Pham and Minister for Immigration and Multicultural and Indigenou S Affairs
[2003] AATA 484
•15 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 484
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/970
GENERAL ADMINISTRATIVE DIVISION ) Re ANITA PHAM Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date15 May 2003
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
[Sgd Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – Spouse visa application – false passport used for other misleading purposes – applicant convicted of deception offences – good character not proved – discretion – wife and child Australian citizens.
Migration Act 1958 – s501
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780.
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84.
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.
REASONS FOR DECISION
15 May 2003 The Hon C R Wright QC., (Deputy President) The Application
1. The review applicant seeks review of a decision of the respondent’s delegate dated 13 August 2002, refusing to grant a combined subclass 309 Spouse visa and subclass 100 Spouse (migrant) visa to Waqaar Ali Mughal (the visa applicant).
2. The delegate’s refusal was based on the ground that the visa applicant failed to meet the character test prescribed by s501 of the Migration Act 1958 (“the Act”).
The Hearing
3. The Tribunal hearing took place in Melbourne on 3 April 2003. The applicants were represented by Mr G Hughan of counsel. The respondent was represented by Mr P Barker of counsel. Oral evidence was taken from both applicants and from Wendy Scholtes and Gloria Morales. The visa applicant gave evidence by telephone link from Pakistan and was assisted by an Urdu interpreter. The respondent called no oral evidence.
4. The following documents were taken into evidence:
(a) Section 37 (“T” documents) – Exhibit “A”.
(b) Statement by the review applicant – Exhibit ”B”.
(c) Statement by the visa applicant – Exhibit “C”.
(d)2 letters from visa applicant’s solicitors with advice of hearing date – Broadmeadows Court – Exhibit “D”.
(e)Report by Wendy Scholtes 28/2/2003 – Exhibit “E”.
(f)(i) Cancellation of a temporary visa Form 1099 dated 26/2/01 2.46pm
(ii) Cancellation of a temporary visa Form 1099 dated 26/2/01 4.05pm -
Exhibit “F”.
(g) Statement of Gloria Morales 1/4/2003 – Exhibit “G”.
(h) Report by Ros Armstrong 3/12/2002 – Exhibit “H”.
The Issues
5. There are two principal issues to be determined viz:
(a)Whether the visa applicant meets the character test provided for in s501 of the Act.
(b)If the visa applicant does not meet that test should the residual discretion vested in me as decision-maker be exercised to direct that the visa application not be refused under s501 of the Act.
The Facts
I find the following facts:
6. The visa applicant was born on 28 September 1978 in Pakistan. On 2 July 1998 he was granted a subclass 560 Student visa in the name of Ali Waqar (date of birth 28 September 1975) and arrived in Australia on 15 July 1998. The visa applicant was travelling on a passport in the name of Ali Waqar. The visa applicant subsequently made admissions that this passport was false.
7. On 12 February 1999 the visa applicant lodged an application for a subclass 686 Long Stay Visitor visa in the name of Ali Waqar. This was granted on 18 February 1999. The visa applicant then lodged an application for a subclass 457 Temporary Business Entry visa in the name of Ali Waqar. This application was refused on 3 September 1999.
8. The visa applicant was required to depart Australia and, on 7 October 1999, he provided the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) with a travel itinerary. He was granted a Bridging visa E in respect of these travel arrangements.
9. On 22 October 1999 the visa applicant lodged an application for a subclass 866 Protection visa in the name of Ali Waqar. The visa applicant claimed that he was at risk of persecution because he had become disillusioned with Islam and had converted to Christianity. This application was refused on 20 March 2000 and, on 7 April 2000 the visa applicant lodged an application for review with the Refugee Review Tribunal (“the RRT”).
10. On 10 September 2000 the visa applicant’s brother, Mirza Esar Ali Mughal (date of birth 19 November 1971) arrived in Australia travelling on a passport issued in the name Waqaar Ali Mughal (date of birth 28 September 1978) i.e. the visa applicant’s correct birth date.
11. The visa applicant married the review applicant on 28 September 2000, using the name Waqaar Ali Mughal. On 6 October 2000 he lodged an application for a subclass 820 Spouse (Provisional) visa in the name of Waqaar Ali Mughal. On 9 February 2001 his brother departed Australia using the passport in the name of Ali Waqar which the visa applicant had used to enter Australia in 1998.
12. On 23 February 2001 the visa applicant was questioned by officers of the Victoria Police investigating criminal matters. The police located documents bearing several names and contacted the Department. The visa applicant was interviewed and then detained by the Department.
13. During the interview the visa applicant admitted that he wanted to lodge a Spouse visa application but could not do so onshore following the refusal of the Protection visa application. The visa applicant admitted that he had tried unsuccessfully to obtain a visa to New Zealand and Japan in order to lodge applications there. When this was not successful he arranged for his brother to travel to Australia using an assumed name so that they could swap passports and the visa applicant could then apply for the Spouse visa using his correct name.
14. His application for the subclass 820 visa was deemed invalid and his Bridging visa was cancelled.
15. On 23 May 2001 the visa applicant appeared in the Broadmeadow’s Magistrates Court and pleaded guilty to 6 counts of deception. He was sentenced to 4 months imprisonment wholly suspended for two years.
