Re Leha and Minister for Immigration and Multicultural Affairs - [2000] AATA 1054

DECISION AND REASONS FOR DECISION [2000] AATA 1054

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/745

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DENISE LEHA
  Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date29 November 2000
PlaceSydney

Decision The decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the visa application be not refused under section 501 of the Migration Act 1958.

..............................................
BJ McMahon
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – failure to pass the character test – false protection visa application – application filled in by someone other than visa applicant – visa applicant had no knowledge of protection visa application – no further pursuit of protection visa – no likelihood of repetition – significant hardship to applicant if visa was refused to her husband – discretion exercised in applicant's favour.

Migration Act 1958 – ss 499, 501

REASONS FOR DECISION

29 November 2000 Mr BJ McMahon (Deputy President)

This is an application to review a decision made on 12 April 2000 refusing to grant a Spouse Subclass 309 Visa to Tevita Leha, the husband of the above applicant. The refusal was made on the ground that Mr Leha did not meet the character requirements for migrant entry into Australia under section 501(6)(c)(ii) of the Migration Act 1958.
Mr Leha was born in Tonga on 2 December 1966 and remains a citizen of that country. His mother, sister, nephews and nieces live in Australia. To visit them he was sponsored by his mother and obtained a visitor's visa in 1992. He arrived in Australia on 7 March, the visa being valid until 7 June 1992. He did not, however, return to Tonga after the visa expired.
He subsequently told an interviewing officer, and he repeated in evidence before me, that his immediate reason for not returning was so that he could look after his frail mother. Other evidence was given by his wife in these proceedings that the sister who had previously been looking after Mr Leha's mother had died. Another sister had difficulty in coping both with her mother and her own children. Subsequently a third sister has come from New Zealand to look after his mother. At the time of the expiration of the visitor's visa, however, there was a real need for care of Mr Leha's mother.
At first he was himself supported by his family. His uncontradicted evidence is that he did not begin working in this country until early in 1995. As I will later recount, he did not receive any authorisation to work until November of that year.
He met Mrs Leha in May 1993 at a social function. Mrs Leha is not a Tongan. Indeed her evidence was that she has never been outside Australia. By the end of 1993 they were living together. It was not until Mr Leha proposed marriage in 1995 that Mrs Leha knew that he had immigration problems. He told her that he had overstayed his visa and he did not know what to do about it.
Through the Tongan community, they were given the name and telephone number of another Tongan woman, Salote Peletsikoti. Preliminary negotiations were conducted with Ms Peletsikoti by Mr Leha's sister. Eventually it was arranged that Mr and Mrs Leha should visit this person at her house in Marrickville. This was a residential house and in no way furnished as an office or shopfront.
Mrs Leha gave evidence that Ms Peletsikoti said she was working for the Immigration Department in Sydney. She is said to have made this statement on a number of occasions. I find it hard to believe, however, that her true status as an agent (registered or not) was not at least suspected by Mr and Mrs Leha. They had previously been asked to bring Mr Leha's passport and photographs and birth certificate. They also paid Ms Peletsikoti some $500 in cash for which no receipt was issued.
The initial interview was conducted partly in the Tongan language and partly in English. Ms Peletsikoti filled in the personal details in an Immigration Department form, leaving a number of blanks. Mr Leha was asked to sign the form there and then, and did so.
It was an application for a Protection Visa. I accept the evidence of both Mr and Mrs Leha that they were unaware of the nature of a Protection Visa and were unaware of the implications of signing the form.
Mr Leha has never claimed to be a refugee. He was always under the impression that he was applying for a work permit. In connection with his application for the present visa, he was asked by an interviewing officer if at the time he had any fear of returning to Tonga. He responded "no it does not apply to me, I just wanted permission to work". He was then asked what he intended to do after obtaining permission to work and he replied "I was looking for someone to marry". Mr Leha reaffirmed in his evidence before me the accuracy of this account of the conversation. He added that he did not intend to obtain permanent residence by false pretence. He married his wife only because he loved her.
The Protection Visa application was lodged on 24 February 1995. Although the receipt (T documents page 61) shows Mr Leha's name as the payer of $30, he insisted that he did not take the application directly to the Department and I have no reason to disbelieve him. I have seen on many occasions receipts showing a visa applicant's name as the payer of the money when clearly that has not been the case. I do not know why this administrative practice has been adopted by the Department. It has led to much confusion, particularly among the Department's advocates.
In conjunction with the application for a Protection Visa he also applied for, and was granted, a Bridging Visa C. This did not entitle him to work.
Nothing further occurred in connection with this application until a statement was received by the Department on 4 July 1995. The original application (which had been lodged more than three months previously) stated in some of the boxes "see statement". It was accepted in this incomplete form. The statement in question was received on 4 July 1995, according to a date stamp appearing on it. There is nothing on the face of the document to connect it with Mr Leha. There is no indication in the T documents how the statement came into existence or how it came into the possession of the Department. There is no covering letter or file note to explain it. It is clearly not in the same handwriting as that appearing in the Protection Visa application form, nor is it in the handwriting of Mr Leha, who is unable to read or write English. The language used in the statement could not possibly have originated with Mr Leha. His knowledge of English is minimal and his understanding of abstract concepts, as I discovered during the time he gave evidence, is also limited.
The text of the statement was as follows (T documents pages 71-72):
"I came to Australia because of an inadequate income. I will not be able to feed myself as I do not own any land and will have no family support.
Very basically, Tonga is a feudal society and the foundation for wealth to be able to live normally is land. The system of inheritance is promised upon the distribution of land to the eldest son. Unfortunately as a result of the intensification of lands as a result of the western culture being accepted against a broadly incompatible tribal culture, it has contributed to the rapid deterioration of the support mechanisms which I can realistically expect.
The inability of the Tongan people to change the system or to alter their government is a future source of much discontent. Parliament consists of the King and cabinet, whose 12 members he appoints, more nobles elected by the small noble class and another nine members elected by the remainder of the population.
I am afraid of going back to Tonga as I am very prodemocratic and my strong support to the democratic party is not seen favourable in Tonga.
Secondly, as a disadvantaged person from birth and my hatred of the inequality of life in Tonga, I know for sure that if I go back there will be circumstances which could lead to my being imprisoned.
I believe that those who appose the prodemocratic movement would attempt to harm me in addition, those who are more privileged would try to harm me. ~~In addition, whose who are more~~ if my views are expressed.
As I have stated before anyone who supports the democratic movement is a threat. In addition, because I believe strongly in free to express my views and make changes in Tonga, I think that this will be the strong reason for my mistreatment.
The authorities of the country is the Government in Tonga and it is the Government in Tonga and it is the Government which suppresses the democratic movement in Tonga. It is the laws in Tonga which has made me an outcast and the authorities are part of the Government."

