Prasad and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 548

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2004/367

GENERAL ADMINISTRATIVE DIVISION		)
Re		Julie Prasad

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date31 May 2004

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in favour of Jai Shree Prasad.

..............................................

Mr RP Handley    
  Deputy President 

CATCHWORDS

VISAEX – parent (permanent) (subclass 103) visa – character test – refusal of visa on the basis of past and present general conduct – Applicant concedes that the Visa Applicant fails the character test – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the protection and expectations of the Australian community against the hardship to the Visa Applicant and his family – held the actions of the Visa Applicant in overstaying his visa and working illegally were for the sole purpose of benefiting his young family – family would suffer extreme emotional hardship if the Visa Applicant and his wife had to return to Fiji – held decision under review is set aside with the matter to be remitted to the Respondent with a direction that discretion not to refuse the grant of a visa should be exercised in favour of the Visa Applicant.

Migration Act 1958 ss 499, 501G, 501(1), 501(6)(c)(ii)

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

REASONS FOR DECISION

31 May 2004	Mr RP Handley, Deputy President
Summary

1.      The Visa Applicant, Jai Shree Prasad (known as David Prasad), who is aged 56 and a citizen of Fiji, arrived in Australia with his wife, Mereseini Waucu Prasad (known as Mary Prasad), and their four children on 1 May 1982 on a visitor visa valid for three weeks.  From 22 May 1982 to 24 June 1999, 5 August 1999 to 5 January 2000, 5 March 2000 to 19 June 2000, and from 19 July 2000 to 8 November 2000, Mr and Mrs Prasad remained in Australia unlawfully and worked without permission.   On 20 July 1999, Mr and Mrs Prasad applied for protection visas which were subsequently refused.  On 15 October 1998, Mr Prasad lodged an application for a parent (permanent) (subclass 103) visa.

2.      The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Mr Prasad remained in Australia illegally for a period of over 17 years and worked continuously for a number of years while unlawfully in Australia.  A delegate of the Respondent therefore refused Mr Prasad’s application for a parent (permanent) visa.  This is the decision to be reviewed by the Tribunal.

Background

3.      The Applicant, Julie Anita Prasad, was born in Fiji on 22 December 1971 and is aged 32.   She is Mr and Mrs Prasad’s eldest daughter.   Ms Prasad was granted permanent residence in Australia in June 1998 and became an Australian citizen on 26 January 2001.  She has a son, Jordan, born on 11 May 2000, who is aged four.  They currently live with her parents.

4.      The Visa Applicant, David Prasad was born in Suva, Fiji, on 29 July 1947 and is aged 56.   His wife, Mary Prasad was born in Soso, Fiji, on 4 July 1950 and is aged 53.  From 1968 until 1982, Mr Prasad worked as a carpenter for the University of the South Pacific.   Mr and Mrs Prasad were married on 29 September 1970 and are citizens of Fiji. 

5.      On 1 May 1982, Mr and Mrs Prasad arrived in Australia with their four children, Desmond Vijay Prasad, born 6 September 1970 and now aged 33, Julie Anita Prasad, born 22 December 1971 and now aged 32 (the Applicant), Catherine Babita Prasad, born 17 January 1973 and now aged 31, and Sonya Vinita Prasad, born 1 January 1977 and now aged 27, on a visitor visa valid for three weeks.  Their visas expired on 22 May 1982 after which time they remained in Australia unlawfully.

6.      From May 1982 to July 1997, Mr Prasad worked without permission as a cabinet maker for Parker Furniture at Seven Hills.  Between 1991 and 1997, he also had a second, part-time, job, first as a shelf packer and then as a security guard.   From November 1997 until the present, he has worked as a security guard for F5 Protection Services Ltd.  Mrs Prasad also worked without permission from July 1982, initially as a process worker for Rich’s Frozen Foods, and then from January 1989 to August 1989 as a production operator for Revlon, and from August 1989 until August 1994 as a process worker for Baxter Health Care.

7.      In June 1998, Mr and Mrs Prasad’s four children were granted permanent residence.  Three are now Australian citizens.

8.      On 22 October 1998, Mr Prasad lodged an application for a parent (permanent) (subclass 103) visa, which included his wife, at the Australian Embassy in Suva.   On 24 June 1999, Mr Prasad was granted a bridging visa E, valid until 5 August 1999, on the basis of his joining the ROSCO class action in the Federal Court.