16. The visa applicant departed Australia on 26 May 2001 and withdrew his application to the RRT on 31 May 2001. The visa applicant was accompanied by the review applicant. They took up residence with the visa applicant’s family in Pakistan.
17. On 6 July 2001 the visa applicant lodged the application for the present visa in the name of Waqaar Ali Mughal. On the application form the visa applicant answered “NO” to the questions relating to previous visa cancellations, applications refused, previous detentions and previous criminal convictions or offences. These answers were incorrect.
18. On 30 November 2001 the visa applicant was given a Notice of Intention to Refuse a Visa under s501 of the Act. The grounds for reasonably suspecting that the visa applicant did not pass the character test under s501 were that the visa applicant:
(a) used a fraudulently altered passport to enter and depart Australia; and
(b)failed to acknowledge in his present application that he had been refused visas in Australia, had a visa cancelled and had been in Immigration detention.
19. The visa applicant and review applicant attended an interview with a representative of the Department in Pakistan on 10 December 2001. At that interview the visa applicant stated in summary:
(a)he had used the false passport in order to save his life;
(b)he did not “willingly” provide false information in relation to the previous refusals and cancellation but may have done so because of a misunderstanding; and
(c)he had not been charged as a result of the police investigations on 23 February 2001.
20. The review applicant was then approximately eight months pregnant. The visa applicant was the father of the expected child.
21. On 12 December 2001 a decision was made by the departmental representative not to refuse the application under s501 of the Act at that stage.
22. In order to advance the application the visa applicant was asked to submit an Australian Federal Police Clearance (a previous clearance had been issued by the Victorian Police in the name of Waqaar Ali Mughal but was deemed insufficient). On 2 May 2002 the visa applicant provided the Australian Federal Police Clearance (T24), which recorded that on 23 May 2001 the visa applicant was convicted at the Broadmeadows Magistrates Court as follows:
(a) obtaining a licence by a false statement (2 counts);
(b) obtaining property by deception (2 counts); and
(c) obtaining a financial advantage by deception (2 counts).
The certificate also recorded that the visa applicant was sentenced to 4 months imprisonment aggregate concurrent, suspended for 24 months.
23. A second Notice of Intention to Refuse was sent to the visa applicant on 30 June 2002 (T28). The visa applicant was asked to comment on further matters including:
(a)that he had provided a police clearance in the name of Waqaar Ali Mughal which disclosed no convictions;
(b)that he had stated at interview that he had not been charged by police;
(c)that he had answered “NO” to the questions on his application form dealing with previous convictions;
(d)that he was, in fact, convicted and sentenced in respect of several charges; and
(e)that he had supplied false information in relation to his visa application and at the interview.
24. The visa applicant responded to the second Notice of Intention to Cancel on 7 July 2002 (T31). The visa applicant claimed that he did not know he had been charged until he received the AFP Clearance in May 2002. For this reason he had answered “NO” to the questions on the form and at the interview. The visa applicant also stated that as he was given a two-year good behaviour bond, and he considered that he was covered by the policy relating to “spent convictions” and pardons.
25. On 13 August 2002 a delegate of the Minister decided to refuse the application on the basis that the delegate was not satisfied the visa applicant passed the character test (T2).
The Tangled Web
26. In Exhibit “C” and by his oral evidence the visa applicant sought to explain his involvement in the apparent deceitful conduct which has been described above.
27. At the outset it should be acknowledged that his story of conversion to Christianity appears to be genuine. So too does his explanation for applying for a passport in a false name to escape from Pakistan. The application for refugee status and a protection visa was not rejected on grounds that the applicant lacked credibility, but rather because his fears of persecution were considered to fall outside the scope of the protection afforded by the Refugees Convention. Accordingly, these issues which are covered in paragraphs 1 and 2 of Exhibit “C” should not be found to adversely impact upon the visa applicant’s character.
28. The real grounds for concern relate to his behaviour and activities after he arrived in Australia in 1998. At that point he decided not to apply for refugee status, but to continue to rely upon his student visa and false passport. His explanation for what followed appears in paragraph 3 and following of Exhibit “C”. In view of the relative complexities of his story it is as well to set out the relevant parts of that document.
“I, Waqaar Ali Mughal, state as follows:
1.I was born in Mandi Bahuddin, Pakistan on 28 September 1978. In 1990, I began to doubt Islam and began to study Christianity. Throughout the 1990s I received threats and harassment from members of the Islamic faith who were critical of Christianity and believed that everyone should participate in Islamic religious practices and beliefs. I was beaten by members of my local mosque in 1997 and was hospitalised for several days. I feared that If I remarried in Pakistan I would be killed by fundamentalist Muslims, so I applied for a visa for Australia.
2.In 1998, I applied for and received an Australian subclass 560 student visa in the name of Ali Waqar, DOB 28/9/1975 (“False Name”). In order to obtain a passport to Pakistan, it is necessary to have the form processed by a local government officer and the local government officers in my area were involved with the religious fundamentalists. I had been warned by the fundamentalists that they would stop me leaving Pakistan if I attempted to leave. I applied for the visa using the False Name because I feared religious persecution in Pakistan and was afraid that if I used my real name I would be prevented from leaving by Islamic religious fundamentalists.
