Re Beale and Minister for immigration, Multicultural and Indigenous Affairs

[2002] AATA 714

DECISION AND REASONS FOR DECISION [2002] AATA 714

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/1066

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MICHAEL BEALE
  Applicant
           And    MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS            
  Respondent

DECISION

Tribunal       The Hon C R Wright QC (Deputy President)     

Date22 August 2002

PlaceBrisbane

Decision      The decision under review is affirmed.             
  .................(Sgnd)..................
  Deputy President
CATCHWORDS
Immigration – spouse visa – refusal on character grounds – disregard of immigration and tax laws.
Migration Act 1958.

Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

22 August 2002      The Hon C R Wright QC (Deputy President)                 
 Introduction   

1. This is an application to review a decision of the respondent's delegate who refused to exercise a discretion in favour of Mrs Liviana Beale ("the visa applicant") under s501 of Migration Act 1958 ("the Act") leading to the refusal of the visa applicant's application for a Class UF Subclass 309 Spouse (Provisional) and Class BC Subclass 100 (Migrant Visa).   The application was lodged by Mrs Beale's husband, Michael Beale ("the review applicant').

2. The visa applicant is a 54 year old female born in Fiji on 23 November 1947.  She is a citizen of Fiji and currently resides in that country.   The review applicant is an indigenous Australian citizen and resides permanently in Australia.   The visa applicant and the review applicant were married in Fiji on 13 December 1998.

3. On 19 November 1999 the visa applicant lodge an application with the Australian High Commission in Suva, Fiji for a visa of the kind mentioned in paragraph 1.   An interview was held with the visa applicant on 21 February 2000 at the office of the Australian High Commission.

4. On 27 September 2000, the visa application was refused by the respondent's delegate on the ground that the visa applicant failed the character test under s501(6)(c)(ii) of the Act by reason of her past and present general conduct. The respondent's delegate declined to exercise his discretion in the visa's applicant favour.

5. The application for review was heard in Brisbane on 18 September 2001 by Deputy President DP Breen who retired on grounds of ill-health before being able to deliver his decision.

6. By agreement of the parties and their legal representatives, the application was submitted for re-hearing before me on the basis of the transcript of the proceedings before Deputy President Breen and the documents which were before him in evidence on that occasion, together with the written submissions lodged by each party's solicitor.   Having satisfied myself that issues of credit may be satisfactorily considered by proceeding in this way, I have undertaken a review of the challenged decision of the Minister's delegate.
   Background

7. On 9 April 1994 the visa applicant travelled to Australia on a visitor's visa, valid for 6 months.   She remained in Australia illegally after her visa expired.   During her time in this country she worked illegally using various false names and tax file numbers.    The visa applicant and the review applicant formed an ongoing and lasting relationship in June 1996.    On 27 May 1998 the visa applicant was located by compliance officers of the Department of Immigration and Multicultural Affairs and placed in detention.   On 2 June 1998 she was issued with a bridging visa requiring her to depart Australia by 10 June 1998 and, on 9 June 1998, she was issued with a further bridging visa requiring her to depart by 20 June 1998.   The visa applicant in fact departed Australia on 20 June 1998 in accordance with the conditions of that bridging visa.
   The Legislation

8. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person, if that person does not satisfy the Minister that he or she passes the character test.

9. Section 501(6)(c)(ii) provides that a person does not pass the character test if having regard to the person's past and present general conduct, the person is not of good character.

10. In Goldie v Minister for Immigration and Multicultural Affairs (1991) FCA 1277 at paragraph 8, Justices Spender, Drummond and Mansfield considered the concept of good character in s501 as being concerned with the issue of whether "the applicant for entry's character, in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry".   In Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted:

    "The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications … Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld".  

11. Section 500(1)(b) of the Act allows an application to be made to the Administrative Appeals Tribunal constituted by a presidential member for review of a decision by the Minister or his delegate under s501.

12. Section 499 of the Act enables the Minister to give written directions to persons having functions or powers under the Act where such directions concern performance of such functions or the exercise of those powers.

13. On 23 August 2001 the respondent issued a two-part direction dealing both with the question of character and the exercise of discretion.    The AAT is bound by such directions, see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. I have had regard to the Minister's direction in performing the present review.