9.      On 20 July 1999, Mr and Mrs Prasad both lodged applications for a protection visa which were subsequently refused on 6 September 1999, decisions affirmed by the Refugee Review Tribunal (“RRT”) on 30 November 1999.  On 23 December 1999, Mr Prasad’s then solicitors, Vandeness & Scott, sought Ministerial intervention with regard to this decision.  On 5 January 2000, he was granted a further bridging visa E, valid until 5 March 2000, based on his application for Ministerial intervention, which was subsequently declined on 22 May 2000.   On 28 June 2000, Mr Prasad lodged a second application for a protection visa and was granted a bridging visa E.  The protection visa application was deemed invalid.  On 11 July 2000, a request to the Minister to allow the application to be considered was refused.

10.     On 8 November 2000, Mr Prasad joined the Muin/Lie class action in the Federal Court and was granted a bridging visa E, valid until 18 July 2003, as a consequence of his involvement.  On 29 May 2003, Mr Prasad was granted a further bridging visa E, valid until 19 March 2004.  The class action was subsequently withdrawn on 20 June 2003.

11.     On 7 October 2003, an officer of the Perth Offshore Parents Centre (“POPC”) advised Mr Prasad that he was considering refusing his parent visa application on the ground that he did not pass the character test because of his past and present general conduct and giving him the opportunity to comment on his decision and to provide information within 28 days of receipt of the letter.   On 11 November 2003, Mr Prasad’s then solicitors, Sarah Gillis and Associates, made submissions to the POPC, also enclosing a letter from Mr Prasad dated 10 November 2003. In the letter, Mr Prasad admitted that he and his wife had remained in Australia unlawfully and had worked without permission, but requested that they be allowed to remain in Australia because his four children are all permanent residents of Australia, and said that “our family will be torn apart” if he and his wife had to leave Australia and the effect on “their children and grandson would be devastating”.

12. On 18 March 2004, a delegate of the Respondent decided to refuse the grant of a visa to Mr Prasad on the basis that he did not pass the character test under s 501(6)(c)(ii) of the Migration Act 1958 (“the Act”) and having decided not to exercise his discretion under s 501(1) of the Act to not refuse the grant of the visa. On 25 March 2004, Julie Prasad, the sponsor for Mr Prasad’s parent visa, lodged an application for a review of this decision by the Tribunal.

13. At the hearing, Ms Prasad was represented by Christopher Levingston, Solicitor, of Christopher Levingston and Associates, and the Respondent was represented by Ben Cramer, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 501G of the Act (“the G Documents”) together with the evidence submitted by the Applicant at the hearing. Oral evidence was given by David Prasad, Mary Prasad, Sonya Prasad, Catherine Prasad, Desmond Prasad, and Julie Prasad.

Relevant Legislation

14. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter are paragraphs (c)(ii), as follows:

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

…

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

the person is not of good character; …

15. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”.

16. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

17. At the hearing, the Applicant conceded that Mr Prasad is not of good character having regard to his past and present general conduct. The issue for the Tribunal, therefore, is whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa to Mr Prasad.

Evidence

18.     The facts set out above under the heading “Background” are not in dispute.  Mr Prasad acknowledged that he made a false statement in connection with his application for a visitor visa to come to Australia in 1982:  if he and his family liked it in Australia, they intended to stay – the visit was not just a holiday.  Within two weeks of arriving, he was confident that Australia was the place to raise his young family.  He therefore looked for work and, on 16 May 1982, started work at Parker Furniture as an Assistant Cabinetmaker.  With his first pay, Mr Prasad found a small house to rent for his family to which they moved and then enrolled the three older children in school.

19.     Mr Prasad said when his visa expired, he felt “guilty and bad” and worried about being caught, and also knowing that he did not have permission to work. He regrets overstaying and working without permission.  However, the most important thing for him was the future of his family.  He wanted his children “to get a good education and a fair start in life” (A1).  The only way to achieve this was to stay in Australia.

20.     Mrs Prasad said she was aware that when their visitor visa expired they did not have permission to remain in Australia, and did not have permission to work.  She deeply regretted remaining unlawfully for so many years although she acknowledged that she did nothing about this regret at the time.  She stated that “it was a selfless act only to benefit our children” (A2). 

21.     Mr Prasad said it was one of the best days of his life when his children became permanent residents in June 1998.  But he was worried because he and his wife did not have a visa.  He said there was nothing in the protection visa application lodged in July 1999 that was untrue.  He did fear returning to Fiji because he is of Indian background, his wife is Fijian and his children are bi-racial.  However, he acknowledged that his main reason for lodging the application was to enable him to remain in Australia.  Similarly, his main reason for joining the two Federal Court class actions was to try and obtain permanent residence.