3.On 15 July 1998, I arrived in Australia on a student visa using a false passport in the False Name. I thought that I would be deported if I told the Australian authorities that I had arrived using a False Name and false passport so I did not tell the Australian authorities that I had used a false passport and name to travel to Australia. I left Australia briefly in late 1998 and visited Japan and I used the false passport for my departure from and return to Australia.
4.In early February 1999, I was granted a subclass 686 long stay visa in the False Name. In June 1999, I applied for a subclass 457 temporary business entry application in the False Name and this was refused in September 1999. In early October 1999, I approached the Department of Immigration (“DIMIA) and asked for a bridging visa E in the False Name on condition that I leave Australia by 25 October 1999. I then lodged a protection visa application on 22 October 1999 in the False Name based on my fears of religious persecution in Pakistan. The respondent has full details of my fears and experiences of persecution in Pakistan up until this time in their file number clf 1999/022303. I continue to rely on the claims I made in that application as part of the basis for my continuing fear of persecution. In March 2000, my application for a Protection Visa was refused. In April 2000, I lodge an application for review by the Refugee Review Tribunal of the decision not to grant me a Protection Visa.
5.In September 1999, I met Anita Pham and we moved in together a few months later. I wanted to be able to stay in Australia permanently so that I could be with Anita and because I was afraid that I would suffer religious based persecution if I returned to Pakistan. I knew it was a condition of the visa I was on (Bridging Visa E) that I would have to leave Australia while I applied for a spouse visa. I tried to gain permission to travel to New Zealand or Japan so that I could lodge my spouse visa from there, but I was unable to arrange this. I arranged for my brother to come to Australia using a passport in my real name, Waqaar Ali Mughal, and then return to Pakistan using the passport in my False Name which had used to travel to Australia. This way, the authorities would think I had left Australia and I could apply for a spouse visa in my real name while remaining in Australia. We decided it was safe fro my brother to apply for a passport in my name even though I feared persecution because my brother did not fear persecution as he is not Christian. Even if those who had persecuted me detected that someone with my name had applied for a passport, the worst that could happen was that my brother would be caught applying for a passport in the wrong name, he did not fear physical harm from the persecutors.
6.Anita and I were married on 28 September 2000 and my correct name, Waqaar Ali Mughal, was entered on the Marriage Certificate. On 6 October 2000, I lodged a subclass 820 Spouse (Provisional) visa application in my real name.
7.In February 2001, the police came to the house where I lived with Anita in relation to some equipment that had been stolen by the landlord of the house I have previously leased. The police searched our house in connection with that matter and discovered that I had identification documents in more than 1 name. Anita told me that the police had asked me to attend the police station, which I did. When questioned by police, I admitted that I had made visa applications in the False Name. I was also interviewed by DIMIA officers at that time, who told me my application for a spouse visa was invalid. A DIMIA officer name Craig (“Greg” see Exhibit “F”) told me that if I left Australia and applied for a spouse visa from Pakistan, I would be likely to be back in Australia on my spouse visa by Christmas. Although I knew it would be dangerous returning to Pakistan, I believed that I would be successful in hiding from the religious people in Pakistan for 8 months until my spouse visa would likely be approved. So Anita and I decided we would go to Pakistan together and I would withdraw my appeal to the Refugee Review Tribunal for review of the decision to refuse my application for a protection visa.
8.I could have left Australia at this time – I was told by the police officer responsible for my case that I did not have to wait until my case was heard in court, and that they would not prevent me from leaving Australia. However, I did want to stay until the completion of my case in court.
9.In May 2001, I went to a hearing at the Broadmeadows Magistrates Court. I understood at the time that the court had given me a two-year good behaviour bond. I thought this meant that I did not have a criminal record.
10.Before I left Australia to go to Pakistan, I ordered a Victorian Police check to confirm that I did not have a criminal record. I left Australia on 26 May 2001. The police and DIMIA had discovered my use of the False Name at around the same time in February 2001, so I assumed that DIMIA knew about these criminal matters. I applied for the police check in my real name because the police and DIMIA had discovered my use of the False Name and so I assumed that I would have been convicted in my real name (if I had been convicted).
11.In my interview on 10 December 2001, I stated that I had not been charged with any criminal convictions, because I believed that to be true: I thought I had received a good behaviour bond, which was not the same as being charged or convicted. I learned that I had actually been convicted when I saw the Australian Federal Police (“AFP”) clearance certificate in around April 2002.
12.DIMIA asked me to submit an AFP clearance certificate in December 2001 and I did not provide it until 2 May 2002. The delay that occurred in obtaining the AFP clearance certificate was not deliberate. I was in Vietnam at the time the certificate was first requested from DIMIA. It was difficult to arrange to obtain the certificate while in Vietnam. I was required to arrange an international money order to pay for the AFP certificate. I did not speak Vietnamese, and as my wife was heavily pregnant and resting, she could not go with me to the bank. Because of these difficulties, we asked an Australian friend to arrange the certificate for us. It took approximately 4 weeks for the application to reach our friend in Australia by airmail and 30 days for AFP to process the search and unfortunately, our friend did not arrange the search as soon as she could have.
