Re Leyden and Minister for Immigration and Multicultural Affairs - [2000] AATA 551

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DECISION AND REASONS FOR DECISION [2000] AATA 551

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1624

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FRANK LEYDEN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date5 July 2000
PlaceSydney

Decision      The decision under review is set aside and the matter is remitted to the Minister with a direction that Ms Aslam, the visa applicant, meets the requirements of the character test under s501 of the Act.
  ....……………………………..
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – subclass 300 (prospective spouse) visa – refusal to issue – citizen of Pakistan – not of good character due to past general conduct – purchase of stolen passport – living illegally in Japan – living illegally in the United Kingdom – consideration of countervailing factors – violence against women in Pakistan – death threat made by visa applicant's family – history of abuse of the visa applicant by family members – genuine fear of death on return to Pakistan – person with enduring moral qualities – consideration of expectations of the Australian community –humane and positive response required –refusal would not have a deterrent effect – no threat to the Australian community - hardship to prospective spouse significant – decision set aside – visa applicant meets character test requirements
Migration Act 1958 s501(1)(b)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277
Manlangit v Department of Immigration and Multicultural Affairs [2000] AATA 400
Powell & Anor v Administrative Appeals Tribunal & Anor (1998) FCR 1
Islam v Secretary for the Home Department; R v Immigration Appeal Tribunal and Another; Ex parte Shah [1999] 2 WLR 1015.

REASONS FOR DECISION

June 2000 Dr D. Chappell

BACKGROUND
Application and Hearing

This is an application by Mr Frank Leyden (the review applicant) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to refuse to grant to his fiance, Ms Neelam Naheed Aslam (the visa applicant) a subclass 300 (prospective spouse) visa. The refusal was based on a finding that Ms Aslam was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Mr Ron Kessels, a solicitor, represented Mr Leyden at the hearing. Both Mr Leyden and Ms Aslam gave personal testimony to the Tribunal. The following witnesses also testified on behalf of the applicant:
Melanie Amber Leyden
Paul Veskio
Zulfiqar Aslam
Wesley Gryk
Ms Adele Connor, a solicitor with the Australian Government Solicitor, represented the respondent. No witnesses were called to give personal testimony on behalf of the respondent.
The Tribunal had before it documents filed for the purpose of s37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      Statutory Declaration of Melanie Amber Leyden           20/4/2000
A2      Statutory Declaration of Mr Clayton Miller          20/4/2000
A3      Letter from Paul Vescio, Compaq Computer Australia Pty Ltd           Undated
A4      Amnesty International – Report - "Pakistan – Women's Human Rights Remain a Dead Letter"           March 1997
A5      Amnesty International – Report - "Pakistan: No Progress on Women's Rights"     September 1998
A6      Amnesty International – News Release -"Pakistan - Government Indifference as lawyers defending women's rights are threatened with death" April 1999
A7      Human Rights Watch - "Crime or Custom? Violence Against Women in Pakistan"           August 1999
A8      Amnesty International – Report - "Pakistan: Honour Killings of Girls and Women"           September 1999
A9      United States Department of State - "Pakistan Human Rights Practices, 1995"     March 1996
A10     United States Department of State – "1999 Country Reports on Human Rights Practices - Pakistan"      February 2000
A11     Amnesty International Report - "AI Report 1999: Pakistan" April 2000
A12     Human Rights Watch Report – "World Report 1999 - Pakistan"        April 2000
A13     Video: BBC documentary programs "Murder in Purdah:"; "Licence to Kill"         January 1999; 25 March 2000
A14     Letter from Mr Wesley Gryk, Solicitor, London 22 May 2000
R1      Immigration Act 1971; Asylum and Immigration Act 1996; Immigration and Asylum Act 1999; Criminal Justice Act 1982 (extract); Addendum to Criminal Justice Act 1982
R2      Immigration Control and Refugee Recognition Act (provisional translation) - Japan

Circumstances Leading to Visa Refusal

The following general facts and chronology of events, which led ultimately to the refusal by the respondent of the visa sought by Ms Aslam, were not in dispute between the parties. Mr Leyden, the review applicant, was born on 25 June 1952 in England and came to Australia in March 1978. He became an Australian citizen on 9 July 1998. He was divorced from his former wife on 20 October 1998. There were no children of this relationship. In April 1997, while on a visit to England, Mr Leyden met his fiance Ms Aslam, the visa applicant. They later became engaged. On 3 March 1999 Mr Leyden applied to sponsor Ms Aslam's migration to this country.
Ms Aslam was born on 28 August 1962 in Lahore, Pakistan and has Pakistani citizenship. She currently lives in Liverpool, England. She has not been previously married and does not have any children. On 7 May 1999 Ms Aslam applied for a subclass 300 (prospective spouse) visa. That application was refused by a delegate of the Minister on 15 October 1999 on the basis that Ms Aslam did not satisfy the delegate that she passed the character test in s501 of the Act. In the reasons provided by the Minister's delegate for her decision it was noted that the evidentiary grounds for this outcome were:
Ms Aslam first came to the Departments [sic] attention when she applied for Prospective Spouse, subclass 300 visa on 07/05/1999. Ms Aslam claimed that her father in Pakistan was persecuting her and she had to leave. She left Pakistan on 07/05/1993 and entered Hong Kong under her Pakistan passport. She claims that she bought a stolen UK passport under the name of Lisa De Munnick dob 02/12/1972 and travelled and lived in a number of countries including Japan for two years (12/1993 - 12/1995). Ms Aslam claims that she entered the UK under this passport in 12/95 (no stamps in the UK passport to verify this) and has been residing in Liverpool, UK until present under this assumed name. The passport has been confirmed with UK officials that it was stolen in Bangkok in 10/1993. Ms Aslam has now obtained a Pakistan passport under her Pakistan name. Ms Aslam has informed the Department that she has not contacted the UK Officials regarding her status but has also stated that she is willing to do so if her application is not successful.
(T: 9)
In determining that on the basis of her general conduct Ms Aslam did not satisfy the delegate that she passed the character test it was stated:
Ms Aslam has shown a total disregard for the Immigration laws of the countries that she has resided in since the purchase of the stolen UK passport in 1993 and her subsequent acts as a result of this. That is, her residing illegally in Japan for two years and her ongoing illegal residency in the UK.
Ms Aslam claims that she fears for her life if she returns to Pakistan as her father has made previous threats to her life. I cannot dispute what to Ms Aslam may be genuine fears. However, Ms Aslam has made no effort to regularise her illegal status in the UK. She has chosen to remain illegal and continue to contravene the Immigration laws in a country that has similar laws to Australia.
(T: 10)
The Minister's delegate declined to exercise her discretion under s501 not to refuse the granting of the visa despite the adverse finding in regard to the character test. On 18 October 1999 Ms Aslam was notified by the respondent of the decision to refuse her application for a visa. On 26 October 1999 Mr Leyden lodged an application for a review of this refusal with the Tribunal (T1). The application included a letter addressed to the Tribunal from Mr Leyden which stated, in part:
The decision is wrong, is contradictory, contains misleading claims and has ignored the humanitarian aspects of the case. A brief explanation of my fiances [sic] circumstances follows:
My fiance was a victim of physical beatings and cultural oppression for the crime of being a woman born in a Muslim country. She fled from an arranged marriage. She was threatened with death if either, she did not go through with a wedding to a first cousin ten years her junior or, if upon checking by a doctor, she was not still a virgin. Even had she wanted to marry her cousin she was not a virgin and therefore damned either way. She had already been hospitalised on several occasions after being battered for being disobedient and she had no reason to doubt her coming punishment.
With no time to properly prepare visa's [sic] etc that might assist her, she fled the country. This situation has led directly to her now being domiciled illegally in the UK. It is now a matter of family honour that should she ever return to her home country she will be hunted down and killed. This is cultural it is difficult to outlaw by the police and anyway, is probably condoned.
My fiance is well educated. At the time she fled Pakistan she was Desktop Publishing Manager for a National Daily Newspaper, in the evening she delivered lectures on computers to 'The Institute of Electrical Engineering Pakistan' [sic]
She swapped this for a life of uncertainty and poverty in a North of England City earning $4 an hour in a Fish and Chip shop?
(T: 5)

