joy in their hearts and great smiles on their faces.

    …

    [NSBB] is a loving husband and dedicated father of his two children.  [NSBB] is a loving, gracious, kind, honest, hardworking, trustworthy, patient and God fearing person.  His wonderful characters are also see in and through his family.

    …

    [27] Refer Exhibit “XX-6” of NSBB’s Witness Statement.

27. 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

28. 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?

1. In NSBB’s Statement of Facts and Contentions lodged on 5 December 2018 (NSBB’s SFIC), he contended he passes the character test, “particularly because there is no more than a minimal or remote risk that he would engaged in criminal conduct in Australia again”.

2. As indicated in Godley, the Tribunal is to proceed by considering the separate matters described in subsections (a), (b), (c) and (d) of s 501(6) and to decide whether any of those provisions apply to NSBB. Neither party contended that subsection (a) or (b) applied and based on a consideration of the evidence, the Tribunal finds that neither of those two subsections applied to NSBB. At the hearing, the representatives of NSBB and the Minister jointly contended that the relevant grounds of the character test in this case that required consideration by the Tribunal were subsections (c) and (d)(i). The Tribunal will consider each of these subsections in turn.

   Did subsection (c) apply to NSBB?

3. Subsection 501(6)(c) will apply where the Tribunal is satisfied of the following:

   (c)       having regard to either or both of the following:

   (i)        the person's past and present criminal conduct; 

   (ii) the person's past and present general conduct;

   the person is not of good character

4. Ministerial guidance is provided about this subsection in Annexure A of Direction no.65 as follows:

   5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))

   …

   (2)The concepts of criminal conduct and general conduct are not mutually exclusive.  Conduct can be both general and criminal at the same time or it may be either general or criminal conduct:  Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].

   (3)In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.

   a)In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens.  It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle.  A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’

   (4)In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘a good character’.  However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.

   a)In Godley, Lee J went on to say ‘For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude.  Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time decision is not then of good character.  The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgment.  If there is not recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’.

   ‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality.  Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

   5.1Past and present criminal conduct

   (1)In considering whether a person is not of good character on the basis of past and present criminal conduct, the following factors are to be considered:

   a)The nature and severity of the criminal conduct;

   b)The frequency of the person’s offending and whether there is any trend of increasing seriousness;

   c)        The cumulative effect of repeated offending;

   d)Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evidence from judges’ comments, parole reports and similar authoritative documents; and

   e)the conduct of the person since their most recent offence, including:

   i.The length of time since the person last engaged in criminal conduct;

   ii.Any evidence of recidivism or continuing associate with criminals;

   iii.        Any pattern of similar criminal conduct;

   iv.Any pattern of continued or blatant disregard or contempt for the law; and

   v.        Any conduct which may indicate character reform.

   5.2      Past and present general conduct

   (1)The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.

   a)In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.

   (2)The following factors may also be considered in determining whether a person is not of good character:

   a)Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights.  This includes, but is not limited to:

   i.Involvement in activities such as …activities in relation to …. Fraud; or

   ii.A history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or in another country;

   …

5. Taking into account this guidance, the Tribunal is satisfied that NSBB is not of good character on account of both his past and present criminal and general conduct.  NSBB’s criminal offending commenced in 1985 when he signed the first passport application form presented to him by Mr X under a false name.  NSBB’s evidence was to the effect that he appreciated it was the wrong thing to do.  

6. NSBB’s representatives contended that at that time he was “afraid”, “felt isolated” and was “trapped”.  The Tribunal does not accept that it was appropriate for NSBB to seek to characterise his positon as being “trapped”.  NSBB could have gone to the authorities and requested that he be returned to his Fiji where his grandmother was present and able to care for him, notwithstanding that at the age of 21, NSBB was abled-bodied, and able to care for himself upon his return to Fiji.

7. The Tribunal does not consider that it made any difference to the choices he made at this time including the signing of the first passport application using a false name, whether he had access to legal advice, as suggested by NSBB’s representative at the hearing.  NSBB was a Fijian citizen and if someone had taken his Fijian passport while he was in a foreign country (as Mr X had done), a person would or should be aware, absent any legal advice, that they could report it to the Police or authorities or the Fijian consulate and request assistance to facilitate their safe passage to the person’s home country.  

8. NSBB did not choose this path.  The Tribunal is unable to accept that NSBB did not do so, without deliberate intent.  His intention was to remain in Australia no matter what.  It was the reason why NSBB and his family agreed for Mr X to adopt him as an 18 year old.  NSBB went along with Mr X’s fraudulent scheme of obtaining and using a false passport to remain in Australia after his arrival, to achieve his personal objective of having a life in Australia.  NSBB has no one else to blame for making this choice. 

9. By doing so, NSBB displayed a blatant disregard for Australian immigration laws which the Tribunal views as very serious.  The integrity of those laws relies on relevant participants seeking permission to be present in Australia to provide truthful information to the Australian Government and authorities at all times. The importance of this requirement is reflected in the written warnings given to participants when information is provided, about the serious repercussions of providing false information.  It is also reflected in the severity of the penalties that may be imposed for contravention of those requirements.  NSBB, through his representative at the hearing, agreed that NSBB’s conduct was serious.

10. Two years later, NSBB engaged in further serious conduct in contravention of Australian immigration laws and constituting fraud, by acting to bring out his Fijian wife to Australia in 1987 under his false identity.  By this time, NSBB was 23 years of age.  In the Tribunal’s view, he was old enough to know what he was doing and to appreciate the criminality of his actions.  NSBB not only deceived the Department to gain for himself the privilege of living and working in Australia, but he implicated another non-citizen in to deceiving the Department.  In this way, NSBB acted, just as Mr X did initially, to disregard the important regulatory laws protecting and governing the Australian migration system seeking to appropriate protect Australian borders, in order to secure the unlawful entry of his new wife to Australia so that she could also enjoy the privilege of living and working in Australia, ahead of other prospective immigrants.  This is an exacerbating feature of this particular case.