13.Obviously, I made some mistakes filling in the spouse visa application I lodged in Pakistan on 6 July 2001. In particular:
(a)At question 5, I ticked “no” to the question “Have you or any person included in this application ever had a visa cancelled?”.. At the time I filled in the form, I thought that I had not had any Australian visas cancelled. I had checked with DIMIA before leaving Australia to find out what type of visa I was on and they told me I was on a Bridging Visa, so, as I was on a Bridging Visa whilst my spouse application was being processed, I believed that my Bridging Visa had not been cancelled.
(b)At question 6, I ticked “n” to the question “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?”.. I understood this question to refer to whether I had ever been refused entry to Australia, which had not happened to me. I now realise that I should have ticked “yes” because my application because my application for subclass 457 Temporary Business Entry application had been refused.
(c)At question 8, I ticked “no” to the question, “Is any person included in this application currently in immigration detention or any other custody?”.. Although I had been immigration detention briefly in the past, I was not in an immigration detention centre at the time I filled in the form. I was in Pakistan. I still believe that this answer was the correct answer.
(d)At question 70, I ticked “no” to the question “Have you … ever been convicted of a crime in any country (including any conviction which is now removed from official records)?”.. I waited 1 month before submitting my spouse visa application, because I wanted to receive my police clearance certificate so that I could correctly answer this question. The certificate I obtained, dated 28 May 2001, confirmed to me that I did not have a criminal record and so I ticked the “no” box for this question. I realise now that I should have ticked “yes” box for this question. I was not trying to hide the convictions, rather, I did not know I had been convicted. Please note although I had a lawyer for the police matter, no one ever explained to me the court process that occurred. Also, I had never been to court before in my whole life and did not understand the process at that time.
(e)Also at question 70, I ticked “no” to the questions “Have you … been removed or deported from any country (including Australia?)” and “Have you … left any country to avoid being removed or deported?” and “Have you … been excluded from or asked to leave any country (including Australia)?”. I believe that my answering “no” I answered these questions correctly. I chose to leave Australia and lodge my spouse visa offshore rather than proceed with my application for review of the decision not to grant me a protection visa. I was not deported and I was not asked to leave Australia.
(f)I included a copy of my passports with this application and my passports stated my religion to be Islamic. Although I am Christian, not Islamic, I stated I was Islamic because if I had stated that I was of Christian religion, I believe I would have been harassed by Pakistani authorities.”
29. It is plain from the applicant’s evidence given at the Tribunal hearing that he blames many of his travails upon migration agents and lawyers who advised him at various stages of his stay in Australia, but I do not accept this.
30. The visa applicant appeared intelligent and well educated. In Pakistan before coming to Australia he attained a Bachelor of Arts degree. Although he had the assistance of an interpreter at the Tribunal hearing I am confident that he speaks English sufficiently well to have taken part in the proceedings unassisted provided the questions were put with sufficient clarity. He answered my questions without the necessity of referring to the interpreter when I asked him to do so. I gave him the option of using the interpreter if he wished, but at no stage did he refer my questions to the interpreter, nor did he reply thereto in a language other than English.
The Character Test
31. I do not accept the visa applicant as a generally credit worthy witness. In my opinion he engaged in a studied pattern of deceit in his endeavours to remain in Australia and he resorted to fraudulent and misleading conduct to do so.
32. His wife’s evidence (to which I will come to in more detail later) shows that some of her friends have suggested that the visa applicant is “maybe just using you so that he can stay in Australia”.. There is no clear evidence of this and it is obvious enough that the review applicant loves him, but I am highly suspicious that at least in the initial stages of their relationship the visa applicant saw the review applicant, a naturalised Australian citizen, simply as a means of realising his ambition to remain here.
33. True it is that he has played the role of an attentive husband and father since the birth of their son, but his wife still remains the essential link between Australia and his chances of permanent residency in this country. It is also true that it is the review applicant who claims to have made the decision to have a baby while they were living with his family in Pakistan and she also claims to have made the decision not to return with her husband to Pakistan after they left Vietnam, but I do not believe she made these decisions without the willing agreement of the visa applicant. She gives her reasons for these decisions in Exhibit “B” which will be reproduced later in these reasons.
34. As to the visa applicant’s evidence, I make the following specific findings:
(a)He was present at the Broadmeadows Magistrates Court on 23 May 2001. He understood and pleaded guilty to all charges. He heard the sentence pronounced by the Magistrate and understood that he had received a suspended sentence of imprisonment. He did not believe or understand that he had received a good behaviour bond. He did not believe that he did not have a criminal record as a consequence of the court proceedings.
(b)At his interview on 10 December 2001, he did not believe that he had not been charged with or convicted of criminal offences. He knew the true state of affairs and did not “learn” of his position only after receipt of the AFP clearance.
(c)The errors in his Spouse visa application were intentional and not accidental (i) As to question 5 – he well knew that he had been refused visas and that his Bridging visa had been cancelled (see paragraph 14 above).
(ii) As to question 6 - he knew that his Subclass 457 Temporary Business Entry visa had been refused. He did not understand the question to be limited in the way he states in paragraph 13(b) of Exhibit “C”.
(iii)As to question 70 (criminal convictions) – I have made findings as to this in subparagraphs (a) and (b) above.
35. It is obvious that the visa applicant’s criminal conduct must also be taken into account in assessing his meeting, or failing to meet, the character test. He said that the fraudulent conduct leading to his conviction involved “about $20,000”.. Although full details were not supplied and the Magistrate’s findings and comments in passing sentence were not made available to me, it is obvious enough that these were substantial matters. The sentence of imprisonment (albeit suspended) also indicates the offences were regarded as serious by the sentencing court.