LEGISLATIVE AND POLICY PROVISIONS

In order to be granted a subclass 300 (prospective spouse) visa the applicant must satisfy the relevant public interest criteria, including item 4001 in Schedule 4 of the Migration Regulations, which requires the Minister to consider whether it is appropriate to exercise his discretion under s501 of the Act to refuse to grant a visa.
Section 501 of the Act provides:
(1)    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.
…
(6)    For the purposes of this section, a person does not pass the character test if:
(c) 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;
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation under Section 501 – No.17" (the Policy Direction: T5). The Preamble to the Policy Direction states, in part:
This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).
The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.
Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.
The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.
(T5)
Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. Mention must also be made of the Migration Series Instructions (MSI) No.254 ("the character requirement: visa refusal and cancellation under s501 - MSI 254") which was issued on 20 September 1999 and provides guidance to decision makers in making decisions to refuse or cancel a visa under s501 of the Act (see T4). The MSI notes that decisions concerned with the refusal of a visa are to be dealt with in a two staged process:
·first: the non-citizen does not satisfy the decision-maker that he or she passes the Character Test; and
·second: the decision-maker considers whether to exercise his or her discretion.
(T: 30; MSI paragraph 4.1.2)
In relation to decisions under s501(6)(c) of the Act the MSI contains the following guidance:
4.7.1    Paragraph 501(6)(c) is concerned with cases that involve the delegate making a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. For the purposes of the Character Test, criminal conduct means conduct that is punishable by law and has actually been punished by a conviction for an offence. All other conduct, both good and bad, including conduct that may be a crime that was never prosecuted, where no conviction was recorded or the non-citizen was acquitted, is treated as general conduct. Criminal conduct is a subset of general conduct, but is set out in subsection 501(6)(c) separately from general conduct as it is convenient for the purposes of categorisation and analysis when determining whether a person is not of good character. The factors that are relevant to making a finding that a non-citizen does not pass the Character Test on this ground, together with the factors to consider once discretion is enlivened, following any finding that a person does not pass the Character Test, are contained in the s499 direction.
4.7.2    Consistent with the s499 direction, a persons [sic] is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the person
·resulted in offences that are the subject of charges but are not resolved pending a hearing or trial; or
·resulted in the person being acquitted of a criminal offence or where there has been no conviction recorded. The following are examples of past conduct where there has been no conviction or where the person has been acquitted:
-the conduct was never prosecuted (for example the charges were dropped), resulting in no conviction being recorded;
-the person was found guilty of a charge but no conviction is recorded on the basis of previous good conduct, or the offence was treated as 'one-off' offence and out of character;
-the person was acquitted of a serious offence, such as sexual assault, drug related offences, or murder, but evidence is subsequently produced that the person committed the offence. For example, the evidence may have been produced at trial proving that the person has committed the offence but the evidence was rejected for technical reasons or the evidence was not disclosed until after the trial; or
·offences that are likely to have been committed by the person for which the person has not been convicted, but which were taken into consideration by the court (usually following admission by the person) when the person is sentenced for another offence.
4.7.3    In considering such conduct, delegates should distinguish legal technicalities from the proper consideration of a non-citizen's conduct for the purpose of making a visa refusal or cancellation decision. For example, although the rule of 'double jeopardy' prevents a person being brought to trial in circumstances where the person has previously been acquitted of substantially the same offence, s501 decisions are concerned with the person's actual conduct, so an acquittal by a court cannot be conclusive of good character.
(T: 36; paragraph 4.7.1-4.7.3)
Thus the issue which the Tribunal must determine is whether or not Ms Aslam satisfies the character test for the purposes of s501(6)(c)(ii) of the Act. If the Tribunal determines that Ms Aslam does not meet this test then it may nevertheless exercise the discretion under s501(1) of the Act not to refuse the grant of the visa in favour of Ms Aslam. Attention is now turned to the evidence presented concerning Ms Aslam and the application of the character test under s501.
EVIDENCE
Past and Present General Conduct
It was the general contention of the respondent that Ms Aslam did not pass the character test pursuant to s501(6)(c)(ii) of the Act on the basis of her past and present general conduct. More specifically, it was contended by the respondent that Ms Aslam did not pass the character test by reason of her involvement in activities indicating contempt or disregard for immigration laws including:

purchasing a stolen United Kingdom passport
travelling on that passport and living illegally in a number of countries including Japan from December 1993 to December 1995
entering the United Kingdom on that stolen passport
continuing to reside illegally in the United Kingdom
(Statement of Facts and Contentions: paragraph 15-17)

Paragraph 1.9 of the Policy Direction has the following to say about the way in which decision makers should apply the character test under this particular head:
1.9      In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
·      engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
·     continual evasion or non-payment of debt;
·     continual disregard as to payments of family maintenance;

involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
· involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
(T: 69-70)

In both its Statement of Facts and Contentions and in the presentation of its case at the hearing the respondent indicated that it was principally paragraph 1.9(a) and (b) of the Policy Direction which were most relevant to Ms Aslam. While not disputing this, the applicant's case proceeded on the basis that there were countervailing factors which would justify a finding by the Tribunal that Ms Aslam did meet the character test. In order to understand the nature of the applicant's case it is proposed to review the evidence in a sequential fashion, commencing with the information presented to the Tribunal about Ms Aslam's connections with Pakistan and then proceeding to her departure from that country and subsequent residency in a number of other countries en route to her present destination of the United Kingdom. It should be noted that much of what follows represents a summary of a detailed written statement provided by Ms Aslam describing her life experiences (T20).
Connections with Pakistan
Ms Aslam told the Tribunal that while she had been born in Pakistan she had spent most of her formative years living in Saudi Arabia with her father and mother and her elder sister, Nuzhat, and younger brother Zulfiqar (transcript 22 May 2000: 31-33). Ms Aslam said that her father had been a strict disciplinarian and that he had been violent towards her and her sister including inflicting beatings upon them both.
After completing her high school education in Saudi Arabia Ms Aslam returned with her mother to live in Lahore in Pakistan. Ms Aslam's father remained working in Saudi Arabia until 1986 when he too returned to Pakistan. In the interim Ms Aslam commenced university studies and obtained a bachelor of arts degree. She said that her father had been most unhappy about her studies and had asked her mother to stop her going to college.
Ms Aslam said that things started to change in her family upon her father's return from Saudi Arabia. Her eldest sister left home to enter into an arranged marriage with a first cousin while her brother was sent to India to undertake university studies. Her father's relatives began to be critical of the university education that she and her sister had received and her father began to become a much more religious person. He told Ms Aslam that she was no longer to continue her university education but despite this Ms Aslam had sought to study for a law degree without her father's knowledge or permission. Shortly before her examinations in law her father discovered what she had been doing and then burned all of her law books in front of her. Ms Aslam said that she still went to the examination and passed four subjects and failed in three. However, she realised that she would have to abandon her ambitions to study law and instead began to undertake computing courses at university. This led to a struggle between her and her father and other family members.
"[I was] locked in my room for two days to teach me [a] lesson several times. But every time after they unlock me I go straight to the university and told them this is what I want to do. After one years struggle, my father and family decided to stop my pocket money. The computer department became a college and I asked for the job. I got the job as Lab in Charge to teach women only. Now I was becoming more stronger. I made a few good friends and jumped from one job to another. Opportunities were open for me everywhere. I had a bright future. I was working for a newspaper and teaching computers in one of the government institutions. I was well known by everyone and had a very good social circle.
Despite all that I was kicked, punched, battered by family members one by one and [had] been to the hospital several times. I refused all [of] the proposals [that] came for me and told my mum that I want to be a nun. I don't ever want to get married, just to get rid of these proposals. Nun is not in our religion, but some women swear on Quran [Koran] that they want to stay a virgin for [the] rest of their life, just to stay away from family arranged marriages.
(T20: 188)