11. Not long after NSBB’s settled in Australia, he used his false identity in July 1986, to obtain a Victorian Driver Licence.[29]  Although he was not convicted for this conduct, it constituted fraudulent conduct and is viewed by the Tribunal as a blatant disregard by NSBB of Victorian roads laws.  NSBB also registered his vehicle in the name of [False Name].[30]

    [29] Refer page 43 of Bundle 2 which makes reference to a birth certificate have been presented to VicRoads when a driver licence was issued to NSBB in the name of [False Name] (see paragraph [18]).

    [30] Ibid at paragraph [19].

12. In 1990, 2000 and 2010, NSBB applied for and was granted three successive Australia passports using his false identity.  NSBB used this passport to travel to and from Australia on 20 occasions (for 10 different trips).  At the hearing NSBB said he had travelled four times to Fiji and once to New Zealand; however, the Tribunal considers the documentary evidence held by the Department relating to NSBB’s travel movements into and out of Australia to be more reliable and finds that he passed through Customs and immigration control 20 times using an Australian passport in his [False Name].

13. The Tribunal does not accept that Mr X had any role in the applications made by NSBB for his last three Australian passports.  After NSBB’s marriage in December 1987, NSBB moved out of Mr X’s home and was living independently with his wife.   Furthermore, for the most recent application made in 2010, Mr X had, by that time, passed away.  Mr X was 27 when he applied for his second passport; 37 when he applied for the third and 47 when he applied for the fourth passport.  He was old enough at those times to relinquish full control from Mr X over whether or not to sign those subsequent passport applications and to decide whether to perpetuate his previous criminal conduct as facilitated by Mr X when the first passport application was made. The Tribunal considers that NSBB was also entirely responsible for the fraudulent conduct he engaged in by making the last three passport applications and it demonstrated a continuing blatant disregard by NSBB for Australian immigration laws.

14. Section 234 of the Act specifically prohibits the conduct engaged in by NSBB as follows:

    False documents and false or misleading information etc. relating to non-citizens

    (1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

    (a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

    (b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

    (c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

    (2) A person shall not transfer or part with possession of a document:

    (a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or

    (b) where the person has reason to suspect that the document may be so used.

    Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

15. NSBB committed offences on multiple occasions over the course of his adult life under s 234(1) of the Act. He also committed an offence under s 234(2) of the Act by bringing his Fijian wife to Australia based on his false identity.

16. Importantly, at no time between 1985 and 2013, a period spanning 28 years, did NSBB turn himself in or attempt to regularise his presence in Australia.  Instead, eventually NSBB’s fraudulent conduct was identified by DFAT when the real [False Name] applied for the first time for an Australian passport.  It is true that NSBB potentially had a lot to lose in turning himself in, but this is no excuse for continuing to engage in fraudulent behaviour. 

17. NSBB also engaged in further serious conduct by applying for the Newstart Allowance for a period of about two years (from July 2006 to November 2008), when he was aware that he did not have legitimate residence or citizenship status in Australia to qualify for such entitlements.[31]  There was no evidence before the Tribunal that NSBB has at any stage has sought to repay those fraudulently-obtained monies to the Commonwealth.  NSBB used his falsely-obtained passport and drivers licence as proof of identification when claiming the Newstart Allowance.[32]

    [31] Refer at paragraph [16] on page 42 of Bundle 2.

    [32] Ibid.

18. The conduct referred to in the above paragraphs reflects that “enduring moral qualities” will take a back seat when NSBB’s personal interests are at stake.  The Tribunal considers that this is an inherent feature of NSBB’s personality which has been demonstrated for the vast majority of his adult life.  The Tribunal accepts that NSBB’s has other countervailing good features to his character, being that he is placid, empathic, community-minded, hardworking and a dedicated and loving husband and father; however, what is missing is that NSBB is prepared to do whatever is necessary, even if that involves serious breaches of Australian laws and deceiving the Australian Government, in order to serve his own interests or those of his family.

19. NSBB states he is remorseful and regretful about what he had done.  The Tribunal struggles to accept this evidence given the extremely long period of time that NSBB has perpetuated his fraudulent conduct.  At no point, did NSBB turn himself in.  NSBB did not make any attempts at rehabilitation through appropriate counselling after the criminal proceedings that took place in 2013/2014.  The Tribunal considers that NSBB lacked and continues to lack insight that he was the cause of the difficult position that he now finds himself in. 

20. It is hard for the Tribunal to accept that NSBB regrets his actions when he has continued to live under a false identity for as long as he did, so that his life in Australia, falsely obtained, would not be taken away from him.  The Tribunal accepts that NSBB is sorry now, but only because he has been caught and finds himself in an extremely serious situation which has caused him and his family members a high degree of anxiety and concern for their future.  The Tribunal is satisfied that if NSBB were placed in similar circumstances again (as those that presented themselves in 1985), he would make the same poor choices to secure for himself and his family a life in Australia to enjoy all the privileges and benefits that Australia has to offer.

21. For these reasons, the Tribunal finds that NSBB’s criminal and general past and present conduct clearly demonstrates that NSBB lacks enduring moral qualities and that he is not of good character under s 501(6)(c) of the Act.

22. Accordingly, the Tribunal concludes that s 501(6)(c) of the Act applies to NSBB.

    Does subsection (d)(i) apply to NSBB?

23. Subsection 501(6)(d)(i) will apply where the Tribunal is satisfied of the following:

    (d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i) engage in criminal conduct in Australia…

24. Ministerial guidance is provided about this subsection in Annexure A of Direction no.65 as follows:

    6         Risk in regards to future conduct (section 501(6)(d))

    (1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct are discussed below.

    (2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

    (3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

    6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

    (1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

    (2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

25. NSBB’s representatives drew the Tribunal’s attention to the Federal Court of Australia decision in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 (Sabharwal) where the interpretation of subsection 501(6)(d)(i) was judicially considered.[33]  Quoting from the High Court of Australia decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Kerr J in Sabharwal held as follows (emphasis added):

    [33] Refer [10] and [12] of NSBB’s SFIC.