36. For reasons already stated, the visa applicant’s application for a Protection visa and his subsequent application to the RRT to review the adverse decision of the Minister’s delegate cannot be regarded as vexatious or an abuse of the immigration law and thus cannot be regarded as reflecting adversely upon his character. The protection application appears to have been based on reasonable grounds and was not, as is so often the case, a wholly fabricated story designed to support the unjustifiable claims of an individual seeking to prolong his stay in Australia.
37. I should also make it clear that although suspicious of the visa applicant’s motivations referred to in paragraph 32 above, I do not rely on these suspicions as a basis for assessing his character.
38. The principles applicable to the assessment of character in migration cases have been referred to in many previous decisions of the Federal Court of Australia and the AAT.
(See Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780.
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; and
Ly and Minister for Immigration and Multicultural and Indigenous Affairs (2000) AATA 339 in which Deputy President Forgie provides a very useful review of relevant authorities.
39. The Tribunal is also obliged to apply the principles and directions contained in the Minister’s Direction No 21 (23 August 2001).
40. The visa applicant’s use of a false passport to enter Australia was not unreasonable but, having done so, he continued to use that passport and the assumed identity to apply for a student visa, a visitor visa, a temporary business entry visa and a protection visa. The visa applicant arranged for his brother to come into Australia from Pakistan falsely using the visa applicant’s name as his on a passport so that he, the visa applicant, could then use that passport as his own to further his attempts to stay in Australia.
41. The visa applicant gave false answers to questions on Form 47 in July 2001 as described in paragraph 34(c) above. These were serious breaches of immigration laws and procedures designed to further the visa applicant’s spouse visa claims. So too was his untruthful statement on 10 December 2001 that he had not been charged with offences.
42. The visa applicant’s unlawful conduct giving rise to the charges and convictions in the Broadmeadows Court are also obviously serious matters of concern.
43. I am satisfied that the visa applicant’s past criminal conduct and his past and present general conduct warrant the finding which I make viz, that I am not satisfied that he passes the character test.
Discretion
44. It is necessary to consider additional evidence before deciding whether or not to exercise the discretion in favour of the visa applicant.
45. The evidence of the review applicant is of particular importance. She is approximately 32 years of age. She is intelligent, highly articulate, and speaks English very well. She did not require the services of an interpreter during the hearing. The substance of her evidence was contained in Exhibit “B”.. She is an Australian citizen. She was born in Cambodia of Vietnamese parents. She has no siblings. Her parents died during the Pol Pot scourge of Cambodia during her youth. She was cared for by friends or relatives in Phnom Penh who provided her with a secondary education. Exhibit “B” continues as follows. (Some matters irrelevant to the present issues have been omitted).
“Through a relative, I met Con Suoi. I married Suoi in 1992. Suoi is an Australian citizen. He sponsored me for an Australian spouse visa.
I came to Australia in 1993 when I was 22 years old. My marriage to Suoi basically failed because I wanted to study and have a career and my ex-husband wanted me to be a housewife. We separated in 1995 and divorced in 1996.
I studied English when I arrived in Australia for a year and a half. I then studied office administration for 1 semester. At the end of that semester, I started working part time in a doctor’s surgery. From 1996 to 1997 I studied a two year information technology course at North Melbourne Institute of TAFE. From 1998 to 2000, I studied a Bachelor of Business Information Systems at RMIT. Because I had received such high marks in my TAFE course, I received an exemption from studying one year of my bachelor degree. I worked really hard in my studies and during my last year RMIT I also worked part time.
I worked hard at my studies because I had lost everything. Rather than dwell on the past, I saw that studying was my hope for the future. With study comes good employment, respect from others, greater confidence and the opportunity to contribute to society.
Around September 1999, I met Waqaar Ali Mughal. I first met him in an internet chat room. He was living in Brunswick and I was living in Northcote. We met in person in November 1999 at Melbourne Central, near where I worked. We met on a Thursday. He wore a white shirt and black pants; he had a cute face and great sense of humour. We started dating. I was studying at this time and he was very encouraging of my studies. His family are well-educated professionals so he shared with me a belief in the importance of education. He has always been very proud when I have done well in my studies. He helped me by picking me up from lectures or the library when I had to stay late at Uni.
3 or 4 months after we started going out, we moved in together. Soon after this, he told me had applied for a refugee visa to stay in Australia and that his application had been rejected.
I completed my studies at RMIT in December 2000. When I finished my studies, I worked at Melbourne Co-operative Bookshop Group where I had done a placement during my bachelor degree.
Waqaar and I got married in September 2000. In February 2001 we bought a house together. The house is in my name only because at that stage, Waqaar was on a temporary visa.
…
In March 2001, I was offered a job at Angus and Robertson Bookworld. I worked there for 6 weeks. I enjoyed that job. It was a better paid job than I had at Melbourne Co-operative Bookshop Group and it was a bigger company with more potential for promotion.
…
Waqaar and I decided to go to Pakistan and apply for an offshore spouse visa. On 25 May 2002 we applied for a Victorian Police report so that we would know what to say on the forms about whether Waqaar had a criminal record. On 26 May we flew to Pakistan. This meant I had to leave my job at Angus and Robertson, which was disappointing to me.
