Priest and Minister for Immigration and Multicultural Affairs - [2001] AATA 568

DECISION AND REASONS FOR DECISION [2001] AATA 568

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/270

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GORDON STANLEY PRIEST
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date21 June 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa refusal - whether the applicant fails the character test - repeated immigration fraud.

Migration Act 1958 s 501
Administrative Appeals Tribunal Act 1975 s 39

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

REASONS FOR DECISION

21 June 2001 Deputy President DP Breen, Presidential Member

This was an appeal against a decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 14 February 2000 to refuse to grant Bijai Kaur Priest a spouse visa. The applicant in these proceedings was Mrs Priest's husband, Gordon Priest.
The matter was heard by me in Brisbane on 20 September 2000 with the applicant linked by telephone from Fiji. Due to the communication difficulties experienced, the hearing was adjourned until 31 January 2001 when the applicant was connected via video-conference link.
Mr Priest represented himself and the respondent Minister was represented by Mr D Kirchhubel of the Australian Government Solicitor's Office. At the conclusion of the hearing Mr Kirchhubel was asked to provide written submissions to assist the Tribunal. Despite repeated requests, as at the date of this decision no such submissions have been forthcoming. The Tribunal, being satisfied that it has provided a reasonable amount of time for the provision of such submissions in accordance with Section 39 of the Administrative Appeals Tribunal Act 1975, will proceed to hand down its decision without the submissions.
Oral evidence was taken from both Mr and Mrs Priest. The following documents were also take into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Statement of Gordon Stanley Priest dated 6.10.00
Exhibit 3 Statement of Bijai Kaur Priest dated 5.10.00