22.     Mr and Mrs Prasad’s four children gave evidence.  All acknowledged that they had benefited from their parents’ decision to stay in Australia unlawfully.  They said their relationship with their parents is a very close one and they would be devastated if their parents have to return to Fiji.  Catherine described her parents as the “rock on which the family is founded”.  Sonya spoke of the unconditional love and support her parents have given her including during the period of her arrest, conviction and imprisonment for fraud offences.  She said she loves her parents more than anything in this world and that their family bonds are very strong.  Julie said the family means everything to her parents, and she is emotionally dependent on them.

23.     Each of the children is in employment and financially independent.  Three are still living at home and contributing to the household expenses;  the eldest, Desmond no longer lives at home.  They acknowledged that if their parents had to return to Fiji, they would visit them but said it would be difficult in terms of cost and time.  If their parents go to Fiji, they will also need to support them financially because there will be no-one there to support them.

24.     Julie said her parents are the primary carers for her son Jordan while she is working.  She works full-time and her work requires that she travels quite a bit.  Jordan has become very attached to her parents.  Her father is the only man in the house and he is not only a grandparent but also a father figure for Jordan.

Application of the Law and Findings

25. As noted above, the Applicant concedes that Mr Prasad does not pass the character test having regard to his past and present general conduct (s 501(6((c)(ii)). The issue for the Tribunal to consider is whether to exercise the residual discretion under s 501(1) to decide not to refuse the grant of a visa to Mr Prasad. In doing so, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three 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.

26.     Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)      the protection of the Australian community, and members of the community;

(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.

27.     Before addressing these considerations, it is appropriate that the Tribunal set out its findings of fact.  The Tribunal has no doubt that Mr and Mrs Prasad and their children are a close-knit family who love each other dearly. They would all be devastated if Mr and Mrs Prasad had to return to Fiji.  The Tribunal also accepts that Mr Prasad’s primary motivation for coming to Australia, overstaying his visa for many years and working without permission, was to afford his children a better life in Australia with a good education and better opportunities for the future.  To achieve this, he was prepared to risk being caught, even though the risk clearly worried him.  Although Mr Prasad states he always regretted his misconduct, his family’s future was more important to him.  The fact that their four children are permanent residents, with three being Australian citizens, is obviously a source of great “comfort and peace of mind” (A1) to him and Mrs Prasad.

28.     Mr Prasad conceded that he made a false statement in connection with his original visitor visa application in 1982. He stated that the claims in his protection visa application that he feared persecution if he and his wife had to return to Fiji, were true and everything stated in the application was true.  However, he acknowledged that the primary motivation for making the application was to enable them to remain in Australia.

29.     The Tribunal’s impression of Mr Prasad is that while he made a false statement and committed serious immigration misconduct, he is in other respects a good family man.  The Tribunal accepts that Mr and Mrs Prasad have a close relationship with their grandson for whom they are the principal carers while Julie Prasad is at work.

30.     Turning to the first of the primary considerations, the protection of the Australian community, the Tribunal notes paragraph 2.4 of Direction No 21 which states:

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community …

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:

(a)       the seriousness and nature of the conduct;

(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

31.     With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.

32. Mr Levingston, for the Applicant, acknowledged that Mr Prasad made a false statement in connection with his visitor visa application in 1982. He noted, however, that overstaying a visa is not noted in Direction No 21 as an example of an offence considered to be “very serious”. Indeed, he contended that whilst overstaying by 17 years is “reprehensible”, it is not an offence. Working without permission is an offence under s 235(3) of the Act attracting a penalty of a fine not exceeding $10,000. However, because the offence does not attract a prison sentence, it does not appear to be regarded as a serious crime.

33.     Mr Levingston said Mr Prasad has made no attempt to conceal any wrong doing, which, while reprehensible, is solely immigration misconduct motivated by his family’s welfare.  Mr Levingston said the misconduct is unlikely to be repeated, there being no evidence of serial misconduct, and doubted that the refusal of a visa would have any deterrent effect in circumstances where Mr and Mrs Prasad’s children were able to obtain permanent residence.

34.     Mr Cramer, for the Respondent, submitted that Mr Prasad committed very serious misconduct by putting his family’s interests ahead of those of Australia.  There is a real risk that Mr Prasad will not obey Australian law if it does not suit him to do so.  Mr Cramer contended that to refuse the grant of a visa to Mr Prasad would send a clear message that such immigration misconduct is not acceptable to the Australian community.