My first impression of Pakistan was that there were no women in public, just men. I asked Waqaar “Where are all the women?” He said they were not allowed to go outside without wearing burkas. We tried to keep a very low profile while we were in Pakistan, as we did not want the religious people to know Waqaar was back. We were hiding all the time so I didn’t meet many people. My sisters in law had to cover themselves before they went out and were restricted from doing many things. Once, a man came to fix a cable in the lounge room. The women of the house had to go upstairs and hide because a man was present. We only left the house three times because of Waqaar’s fear of those who might persecute him for his Christian beliefs. Twice we went to Islamabad at night by car to register my presence at the Australian Embassy and to extend my visa so we could wait until my husband received his visa. Another time I went to open a bank account so that I could receive the refund of the bond I paid to get husband out of detention.
While I was in Pakistan, I had to wear Pakistani clothes. Waqaar’s family was very kind to me. They knew I was no comfortable living there but they tried to do what they could to make me feel welcome.
Waqaar was very scared to go outside because of his fears of the religious fundamentalists. I was scared to go outside because I was scared of everyone! Women weren’t allowed freedom there. I applied for and received a 3 year visa because I intended to stay there while we waited for his Australian visa to be approved. At first I thought it would be okay to stay in Pakistan while we waited for Waqaar’s visa. But after a while I just couldn’t bear it there. I feel very lucky to live in Australia after what I saw in Pakistan and what I saw in Cambodia.
I thought it would be a good idea to have a baby while we were living in Pakistan because I could not work in Pakistan and we had the support of Waqaar’s mother and sisters while we were there. We thought the timing was right in our lives to have a baby. But eventually I was so scared living in Pakistan and so I decided I could not stay there, for the sake of myself and the baby who would soon be born. It was so hard for me to have to choose whether to be with my husband and have oppressive life in Pakistan or be in Australia without him.
I had to return from Pakistan to Australia and apply for visas for Waqaar and I [sic] to go to Vietnam because there was no Vietnamese Embassy in Pakistan. Even though I was originally from Vietnam I could only get a 6 month visa and my husband could only get a 3 month visa.
Waqaar and I stayed with my aunt Nguyen Thi Hoa in Vietnam. Waqaar was able to extend his visa for two extra periods of 3 months each because I explained to the Vietnamese authorities that I wanted him to be there for the birth of our child, but after 9 months he could not stay any longer. Our son Alex was born on 18 February 2002 after we had been in Vietnam for 6 months. We left Vietnam when Alex was 3 months old.
We were in Vietnam when Alex was about 4 weeks old and I found a lump on his neck. I took him to see a doctor and the doctor told me that it would be better for Alex if I took him back to Australia because better medical treatment is available in Australia. The doctor wrote a letter about Alex’s medical condition. It has previously been provided to the respondent. I made arrangements as soon as possible to come back to Australia with Alex after waiting for Alex’s Australian passport and visa to be arranged. Although I have family in Vietnam, I do not want to move there permanently because of the health and education systems would not be as good for Alex in Vietnam as they are in Australia.
The lump has decreased in size somewhat, and I have been advised by doctors in Australia to tell them if it changes at all.
Where we stayed in Vietnam, everyone thought Waqaar was a wonderful man because he was so helpful with the washing (even the nappies!). Even though he could not speak Vietnamese, he was so friendly to everyone and people really liked him.
Waqaar had to return to Pakistan. There are many reasons why I did not go with him back to Pakistan: I needed to make mortgage payments on my house in Melbourne, I am unable to work in Pakistan (because I don’t speak Urdu and women have limited opportunities there), my career is based in Melbourne as this is where my qualifications were gained and where I have been employed, the plane ticket to Pakistan is very expensive and the health and education systems there would not be as good for Alex as they are here in Australia. Also, my life is here: I have supportive friends here and my house is my home. Also, it would be difficult for Waqaar to obtain a permanent visa for Vietnam.
Waqaar caught an earlier flight than I did to leave Vietnam. This was the last time Waqaar saw Alex. I was very sad and so was Waqaar. After I dropped Waqaar at the airport I had to go to the airport myself. I found it hard to carry everything myself. Waqaar had bought me everything I would need for Alex before he left Vietnam so that I wouldn’t have to go shopping during the first week I returned to Australia. Waqaar is so good at planning for everything. We had a lot of financial problems because all the plane flights were so expensive. Waqaar’s family did everything they could to help us out financially.
It is really hard to be here without Waqaar. Everyday I cry. I cannot talk to many people about the immigration difficulties we are facing because I worry that they will think my husband is a bad person, which he is not. People ask me why I didn’t marry someone who is less trouble. Some people say to me “maybe your husband is just using you so that he can stay in Australia”. This really hurts me. I am a private person. Not many people know I am an orphan. I just try to live a normal life. I didn’t make many friends while I was studying because I was always studying and working. People say “why don’t you divorce him and find someone else”. People don’t understand that I love my husband.
I have to keep on going each day for the sake of my son. I bought a house in early 2001. It is hard to pay the mortgage. I would like to go back to work but I have no-one to help me look after Alex. My only income is the Parenting Pension. I am worried my qualifications will become out of date and this is very disappointing to me because I worked so hard to establish my career. I worked so hard for everything I have and now I am left with so little again.
