Rahman and Minister for Immigration and Multicultural Affairs - [2001] AATA 842

DECISION AND REASONS FOR DECISION [2001] AATA 842

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/380

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Fahmid Rahman
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date9 October 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Ms Mita Farjina Afroz passes the character test referred to in s 501(1) of the Migration Act 1958.
  ..............................................
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor - character test – past and present general conduct – whether Visa Applicant submitted bogus documents in application for grant of visa - whether Visa Applicant gave false and misleading information in application form for grant of visa – expectations of Australian community

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192

REASONS FOR DECISION

Mr R P Handley

This is an application by Fahmid Rahman ("the Applicant") for a review of a decision of a delegate of the Minister of Immigration and Multicultural Affairs ("the Respondent") made on 12 March 2001 to refuse the grant of a Sub-Class 309 Spouse (Provisional) Visa to the Applicant's spouse, Mita Farjina Afroz ("the Visa Applicant").

At the hearing, the Applicant was represented by Stephen Churches, of Counsel, and the Respondent was represented by Zac Chami, Solicitor, of Clayton Utz Lawyers. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the Applicant. Oral evidence was given by telephone by the Visa Applicant, by Ms Mizanoor Rahman Minu, MM Hossain, Khairul Monir, and Dawood Farhan, and in person by the Applicant.
BACKGROUND
The Applicant, Mr Rahman was born in Rajshahi, Bangladesh, on 1 January 1996 and is aged 35. He migrated to Australia in December 1996 and became an Australian citizen in February 1999. He works as an accountant. The Visa Applicant, Ms Afroz, was born in Rajshashi, Bangladesh, on 10 May 1976 and is aged 25.
Mr Rahman and Ms Afroz were introduced through a family friend and were married in Dhaka, Bangladesh, on 26 November 1999. On 28 December 1999, Ms Afroz lodged an application to migrate to Australia, sponsored by her husband, with the Australian High Commission in Dhaka. Mr Rahman returned to Australia on 15 January 2000 having spent approximately 7 weeks in Bangladesh.
On 31 May 2000, Ms Afroz and her widowed mother, Mabia Khatum, who was nominated as a secondary applicant, were interviewed at the Australian High Commission in Dhaka. Ms Afroz was asked about an apparent discrepancy with respect to her mother's date of birth in the application form which, at that time, she was unable to explain satisfactorily. After the interview, arrangements were made for additional documents provided by Ms Afroz at the interview to be verified. These documents comprised a birth certificate for her mother, a marriage certificate for her parents, and a copy of the death register form in respect of the death of her father.
Checks made of these documents indicated that while Ms Afroz's mother's birth certificate was genuine, Ms Afroz's parents' marriage certificate and her father's death certificate were false. Moreover, an affidavit submitted to the Rajshashi City Corporation requesting the issue of a birth certificate for Ms Afroz, had been signed by her father, Tofiqul Alam, on 14 December 1999. Following these matters being raised with Mr Rahman, an agent acting for Mr Rahman submitted a letter from the Mayor of Rajshashi City Corporation, dated 6 February 2001, certifying that the death of Tofiqual Alam was recorded in the death register as occurring on 13 October 1998, and a certificate from the Muslim marriage register and Qazi, dated 3 February 2001, stating that the marriage of Tofiqual Alam and Mabia Khatum was registered on 10 May 1962.
Notwithstanding these submissions on behalf of Mr Rahman, the delegate of the Respondent, Wilson Johnson, Senior Migration Officer at the Australian Embassy in Bangkok, decided on 12 March 2001 to refuse Ms Afroz's application for a visa on the ground that she had deliberately submitted false documents to include her brother and mother as secondary applicants. On 26 March 2001, Mr Rahman sought a review of this decision by this Tribunal.
Relevant Law and Policy
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 are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a) the applicant satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
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".
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 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.
The issue for the Tribunal to determine in this case is, therefore, whether Ms Afroz is not of good character having regard to her past and present criminal conduct and her past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, she should be granted a visa.
Evidence
Mr Rahman and Ms Afroz were introduced by a family friend, Mr Hossein, and were married in Dhaka on 26 November 1999. At that time, Ms Afroz was living in Dhaka and studying for a Master of Business Administration degree. In early December 1999, Mr Rahman realised that it would be necessary to obtain a birth certificate for Ms Afroz. Mr Rahman was present in his sister's house in Dhaka when Ms Afroz telephoned Ms Hossein in Rajshashi, told him that she needed a copy of her birth certificate, and asked Mr Hossein if he could obtain it for her and post it to her in Dhaka. Mr Hossein did this and Ms Afroz received a copy of her birth certificate in the post on 20 December 1999.
Mr Hossein said in his statement (A2, and see the affidavit sworn by Mr Hossein on 18 April 2001, A1) that he went to the City Corporation in Rajshashi to obtain Ms Afroz's birth certificate, but was told that only family members could apply. He therefore decided to pretend to be Ms Afroz's father, Tofiqul Alam, and swore the affidavit of 13 December 1999 to that effect. Mr Hossein said that Ms Afroz did not know that he had prepared and submitted an affidavit in her father's name, and she did not ask him to pretend to be her father. He said he acted of his own accord in order to speed up the issue of Ms Afroz's birth certificate. He did so without realising the consequences and problems that this might cause for Ms Afroz. Mr Hossein said that he was aware that Mr Alam had died, but could not remember when this had occurred.