    [79]Section 501(6)(d)(i) relevantly provides that the Applicant fails the character test if there is “a risk that [he] would engage in criminal conduct in Australia”.

    [80]The text of s 501 read in its statutory context, properly construed, defines the boundary of the power lawfully available to the Minister. The Minister, having regard to the known circumstances, must evaluate the risk of a person engaging in the future in criminal conduct in Australia.

    [81]In Minister for Immigration and Ethnic Affairs v Guo  [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574-575):

    The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

    [82]Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.

    [83]Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”

    [84]Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.

1. NSBB contended that the Tribunal should turn its mind to NSBB’s character more generally and the extent to which the Tribunal can safely accept NSBB’s assurances of future conduct.  NSBB certainly expressed sorrow and remorse and that he took responsibility for his conduct.  It was contended that NSBB deeply regretted his criminal conduct.  He invited the Tribunal to take into account the mitigating explanation for the conduct.  NSBB contended that by seeking to explain what had occurred and the circumstances surrounding it, did not mean that NSBB had not taken responsibility for his actions. 

2. NSBB contended that he had an unhappy childhood and that he met Mr X when he was in his mid-teens.  NSBB said he had hoped that Mr X would be the father that he never had. NSBB said that when he went to Australia, Mr X confiscated his passport and told him to have a passport in another person’s name.  NSBB contended that he felt socially isolated and regrets having gone along with Mr X’s conduct.  He contends that he wished he had sought legal advice about what to do decades ago.  He said he was sorry for renewing his passport after he moved out of Mr X’s home with his wife.  He said he realises this was the wrong thing to do and he had to live with this.[34] 

   [34] Refer [26] of NSBB’s SFIC.

3. NSBB contended that there was not a risk that was more than minimal or remote that he would engage in criminal conduct in the future.[35]  He contended that the past offending was specific to a chain of events that could not reoccur in respect of him.

   [35] Refer [20] of NSBB’s SFIC.

4. The Minister, on the other hand, invited the Tribunal to have regard to the following when evaluating where there is a risk:

   (a)NSBB’s offending conduct involved the repeated and deliberate deception of the Australian Government authorities for his own personal benefit over a 30-year period;

   (b)NSBB “committed the offences even after the death of” Mr X (NSBB’s last passport application was submitted using the false identity in 2010.  NSBB gave evidence at the hearing that Mr X passed away about 12 years ago in 2005 or 2006);

   (c)the “relative currency” of NSBB’s offence; and

   (d)the suspended four month imprisonment sentence provided an indication of the severity of the offence.[36]

   [36] Refer [30] of the Minister’s SFIC.

5. The Minister contended that Psychologist W considered that NSBB’s assessed low risk of recidivism could be further lowered by appropriate Cognitive Behaviour Therapy focused upon systematic desensitisation for his anxiety and social skills training for his diminished self-esteem.  The Minister also contended that there was no evidence to demonstrate that NSBB had addressed his criminal conduct and that he continued to claim that the primary reason for it was a perceived lack of support in Australia, despite having been convicted and sentenced to a suspended sentence of imprisonment.[37]

   [37] Refer [34] of the Minister’s SFIC.

6. At [35] of the Minister’s Statement of Facts, Issues and Contentions lodged on 17 December 2018 (Minister’s SFIC), the Minister contended as follows:

   The respondent contends that the seriousness of the applicant’s criminal offending, the applicant’s lack of insight into his criminal conduct, the applicant’s propensity to blame others for his criminal conduct and the lack of evidence of any rehabilitation, gives rise to a more than minimal or remote chance that the applicant, if allowed to enter(sic) Australia, would engage in the conduct prescribed in s 501(6)(d)(i) of the Migration Act. If the applicant were to reoffend in a similar manner the respondent contends that he would pose a risk to the Australian community.

7. In closing, the Minister’s representative elaborated that no positive steps had been taken by NSBB in terms of psychological rehabilitation to stop him from re-offending and that there was a pattern of “deceiving behaviour”, for instance, obtaining Centrelink payments and assisting others to obtain visas to stay in Australia. 

8. NSBB’s representative took issue with this submission at the hearing and described the submission that he would assist others to commit visa fraud as “far-fetched”.  The Tribunal asked NSBB’s representative how she would characterise the act of NSBB bringing his wife to Australia.  NSBB’s representative responded to the effect of:

   This isn’t a repeatable offence.  He doesn’t have another wife or family in Fiji to bring here.  He hasn’t been dishonest in any areas of his life except for identity.  The only risk of reoffending is in relation to identity fraud based on past offending.  And there is no need to engage in identity fraud because his family and support network is here. 

   He has paid his taxes. There is a one off time when he accepted Centrelink payments when he needed it.  He is not a dishonest person except this one circumstance of his life.  He was left by his dad, left by his mum and met a man with some resources who brought him here, who trapped him in an isolated situation, took his passport and gave him a false passport.  He said that he needed to be [False Name].  This man, with somewhat limited resources went along with it.  He didn’t have the resources to seek legal advice or counselling. 

   What more cathartic experience could there be – it has come out twice – in the Broadmeadows Magistrates Court and had come out here.  He is a man of empathy.  A good husband.  A good father.  Has raised two loving kids.  He can be who he is now, without shame and go out and live his life in the manner that he has lived the majority of his life. 

   The protective factors (lack of drug habit, smoking habit, drinking habit) – he doesn’t have vices.   He lives a quiet life.  He was given a 2-year behaviour bond.  He smashed that with six year and counting.  Rehabilitation is not a psychologist’s couch.  What a regret it is for him to cause suffering to his wife, his son and his daughter.  He wants to be there for them.

9. The Tribunal referred NSBB’s representative to the transcribed interview between NSBB and the DFAT investigators that took place after the search warrant in August 2013 and invited her to make submissions about the impression that the Tribunal had gained from that interview that NSBB was resistant to accepting the proposal put to him that his conduct was “continuing the lie” and seemed to blame Mr X for what had happened, even though at the time of the last passport application, Mr X was deceased.