Relationship and Departure for Hong Kong

At the age of 27 Ms Aslam said that she met and fell in love with an Englishman, Mr Bernie Patrick Smythe, who was living in Pakistan. Mr Smythe took Ms Aslam back to England to meet his family and friends. When undertaking this travel Ms Aslam did not reveal the true purpose of her trip to her parents who believed that she was going to stay with her brother who was at the time living in Holland in order to pursue further university studies. When Ms Aslam did return from Europe she told her mother that she was in love with Mr Smythe and wished to marry him. Her mother then told her father with the following consequences:
… I was battered badly by my brother in law and uncles and locked in the room with all the aches and pains. I was told that as soon as I get better my future will be decided.
After a few days locked in my room I was told I can go back to work. But after work my father will take me to the doctor to find out if I was [a] virgin or not. If I am still [a] virgin I will be married to my cousin who was ten years younger then me. He was only 19 while I was 29. He wast told he only have to marry me and after marriage the family will take care of me and he can marry again when he grows up to a younger woman.
But if I am not [a] virgin my father has a bigger punishment for me. He will send me to the North and sell me to a tribe and no one will ever see my face again. It was the decision of the whole family.
I was so scared I stayed that day at my sisters [sic]. I decided to go away for a month and let things cool down. Maybe when I am not there my father may realise how cruel he and his family is and may change his mind. So I decide to go to Hong Kong for a month. I went back home and refused to go to [the] doctor and told them that I am going to Hong Kong for a month, after I will come back, we will talk about it.
He [my father] went straight mad I ran to my room to stay away from him. He came upstairs he had a rope and a chopping knife. He pulled my legs, tied them and put the chopping knife on my nose and said I will cut this nose and cut these legs if you ever think of going anywhere and I mean it. And if I don't do it the rest of my family is here to do it. I nearly pissed in my trousers. After he left I locked the door and rang my sister and friends to come and help me. I was shivering and shaking. They couldn't help to cool down the situation.
My sister said to me if I were you I would never come back from Hong Kong, just go, run away if you want to be happy and independent.
So it took me a month to collect all the things and run away.
T20: 189)