In Bangladesh, only the person whose birth certificate is sought or a close relative – father, mother, brother, sister – can obtain a copy of the birth certificate, by stating in writing the name of the person whose birth certificate is required, their relationship with the person, and submitting this to the City Corporation who will process the application. This procedure was confirmed by the Mayor of The city of Rajshashi, Mr Minu, in evidence.
Mr Rahman said that on 27 December 1999 he went to the Australian High Commission in Dhaka with Ms Afroz. Mr Rahman was told that a person who was not an Australian citizen would have to attend at the High Commission two hours before sunrise and give his or her name to the security officers who would then permit the person to attend the counter. Mr Rahman said that on that day he also phoned Mr H Rahman (no relation) whom he knew from the time that Mr H Rahman had advised him in relation to his own application to migrate to Australia. About 30 minutes after Mr Rahman having phoned Mr H Rahman, Mr H Rahman came out to the public area and abused Mr Rahman loudly in front of the counter. Mr Rahman said that Mr H Rahman was angry because Mr Rahman had not married his sister with whom he had gone out on a couple of occasions. Mr H Rahman told him that it was due to him that Mr Rahman had obtained his Australian citizenship, which Mr Rahman said was untrue. Mr H Rahman had only advised him on the steps which he needed to pursue.
Mr Rahman and Ms Afroz returned to the High Commission on 28 December 1999 in order to lodge the migration application. Mr Rahman completed the application for migration form on behalf of his wife. When asked, he said he did not recall underlining the sections of the Information Page at the front of the form dealing with other dependents. With regard to giving details of Ms Afroz's parents' dates of birth, Ms Afroz did not know her parents' dates of birth and so Mr Rahman phoned his wife's uncle and asked for their dates of birth over the phone. His wife's uncle provided the dates which Mr Rahman inserted in answer to question 35 of the form. The stated date of birth for Tofiqul Alam was 20 March 1950 and for Mabia Khatum was 20 March 1961. Mr Rahman confirmed that Mabia Khatum had signed the migration application because she was a secondary applicant. Mr Rahman said his mother-in-law had travelled between Rajshashi and Dhaka on several occasions around the time of his and Ms Afroz's marriage during the seven weeks he was in Bangladesh. It was on one of those occasions in December 1999 that she had signed the application form. Mr Rahman said Ms Khatum is a dependent of Ms Afroz because she is a widow and aged sixty. Mr Rahman acknowledged that Ms Afroz has a younger brother MD Shafiquzz Aman who was born on 20 March 1977 and is aged 21. Mr Aman is a university student and not in a position to support his mother. Ms Afroz said that she was aware that her mother having been widowed, her mother could accompany Ms Afroz in her migration to Australia if she was dependent on Ms Afroz. Ms Afroz said that she did not want her mother to be left alone.
Ms Afroz confirmed in evidence that her father had died on 13 October 1998 after a heart attack in Shirowpin. She said she saw her father's dead body after he had died and attended the funeral. She denied having ever knowingly submitted false documents to the Department of Immigration and Multicultural Affairs ("the Department"). She said that she obtained a copy of her parents' marriage certificate after she submitted the migration application form.
Mr Rahman was asked about his and Ms Afroz's marriage certificate and why his father was recorded as the late AFM Abdur Rahman whereas Ms Afroz's father was recorded as Tofiqul Alam without being referred to as being the "late Tofiqul Alam". Mr Rahman said that the inclusion of the word late before a person's name is a matter of choice, in the same way that some Muslim men refer to themselves as MD or Mohammed as the first part of their name.
Mr Minu, who has been the Mayor of Rajshashi for the past ten years, gave evidence that he had inspected the death register and seen the name of Tofiqul Alam entered on the register before he issued the certificate to that effect. Mr Minu said that the death register is a public register. The death certificate form is quite separate from the register both of which he had inspected in respect of Tofiqul Alam. Details of a person's death are entered on to the death register form which is typed, sometimes in English and sometimes in Bengali. But a person's name and serial number attributed to that entry are entered by hand. Both certificates are issued by the City Corporation on the application of a person's parents or close relative, who have to write a letter setting out their relationship to the person whose birth certificate is sought. Mr Minu said a register of marriage certificates is not maintained by the City Corporation. These are maintained by the Muslim Marriage Registrar and Qazi for the different regions.
Mr Khairul Monir, the Muslim Marriage Registrar and Qazi for Pathanpara, Boalia and Rajshashi gave evidence that he has held this position since 1983. He said no one by the name of Aynul Haque works for him. He has only one assistant. Mr Monir said the marriage certificate in respect of Ms Afroz's parents who were married on 10 May 1962, which was issued on 24 August 1999, by Swaokur S Islam (T7), was issued by his assistant when he was away. Mr Monir said the certificate that he issued on 3 February 2001 (T53) stating that Tofiqul Alam and Mabia Khatum were registered as having married on 10 May 1962, was issued after he had personally inspected the marriage register.