Notwithstanding these questionable aspects of the statement, no attempt was made to contact Mr Leha until 9 August 1995. On that day a delegate wrote to Mr Leha indicating his then present intention to refuse the application for reasons stated in the letter and inviting Mr Leha's comment. The letter was translated for him by his wife.
It was only at that stage that they realised he had applied for a Protection Visa and realised the general nature of the comments in the statement that had been provided. They went to see Ms Peletsikoti who told them that this was the only way Mr Leha could obtain permission to work. At no time had she told either of them that she intended to apply for a Protection Visa as if Mr Leha was a refugee.
There does not appear to have been any response to the invitation contained in the letter from the Department of 9 August 1995. Instead, more than three months later, Mr Leha was granted a second Bridging Visa C which gave him work rights. From 30 November 1995 he was working in Australia with permission and was no longer infringing section 234 of the Act.
On 19 September 1996 a delegate made a decision to refuse to grant the Protection Visa and set out his reasons, which were restricted to the inadequacy of the grounds claimed as a basis for finding protection obligations under the Refugees Convention.
Unlike many visa applicants whose cases come before this Tribunal, there was no appeal against the decision of the delegate to the Refugee Review Tribunal, nor was there any subsequent application to the Minister to intervene on humanitarian grounds under section 417. The Protection Visa exercise came to an end.
On the advice of Ms Peletsikoti, they decided to apply for a Spouse Visa after they married in August 1996. It was some time before they were able to save the necessary $1,500 to effect a lodgment of this application. It was sent to the Department on 20 September 1996. About a week later, they received the letter of the delegate which had been dated 19 September 1996 refusing to grant the Protection Visa. I have no reason to reject the evidence of Mrs Leha that the first Spouse Visa application was not a response to the rejection of the Protection Visa application but was independent of it.
Nothing further was heard concerning this first Spouse Visa application until late in 1998 (some two years later) when Mr Leha received a letter asking him to forward further medical evidence and any other material that would assist in the application for the Spouse Visa. After this material was sent to the Department, both of them believed that the application would soon be finalised.
Instead, a letter was sent on 6 January 1999 in these terms (omitting formal parts) (T documents pages 252-253):
"I refer to your application for permanent residence in the General (Residence) class on spouse grounds (ie 820/801 subclasses). The application included yourself only.
I regret to tell you that your application has been determined to be invalid. This is because, at the time of application, you were not the holder of a substantive visa, and had had an application for a visa refused since last entering Australia.
Departmental records show that you arrived in Australia on 07/03/92, and your TR-663 Visitor visa was valid until 08/06/92. You were not granted another substantive visa.
On 24/02/95, you applied for a Protection Visa, which was subsequently rejected on 19/09/96. Your application for permanent residence on spouse grounds was lodged on 20/09/96.
Section 48 of the Migration Act 1958 states that a person in Australia, who does not hold a substantive visa, and has been refused a visa since last entering Australia, may only apply for prescribed classes of visa. These classes are prescribed in regulation 2.12 of the Migration Regulations 1994.
The only Residence class prescribed is the Change in Circumstance (Residence) class. However, this class does not include applications made on the grounds of a marriage or a de-facto relationship.
As your application is invalid, it cannot be considered. Your application therefore cannot be assessed for the grant of a visa. There is no right of review on the determination that your application is invalid.
You were granted a Bridging Visa in connection with your application on spouse grounds. A Notice of Intention to Cancel the Bridging Visa held in connection with your application on spouse grounds is enclosed.
A refund of the fee which was paid with this application will be arranged and you should receive that refund in due course."