10. NSBB’s representative responded to the following effect:

    We must have some faith in the criminal justice system.  The criminal justice system operates on the presumption of deterrence.  He received a suspended sentence.  He almost went to jail.  The Tribunal asked the question and he looked you in the eye and told you the heart, how he feels about it now.  [Daughter] needs her dad – emotionally and financially.  It might have a bearing on whether she can go to uni and becomes a teacher.

11. The Tribunal notes that in his report, Psychologist W stated as follows:

    (page 3)…[NSBB] has now been in detention for approximately five weeks.  His exposure to detention has had a salutary impact upon him and reinforced the gravity of his position…

    …[NSBB] expressed significant and appropriate remorse for his actions at the time of the assessment…

    Notwithstanding the serious nature of these matters which were dealt with some years ago, [NSBB’s] primary orientation has been pro-social and it is clear that he strongly identifies himself as an Australian…

    (page 4) I note that you seek my opinion regarding the issue of potential recidivism in this case.  Given NSBB’s age, an absence of prior offending, the considerable effluxion of time which has lapsed since then and his continued adherence to the law through successfully completing the bond, I believe that the likelihood of him reoffending is remote.

    It is apparent that he is suffering a range of psychological issues referable to escalating anxiety and depression and low self-esteem, which have travelled with him for much of his life.  These symptoms are escalating as his hearing date approaches.

    I note from the report of [Psychologist C] that he was assessed as an individual with a very low level of intelligence.  In my respectful view however, there was no suggestion for an intellectual disability at the time of my assessment and in support of this, it is clear despite his limited education, that [NSBB] has managed to maintain stable employment and contribute to his family at both an emotional and financial level.  It is clear he requires professional assistance to help resolve these long standing issues, which in turn will galvanise my opinion that that likelihood of recidivism in this case is remote.

    (page 6) …Arising from this he was initially pleased to be accepted and loved by [Mr X], although upon his arrival in Australia and upon the commencement of the sexual abuse and associated control over which he allegedly exerted over [NSBB] reflected in the passport confiscation and name change, his anxiety and depression escalated.  He stated that that he always felt uncomfortable about the true nature of his situation in terms of his name change.

    (page 9) …As an aggravating feature to this case, [NSBB] was sexually abused by his adoptive father and felt powerless in the context of having no immediate family in Australia, coupled to his underlying emotional vulnerability referable to low self-esteem, depression and anxiety.  Once his name changed, he lacked the capacity to declare the situation and continued to live a lie up until was uncovered in August 2013.

    …It is clear that he has suffered a longstanding and effectively untreated Depressive Disorder for many years, coupled to an Anxiety Disorder according to DSM-5 criteria…

    …That said I suspect that his emotional problems at times have impacted upon his judgment, causing him to interpret events in a fairly subjective fashion.  This dynamic is of relevance in my view to this prior offending behaviour.

    …Given his overall history, his attitude to his prior offending, his expressions of remorse and the many positive aspects to his life in Australia, I believe that the likelihood of him being before the Courts again in relation to criminal matters is remote.  He would benefit from Cognitive Behaviour Therapy focussed on systematic desensitization for anxiety, social skills training for his diminished self-esteem, as well as supportive and motivation psychotherapy.  NSBB stated that he had not disclosed the sexual abuse to anyone until he was assessed by Psychologist C and regrettably no treatment was instigated at that time.  In passing, this is not unusual, as it is highly traumatic for victims of sexual abuse to recount and relive the experiences to which they were exposed.

12. At the hearing, Psychologist W gave evidence that the risk of NSBB re-offending was low.  When asked why had formed this view, Psychologist W responded to the following effect:

    It’s based on my experience assessing criminal offenders over the last 20 years.  The applicant is married; he has stable income; he cares for his family.  It’s on this basis that the likelihood of recidivism is low.

13. Psychologist W described NSBB as an “abandoned child” at the hearing and stated to the effect that:

    He had no contact with his father.  His mother migrated to [country in the Northern hemisphere] when he was 12.  He was very close to his grandmother who died a decade ago.  There is not just physical abandonment but also psychological abandonment.

14. Psychologist W was informed at the hearing that NSBB’s mother did not immigrate to [country in the Northern hemisphere] when NSBB was 12, but instead when he was 24.  Psychologist W was informed that evidence had been given that NSBB’s mother moved to another village in Fiji when NSBB was 14.   Psychologist W indicated that this did not change the opinions he had expressed.  He also gave further evidence to the following effect:

    I apologise for that error.  In any event, the psychological dimension remains the same.  His mother relinquished care for him when he was 12.  His mother was emotionally absent from his life.  Whatever the bond was between him and the grandmother, he was happy to come to Australia in search of a better life.

15. Psychologist W said at the hearing that there were “varying degrees of control with Mr X”.  When asked what the indicators of control were, Psychologist W responded the following effect:

    He retained his passport.  He groomed [NSBB] and made sexual advances at him.  If the allegations are correct, he was a paedophile and kept [NSBB] as a psychological prisoner.  I think that [NSBB] had taken on the identity of [surname of False Name] – he was afraid and wanted to let sleeping dogs lie.  This is not uncommon. 

16. The Tribunal asked Psychologist W whether NSBB had expressed those things to Psychologist W to which he responded to the following effect:

    He didn’t express this to me in an articulate way.  He said that he just kept on going.  He has expressed remorse for it. I get the impression he was very confused about these things.

17. In consideration of the above evidence, the Tribunal is satisfied that there remains a risk, that is not remote or minimal, that NSBB would engage in fraudulent criminal conduct again if he were placed in circumstances where he needed to do so, in order the serve the interests of himself and his family.  NSBB’s representative at the hearing suggested that such circumstances were unlikely to arise given that his true identity had been revealed, and were he permitted to remain in Australia.   However, the Tribunal does not have the same degree of confidence that this is so.  