From Hong Kong to the United Kingdom via Japan

Ms Aslam arrived in Hong Kong from Pakistan on 7 May 1993 (T: 223). She said that she was very lonely, depressed and uncertain what to do next. After living for several weeks in Hong Kong she called her mother who told her that by running away she had disgraced the family and:
…don't ever think to come back. I would rather you came here dead than alive, because (of) what will happen to you when you come, you will pray that you will have died instead. Your father and his family are going insane. They have distributed (your) photo to all the known criminals here (and) if they find you and bring you back (they) will get a good reward in money.
(T20: 190; see also in general transcript 22 May 2000: 40-47)
Because she was on a short stay visa in Hong Kong Ms Aslam had to leave the territory and went to Macau and then to the Philippines before again entering Hong Kong. Mr Smythe then came to stay with her but according to Ms Aslam he failed to understand the cultural situation and circumstances surrounding her departure from Pakistan. Their relationship broke down and Mr Smythe returned to England.
Following this event Ms Aslam began a series of trips to a number of countries in the region in an attempt to obtain employment and also to secure sufficient funds to enable her to go to Fiji where she hoped to be able to stay on a longer term basis (see in general T20: 190-192: transcript 23 May 2000: 80-87). The funds which she had brought with her from Pakistan began to run out and her situation became more desperate when some of these funds were stolen. She said that she had contemplated committing suicide at this stage "but didn't have enough courage to do that as well" (T20: 192). At this time Ms Aslam was in Kuala Lumpur in Malaysia where she said she met a man who told her that he could give her the name and address of a person in Bangkok, Thailand, who could provide her with a British passport. With this passport she could go to Japan and work there to earn enough money to go on to Fiji.
Ms Aslam eventually made her way to Bangkok and with the information that had been provided to her made contact with a man who sold her a British passport for US$500. The passport was in another person's name but a photograph of Ms Aslam was inserted in the document. The man who sold the passport to Ms Aslam told her that she could use it to obtain entry to Japan and that she would also be able to find work in that country. Ms Aslam left Thailand, using the British passport, on 21 December 1993 and arrived in Japan on the same date where she was granted an entry visa (see T: 223 and transcript 23 May 2000: 86).
At the time of her arrival in Japan Ms Aslam said she had only US$200 of funds. She called a contact number which had been given her and she was picked up by a man who took her to a small trailer:
… There were already two other men living with him. He said to me we are all very poor we all work in a factory, whatever we eat we will give you a small portion out of it.
They were all from Ghana. They all sleep at night on floor. Didn't have any space for me. Anyway they put me in their flat. I used to refuse to eat their food but they always leave a little bit for me in their pot. When I bought the bread first time I had a huge shock. It was for 600 yen and only four pieces. So I used to eat one piece a day and save the rest for tomorrow and eat their leftovers when they go out.
My nightmare didn't end here. After a week he told me the reason he put me with them [is] that I am a woman, they are all so lonely and depressed and they work 18 hours a day. They wanted a woman. Now they have one they want sex and they will take care of me properly if I want to, if not then I have to pack my bags and go. I picked up my bag and went. He came after me and gave me a paper with a woman's number on it. He said she can maybe help me to stay for a few days. He said he was sorry.
In short, I saw her and offer her $50 for rent for month, she agreed. She was beautiful young black woman from Ghana, working in a factory. She put me in her brother's room with him, who didn't bother me too much. He was a young lad but a gentleman.
I stayed for a month then a job came. A factory job making transistors for radio. Putting 5000 transistors (assembling them) a day non-stop. Very hard physical job. My hand [was] swollen in cold storage room my back was completely gone. Living on boiled rice no money, I became very sick after a month. He paid me 150,000 yen for a month's wages from which I paid 75,000 yen to the person who found me the job. [The] boss when [he] saw my situation gave me a week off. We were living in the accommodation on top of the factory far from civilisation. By then I have learned a lot of words of Japanese.
Lying in room starving from hunger, hands swollen back so hurting. Thinking I am going to die. Someone dropped some food in my throat. It was a black woman working with me in the same factory. We were not allowed to talk. Even living together. We were not allowed to visit each other. Sacho (boss) think we will waste the time in visiting and will not be fresh enough to work in morning.
She was an angel to me. After work she comes in and put some food into my mouth. After two days I woke up and talk to her properly. I thanked her for saving my life. Her name was Abegal she was from Nigeria. She was illegal as well.
In short, I left this [and] went from one job to another all low paid exploited by the Japanese bosses. Worked resort hotel in Yamanaka Ko cleaning rooms, toilets, changing sheets, preparing food, washing thousands of plates a day. Another nightmare, battered and kicked by boss. Left at last and found a job in Fibre Glass factory. In hot weather washing the inside [of] huge water tanks, scratching the glass with sandpaper. Some times I could feel glass going through the skin. I could see the glass shining on the skin at night. Left the job after two months. The boss kept half a month's salary.
(T20: 193-194)
After these work experiences Ms Aslam eventually obtained a better paid and less physically demanding job as a teacher of English to Japanese children. She was able to save some money in this job and decided that she should then leave Japan after being in that country for about two years. Ms Aslam then took her passport to Immigration officials at the Japanese city of Yokohama and told them that she wished to depart. These officials informed her that she could do so providing she purchased a ticket to England and left by a nominated date. She was fingerprinted and asked whether she had worked while in Japan. She admitted that she had but no action was taken against her by the officials (transcript 23 May 2000: 91-92).
Ms Aslam left Japan on 23 December 1995 and transited through Bangkok before arriving in the United Kingdom on 24 December of that year. She said that she had hoped that she might be able to go to Fiji rather than the United Kingdom but this had proved to be impossible in the circumstances. She also thought that when she got to the United Kingdom it was all but certain that she would be detected at the airport because of the British passport that she was using.
United Kingdom Residency
While her passport was checked by immigration officials at the airport upon her arrival in the United Kingdom these officials did not determine that it was in fact a stolen passport which had been subsequently sold to Ms Aslam in the way that she had described. Ms Aslam said she did not have the courage to tell the immigration officials the truth about her situation. Having gained entry to the United Kingdom Ms Aslam said she had "no clue where to go" and that she had remained at Heathrow Airport for a number of hours before eventually obtaining some assistance from a man who took her to a cheap hotel in London (see in general transcript 23 May 2000: 93-95). Ms Aslam subsequently met a fellow Pakistani who was living in London and learned that they had mutual acquaintances who had worked at a newspaper that Ms Aslam had been employed by when in Pakistan. This Pakistani acquaintance referred Ms Aslam to a lawyer in order to seek advice about her immigration status. The lawyer advised Ms Aslam that she would not be entitled to obtain asylum in the United Kingdom because her situation involved what amounted to domestic violence. There was also a possibility that if she did apply for asylum she might be simply deported immediately back to Pakistan because she had not given up her passport at the airport and made an asylum claim at that stage.
After receiving this advice Ms Aslam eventually moved to Liverpool where she obtained temporary employment in a fish and chip shop. She was able to survive on the money she earned in this and other part-time jobs in combination with certain funds that she had still remaining from the time that she had been employed in Japan (see transcript 23 May 2000: 96-97).
Ms Aslam said that she was too scared to ask anyone else about her situation and remained fearful that if detected she would be deported back to Pakistan. This is the situation that prevailed until Ms Aslam met Mr Leyden in about April 1997 while he was visiting family members in Liverpool. Shortly after their first encounter Ms Aslam told Mr Leyden about her situation in the United Kingdom, explaining that she had run away from an arranged marriage in Pakistan and that she had gained entry to the United Kingdom on a forged passport that she had purchased (see transcript 24 May 2000: 154). After what was quite a brief encounter Mr Leyden told the Tribunal that he had returned to Australia but continued to communicate on a regular basis with Ms Aslam. He returned to the United Kingdom in November specifically to see Ms Aslam and he stayed in the United Kingdom for several weeks. During this time Ms Aslam said that Mr Leyden persuaded her to seek further legal advice about her immigration status. That advice confirmed that Ms Aslam was not entitled to asylum on the basis of her seeking refuge from the threat of domestic violence and that she should have surrendered the passport at the airport when she arrived in the United Kingdom and applied for asylum from there. Ms Aslam said another legal option that was suggested to her was to go back to Pakistan where she could apply for a visa to go to Australia. However, she said that she could not contemplate returning to Pakistan under any circumstances because:
I would be killed straight away. My father will find me, it is so simple for him to find me and kill me straight away. I can't hide there anyway. If I had known that, I would not leave Pakistan in the first place.
(transcript 23 May 2000: 99)

Contact with Australian Immigration Officials

Mr Leyden told the Tribunal that after returning from his second meeting with Ms Aslam in November 1997 he had sought advice from a number of immigration consultants in Australia about Ms Aslam's situation. The advice given to him was that Ms Aslam would not be allowed into Australia from the United Kingdom but if she went back to Pakistan and applied as his fiance from Pakistan she would be allowed into the country. Mr Leyden said that he also discussed this advice with Ms Aslam and suggested to her that she should return to live in Islamabad, as opposed to Lahore, and be near the Australian High Commission. He told her that he would support her and would even take time off work and come and live with her. Mr Leyden said that Ms Aslam "absolutely refused" to follow this suggestion because she said it was "too dangerous for me to even contemplate it myself" (transcript 24 May 2000: 155-156).
Throughout 1998 Mr Leyden and Ms Aslam continued to correspond by post and phone. On 19 November 1998 Mr Leyden left Australia to become formally engaged to marry Ms Aslam. Once in the United Kingdom Mr Leyden sought further legal advice in order to start the process of having Ms Aslam's status in the United Kingdom regularised. In doing this he thought that it would then be possible for her to apply for immigration into Australia and either return with him or follow at a later stage (see T: 149).
The legal advice that Mr Leyden received in England was that if he were to enter into a relationship with Ms Aslam and to support her for at least two years she could then apply for lawful residency as his dependent in the United Kingdom although there would be no guarantee that this application would be successful. The advice also given to Mr Leyden was that in both the United Kingdom and Australia a more immediate application for residency for Ms Aslam would be successful only if she were to go back to Pakistan and apply from that country (T: 149; transcript 24 May 2000: 158-159).
After receiving all of this advice Mr Leyden said that he felt "at a bit of a no end". He did not wish to give up his employment in Australia but he was prepared to do so if it was the only way in which he could maintain his relationship with Ms Aslam. It was at this point, in early 1999, that Mr Leyden decided to phone the Department of Immigration and Multicultural Affairs (DIMA) in Sydney. He eventually spoke to a senior official and described the entire story to him. The official said that the fact that his fiance was or was not illegal in the United Kingdom should not stop him from making an application for a prospective spouse visa on her behalf. Mr Leyden said that he then went to the DIMA office at The Rocks in Sydney and obtained an immigration pack. He also persuaded Ms Aslam to obtain a similar pack from the Australian Consulate in Manchester. After examining the pack Ms Aslam expressed concern that the information which might be supplied by her about her illegal status in the United Kingdom could be passed on to the United Kingdom Government and that she would then be deported back to Pakistan. Given this concern Mr Leyden then went to speak with DIMA officials at The Rocks and was advised to ask for clarification of the situation in writing. In a letter dated 6 April 1999 Mr Leyden did request such clarification. The letter read as follows:
This letter is pertaining to a Prospective Spouse application for migration to Australia that will be submitted to your consulate by my fiance.
I am a British born Australian citizen and have lived in Australia since 1978.
In April 1997 whilst in England on holiday I met a Pakistani national whom I have eventually become engaged to.
Unfortunately my fiance is an illegal resident in Britain and before that she was illegal in Japan. This will be made clear in our application. My advice from the Australian Immigration Department in Sydney is that this would not automatically exclude her from being eligible for a Prospective Spouse visa, applying from Britain.
The point of this letter is: could you please advise me if having received my fiance's application would you find it necessary to pass on her details to the British Government? Form 993I suggests that this may happen.
My concern if this happens is that if my fiance's application to migrate to Australia fails, passing her details to the British will pre-empt our following intended application to the British Immigration Authority. And if the British authorities are informed via another source I fear that it will be prejudicial to what is an already difficult situation.
Just to re-emphasise, should her application to enter Australia fail we both realise that our only option is to come clean with the relevant British Authority with all that that entails for both my fiance and myself.
I have enclosed copies of references for myself, the originals will be submitted with our application. Also enclosed is a letter that I have written explaining why my fiance is in this predicament.
I apologise for the additional reading but I find it necessary to try and establish my own bona fide's that my intentions are honourable and our relationship is genuine.
(T9: 135)