The application was rejected, not because of anything contained in the application or in the supporting material but because of the fact that at the time of the application, some two years and four months previously, Mr Leha was not in possession of a substantive visa.
On 19 January 1999 he wrote to the Department requesting reconsideration. The letter pointed out that he had been living with his wife for 5 years and 10 months and that they were undergoing financial hardship, that he had been injured at work and generally requesting reconsideration on discretionary grounds. The question of the absence of a substantive visa was not addressed. The decision was affirmed by the Department and a consequent cancellation of the Bridging Visa followed on 1 February 1999.
It was clear that Mr Leha would then have to leave Australia. Two successive Bridging Visas were granted until he left this country and returned to Tonga on 23 April 1999. The application for the first Spouse Visa had been initiated on the advice of Ms Peletsikoti. They were dissatisfied with progress and with her constant demands for money and eventually completed the application themselves. They also dealt directly with the Department thereafter in relation to visas.
After he returned to Tonga, Mr Leha made a second Spouse Visa application on 28 May 1999. It was the refusal of this visa that led to the present proceedings.
On 1 December 1999 he was told that he did not meet the character requirements for migrant entry into Australia and was given an opportunity to respond to that finding. In his own words, he responded in these terms (T documents page 342):
"Dear Mr Smith,
I hereby to write a letter to you about my application may be refuse, when the immigration cancelled my visa and took me to Tonga.
I had a wife in Australia, we were married in 10th August 1996, so I love her and also work together with her every time. Not only that, my wife Denise love me and my family. So, she wish to stay together, but I am staying in Tonga. Therefore, I am writing a letter to you to help me for what way to continue on living together with my wife.
So, I think you have accept my letter with a good opportunity and we are co-operation. I am available at anytime convenience for you for an interview."

Mrs Leha also wrote on his behalf in the following terms (omitting formal parts) (T documents pages 348/349):

"Dear Mr Smith,
RE Tevita Fifita Leha – Ref No. 99/158562
I am writing in response to your recent correspondence, stating that our application may be refuse because you feel that my husband is of bad character.
Could I please just as you to look at the situation, that Tevita found himself in when he arrived in Australia, and please take into account that Tevita on arriving in Australia could not speak English and had no knowledge of Australia Immigration laws.
Both Tevita's mother who was and still is aged frail and dementing, his older sister who was very ill and subsequently deceased towards the end of 1993, a younger sister who took no responsibility for her own child or mother sister or nephew.
I am sure that if Tevita had been aware of the Australian Immigration laws that he would have know that in the circumstance he would have been able to ask for an extension of his visa and possible applied for residency, and it is likely that this would have been granted on medical grounds.
Tevita, had been his mother sole provider since his fathers death, (approximately 1978) When his mother migrated to look after the sister and grandson. His mother contact him and said that she need him to come to Australia to help her. He did as she requested, and subsequently overstayed.
I had been living with Tevita, since late 1993 after his sisters death, during this time Tevita had spent all his time at his mothers home caring for her and his two nephews as his younger sister just going walkabout. It was some time before he told me that he was here illegally, at that stage we discussed the need for him to contact the Immigration Department to try and sort his paper work out. Through the Tongan community in Australia Tevita was directed to a Tongan lady, who said she worked for the Australian Immigration Office in Sydney. Who arranged a visa with working right for Tevita, at no time during our conversation ………………………………………
………………………………………. (one line of text unreadable) was not until the Immigration Department denied the application that we became aware of this, but since the Immigration Department had accepted our application on marital ground, we though thing were alright.
In December 1998 we received a letter telling Tevita to have his medicals and police checks done. Then in early February, 1999 some 2 year four months later we received a letter stating that his visa was cancelled and that he had to return to Tonga. With in a week of receiving this letter I collapsed and nearly died. Tevita left Australia on the 23rd April, 1999 on the 29th April I was readmitted to Westmead Hospital for major chest surgery. On the 9th June, 1999 I was involved in a car accident which also delayed my return to work. I was unable to work from the 14th February, 1999 until 12th July, 1999. I was fortunate enough to have a reasonable amount of leave and long service leave owing to me. Unfortunately not enough to cover the entire period.
The lack of Tevita's emotional, physical and financial support has taken a toll on my health and my emotions generally. I desperately miss my husband and need and want him and his support. My whole life has just been a disaster through this year the only that I have been hanging onto is the fact that he soon will return. Now your letter indicates that this may not be the case.
Tevita is a good man, he is a hard worker and a caring and supportive husband. I realise that he did the wrong thing initially and that ignorance is not an excuse, but please show us compassion when making your decision."