18. The Tribunal notes that NSBB is now 55 years of age.  He is unqualified, unskilled and now unemployed, as a consequence of being taken into detention.  He has considerable work experience which may assist him to obtain further employment, but given his employment history involved manual labour-orientated, rather than sedentary, occupations, he is likely to struggle to compete with younger candidates for those positions in the workforce.  NSBB’s family lease their home at present so there is rent owing on a continuous basis.  While Mrs NSBB has permanent employment, the income arising from her job is not significant.  Mrs NSBB gave evidence that she struggled to support the family financially on her present income working in the vicinity of 25 hours per week, and the Tribunal accepts this evidence.  NSBB’s two children are not employed and both intend to keep studying full time for a significant period of time into the future. 

19. It is certainly conceivable that if NSBB remains in Australia, he would need to seek access to social security benefits, including (in the not too distant future) the aged pension.  This will require him to interact with the Australian Government, fill out forms and to provide information upon which he will be assessed for eligibility to receive such benefits. 

20. The Tribunal considers that given the evidence of Psychologist W in respect of the current psychological issues and conditions that he thinks NSBB continues to suffer from; the fact that no steps have been taken by NSBB to date to address those issues; the fact that at no point over the course of almost three decades did NSBB turn himself in; the reticence of NSBB initially at the time of the DFAT/Police interview in August 2013 to accept that was he had done was to “continue the lie” and instead, sought to blame it on Mr X; but most importantly, NSBB’s apparent hard-wired lack of judgment and integrity when seeking to deal with a difficult situation potentially affecting his personal interests; the Tribunal is satisfied that there is a risk, which is not remote or minimal, that he will engage in criminal conduct at some point in the future if he remains in Australia.

21. At the end of the hearing, NSBB’s representative informed the Tribunal that she had received instructions that NSBB had made an arrangement (while the hearing was in progress) to undergo psychological counselling.  This development does not change the view of the Tribunal as to whether there is a risk that he might engage in criminal activity in the future.  NSBB’s intention to do so in the context of this assessment, while commendable, is too late.  The Tribunal places more weight on the fact that NSBB has not taken steps to do this since he was prosecuted at a criminal level in 2013, over five years ago. 

22. Furthermore, at the hearing NSBB initially gave evidence that he did not consider himself to have any psychological issues nor did he consider that he would benefit from any counselling.  It was only when NSBB considered that it may be important to his prospects of success in this application, did he change his evidence to indicate that he did consider that it might be of benefit, as he had indicated to Psychologist W at an earlier point in time.

23. In consideration of the matters referred to in paragraphs [87] to [108], the Tribunal concludes that subsection 501(6)(d)(i) of the Act applies to NSBB.

    NSBB does not pass the character test

24. Accordingly, NSBB does not pass the character test under s 501(6) on the basis that s 501(6)(c) of the Act applies to him. In addition, NSBB does not pass the character test under s 501(6) on the basis that s 501(6)(d)(i) of the Act applies to him.

    Issue 2: exercise of discretion under s 501(1)

25. The Tribunal’s finding that NSBB does not pass the character test under s 501(6) enlivens its discretion to refuse NSBB’s Visa application under s 501(1) of the Act. In exercising this discretion, the Tribunal must do so in accordance with Direction no.65 by taking into account prescribed “primary considerations” and “other considerations”.

    PRIMARY CONSIDERATIONS

26. Paragraph 11 of Direction no.65 sets out three “primary considerations” the Tribunal must take into account, as follows:

    (1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)        The best interests of minor children in Australia;

    c)        Expectations of the Australian community.

    Protection of the Australian community

27. Paragraph 11.1 of Direction no.65 provides further detail addressing the concept of the protection of the Australian community:

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct to date

28. Paragraph 11.1.1 of Direction no.65 provides, relevantly, as follows:

    (1)  In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, the decision-maker must have regard to:

    a.    …;

    b.    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    c.    …

    d.    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

    e.    The sentence imposed by the courts for a crime or crimes;

    f.   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    g.    The cumulative effect of repeated offending;

    h.    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    i.   …

1. The Minister did not contest the substance of the evidence given by Daughter given in support of NSBB’s application.[40]  Daughter gave evidence at the hearing and impressed the Tribunal as a quietly-spoken, articulate, genuine person who had a high level of respect and admiration for her father and who cared dearly for him.  Daughter also expressed a high level of concern about her mother’s general well-being, including her mother’s raised blood pressure.  Further, Daughter said her brother had not been sleeping well on account of what had happened.  

   [40] Refer Exhibit “A6”.

2. In NSBB’s Witness Statement, he stated:

   I am very worried about how my children will cope if I am not able to stay in Australia.  [Daughter] is starting school next year.  I very much want to be there to help her in all the ways I can – with financial and emotional support – in the last years for her youth and when she is an adult.

   I have send that my immigration detention has made my children unhappy and I am so worried about how they will be if I have to go to Fiji.

3. At the hearing, NSBB clarified that what he meant by the reference to Daughter starting school in his Witness Statement, was that she was about to commence Year 12 (VCE) this year.

4. In relation to paragraph 11.2(4)(a), the Tribunal finds that over the last 17 years, NSBB and Daughter have had an extremely close and loving father-daughter relationship.  Except for NSBB’s recent period of immigration detention since 1 November 2018, the Tribunal accepts Daughter’s evidence that NSBB has always been there for her. 

5. In relation to paragraph 11.2(4)(b), the Tribunal finds that NSBB is likely to play a positive parental role in Daughter’s life in the future.  The Tribunal acknowledges that there is only eleven months remaining until Daughter turns 18 years of age and will become an adult.  However, the Tribunal considers that Daughter is at a particularly delicate stage of her teenage development.  Daughter gave evidence which the Tribunal accepts to the effect that she is academically-minded, and that she wants to be become a teacher.  