Mr Leyden's letter of 6 April 1999 also contained a detailed account of the circumstances which had led to his fiance's predicament (see T10). Mr Leyden said that he did not mention Ms Aslam's name in this correspondence with DIMA. He also said that if the advice that had been provided by DIMA was that they could not assure confidentiality of any application he would then have had no option but to end his Australian connections and to return to the United Kingdom. However, about two weeks after writing the letter he received a phone call from a DIMA official Mr Robert Brandscheid, in which he said that while there were no guarantees that the application would succeed he did give a promise of confidentiality and said that Mr Leyden should proceed with the application. Mr Brandscheid did not indicate that the application might be rejected because of character considerations. Following this assurance Mr Leyden and Ms Aslam then lodged their respective applications (see in general transcript 24 May 2000: 160-161).
Mr Leyden said that at no stage had there been any subsequent personal interview with Australian immigration officials but on 27 May 1999 Ms Aslam received a letter from a DIMA official at the Australian Consulate in Manchester, Ms Patricia Carmody, in which she indicated that after speaking with Mr Brandscheid and looking at the information that had been provided:
In order to further consider your application we need to be satisfied that there is no outstanding deportation order against you by the British authorities.
Please provide written evidence from the British Home Office confirming that you are permitted to remain in the UK. This information should be provided within 49 days of the above date
If you are unable to provide this information then the Australian Government is authorised to make enquiries on your behalf, as acknowledged by you in the signed declaration on Form 47.
(T19: 187)
Mr Leyden said that he thought that Ms Carmody's letter was a disgraceful one in that it was clear that she had not read the earlier correspondence in which he had sought an assurance of confidentiality. Mr Leyden responded to Ms Carmody's request in a letter of 4 June 1999 (T21). He referred to the conversation that he had had with Mr Brandscheid and the promise that had been given of confidentiality. He also described Ms Aslam's status as an illegal resident in the United Kingdom. On 10 June 1999 Mr Leyden again wrote to Ms Carmody drawing to her attention a newspaper article which contained a description of the violence perpetrated against women in Pakistan who, like Ms Aslam, had defied the cultural norms (T22). On 17 June 1999 Ms Carmody responded to these two letters from Mr Leyden and requested that Ms Aslam provide her with her previous Pakistan passport which had expired and also the British passport which she had obtained (T23: 218). This request was complied with shortly afterwards (see T25).
It would seem that while the respondent's officials were engaged in this series of correspondence with Mr Leyden and Ms Aslam they were also conducting investigations of their own into Ms Aslam's family circumstances in Pakistan. On 9 July 1999 advice was sent to Ms Carmody from the Australian High Commission in Islamabad reporting that an officer from the High Commision had visited Lahore on 17 June 1999 to interview Ms Aslam's parents. The report went on to state the following:
… The address provided – 5A Park Lane Temple Road does not exist. The parent's address is 5 B Park Lane Temple Road. No person home at the time of the visit. Information collected from neighbours was the family are wealthy and property owners.
Our officer returned later in the evening at 7.45 pm. Mr Alsam [sic] was home. However he refused to discuss the whereabouts of family members. He advised that none of his family had applied for an Australian visa.
However, on 22 June we received a letter from the father – Mr Malik Muhammad Aslam. The letter states:
Dear Sir
We understand that one of our daughters, Neelam is trying to obtain Australian Entry Visa from your Embassy in England. At present she is residing in Liverpool, England. We, being her parents do not recommend her for Australian visa because of the fact that she has gone to other countries and UK with a gang of visas hunters with fake documents.
One of your representative[sic] called on us on the evening of Thursday, June 17, 1999, at our residence in Lahore but we refused to divulge any information to him due to some obvious reasons and did not recommend any of our children for a visa.
The letter was signed by Mr Aslam.
Our officer did not mention the whereabouts of the daughter or a visa application from the UK. Therefore the daughter must have had some contact with the parents recently.
I do not known [sic] where this information leaves you in assessing Neelam's [sic] Naheed Aslam's s/c 300 application or whether this information is relevant.
(T30: 269)