It may be noted that at no time during these representations have either Mr or Mrs Leha repeated the grounds set out in the statement (which was not signed by anybody). At all times their application for reconsideration has been made on discretionary grounds. The delegate made the decision under review on 12 April 2000.
Direction No 17, given by the Minister under section 499, sets out the way in which the character test is to be applied. The subparagraph upon which the delegate relied was said to be applicable because Mr Leha had provided a bogus document or made a false or misleading statement and that he had consequently made a false or misleading declaration on an approved form.

For reasons which I will discuss when dealing with the question of discretion, it is hard to conclude that Mr Leha actively attempted to provide a bogus document or make a false or misleading statement. Nevertheless there is ample authority that if an agent is engaged and if a form is substantially signed in blank, then a visa applicant may not escape responsibility for what the agent has caused to be written on his or her behalf. There was not a real fear of persecution and statements to that effect were clearly false. Mr Leha had an opportunity of retracting them when he was given notice to show cause by the delegate before the final decision on the Protection Visa was arrived at. His failure to do so emphasises the responsibility which he must accept for the falseness of the claims.
There remains, however, a residual discretion. The principles governing the exercise of that discretion are set out in Part 2 of Direction No 17. There are three primary considerations, namely the protection of the Australian community, the expectations of the Australian community and the best interests of any relevant child. Mrs Leha has two adult children from an earlier marriage. Mr Leha has a 12 year old daughter from an earlier marriage. She does not, however, live with him and was not included in his visa application forms. Hers is not an interest which is to be taken into account.
As to the protection of the Australian community, I am to consider the seriousness and nature of the conduct, the likelihood that it may be repeated and the general deterrent effect of a refusal. Any misstatement in a visa application which goes to the heart of the application must be regarded as serious. There would not be a likelihood of repetition. I am unable to say whether refusal would act as a general deterrent. Because of the peculiar circumstances of this case, I am inclined to think that it stands on its own facts and that refusal would have no effect on general deterrence one way or the other.
Direction No 17 requires me to take account of the expectations of the Australian community. Unfortunately, paragraph 2.12 does not spell out what these expectations are. It is in these words:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect."