Before we got married, Waqaar used to go to church a lot. He told me a lot about Christianity. He believes in freedom of religion so he never tried to force Christianity onto me. He often prayed while we were in Melbourne, while were in Pakistan and while we were in Vietnam. Waqaar prays to God that even if Waqaar suffers, Alex will be all right.
I have lost my parents and my husband and my career. I feel very sad and lonely. My husband and I have been apart for more than 6 months and we miss each other very much. Waqaar misses his son very much too.
If Waqaar never gets a visa to come to Australia I don’t know what I will do. I will probably stay in Australia and this will mean that Alex will grow up without a father. I do not wish to return to Pakistan with Alex because I don’t think Pakistan is safe; women are oppressed, there are many dangerous religious fundamentalists and terrorists. Access to health and education for children is very limited in the city in Pakistan where I would live with Waqaar and his family If I did go back. I feel that Alex would be much better off growing up in Australia than in Pakistan or Vietnam.”
46. In Exhibit “C” the visa applicant described their journey to Pakistan and Vietnam in somewhat similar terms to those employed by the review applicant. I accept the review applicant as a credible witness as to these events and also as to her experiences in Australia since returning from Vietnam.
47. The visa applicant describes his experiences since return from Vietnam to Pakistan in May 2002 in the concluding paragraphs of Exhibit “C” as follows:
“Now I am living in Pakistan again after not being able to stay in Vietnam. When I arrived back I arrived at my home town at 3 am so no one would see me returning. No one knows I am home. I don’t answer the door and I don’t answer the phone. I try to sleep during the day and wake at night. During the day time my mother locks my door so no one can come into my room. It feels like I am living in prison. However, I am not willing to pretend to be Muslim just to make my life easier so I can live safely in Pakistan. I will not betray my beliefs.
For most of the time since 1997 when I have been in Pakistan I have been in hiding so religious people haven’t had a chance to hurt me.
One of my brothers fled Pakistan and now lives in Japan. He has applied for refugee status. He changed his mind about being a Muslim and realised he couldn’t live safely in Pakistan any more.
Alex is an Australian citizen. It is important for Alex to live in Australia, where he can access good quality education and health systems, enjoy religious freedom and decent housing and food. Also, Australia is the only country where we can live together as a family because I cannot live in Vietnam and Anita would not live in Pakistan.
I am very concerned about how hard it is for Anita to raise Alex without my assistance. In particular, I am worried that there would be no one to look after Alex if Anita became ill, because Anita has no family in Australia. I would like to be in Australia with Anita and Alex so that I can enjoy spending time with my wife and child and so that I can assist Anita to raise Alex. If I am granted my spouse visa and allowed to return to Australia I will help bring up Alex with my wife Anita by changing, bathing and feeding Alex, taking turns looking after him so that Anita can go to work, going shopping to provide for him and teaching him to speak, walk and read. Also, I think it is important for Alex to have me present in his life as a male role model.
If we win this case before the Tribunal and I am able to reunite with Anita and Alex, I plan to study information technology in Australia and to financially support Anita and Alex as much as I possibly can.”
48. There can be little doubt that the review applicant did not enjoy her time in Pakistan despite the best efforts of the visa applicant’s family, but it seems very strange to me that she should have chosen that time to become pregnant and further complicate an already complex situation by adding a young and demanding member to their family. I am also surprised that she failed to appreciate just how alien and restrictive life in Pakistan would be before she decided to accompany her husband on that journey; after all, she had no necessity to accompany him at that time. She had a good and well paid job at Angus and Robertson in Melbourne, and she chose, albeit with some reluctance, to give that up. The visa applicant claims that in February 2001 he was given to understand by a migration official (“Craig” or “Greg”) that if he left Australia and applied for a spouse visa from overseas he would probably be able to return to Australia in about 6 months. The simple fact remains however – the review applicant knew that the visa applicant was facing serious migration problems when they went to Pakistan. As I say, the decision as to these matters taken by the review applicant, no doubt in consultation with her husband, are very difficult to understand. It leads to the suspicion that the child may have been conceived in the hope or expectation that being a father may strengthen the visa applicant’s prospects of a successful outcome upon his visa application. This proposition was put to the review applicant during the hearing, but she denied it.
49. Nonetheless, I have some sympathy for the review applicant’s present position. She has no job, a young child to care for and no relatives to assist her. I should imagine however that her situation is by no means unique. She has a number of Australian friends whom she describes as “supportive”. She is receiving a single mother’s pension, although she is spending an inappropriately large part of this in payment of the mortgage on her home. When giving evidence she seemed tense, pale and apprehensive.
50. Although she had initial concerns about her son’s health when she returned to Australia it is now apparent that he enjoys good health generally. This was confirmed by Wendy Scholtes, a family counsellor and social worker, who has provided some support to the review applicant in respect of her sense of loss and grief in separating from her husband. Ms Scholtes has had experience working with troubled children. She said that despite the review applicant’s emotional disturbance:
“Alex seems a happy and well adjusted little boy and she is doing a marvellous job with him.”
She expressed the view, already acknowledged in the Minister’s direction, that a happy two parent home is generally the best environment for a growing child. Ros Armstrong who did not give evidence, but provided a report (Exhibit “H”) echoed these views.