Mr Dawood Farhan, a locally employed member of staff at the Australian High Commission in Dhaka, said that he had been working in the immigration section at the Commission since January 1996 and had previously worked with the Department of Foreign Affairs and on the AUSAID Program. Mr Farhan was asked by Wilson Johnson, the Senior Migration Officer at the Immigration Section at the Australian Embassy in Bangkok, to verify the genuineness of the birth, marriage and death certificates submitted with Ms Afroz's migration application. Mr Farhan said that he and Frank Mirmalananthan had visited Rajshashi district on 14 June 2000 to make the necessary checks (T32). They found the birth certificates for Ms Afroz, date of birth 10 May 1976, and for Mabia Khatum, date of birth 20 March 1941, were genuine. However, Mr Farhan said that the marriage certificate for Tofiqul Alam and Mabia Khatum was found to be false on checking with Aynul Haque, the Assistant Marriage Registrar and Qazi of Pathanpara, Boalia and Rajshashi. Mr Haque said the certificate had not been issued by his office and there was no record at that office of Mabia Khatum having been married in that office. Mr Haque, told them that there was no other Muslim Marriage Registrar and Qasi for that area and when Mr Farhan and Mr Mirmalananthan made their own check they also could not find another Registrar.
Mr Farhan said he had also checked the death certificate of Tofiqul Alam with the Rajshashi City Corporation and found it to be false. He and Mr Mirmalananthan had inspected the death register book against the serial number shown on the certificate (T6) and found that the person who died of that serial number was Mohammed Anisur Rahman. Other details entered were different from those shown in the death certificate for Tofiqul Alam. Mr Farhan said that in his experience, it is very easy to obtain falsified documents in Bangladesh.
SUBMISSIONS
Applicant
Mr Churches, for the Applicant, said the main charge against Ms Afroz is that of concealing the life of her father. However, Ms Afroz had given evidence as to the death of her father, and the Tribunal had before it a copy of a certificate to this effect, provided by the Mayor of Rajshashi, who had also given telephone evidence. Similarly, with regard to Ms Afroz's parents' marriage certificate, the Tribunal had before it a certificate issued by the Muslim Marriage Registrar and Qasi, Mr Monir, stating that the certificate was genuine, which was confirmed by Mr Monir in giving telephone evidence. In both cases, the only contrary evidence is that of Mr Farhan which is inexplicable.
With regard to Mr Hossein, he has provided an affidavit acknowledging that he pretended to be Ms Afroz's father in order to obtain a copy of a birth certificate for her. He did this without her knowledge and without realising the problems that it would cause her. The evidence of Mr Rahman, Ms Afroz and Mr Hossein make it clear that there was no involvement by either Mr Rahman or Ms Afroz in this deceit.
Mr Churches said that once it is accepted that Ms Afroz's father was dead on the date stated on the death certificate, the case against Ms Afroz falls away completely. She did no wrong, she has not knowingly given false information to the Department and a visa should be granted to her so that she can join her husband who is an Australian citizen, living and working in Australia.
Respondent
Mr Chami, for the Respondent, contended that Ms Afroz had provided false documents in support of an application for migration to Australia and has continued to mislead the Department by concealing the true position which is that her father is alive. Mr Chami noted that Mr Farhan had been unshaken in his evidence, which Mr Chami said should be preferred to that provided by the Applicant.
In relation to Ms Afroz's parents' marriage certificate and her father's death certificate, Mr Chami said these are bogus documents and Ms Afroz sought to mislead and deceive a migration officer in submitting these documents with her migration application. He said the Respondent therefore contends that Ms Afroz is not of good character and does not pass the character test. If the Tribunal finds that Ms Afroz is not of good character, then the Tribunal should refuse to exercise the Minister's discretion in s 501(1). Mr Chami said that the Respondent contends that Ms Afroz's conduct in seeking to mislead and deceive is very serious and should be given primary weight in accordance with Part 2 of Direction No. 21, in exercising the discretion to refuse the grant of the visa.
Findings
The Tribunal finds that the mistake made in inserting incorrect dates of birth for Ms Afroz's parents in the migration application form was an innocent one based on information which Mr Rahman obtained from Ms Afroz's uncle, when Ms Afroz did herself know her parents' dates of birth. The birth certificate later submitted by Ms Afroz shows that her mother's date of birth was 20 March 1941 and not 20 March 1961. Second, with regard to the marriage certificate for her parents' marriage submitted by Ms Afroz, and the death certificate submitted in respect of her father Tofiqul Alam, the Tribunal is faced with conflicting evidence. On the one hand, there is the evidence of the Muslim Marriage Registrar and Qasi and the Mayor of Rajshashi who have both provided certificates as to the authenticity of the information provided and gave telephone evidence to that effect to the Tribunal. On the other hand, there is the evidence of Mr Dawood Farhan, the locally engaged employee of the Australian High Commission in Dhaka. The differences in this evidence are, in the Tribunal's view, inexplicable. However, the Tribunal accepts, based on Ms Afroz's evidence that her father is dead and based on the evidence of the Mayor of Rajshashi, being the head of the Rajshashi City Corporation, of the authenticity of the record of Mr Tofiqul Alam's death.