Ms Aslam's Brother's Testimony

The respondent did not seek to call either of Ms Aslam's parents in person to provide testimony on their behalf. The applicant, however, did call upon Ms Aslam's brother, Zulfiqar, to testify in person by phone from Pakistan (see in general transcript 23 May 2000: 63-78). Mr Aslam said that he was now 33 years old and married with a young son. He said that he had been born in Saudi Arabia and had lived in that country for almost 18 years before moving to Pakistan. He now lived in Lahore and was working as an assistant professor in an information technology program at a local tertiary institution. He said that he recalled that while he was living in Saudi Arabia both of his sisters had been very badly treated by his father. He went on to say the following:
… I mean, if you have a boy in your family you are really happy, but if you have a female in the family, you are not happy at all, and this is what happened to my sisters. Talking about my elder sister, whose name is Nuzhat Aslam, she didn't used to score good in her exams as a matter of fact. I mean, when she was sitting the school, and when she didn't used to score good, she was treated very badly. She used to be beaten. My father used to take, sometimes he used to take hammer out. Sometimes he used to take a knife out and I have seen that, and I recall that. At that time I was going to almost seven to ten years old, and I recall that, and he used to up that knife, I mean, on her neck, on Nuzhat's' neck and he would say that, 'You should get an A grade, otherwise I'll kill you.' And this is what I have seen from the start.
Did you ever witness how he treated your other sister, Neelam?---Yes, the same would happen to her. As a matter of fact, she was always good at her studies, so it was not that – it was something on the grade or something …
(transcript 23 May 2000: 65)
Mr Aslam said that the situation had got worse when the family came back to Pakistan from Saudi Arabia. His father had started beating both of his sisters. Mr Aslam said that he had tried to stop his father but he had responded that "no, I should do it because these are girls, and girls are not good to have in the family" (transcript 23 May 2000: 66). Mr Aslam said that his father had found out that his sister Neelam was involved in some type of relationship with a man from the United Kingdom and her treatment became worse. He said that at the time he was studying in the Netherlands and that Ms Aslam had come to visit him there. Upon her return to Pakistan Mr Aslam said that his sister had not sought his advice or discussed with him her intention of going to Hong Kong and that he only discovered what had happened to her when he returned himself from the Netherlands in 1994 after completing his studies. His elder sister then told him that Neelam had run away. He also found out from other members of the family what they felt about his sister's actions:
…I was told that she was not a good girl. She was running around with boys, and that's why she had run away, but if we find her, we will actually kill her, because this is what is in Islam. This is what they say. They say, that if we find that girl, it is better than she should be killed, otherwise she is going to be a nuisance to the family, and to of course all neighbourhood.
(transcript 23 May 2000: 67)
Mr Aslam said he was told these things by his mother because his father would not talk to him at all. At this stage in providing his personal testimony Mr Aslam was asked by Mr Kessels whether he thought his father would carry out the threats that he had made against his sister. Mr Aslam responded in the following way:
… Sir, I have all the reason, because when I get married I had a son, I mean I still have a son of course, a 17 months old boy. As a matter of fact, when my wife got pregnant he was the one who did not want me to have a family doctor because I got married myself. I mean, I didn't involve my parents in that. I tried to involve them, but it didn't work out. They didn't want me to marry this girl, my wife she is now, and they tried their best. As a matter of fact my father my best, I mean his best for me not to have a kid. My father ... that all of the sources he would send people to my house say, 'Listen, if you get a kid, he is going to be dirt. … now, and you come back home.' Now, if that can happen to me, I give them … all of those things could have happened to my sister.
Why wasn't it that he didn't like your wife?---I'm Muslim and she's Christian.
Do you have any ongoing contact with your parents?---Not at all, not at all. I don't want to as a matter of fact.
(transcript 23 May 2000: 68)
The Tribunal asked Mr Aslam further questions about the circumstances in which he was now living and the reactions of his father to his own marriage and that of his sister Neelam (see in general transcript 23 May 2000: 73-76). Mr Aslam said that he now lived with his family in a guarded compound attached to the university where he taught. Two armed guards were assigned to protect him and his family, and his wife and child were accompanied by an armed guard whenever they left the compound.
The Tribunal then asked Mr Aslam what had led to his father describing his sister Neelam as a bad girl:
What was it that she had done that was bad and what would happen – what would likely happen to her if she were to return to Pakistan as a result of doing these things?---But this is first – my father used to say that a girl with high qualifications or high certificates, is not a good girl. I mean, that means that once she gets degrees or once she's a little bit higher educated she can do a job herself, she can go out and she's going to be little bit more, what you call that, independent, and this is something which should not be allowed to my girl and he would never like to see her working by herself. He always wanted that I should be the one supporting these girls, I should be the one ordering them what to do and how to do it and they should never say anything in front of me.
Is that what – sorry, go on?---And when she tried this out when she got herself a job here in Pakistan she was told that listen, you are trying to be independent and you're trying to do things yourself and you are a bad girl because now you're able to make decisions yourself, that means that you are a spoilt child.
Is the fact that she ran away as well, is that something that would also in your culture represent being a bad girl?---Yes, it will very much represent her as a bad girl, yes.
Could you explain briefly why—Okay. The reason is because if you for example run away especially here in Pakistan it's a girl does that – and if a boy does that it's fine, no problem at all, but if a girl does that, that means that she has run away and even like people here, they would – my parents, my father, brothers and sisters, they would also say that listen, you have a bad girl, you have a bad daughter, she has run away, now you can not even see people. I mean, you cannot even tell people that your daughter is not in Pakistan at all and that means that it's on – is your behalf, is on your position that you had a bad girl and your family was not a good family.
Do you know of your own knowledge whether that has been said by your relatives to your father?---Yes, yes, always, yes, because rumours, they run around and you get to know almost everything through different people that this is what has been said by your uncle and by your aunt and by your family.
(transcript 23 May 2000: 75-76)

APPLICATION OF THE CHARACTER TEST
Submission, Policy and Case Law

The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (hereinafter Irving); Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277 (hereinafter Goldie). The following description was given of the term "good character" in Irving by Lee J:
Unless the terms of the Act and Regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis (1947) 75 CLR 409 at 416, per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
(pp431-432)
Mr Justice Lee's statement received subsequent approval from the Full Federal Court in Baker and, more recently, in Goldie. In the latter decision Spender, Drummond and Mansfield JJ said:
The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with 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.
(para 8)
The general contentions made on behalf of the respondent as to why Ms Aslam should be found not to have passed the character test pursuant to s501(6)(c)(ii) of the Act have already been set out (see paragraph 15 above). As will be apparent from the evidence which has also been canvassed in some detail Ms Aslam did not at any stage deny that she had engaged in the activities which the respondent contended indicated contempt or disregard for immigration laws, including the purchase and use of a stolen British passport and working illegally and residing in a number of countries including Japan and the United Kingdom. It was also not disputed by Mr Kessels, on behalf of the applicant that in the course of engaging in these activities Ms Aslam had been in undoubted breach of various immigration laws including those of Japan and the United Kingdom. The respondent tendered, with the consent of the applicant, a number of provisions from the Japanese Immigration Control and Refugee Recognition Act (R2), and also of the United Kingdom Immigration Act 1971 (R1). These provisions showed that if prosecuted and convicted of certain offences under either of these countries' immigration laws Ms Aslam could have been sentenced to a maximum penalty of several years imprisonment, or to a substantial financial penalty.
In her submissions made on behalf of the respondent Ms Connor maintained that the provisions of the Policy Direction, and in particular paragraph 1.9 (a) and (b), applied to conduct which showed a disregard or contempt for not only Australian immigration laws but also those of other countries. The fact that Ms Aslam had not been in any specific breach of an Australian immigration law, nor the fact that she had been allowed to depart Japan without being prosecuted, should not diminish the seriousness of her behaviour. Further, the fact that eventually she had admitted to the various illegal activities did not suggest that she was now a person of good character. Rather, a person of enduring moral qualities, to adopt the definition in Irving, despite being fearful of the consequences would have felt compelled to do the right thing and to make attempts to regularise her stay in Japan and the United Kingdom: see, for example DP McMahon's decision in Manlangit v Department of Immigration and Multicultural Affairs [2000] AATA 400. Ms Connor submitted that by a consistent pattern of behaviour Ms Aslam had demonstrated that when there was a choice between revealing the entire truth about her life or concealing it she preferred the latter, and that this pattern dated back to the time that she was in Pakistan with her parents in relation to the pursuit of her academic studies, to her affair with Mr Smythe, and also to her departure for Hong Kong.
Throughout the hearing the principal thrust of the applicant's case was that countervailing factors existed which explained the general conduct of the visa applicant and which merited a finding that she met the character test. Mr Kessels submitted that the evidence showed that Ms Aslam only acted in the way she did because of the particular circumstances and her obvious fear of returning to Pakistan where she would face serious harm. No evidence had been led by the respondent to contradict what had been said by Ms Aslam nor was it ever put to her that what she had said was not true. Ms Aslam's father, who had been contacted by the respondent, had not been called to contradict what she said and her own brother had given uncontradicted testimony which confirmed her account of her family circumstances. Mr Leyden had also given evidence about how fearful his fiance was, and remained, of returning to Pakistan.
Mr Kessels said that in addition to the personal testimony that had been received by the Tribunal there was also a substantial body of independent and expert documentary and allied material which was also before the Tribunal to confirm the existence of significant and sustained violence against women in Pakistan who transgressed that country's cultural values and mores. This evidence confirmed that Ms Aslam's fears were not merely transitory but had a real foundation in fact. The Tribunal had to also take account of the purpose of the immigration laws of Australia as revealed through the Policy Direction. Mr Kessels also drew the attention of the Tribunal to the following passage in the decision of Powell & Anor v Administrative Appeals Tribunal & Anor (1998) FCR 1 at 15:
I accept that a finding that the Powells were not of good character for the purposes of s 501(2) is open on the facts. But there is a contrary possibility particularly having regard to the remarks of Lee J in Irving, cited earlier in these reasons. Character may be a little like curate's egg and an assessment of whether an applicant is not of good character in the context of an application for a visa must have regard to the public purposes to be served by an adverse finding. In addition it is not sufficient in my opinion for the decision-maker to simply determine under s 501 that a person is not of good character and then move on to consider other discretionary considerations. The nature of the moral deficiencies of persons which justify a view that they are not of good character may be infinite in their range. The want of good character in persons convicted of offences against the person or dealing in addictive drugs may be very different in kind from that of persons who have lied in order to get into the country. And the quality of the character found not to be good will be relevant to the exercise of the discretion which remains after that finding is made by the decision-maker under s 501.
(p15)