Mr Priest was born on 23 August 1926 and is an Australian citizen. Mrs Priest was born on 14 April 1960 and is a Fijian citizen.
Mrs Priest's migration history is as follows. She arrived in Australia on 10 July 1988 on a tourist visa which was extended until 7 November 1988. She remained in Australia illegally until 1990 when she and her then husband, Mr Chand, applied for refugee status. Their marriage was dissolved in Australia on 9 April 1991.
The visa applicant then married Mr Eskander Faljourn, an Australian citizen on 26 June 1991. She lodged an application for a spouse visa on the basis of that marriage, but upon being interviewed on 10 September 1991, she withdrew that application. She lodged another such application and was again interviewed on 13 January 1992, but admitted that the marriage was a sham.
On 31 May 1993 the visa applicant was denied refugee status and her application for a protection visa was refused. She was detained on 13 June 1993 and she lodged another spouse visa application on the basis of her marriage to Mr Faljourn on 29 June 1993, which was refused on 16 July 1993. Her marriage to Mr Faljourn ended shortly after.
The visa applicant was released from detention and a number of bridging visas were given to her between June and December 1993. In 1994 the visa applicant met Mr Priest. They married on 6 July 1996. On 12 December 1996 she lodged a spouse visa application on the basis of her marriage to Mr Priest but this application was deemed to be invalid on 17 December 1996. A further bridging visa was granted until March 1997 and on 30 June 1997 the Minister determined that he would not personally intervene in this case. On 23 August 1997 her removal to Fiji was monitored and on 26 August she lodged another application on the grounds of her marriage to Mr Priest. That visa was refused on character grounds on 24 June 1998 and the visa applicant again applied on 13 October 1999. That final application for a visa is the application which is the subject of this review.
With respect to the marriage between Mr and Mrs Priest, the respondent did not dispute that it was a genuine marriage. However, the Tribunal noted from the statements provided by Mr and Mrs Priest that the meeting between them was arranged on the basis that the visa applicant was looking for an Australian husband and she viewed them as being in a defacto relationship from the day they met.
Mrs Priest was refused her visa under Section 501 of the Migration Act 1958 on the grounds that the visa applicant lacked good character due to her past and present general conduct.
The Tribunal must first determine whether the visa applicant fails the character test and if she does, whether the discretion under Section 501 should be exercised in her favour. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to these considerations.
The provision of false information to the Immigration Department, the entering into of marriages for the purpose of defrauding the Immigration Department and the overstaying of visas are all activities which, under the Direction, may lead to the finding that a person is not of good character. The repeated overstaying of visas over a space of nearly ten years, falsely claiming refugee status and entering into two marriages for the purpose of obtaining a visa, displays a serious lack of enduring moral quality (see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422). Therefore, it is the Tribunal's finding that, as a result of the breaches of immigration law perpetrated by the visa applicant, pursuant to Section 501 of the Act she fails the character test.
The Tribunal must then consider whether the discretion should be exercised in the visa applicant's favour. There are three primary considerations under the Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the refusal of the visa will have on other non-citizens.
The Direction provides that immigration fraud is to be considered a serious matter. The Tribunal accepts this as the case, particularly here, where it has been done so systematically and over an extended period of time. While the visa applicant's activities do not put the Australian community at risk, they show a blatant disregard for Australian immigration laws which are designed to protect Australia. As such, they are to be viewed as serious.
With respect to the risk of recidivism, the visa applicant has shown that while she was in the country she is not likely to engage in criminal conduct. However, she showed a blatant disregard for immigration laws while she was here and the Tribunal believes the risk that she will disregard Commonwealth laws in the future, if it suits her, is not so remote as to be far-fetched or fanciful.
On the issue of general deterrence, the refusal of the visa may have some effect on people in her community. However, the Tribunal does not see the effect being of material weight.
The second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa.
While the Australian community generally rewards persistence, they would not expect the visa applicant's persistent attempts to gain a visa through false measures to be rewarded with success.
The final primary consideration is enlivened in this case as the visa applicant has two children from a previous relationship. Ronald is 10 years of age and was born in Australia. Satita is 12 years old and was born in Fiji. Neither is an Australian citizen or resident. While they have lived the majority of their lives in Australia, they have spent the last 3½ years living in Fiji. The starting point for this consideration is that the best interests of the children will be served if they remain with both parents. If the visa is refused, Mr Priest will remain in Fiji. Thus, the children would not be separated from either their mother or their step-father. The Tribunal does note that the standard of living is higher in Australian than it is in Fiji and this to some degree weighs this consideration in the applicant's favour as her children would have greater opportunities in Australia.
On balance, the primary considerations are balanced against the visa applicant. There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent considerations are as follows:

(a)the extent of disruptions to the non-citizen's family, business and other ties to the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)genuine marriage to an Australian citizen;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)whether the application is for a temporary visa or permanent visa; and
(f)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.

While Mr Priest is not currently resident in Australia, he has the right of residence and his interests can be taken into account as a secondary consideration.
The Tribunal accepts that there is a genuine marriage between Mr and Mrs Priest and that they would both prefer to live in Australia. This is understandable because there is a higher standard of living here, there are better education facilities for the children and there are better medical facilities for Mr Priest. However, Mrs Priest does have employment in Fiji and she also has family members there. Mr Priest has been living in Fiji since August 1997 and it appears the medical facilities there are at least sufficient and he has integrated into the community. As an Australian citizen he can also fly back to Australia for medical treatment if that is necessary.
The Tribunal is of the view that the secondary considerations, although somewhat in the visa applicant's favour, do not outweigh the primary considerations. To grant a visa now would only send the message that if you perpetrate fraud on the Immigration Department for long enough you will eventually get a visa. That is not an outcome which would be expected by the Australian community. The Tribunal therefore declines to exercise the discretion under Section 501 in the visa applicant's favour.
For the above reasons the Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Denise Burton
  Secretary
Date/s of Hearing  20.9.00, 31.1.01
Date of Decision  21.6.01
Rep. for the Applicant              Applicant appeared in person
Solicitor for the Respondent    Mr D Kirchhubel, Australian Government Solicitor's Office