14. The respondent contends that the visa applicant does not pass the character test by reason of the following facts:

(a)She provided misleading information to the Minister in her visitor visa application lodged in April 1994, in that she indicated  her marital status as "married" rather than "separated" when at that time she was in fact separated from her then husband.   The respondent submitted that not only was this information incorrect and misleading, but that the visa applicant had committed an offence under migration law.

(b)The visa applicant failed to depart Australia in October 1994 on the expiry of her visitor visa and she remained concealed in the Australian community until located by the respondent's compliance officers on 27 May 1998, some 4 years later.

(c)During her 4 year stay in Australia, the visa applicant obtained work which was not only in breach of the conditions of her visitor visa, but was also obtained after the expiry of that visa and in circumstances where she had no permission or entitlement to work.

(d)During the course of working illegally, the visa applicant adopted a number of aliases and used false tax file numbers in order to avoid detection by both the immigration authorities and the Australian Taxation Office.

(e)The visa applicant provided misleading information in a visa application lodged by her in September 1999 by stating "no" in response to a question in the application form asking whether or not she had ever been removed or deported from any country (including Australia) or had left any country to avoid being removed or deported, notwithstanding her forced departure from Australia on 20 June 1998.  

1. The respondent submits that the visa applicant's conduct referred to above potentially amounts to breaches of ss234 and 235 of the Act. Her use of false tax file numbers also amounts to breaches ss8K, 8M, 8P and/or 8U of the Taxation Administration Act 1953.    It is submitted that such conduct reflects poorly on the visa applicant's moral qualities and indicates a preparedness on her part, over a  number of years, to deliberately disregard and evade compliance with Australia's laws.

2. Counsel for the visa applicant has submitted that the grounds put forward by the respondent do not justify a finding that the visa applicant is not a person of good character, because –

1. the visa applicant did not provide misleading information on an application form for a visitor visa by stating her marital status as "married" rather than "separated" because, at the time of providing the information, the visa applicant was in fact married, and thus correctly answered the question. On the application form, she was not required differentiate between being married and being separated.

1. the visa applicant did not knowingly provide misleading information in the spouse visa application by stating "no" in response to the question as to whether or not she had ever been deported from any country (including Australia) or had left any country to avoid being removed or deported.  It was submitted that the visa applicant believed this to be the correct answer at the time of providing the information as the review applicant had in fact paid her airfare back to Fiji.

1. she sought advice and assistance from migration agents in Sydney to extend her stay in Australia prior to the scheduled departure date from Australia in October 1994.

1. during the period of the visa applicant's overstay from 1994 to 1998 she made efforts to obtain a replacement passport to enable her to apply for visa extension, but was frustrated by circumstances beyond her control.

discussion

1. In my opinion, the visa applicant is correct when she contends that by stating her marital status as being "married" in the 1994 visitor visa application she was not providing misleading information.   She was married at the time and she said so.   In the decision now under review, the Minister's delegate stated that "marital status is one important factor in assessing a visa applicant's incentive to return to their own country; if someone states that they are in an ongoing marital relationship, the incentive to return may be seen as higher than if they are single or separated.    I consider Ms Beale provided misleading information on that visitor visa form, which is an offence under migration law".  Accepting the contention that the marital status of an applicant is important in this respect I am nonetheless of the view that the established facts are quite unable to sustain the proposition that the information provided was misleading or intentionally false.   The visa applicant's answer to the relevant question cannot be used as a factor to justify an adverse finding against her good character.

1. The other issues raised by the respondent are however of more substance.   They relate to a lengthy overstay which was only terminated by the visa applicant's apprehension by departmental officers.   Although she did in fact  pay tax upon the earnings which she received, nonetheless she used a false tax file number and false names, which, in my opinion, were used to cloak her true identity and to facilitate her continued illegal residency in this country.

1. The visa applicant and the review applicant each filed affidavits (Exhibits 2 and 3 respectively).   I have read these affidavits carefully.   In her affidavit the visa applicant gives a detailed chronology of her movements since 1994 when she first applied to come to Australia.    It is apparent from what she says that her original intent was to act as an unpaid carer for the children of a Fijian acquaintance who was then residing in Australia.    She blames this person for breaching their domestic service agreement, for failing to have her visitor's visa extended and for suggesting that the visa applicant should use a false tax file number if she intended working in this country.   