6. Daughter also gave evidence which was not contested and the Tribunal accepts, to the effect that the recent events of her father being placed into detention had been very upsetting to her.  In this context, Daughter is about to commence Year 12 (the second and final year of her VCE).  Daughter’s academic performance this year (together with her results from Year 11), will determine her final ATAR score which will influence whether she will be offered a place in a tertiary-level teaching course allowing her to pursue her career aspiration of becoming a teacher. 

7. For these reasons, while it is true that Daughter is about to become an adult, it is nevertheless a particularly critical time in her student life.  Daughter is at the gateway to her tertiary studies and in turn, the start of her working life.  The Tribunal is satisfied that it is greatly in Daughter’s interests for her to have a stable family life and support base, as she completes the final year of her VCE in 2019.  The Tribunal is satisfied on the evidence that this is only likely to be achieved by having NSBB present in Australia and living as part of the family unit.  Accordingly, the Tribunal considers that this factor supports a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

8. In relation to paragraph 11.2(4)(c), the Tribunal finds that if NSBB remains living in Australia, this is unlikely to have a negative impact on Daughter.  While the Tribunal has found that there is a risk that at some point in the future that NSBB may reoffend if he faces a difficult situation, in order to protect or further his own interests or those of his family, the Tribunal does not consider this risk to be high.  As mentioned above, there are a number of important protective factors at play such as the support he receives from his family, the deterrent effect of his criminal sentences to date and threat to his continued presence in Australia, which will both act as significant disincentives to NSBB reoffending, and are likely to contain this risk.  Further, the Tribunal considers that the type of conduct NSBB engaged in previously, were he to re-offend in a similar manner, is unlikely to involve any conduct that would inflict personal physical or psychological harm on others or to family members.  For this reason, the Tribunal is satisfied that this factor supports a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

9. In relation to paragraph 11.2(4)(d), the Tribunal is satisfied that the continued separation of Daughter from NSBB will be detrimental to the emotional well-being of Daughter.  The Tribunal accepts Daughter’s evidence that she would be greatly impacted if NSBB were required to depart Australia, on account of the close relationship she has with NSBB and the high degree of support that he has provided as her father, during Daughter’s life.  The Tribunal also accepts as genuine, Daughter’s stated aspirations of the role that she would like her father to play in her last year of schooling, when she gets married in the future and to play a role as the grandfather to children that she may have one day. 

10. The Tribunal has considered that if NSBB was required to return to Fiji that modern technology could play a positive role in allowing the close communication between Daughter and NSBB to continue.  In particular, options such as FaceTime and Skype provide for very effective channels of communication.  However, the Tribunal accepts that those channels would not allow for the same degree of support and closeness to Daughter, as would be possible if NSBB is able to be physically present with her in the home for her final year of schooling.   It would allow for him to a shoulder for Daughter to cry (in the physical sense), if she needs it during this important and potentially stressful final year of school.  Further, as mentioned above it will allow for NSBB to provide his wife with the emotional and financial support that she will need, which is likely to obviate the reliance his wife may otherwise place on Daughter (and the Son), in NSBB’s absence.   This consideration supports a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter

11. In relation to paragraph 11.2(4)(e), the Tribunal has considered that were NSBB to return to Fiji, Daughter will still have her mother (who has been conferred with Australian citizenship) in Australia to care for her.  Prima facie, this may lend support to a conclusion that NSBB’s departure from Australia will not significantly impact the interests of Daughter.  The Tribunal accepts that this might be so in cases where the person providing the parental role is able to function adequately in the absence of the non-citizen.  However, as mentioned above, the Tribunal does not consider that Mrs NSBB will be able to function adequately as a single parent if NSBB is required to be returned to Fiji.  The Tribunal considers that Mrs NSBB has a high degree of dependence of NSBB, Son and Daughter.

12. At all times during Mrs NSBB’s life, she has been greatly dependent on her husband for both her emotional and financial well-being.  The Tribunal means no disrespect by making the following observation. The Tribunal also gained the impression from the evidence, including the evidence given by Mrs NSBB at the hearing, that Mrs NSBB had very little capacity or willingness to act independently of others when required to or to show resilience when facing a difficult situation.   Given those findings, the Tribunal does not place a significant degree of weight on the fact that Daughter would still have her mother to care for her, were NSBB to return to Fiji.  Accordingly, due to the particular circumstances of this application, the factor under subparagraph (e) lend support to a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

13. In relation to paragraph 11.2(4)(f), Daughter is 17 years old and was able to articulate, with ease, her views about the prospect of NSBB returning to Fiji if his Visa application is refused.  Daughter clearly expressed her overwhelming desire for her father to remain living with her and her family in Australia.  Those views have been addressed above together with the likely impact that NSBB’s removal from Australia will have on her personally.  This factor lends support to a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

14. In relation to paragraph 11.2(4)(g), there is no evidence or suggestion that NSBB has ever abused or neglected Daughter in any way.  To the contrary, the evidence suggests that NSBB has always been there for his daughter as a father and has provided her with a nurturing home environment to allow Daughter to develop to her full potential, emotionally, physically and academically.  The Tribunal finds that NSBB has always nurtured Daughter and has sought to instill in her the values of being a good person.  This factor supports a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

15. In relation to paragraph 11.2(4)(h), the Tribunal notes the evidence given by NSBB as to the pain and hardship he has caused his family by the conduct he engaged resulting in the criminal prosecutions and NSBB being placed into immigration detention.  Daughter did not suffer any physical trauma from NSBB’s criminal and other serious conduct as it was not directed to causing any physical harm to anyone.  Daughter is likely to have experienced some emotional trauma as a consequence of what the family has been through arising from NSBB’s conduct.  However, the emotional trauma arises principally from the threat to Daughter of losing her father in the sense of him being required to return to Fiji in circumstances where her family, their lives and their future opportunities are based in Australia, albeit those opportunities only arose on account of NSBB’s long-standing fraudulent conduct.  In this context, the Tribunal considers that this factor does not weigh against a determination that refusal of NSBB’s Visa application would not be in the best interests of Daughter.