51. Gloria Morales had the visa applicant as a house mate at her home from October 1998 until about January 2000. He always paid his rent and bills on time according to this witness. She confirmed that he was an adherent to the Christian religion and said he had been emotionally and financially supportive to her during a severe illness. She obviously holds him in high regard.
52. The Minister’s Direction No 21, Part 2, enjoins me to have to have regard to 3 primary considerations and a number of other considerations: ”Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations”.
53. The 3 primary considerations are:
(a)the protection of the Australian community and its members;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
54. In dealing with primary consideration (a) it is necessary to consider (inter alia) (i) the seriousness of the relevant conduct, (ii) the likelihood of recidivism, and (iii) general deterrence. In the instant case, it is clear that the visa applicant’s conduct is to be regarded as very serious. He made use of a false document and he made false and misleading statements in connection with migration issues. Having regard to the pattern of his conduct, the risk of recidivism cannot be discounted. He professes remorse, but I think he would be a risk in respect of future claims on Australian Government resources such as unemployment benefits. He has no qualifications at the moment and unless his wife could find work he would probably need to obtain welfare benefits to live in Australia. It is too early to say whether or not he is likely to commit further offences involving deception. I regard general deterrence as a matter of some importance in cases involving deceptive conduct to secure an immigration advantage. I take the view that a consistent attitude by decision-makers on this issue will have the effect of sending a message that fraudsters do not achieve their objective if their deception is exposed.
55. Primary consideration (b) is always difficult to apply. It is plain enough, as the Minister says, that the community expects non-citizens to obey Australian laws while in Australia. I agree with the formulation recently advocated by Deputy President Block viz. that the expectations to be considered are those of “middle-of-the-road” reasonable individuals with a full knowledge of the relevant facts of the case who bring a mature and humane consideration to the appropriate outcome.
56. Primary consideration (c) must obviously be taken into account in the circumstances of this matter, as too must the prospective hardship to both applicants, especially the review applicant. To start with, as I have already observed when she decided to become pregnant she was fully aware that the visa applicant was experiencing substantial immigration problems. She had no reason to suppose his spouse visa was a foregone conclusion. I have already made reference to her extraordinary decision to accompany him to Pakistan and have her first child there. Alex was born in Vietnam as it turned out. He is still very young and there is no reason to suppose that he could not adapt to a foreign culture. It is apparent that his health is good. Fear has been express by both applicants as to the standard of health care in Pakistan and Vietnam. Education standards were also a matter for their concern, but it is not necessarily contrary to a child’s best interests to live in such communities.
57. The visa applicant says he is living in hiding in his native village in Pakistan. He claims that he still fears persecution and violence from Islamic fundamentalists. Based on his past experiences, if these can be believed, he has good reason to be apprehensive, but there is no need for him to stay in that village. It was suggested by the respondent that other parts of Pakistan are considerably more tolerant of other religions. The visa applicant seems to have made no effort to find out where he might live in relative peace and security in Pakistan either alone or with his wife and son. I accept that he would have language difficulties, at least initially, if he were to return to Vietnam – always assuming of course that he could secure a long stay visa for that country. I received the very clear impression from the evidence and his attitude that although he is capable of being friendly and charming, he is really a fairly indolent individual who would be quite prepared to take over primary parenting duties if his wife were able to find employment which provided sufficient income for the family. I can see little, if any benefit from this man’s presence in Australia except insofar as he provides companionship to his wife and parental care to his son, but I have some misgivings as to whether he would continue to fulfil these uxorial and paternal obligations in future if allowed to return to Australia.
58. The best interests of the child are regarded by the Minister as matters of primary concern for decision-makers contemplating the exercise of their discretion, but so too are the issues of protection of the community and the expectations of the community.
59. A secondary, but nonetheless important issue concerns the best interests of a spouse, particularly if the spouse is not shown to be complicit in any misconduct of which the visa applicant has been guilty.
60. There is no basis for concluding that Alex’s best interests would not be served by reuniting with his father, but he is still very young and although it may be assumed there was a bonding between them whilst living together in Vietnam for the first 3 months of Alex’s life, they have now been separated for about 1 year. I therefore think that any continuing separation is unlikely to have any significantly greater adverse effect upon the child or his development, than that which may already have taken place.
61. This observation is relevant because the review applicant says that she is reluctant to return to Pakistan, and declared her intention to remain in Australia as a single parent with her son rather than do so. Whilst she is presently unhappy and distressed by the uncertainty of the outcome of these proceedings, I see no reason to believe that her decision in this respect is final and, even if she were to remain here without her husband, I see no reason to conclude that she will be unable to adapt to the situation or that she will be unable to use her undoubted skills by returning to work at some time in the near future. There was no evidence to suggest that suitable childcare facilities would be unavailable if the review applicant were to resume employment.
62. In the final analysis I have concluded that my discretion should not be exercised in the visa applicant’s favour. Consequently the decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 3 April 2003
Date of Decision 15 May 2003
Counsel for the Applicant Mr G Hughan
Solicitor for the Applicant Western Suburbs Legal Service
Counsel for the Respondent Mr P Barker
Solicitor for the Respondent Australian Government Solicitor
0
2
0