1. The visa applicant also recounts how she sought assistance from migration agents to whom she paid the sum of $300 in making an application for a protection visa.   Her many inquiries as to the progress of that application were not satisfactorily answered and the migration agent also failed to return her passport.   The visa applicant does not explain the basis upon which she may have been entitled to apply for a protection visa.   On the material available it seems that she had no such entitlement.    

2. Next the visa applicant details dealings which she had with a Ms Nabalarua "a Fijian lady of some standing in Fiji".   The visa applicant said that she thought this lady would be able to help her get a replacement passport and she telegraphed money to her in Fiji.   Again however, the expected assistance was not forthcoming.   The replacement passport was not obtained and apparently the money paid to this lady was kept by her.   

3. Soon thereafter the visa applicant travelled to northern Queensland where she used the name of a deceased person, Setita Navusolo, to obtain employment.

4. In Goondiwindi, between October 1995 and March 1996 she met her future husband, the review applicant.   Her affidavit details their developing relationship and work history in southern Queensland.  

5. She also tells of enlisting the aid of a friend, Ms Savou, a Fijian who was leaving Australia to return to Fiji.   It was arranged that Ms Savou would apply for a replacement passport for the visa applicant.    Despite providing the appropriate funds for this purpose, the visa applicant was again disappointed when her friend failed to complete the mission entrusted to her.   

6. The visa applicant says that she agreed with the review applicant that they would save their money and approach the Immigration Department in Australia to assist in their application for the visa applicant to remain in this country.   They intended to establish a permanent home  in the Warwick district, reasoning that if they had a permanent residence the Immigration Department may treat such an application more favourably.  

7. Before these plans could be realised, the visa applicant was taken into detention.   As already mentioned she left Australia and returned to Fiji on 20 June 1998.  After this, her husband the review applicant travelled to Fiji and they were married there on 13 December 1998 after she had obtained dissolution of her marriage from her previous husband, Pita Bale.

8. The review applicant in his affidavit confirmed the visa applicant's history of their relationship and their plans for the future.   

1. Both deponents were cross-examined during the hearing before Deputy President Breen.    The cross-examination of the review applicant provides no basis for impugning the credibility of what he says in his affidavit.

1. The cross-examination of the visa applicant, however, contains a number of admissions of untruthfulness on her part and shows that she had a considerable propensity to be evasive.

1. Whilst I am prepared to accept that she consulted the migration agent referred to in her affidavit, and sought his assistance to prepare and lodge a protection visa application, I am far from satisfied of the truthfulness of her accounts of the allegedly ill fated dealings which she had with other Fijian nationals.   I also reject her claims that she did not realise her actions were wrong.   I am fully satisfied that in respect of the particulars provided by the respondent, other than that referred to in paragraph 12(a) above, the visa applicant fails to pass the character test.
   Discretion

2. Part 2 of the Minister's Direction No 21 specifies a number of primary considerations which a decision-maker must take into account.   These are:

(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.

1. In the circumstances of the present case, paragraph (c) requires no further discussion, as there are no children to the relevant relationship.

1. In assessing paragraph (a), the protection of the Australian community, it is necessary to have regard to the seriousness and nature of the conduct, the likelihood of its repetition and the value that visa refusal or cancellation may provide by way of general deterrence to others.    In my opinion it is impossible to regard the visa applicant's conduct of intentional disregard for Australia's immigration and taxation laws over a period of some 4 years, as other than serious.    I have already indicated that I do not accept most of the visa applicant's excuses and explanations for her conduct over this period of time.                

1. In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition.    However the risk of recidivism is not constrained in this way.   If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.

1. The visa applicant expresses regret for her conduct, but, in the absence of some more positive basis for concluding that she has been rehabilitated, there is insufficient reason for concluding that she will be no further risk if granted a spouse visa.

1. The respondent contends that the refusal of the visa to the visa applicant will send a clear message to other non-citizens applying for visas that the Australian government considers honesty and candour to be of paramount importance at all times in dealings with the respondent.