16. The Tribunal is satisfied that if NSBB is required to return to Fiji, it is likely to cause Daughter stress and anxiety during her final year of secondary school.  The Tribunal considers that there is a real risk that that would negatively impact on Daughter’s grades which in turn, is likely to negatively impact on her options for tertiary study or may preclude her from securing an offer to enroll in a tertiary-level teaching degree or course of study to pursue her chosen career. 

17. To summarise, the Tribunal considers that if NSBB was required to return to Fiji, Daughter is likely to be significantly distracted by her own emotional reaction and the reactions of her mother and brother, to the departure and continued absence of her father on an indefinite basis.  During such an important stage in Daughter’s secondary education, the Tribunal considers that it would serve Daughter’s interests if she were permitted to place her full focus and attention onto the completion of the final year of her VCE.  The Tribunal considers that NSBB’s departure is also likely to place significant financial strain on the running of Daughter’s family’s household which would serve as an added distraction during Daughter’s final year of VCE.

18. Based on a consideration of the factors referred to above, the Tribunal determines that the refusal of NSBB’s Visa application would not be in the best interests of a minor (i.e. Daughter). Accordingly, the Tribunal concludes that the primary consideration of ‘best interests of a minor affected by the decision’ weighs heavily in favour of not refusing NSBB’s Visa application under s 501(1) of the Act.

    Expectations of the Australian Community

19. Paragraph 11.3(1) of Direction no.65 requires the Tribunal to take into account the following:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person.  Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.  Decision-makers should have due regard to the Government’s views in this respect.

20. When a person, such as NSBB, has a long-standing criminal history of repeated offences demonstrating a blatant disregard for Australian immigration laws, the Tribunal considers that the Australian community would expect the deportation of NSBB, despite the fact that he has spent a most of his adult life in and has developed very significant ties to Australia, including with immediate family members.     

21. The Tribunal is satisfied that in the circumstances of this case, and based on the conduct engaged in by NSBB, the Australian community is likely to expect NSBB’s visa application to be refused on account of:

    (a)NSBB’s history of repeated criminal offending for almost three decades resulting in four convictions of federal offences involving fraud and resulting in four separate four-month suspended sentences of imprisonment (despite those terms not having been served); and

    (b)NSBB demonstrated blatant disregard of Australian immigration laws relating to the control of its borders, regardless of whether the initiating fraudulent act was facilitated by another person;

    (c)NSBB’s conduct over a period spanning 28 years of using the false identity and falsely-obtained Australian passports to serve his own personal interests, including to:

    (i)execute a marriage certificate using a false name, place of birth and details of his parentage;

    (ii)bring his wife to Australia unlawfully;

    (iii)procure Australian citizenship for his Fijian wife on a false basis;

    (iv)travel to and from Australia on 10 occasions (20 border crossings) under a false identity;

    (v)obtain a Victorian Driver License and to register his vehicle;

    (vi)open bank accounts; and

    (vii)apply for and receive social security payments for a period of about two years when he was not eligible to receive those payments; 

    (d)the cost to the community of policing and enforcing the law and to fund the criminal prosecution of NSBB; the subsequent corrective and supervisory programs that he was placed under arising from the four criminal convictions and the cost of administering the review application before this Tribunal; and

    (e)at no point, did NSBB turn himself in or seek to regularise his presence in Australia thereby enjoying the privileges of living in Australia (whether guilt ridden or not), until such time as the authorities caught up with him.

22. In conclusion, the Tribunal considers that the primary consideration of ‘expectations of Australian community’ weighs in favour of the refusal of NSBB’s Visa application under s 501(1) of the Act.

    OTHER CONSIDERATIONS

23. Paragraph 12(1) of Direction no.65 mandate “other considerations” that the Tribunal must take into account in NSBB’s application, as follows:

    (1)  … These considerations include (but are not limited to):

    a) International non-refoulement obligations;

    b) Impact on family members;

    c) Impact on victims;

    e) Impact on Australian business interests.

    International non-refoulement obligations

24. The Tribunal has considered paragraph 12.1 of Direction no.65 which deals with the “other consideration” of Australia’s non-refoulement obligations which for the sake of brevity, have not been reproduced.

25. Consistent with the decision of the Full Court of the Federal Court of Australia in BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96, the Tribunal considers that where a person affected by a mandatory cancellation raises, as a reason in favour of revocation of the visa cancellation, a fear of harm in her or his country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country. In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.[41]  

    [41] See Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513.

26. The conventions referred to in Direction no.65 are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality. 

27. At the hearing, NSBB and the Minister jointly contended that this application does not raise any claim that Australia owes international non-refoulement obligations to NSBB.  Separately, on the evidence the Tribunal was unable to identify that this application  raises, as a reason in favour of not refusing NSBB’s Visa application, a fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion if he is required to return to Fiji.

28. Accordingly, the Tribunal is not satisfied that there is any basis upon which to conclude that NSBB would be at risk of a specific type of harm that would trigger an international non-refoulement obligation within the meaning of paragraph 12.1 of Direction no.65, if he were to be deported to Fiji. 

    Impact on Family Members

29. Paragraph 12.2 of Direction no.65 requires the Tribunal to take into account the following “other consideration”:

    (1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

30. 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

31. 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”.

32. 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.

33. 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”.

1. 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.

2. 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.

3. 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.

4. Mrs NSBB stated that “they would be affected financially” as Mrs NSBB would be the only one working and would be solely responsible for raising her daughter and to pay for her school fees, rent and student loans.  Mrs NSBB indicated she could not afford to meet those expenses.

   Evidence given by NSBB’s son

5. Son provided a witness statement in support of NSBB’s application for review.[43]  In his statement, Son states that his father had instilled in Son and Daughter, the values of helping and loving others, being kind to others and being honest and respectful.  Son stated that he wanted NSBB to be able to instill those values to NSBB’s [future] grandchildren.  There was no evidence before the Tribunal that either Son or Daughter have any children at the present time. 