35.     In the Tribunal’s opinion, while Mr Prasad committed serious immigration misconduct, the risk of his repeating such misconduct is minimal.  All the misconduct was associated with his family’s entry and stay in Australia and there is no indication of any likelihood of future misconduct.  The Tribunal notes that whilst deterrence in the case of immigration misconduct is an important factor in deciding whether to refuse a visa, paragraph 2.11 of Direction No 21 states that this is not a conclusive factor in itself.

36.     With regard to the second primary consideration, the expectations of the Australian community, Mr Cramer contended that to grant Mr Prasad a visa would be tantamount to rewarding him for his unlawful conduct and could encourage others contemplating similar misconduct.  Mr Levingston referred to comments made by the Prime Minister, Mr John Howard “that the family is the centre and heart of our nation” (television interview 12 May 2004 (A7)).  Mr Levingston contended that the maintenance of the family unit would be a relevant consideration in weighing up the objective seriousness of Mr Prasad’s conduct.  Mr Prasad’s misconduct is at the lower end of the spectrum.

37.     In the Tribunal’s opinion, Mr Prasad’s conduct does not demonstrate a general contempt for the law.  Apart from his immigration misconduct, in all other respects he appears to be a law abiding member of the community with a deeply held belief in and strong commitment to family values.  These are matters the community is likely to take into account in forming a view as to whether a person should be granted a visa.

38.     The third primary consideration is the best interests of any children under the age of 18.  The Federal Court has emphasised that this is a paramount consideration:  Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision in Vaitaki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In this matter, there is one relevant child, Mr and Mrs Prasad’s grandson Jordan, aged four, for whom Mr and Mrs Prasad are the primary carers while their daughter Julie Prasad is at work. Julie and Jordan also live with Mr and Mrs Prasad in the family home.

39.     The Tribunal accepts the evidence that there is a strong bond between Jordan and his grandparents.  In Mr Prasad’s case, he is the only man in the house and thus his role may be of particular significance in Jordan’s life. It is reasonable to assume that Jordan’s best interests would be adversely affected if his grandparents had to return to Fiji.

40.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family.   Reference is made to Article 23.1 of the International Covenant on Civil and Political Rights which states that:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

Among the other considerations are the degree of hardship which would be caused to immediate family members, family composition, and any evidence of rehabilitation and any recent good conduct.

41.     As stated above, the Tribunal finds that Mr and Mrs Prasad, their four children and grandchild comprise a strong close-knit family.  The evidence of Sonya Prasad, in particular, attests to the unconditional love and support afforded to her by her parents before and after her conviction of a serious criminal offence.  The Tribunal accepts that all family members would be devastated if Mr and Mrs Prasad had to return to Fiji.  Three of their four children are now Australian citizens;  the other is a permanent resident.  While the children would be able to travel to Fiji to see their parents, this would be difficult in terms of their lives in Australia and, undoubtedly, would have a significant adverse effect on the family unit.

42.     Both Mr and Mrs Prasad expressed their remorse for having broken Australia’s immigration laws.  While this could reasonably be assessed as self-serving, nevertheless, the Tribunal’s impression is that essentially Mr and Mrs Prasad are “good” people and genuinely regret their misconduct, seeking only to explain it as what they deemed to be in the best interests of their children from the time they first entered Australia in 1982.

43. Weighing up the primary considerations and taking into account the other considerations, in the Tribunal’s opinion, the discretion in s 501(1) should be exercised in favour of Mr Prasad. He is no threat to the Australian community who would expect that a compassionate view be taken of his family circumstances. There is a young child involved, Jordan, aged four, whose best interests clearly favour the grant of a visa. Moreover, the interests of Mr and Mrs Prasad’s four children and of their family as a whole, favour the grant of a visa. Mr and Mrs Prasad have not been to Fiji since leaving 22 years ago. If they had to return, there would be no immediate family support for them and it is likely that their children would have to support them financially from Australia. Thus, despite Mr Prasad’s serious misconduct in relation to his entry, overstay and working in Australia without permission, the primary and other considerations support the exercise of the s 501(1) discretion in Mr Prasad’s favour.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .....................................................................................
  Associate

Date of Hearing  26 May 2004
Date of Decision  31 May 2004

Solicitor for the Applicant          Mr C Levingston, Christopher Levingston & Associates

Solicitor for the Respondent     Mr B Cramer, Blake Dawson Waldron