In the case of the evidence of Khairul Monir, the Tribunal notes that he is a Muslim Marriage Registrar and Qasi, while Aynul Haque, with whom Mr Farhan spoke, is an Assistant Registrar. To the extent that this distinction is meaningful, and without any other explanation for the conflicting evidence, the Tribunal accepts that Ms Afroz's parents were married on the certified date. Thus, on the balance of probabilities, the Tribunal does not accept that the documents provided by Ms Afroz in connection with her migration application were bogus.
The Tribunal is not satisfied that there has been any fraud or deception by Ms Afroz and there is no other evidence to suggest that she is not of good character.
Application of the law
The Respondent contends that Ms Afroz, by reason of her past and present general conduct, is a person not of good character and is, therefore, a person who does not pass the character test in s 501(1), by virtue of the application of s 501(6)(c) of the Act. The Respondent contends that Ms Afroz submitted bogus documents and sought to mislead and deceive the Department in connection with her migration application form.
By contrast, Mr Churches contends that Ms Afroz is of good character and that there is no evidence to support a finding that she submitted bogus documents, nor that she sought to deceive or mislead the Department. The reference to bogus documents or making a false and misleading statement in relation to a migration application is one which derives from paragraph 1.9 of Direction No. 21.
The Tribunal finds that there is no reliable evidence to establish that Ms Afroz's past and present general conduct is such as to satisfy the Tribunal that she does not pass the character test. Apart from the allegation as to the bogus documents, the evidence suggests that she has complied with departmental requirements in relation to her migration application.
The Tribunal notes the comments made about the character test by Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192 (8 February 2000):
The character test, therefore, requires an objective consideration of the Applicant's "enduring moral qualities" (Irving 68FCR 422 at 431). However, this does not require the Applicant to meet the higher standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277)
On the basis of the documentary and oral evidence, the Tribunal is satisfied that Ms Afroz is of good character. Both Ms Afroz's and Mr Rahman's evidence supports this conclusion. Having come to this conclusion, it is unnecessary for the Tribunal to otherwise consider the exercise of the decision-maker's discretion under s 501(1) of the Act. However, the Tribunal notes, in particular, that Ms Afroz is married to an Australian citizen, with whom she has a genuine and continuing relationship, and is of the view that, in the circumstances, the expectations of the Australian community would be that she and her husband should be permitted to live together in Australia.

Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Ms Afroz passes the character test pursuant to s 501(1) of the Act.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date of Hearing  6 September 2001
Date of Decision  9 October 2001
Counsel for the Applicant        Mr S Churches
Solicitor for the Respondent    Mr Z Chami, Clayton Utz Lawyers