   [43] Refer Exhibit “A4”.  

6. Son said that NSBB has always put their needs ahead of his own and that he has provided their home with love and care, and enriched their home with his nurturing and tender heart.  Son stated that NSBB has done this by always putting a smile on their face and telling them he loved them, even when he was tired and weary from work.  Son stated that NSBB found the energy to teach him how to play cricket and soccer.

7. Son stated that NSBB had provided for their family and had paid their bills, rent, school fees, and university fees.  Son said that NSBB “never once complained” about having to support their family.  Son said NSBB had afforded him the opportunities of memorable life experiences and educational aspirations.  Son said that NSBB took him on fishing trips and to numerous sporting events such as baseball and football. 

8. Son stated that NSBB provided him with guidance about his educational pathway and his career aspirations.  Son said he would like his father to be present to guide them through life’s various obstacles, and that Son wanted to be there for NSBB too.

9. Son stated as follows:

   I am aware of the crime that my father committed.  I believe that he had learnt his lesson and that he will never again, commit an offence in Australia.  This is because he is a good man who has a kind heart.  He was very affected by what happened and he has repeatedly told me that he wishes he never went along with Mr X.

   …

   Making my father leave Australia would destroy our close knit family.  It would not only cause immeasurable pain and psychological devastation, it would undermine the financial stability of our family.  At present, I am not coping with my father’s absence, while he is in detention.  As I am constantly worrying for his safety, his wellbeing and the decision that will be made on his ability to re-enter the Australian community, I am having trouble sleeping, eating and concentrating on my studies and my employment prospects.  The worry I have been experiencing has cost me job opportunities and job loss in the financial sector and the ability to support my family financially.

   The stress and worry that I have been experiencing has already taken a toll on my education as I have been unable to complete my university degree.  I was unable to concentrate during my studies because I was so worried about my father.  I had to withdraw from the course.

10. At the hearing, Son gave evidence that he was due re-commence his studies on a full-time basis. He said he has two years remaining of a four-year full-time accountancy degree. Son said that he had previously completed an Advanced Diploma of Management[44] and an Advanced Diploma in Marketing[45]. 

    [44] Refer G-Documents page 201.

    [45] Refer G-Documents page 202.

11. In Son’s witness statement, he stated as follows:

    My stress and worry about my father has also placed physical strain on my body.  I have not been able to sleep or eat properly since this incident occurred and denying my father permanent residence will only make this condition worse.

    I believe my father is an honourable, kind and considerate man who deserves to be allowed to re-enter the Australian community.

12. Son gave evidence at the hearing that it would be devastating if his father was required to return to Fiji.   He said that his father has been a “good person” and that he had had a “good impact on our lives”. He said that:

    We’ve adopted the Australian lifestyle and we’re living the Australian dream.

13. Son also gave evidence that he was required to withdraw from his accountancy degree after completing two years, because he could not deal with the circumstances.  He stated that he was depressed about what was happening with this father and also, due to the financial circumstances.  This evidence was not contested by the Minister at the hearing and it was reflected in the general demeanor of Son.  He impressed the Tribunal as a young man who seemed confused, deflated and with the greatest of respect, a bit lost.  The Tribunal was satisfied that Son would be impacted emotionally and financially, to the same degree or perhaps even more than the Daughter, if NSBB is required to return to Fiji.  The Tribunal is satisfied that this may impact on his ability to resume his studies.

    Evidence given by NSBB

14. In NSBB’s Witness Statement, he stated:[46]

    I cannot be separated from my wife and children as they are my whole world.  I want to spend the rest of my life with my wife and I want to be present when my children get married.  I want to be there for them, I want to witness all of their successes and I want to support them.

    [46] Refer Exhibit “A1”.

15. NSBB gave evidence that if he was not permitted to remain in Australia, he and his family would be devastated.

16. In light of the evidence and findings referred to in paragraphs [164] to [182] of these Reasons for Decision, the Tribunal is satisfied that if NSBB’s Visa application is refused, the impact on NSBB’s immediate family members directly (and indirectly, on account the impact of NSBB’s departure on NSBB’s other family members), will be significant and potentially, highly detrimental. 

17. The Tribunal is satisfied that NSBB’s family is very close knit and that Mrs NSBB, Son and Daughter has a high level of dependence on NSBB for their well-being and also to support them financially.  Mrs NSBB is also experiencing a number of health issues which are likely to be heightened, in particular, her anxiety and high blood pressure, should NSBB be required to return to Fiji.  The Tribunal is satisfied that Son has exhibited a number of signs of deterioration of his well-being resulting in his temporary withdrawal from studies due to his struggle to cope with what was taking place in relation to NSBB and in particular, NSBB’s criminal prosecution. The Tribunal has already taken into account the likely impacts on Daughter as part of taking into account the primary consideration of the best interests of a minor.

18. Accordingly, given the findings of the Tribunal as to the likely detrimental impacts of Mrs NSBB and Son, the Tribunal concludes that this “other consideration” weighs heavily in favour of the Tribunal exercising its discretion not to refuse NSBB’s Visa application under s 501(1) of the Act.

    Impact on victims

19. Paragraph 12.4 of Direction no.65 provides that the Tribunal should consider the impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.

20. This “other consideration” is not directly relevant in NSBB’s application as NSBB’s criminal offending did not involve crimes or conduct directed at an individual person or “victim”.

    Impact on Australian business interests

21. Paragraph 12.4(1) of Direction no.65 requires the Tribunal to consider the impact of exercising its discretion to refuse NSBB’s Visa application on “Australian business interests” “noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia”. 

22. 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

23. 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.

24. 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.

25. 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.

I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

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

Associate

Dated: 23 January 2019

Date of hearing:  15 January 2019

Counsel for Applicant:  Georgina Costello

Solicitor for Applicant:  Bardo Lawyers

Advocate for Respondent:                 Christopher Brinley

Solicitor for Respondent:                   Clayton Utz               

15