The Tribunal's Views
Violence Against Women in Pakistan

Within a society like Australia which prides itself upon respect for human rights, including those concerned with gender equality and the prohibition of sexual harassment and discrimination, it is difficult to conceive, let alone understand, a society like Pakistan in which these basic rights seem to be all but non-existent. The Tribunal was presented with wide ranging information about the current status of women's rights in Pakistan including two recent British Broadcasting Corporation (BBC) documentaries which gave a horrifying portrait of the brutal and often fatal attacks upon women believed to have infringed the traditions of that society (see exhibit A13). The following excerpts from a number of the reports of human rights organisations like Amnesty International and Human Rights Watch also illustrate this sad state of affairs:
Human Rights Watch Report – August 1999
On April 6, 1999, twenty-seven-year-old Samia Sarwar was gunned down in her attorneys' office in Lahore by a hit man retained by her family. Her mother, father, and paternal uncle were all accomplices to her murder. Ms. Sarwar was killed because she was seeking a divorce from her estranged husband-an action her family deemed 'dishonorable' and, hence, warranting death. That Ms. Sarwar suffered such drastic consequences for asserting a modicum of independence is not surprising in Pakistan, where the practice of so-called honor killing claims the lives of hundreds of women every year. Ms. Sarwar's transgression, in the eyes of her family, was seeking a divorce; other women are attacked, by or at the instigation of family members, for choosing their spouses. In addition, countless women suffer from battery, rape, burning, acid attacks, and mutilation. Estimates of the percentage of women who experience spousal abuse alone range from 70 to upwards of 90 percent. If there is anything more disturbing than the prevalence of these crimes, it is the impunity with which they are committed. Samia Sarwar's case is an example not only of the violence experienced by Pakistani women but also of the lack of governmental will to do anything about it. As this report went to print, months after her murder, Ms. Sarwar's killers had still not been brought to trial despite exceptionally strong and credible evidence against them. Similarly, of 215 cases of women being suspiciously burned to death in their Lahore homes in 1997, in only six cases were suspects even taken into custody.
Women in Pakistan face staggeringly high rates of rape, sexual assault, and domestic violence while their attackers largely go unpunished owing to rampant incompetence, corruption, and biases against women throughout the criminal justice system. Women who report rape or sexual assault encounter a series of obstacles. These include not only the police, who resist filing their claims and misrecord their statements, but also medicolegal doctors, who focus on their virginity status and lack the training and supplies to conduct adequate examinations. As for the trial in rape cases, typically, in the words of a Lahore district attorney, 'The past sexual history of the victim is thrown around and touted in court to the maximum.' Furthermore, women who file rape charges open themselves up to the possibility of being prosecuted for illicit sex if they fail to 'prove' rape under the 1979 Hudood Ordinances, which criminalize adultery and fornication. As a result, when women victims of violence resort to the judicial system for redress, they are more likely to find further abuse and victimization.
Women victims of domestic violence encounter even higher levels of unresponsiveness and hostility, as actors at all levels of the criminal justice system typically view domestic violence as a private matter that does not belong in the courts. Police respond to domestic violence charges by trying to reconcile theconcerned [sic] parties rather than filing a report and arresting the perpetrator, and the few women who are referred to medicolegal doctors for examination are evaluated by skeptical [sic] physicians who lack any training in the collection of forensic evidence. When asked about the domestic violence victims who have been examined at his office, the head medicolegal doctor for Karachi explained that '25 percent of such women come with self-inflicted wounds.'
Human rights Watch has investigated the Pakistan government's response to the pervasive problem of violence against women in the country's two largest cities, Karachi and Lahore. Despite the severity of the problem, the government's response has been indifferent at best. At worst it has served to exacerbate the suffering of women victims of violence and to obstruct the course of justice. Our findings highlight that a grossly inadequate and discriminatory legal framework is only one of a whole series of hurdles for victims seeking redress. Victims also have to contend with biased officials and outright harassment at every step of the law enforcement process, from the initial registering of a complaint to the trial. Only the most persistent and resourceful complainants succeed in maneuvering [sic] such hostile terrain, and even those who do seldom see their attackers punished. In the course of our investigation, we interviewed human rights lawyers and activists, police officials, medicolegal doctors, the personnel of government forensic laboratories, prosecutors, judges, and women victims of violence who had attempted to navigate the criminal justice system in order to obtain redress. Our findings are based on these interviews and on-site visits to government hospitals, medicolegal centers, and analytical laboratories.
(A7: 38-39)
Amnesty International Report – September 1999
Women in Pakistan live in fear. They face death by shooting, burning or killing with axes if they are deemed to have brought shame on the family. They are killed for supposed 'illicit' relationships, for marrying men of their choice, for divorcing abusive husbands. They are even murdered by their kin if they are raped as they are thereby deemed to have brought shame on their family. The truth of the suspicion does not matter – merely the allegation is enough to bring dishonour on the family and therefore justifies the slaying.
The lives of millions of women in Pakistan are circumscribed by traditions which enforce extreme seclusion and submission to men. Male relatives virtually own them and punish contraventions of their proprietary control with violence. For the most part, women bear traditional male control over every aspect of their bodies, speech and behaviour with stoicism, as part of their fate, but exposure to media, the work of women's groups and a greater degree of mobility have seen the beginnings of women's rights awareness seep intothe [sic] secluded world of women. But if women begin to assert their rights, however tentatively, the response is harsh and immediate: the curve of honour killings has risen parallel to the rise in awareness of rights.
Every year hundreds of women are known to die as a result of honour killings. Many more cases go unreported and almost all go unpunished. The isolation and fear of women living under such threats are compounded by state indifference to and complicity in women's oppression. Police almost invariably take the man's side in honour killings or domestic murders, and rarely prosecute the killers. Even when the men are convicted, the judiciary ensures that they usually receive a light sentence, reinforcing the view that men can kill their female relatives with virtual impunity. Specific laws hamper redress as they discriminate against women.
The isolation of women is completed by the almost total absence of anywhere to hide. There are few women's shelters, and any woman attempting to travel on her own is a target for abuse by police, strangers or male relatives hunting for her. For some women suicide appears the only means of escape.
Abuses by private actors such as honour killings are crimes under the country's criminal laws. However, systematic failure by the state to prevent and to investigate them and to punish perpetrators leads to international responsibility of the state. The Government of Pakistan has taken no measures to end honour killings and to hold perpetrators to account. It has failed to train police and judges to be gender neutral and to amend discriminatory laws.