1. Reliance was placed upon the words of Purvis DP in Re Ayaad and Minister for Immigration and Multicultural Affairs (2000) AATA  935 @ page 393 where he said:

"These practices are not only contrary to migration legislation, but strike at the very foundation of the right of an independent democratic state to decide who and who it is not prepared to allow to enter into country and there remain.   It is not for non-citizen or illegal resident to make that decision.   Refusing an application that might otherwise have been accepted, where there has falsity and deception, can only draw  to the attention of those who might be contemplating similar conduct, the futility of such behaviour."   

1. I agree with these views and also with the respondent's submission.   In my opinion, in circumstances such as the present, a refusal of the visa applicant's application is likely to become well-known in her local community, and, perhaps, more widely within the general Fijian population.

2. In dealing with the question of the expectations of the Australian community, it is my opinion that fair minded members of the Australian population would consider that a visa applicant who gives false information on his or her visa application, overstays that visa and works unlawfully and uses false names and false tax file numbers to procure work in this country should not be granted a further entry permit.
   Other Considerations

1. Paragraph 2.17 of the Minister's Direction says:

"When considering the issue of visa refusal of cancellation, other matters although not primary considerations, may be relevant.   It is the government's view that where relevant, it is appropriate that these matters be taken into account but generally they be given less individual weight than that given to the primary considerations.    These other considerations may include:

(a)the extent of disruption to the non-citizen's, family business and other ties to the Australian community.  (Reference is then made to Article 23.1 and Article 17.1 of the International Covenant of Civil and Political Rights). 

(b)Genuine marriage to or de facto or interdependent relationship with an Australian citizen, permanent resident or eligible New Zealand citizen;

• In assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen) decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing a relationship;

  (c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens) including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are some way dependent on the non-citizen for support which cannot be provided elsewhere;

  (d)       family composition of the non-citizen's family, both in Australia and overseas;

…

…

(h)      any evidence of rehabilitation and any recent good conduct;

(i)        whether the application is for a temporary visa or permanent visa;

(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

…".

1. In considering these issues, it may be observed that the visa applicant's father and all of her siblings, apart from a brother who lives in America, reside in Fiji.  The visa applicant has no business or other ties to Australia.   It is not disputed that the visa applicant and the review applicant are in a genuine marriage relationship and that the review applicant is an Australian citizen.   There is no doubt continuing emotional hardship to both parties by virtue of the fact that they are now living separately through no choice of their own. 

1. The respondent concedes that there may be some emotional hardship  caused to the review applicant if he decides to re-locate to Fiji to rejoin his wife, but   it must be remembered that the parties were not married at the time the visa applicant returned to Fiji and were only married six months thereafter when the review applicant visited the visa applicant in Fiji.    It must have been obvious to both of them at that time that there was no guarantee that the visa applicant would be allowed to return to Australia.

1. It is submitted on behalf of the review applicant that as an Australian Aboriginal he has a particular relationship to the land in this country and that he has no particular skills which would enable him to obtain work in Fiji if he were to be accepted for permanent residency in that country.

1. The respondent points out that there was no impediment to the review applicant and close family members travelling to Fiji for the wedding on 13 December 1998 and there is no evidence of any legal impediment to members of the review applicant's family maintaining contact with him and/or travelling to Fiji to visit both applicants in the future.

1. I have read the submissions filed on behalf of the review applicant by  his solicitors and the affidavit of John William Robinson and the annexures thereto (Exhibit 2) .   I have given particular attention to the hardship issues, which are raised in those documents.   Assessing and balancing the issues raised, both by the applicants and the respondent, I remain unpersuaded that my discretion should be exercised in favour of the visa applicant.   Accordingly, I am of the opinion, that the decision under review should be affirmed and I so direct.

   I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

   Signed:         Administrative Assistant

   Date of Hearing  18 September 2001      
   Date of Decision  22 August 2002
   Counsel for the Applicant        Mr McIvor

   Solicitor for the Applicant         Mr Robinson, QAILLS

   Solicitor for the Respondent    Mr Cramer, Blake Dawson Waldron