Paragraph 2.12 gives a small selection of some of the expectations which the Minister believes the Australian community has. It could not possibly be a comprehensive statement, however. For example, as I have said elsewhere, there would be a general expectation in the community that the Act would be administered fairly and humanely.
In my view, the Minister's discretion should be exercised in favour of the applicant under this heading because of the interaction between both applicants and the Department and, as a secondary consideration, because of special circumstances affecting Mrs Leha.
Mr Leha cannot avoid his responsibilities. Nevertheless some of the difficulties and hardships which are now being experienced by both parties have been caused by poor administration on the part of the Department. The handwritten statement which was not signed nor identified by Mr Leha, nor (so far as I am aware) accompanied by any explanatory material, should have been rejected at the time it was received. At the very least, Mr Leha should have been called upon to explain it at that stage. The delay in accepting this statement and dealing with it contributed to the general delay which has characterised his dealings with the Department.
Secondly and more importantly, I consider that the failure to deal with the first Spouse Visa application immediately it was lodged is to a significant extent responsible for some of the ill health to which I will later refer. The first Spouse Visa application was made on 20 September 1996. It was not until some two years and four months later that the Applicant was told that the Spouse Visa application was misconceived because Mr Leha did not hold a substantive visa at the time. He could have been told this on 21 September 1996, within twenty-four hours after making his application. A simple computer check could have ensured that this process did not continue for more than two years during which the Applicant's hopes for the future were undisturbed. It was not even raised in late 1998 when additional material was called for. There does not appear to be any requirement in the application form to identify the existence of a substantive visa at the time the application was made. I accept that the application was made prior to Mr Leha becoming aware that the protection visa application was rejected. If the applicants are expected to take responsibility, so also should the Department account for its administration. The now accepted principle of mutual obligation is of wide application.
The third aspect of Mr Leha's interaction with the Department, forming part of the primary consideration of the expectations of the Australian community, consists of the Department's silence in relation to Ms Peletsikoti. Mrs Leha gave evidence that she had tried to call her as a witness. Ms Peletsikoti had moved to at least four different addresses in Marrickville while they had dealings with her. Her last endeavour to track Ms Peletsikoti down resulted in some information that she had moved to Brisbane. There was nothing in the material before me to indicate whether Ms Peletsikoti was at any time a registered migration agent, whether she had (as she claimed) worked for the Immigration Department or whether the Department had made any attempts to find her and call her to account. This was the basis of a representation made on behalf of the Applicants by their local Member of Parliament, Mr Ferguson, on 22 December 1999. There is nothing in the section 37 documents indicating an appropriate response to this representation. As the Attorney General has pointed out in recent speeches, the Commonwealth should aspire to be a model litigant. In administrative enquiries it should, at the very least, attempt to seek out all relevant information, whether favourable to the Department or not, and put it before the Tribunal.
The fourth matter under this heading is the fact that there was no appeal to the Refugee Review Tribunal or to the Minister. This distinguishes the case from most of the other cases which have come before this Tribunal since the legislation was amended.
The fifth matter, concerning administration, arises from Mr Leha's genuine ignorance and simple accomplishments. I accept his evidence that he did not know he could have approached the Department for an extension of his Visitors Visa, on the grounds of his mother's ill health, in 1992 and 1993. The fact that this matter has been subsequently raised does not, in my view, mean that it is now being falsely put forward. If Mr Leha had been more experienced in the ways of migration law or had sought better advice, many of his present problems would no longer exist.
The most important secondary consideration concerns the health of Mrs Leha. In the first week in February 1999 they received the letter stating that the first Spouse Visa application was invalid and cancelling Mr Leha's Bridging Visa. On 14 February 1999 Mrs Leha was admitted to Westmead Hospital for pneumonia and diabetes. She then developed an empyema requiring major chest surgery at that hospital. Just prior to her return to work, she was involved in a car accident on 9 June 1999 which delayed her return to work until 12 July 1999. These medical conditions had not been evident before receiving this correspondence from the Department. Mrs Leha said that she had been aware she had asthma since she was about 18 years old but had never been hospitalised for it, nor had it ever prevented her from carrying out any activities. Since February 1999 her health has given cause for major concerns. Her asthma has become much worse and she is now on five different medications for this complaint. She has been on two medications since the same time for her diabetes. Until September 1999 she was able to control that condition by diet only. Since then, the diabetes has been uncontrolled even with medications. She considers the stress and the worry brought on by the sudden breach of their sense of impending security is responsible for much of her condition.
The evidence of Mrs Leha was supported by a considerable amount of independent medical evidence. Professor Breslin affirmed the "considerable stress in her life". Dr Rickard gave a detailed account of each of her illnesses and of the medications prescribed for her. The Senior Medical Officer of the Ministry of Health at Tonga certified that only four of these medications were available in that country.
This is only a selection of the strong evidence concerning Mrs Leha's ill health. I am to consider, under paragraph 2.17 of the Direction, the degree of hardship which would be caused to her if the application for a visa were refused. On the evidence before me, that degree would be quite considerable. The evidence also indicates that it would be impossible on medical grounds for her to travel to Tonga and live there. If she is separated from her husband she will continue to be considerably disadvantaged.
During their time together they incurred substantial debts from Credit Unions and a finance company. Although Mrs Leha is in regular employment as a secretary at a hospital, Mr Leha remains unemployed in Tonga. The evidence is that there is no suitable paid work available for him. If the visa is refused then Mrs Leha's hardship is increased by these financial considerations.
On the basis of the primary consideration of the expectation of the Australian community concerning administration of the Act and on the basis of the subsidiary consideration concerning the welfare of the visa Applicant's wife, I consider that a strong case has been made out for benign exercise of the Minister's discretion, notwithstanding my finding that the visa Applicant failed the character test.
The decision under review is therefore set aside and the matter is remitted to the Respondent for reconsideration with the direction that the visa application be not refused under section 501.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  22 November 2000
Date of Decision  29 November 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Ms Adele Connor
  (Australian Government Solicitor)