(A8: 100-101)
None of the evidence submitted on behalf of the applicant in relation to the treatment of women in Pakistan was contested by the respondent. Nor did the respondent challenge the fact that during the time that Ms Aslam had been resident illegally in the United Kingdom recognition had been given in that country, through the House of Lords decision in the case of Islam v Secretary for the Home Department; R v Immigration Appeal Tribunal and Another; Ex parte Shah [1999] 2 WLR 1015. that the situation confronting women in Pakistan was such that they constituted a social group deserving protection for the purposes of the Refugee Convention. Thus while at the time of her initial arrival in the United Kingdom in December 1995, should Ms Aslam have applied for political asylum, there would have been a very high likelihood that she would have been denied such status and deported to Pakistan, following the decision in Shah and Islam it became possible for Ms Aslam to lodge what would now probably be a successful application for political asylum, although this could take many years to be determined by the legal system (see A14).
Ms Aslam's Situation and Testimony
Having regard to the general situation concerning the status of women in Pakistan as revealed by this evidence, the Tribunal has no reason to doubt that the fears expressed by Ms Aslam for her personal safety following revelation of her relationship with Mr Smythe, and her subsequent flight from her home to Hong Kong and onwards to the United Kingdom, were well founded and realistic. Ms Aslam's testimony about her fears was not challenged in any way by the respondent. It was testimony that was given in a most convincing and moving fashion by Ms Aslam who impressed the Tribunal as an intelligent, sensitive and truthful witness. Ms Aslam's testimony was bolstered by that of her brother who while having only secondary knowledge of the direct circumstances that led to his sister's flight from Pakistan was able to give a first hand account of the beatings and other forms of discrimination and harassment that he had witnessed his father inflicting on both of his sisters. He too was the victim of his father's wrath and threats of violent retaliation following his marriage to a Christian. The Tribunal also found Mr Aslam to be a truthful witness.
Ms Aslam gave a convincing and detailed account of the factors which led to her decision to purchase a stolen British passport in Bangkok and to use that document to first gain entry to Japan, and then the United Kingdom. She described how she endured and survived some painful employment experiences in Japan. Upon her departure from that country she did admit that she had worked without permission, and this admission did not result in any prosecution by the Japanese authorities despite the possibility of such action under Japanese immigration law. The Tribunal accepts that at the time Ms Aslam did depart Japan she hoped to go to Fiji rather than the United Kingdom, but this proved to be impossible in the circumstances. The Tribunal also accepts her explanation of why, although acting in an unlawful manner, she did not bring to the attention of the British authorities her true status when entering the United Kingdom in December 1995. At the time her decision making was still imbued with the genuine fear that if she were to reveal her true identity she would be deported to Pakistan, with possible fatal consequences.
Once she was in the United Kingdom Ms Aslam did seek legal advice about what she should do to regularise her immigration status. That advice did nothing to allay her fears and she therefore decided to continue to conceal her illegal residence from the British authorities and gained part-time and poorly paid employment in order to maintain herself in the United Kingdom.
Mr Leyden's Testimony
When Mr Leyden arrived in the United Kingdom and met Ms Aslam the situation changed again. The Tribunal accepts the testimony of both Ms Aslam and Mr Leyden about their concerted efforts to try and establish what should be done to regularise Ms Aslam's immigration status both in the United Kingdom and, as a future possibility, in Australia. Mr Leyden impressed the Tribunal as a credible witness who displayed patience, tolerance and perseverance in the way in which he sought to allay Ms Aslam's fears while dealing with a series of interactions with legal advisers, and then with the respondent's officials. The Tribunal is satisfied that in the context of a difficult and delicate situation Mr Leyden and Ms Aslam did all that they could to provide a full and frank account of what had happened, and to regularise Ms Aslam's immigration status. Mr Leyden made it quite clear in his testimony that he was more than prepared to return to the United Kingdom to live and work, if that was required in order to maintain his relationship with his fiance and eventually to gain lawful residency for her in that country. The nature of the complex legal situation confronting Ms Aslam and Mr Leyden was portrayed in the articulate and authoritative testimony provided on behalf of the applicant by Mr Wesley Gryk. Mr Gryk impressed the Tribunal as a most experienced and well qualified practitioner in the fields of refugee law and human rights law with a comprehensive knowledge of the current situation prevailing in both of these fields in the United Kingdom (see also A14).
Countervailing Factors
In sum, the Tribunal is of the opinion that there are in Ms Aslam's case compelling countervailing factors which explain why she did engage in the unlawful activities which have been described. They are factors which lead to a conclusion that she does satisfy the character test for the purposes of s501(6)(c) of the Act. A detailed scrutiny of Ms Aslam's general conduct over a number of years reveals enduring moral qualities which suggest that she is a person who has been able to overcome significant barriers imposed by both her culture and family. Through her own initiative and determination she has been able to escape from that culture and society.
Having reached this decision it is not necessary for the Tribunal to consider the exercise of its discretion under s501(1) of the Act. However, the Tribunal wishes to indicate that if it had found Ms Aslam did not pass the character test it would still have exercised the discretion not to refuse to grant the visa that she seeks. In regard to the primary considerations under the provisions of the Policy Direction which would have been relevant to the exercise of the discretion, the Tribunal believes that there is an extremely low level of risk to the community in allowing Ms Aslam to enter Australia. Attention has already been given to the conduct in which she engaged, and the factors which motivated that conduct. There is almost no likelihood of this conduct being repeated. It is also the Tribunal's opinion that women who found themselves in a situation similar to that confronting Ms Aslam would not be deterred from engaging in similar conduct if a visa were to be refused in the present case.
In regard to the expectations of the Australian community the Tribunal believes that fair-minded citizens, made aware of the circumstances of Ms Aslam's case, would display a humane and positive response. That response would be one which would allow her to come to Australia to join Mr Leyden and to become his wife. There was no dispute between the parties about the genuine relationship that Ms Aslam has with Mr Leyden. The Tribunal is also of the view that very significant hardship would be caused to Mr Leyden if his finance were now to be denied entry to Australia. Mr Leyden occupies a trusted and senior position in the Australian arm of a major international computer company. Mr Paul Veskio, the corporate supervisor of Mr Leyden and a senior executive in Compaq Computer Australian Pty Limited, gave personal testimony in support of the review applicant (see transcript 23 May 2000: 55-61; A3). Mr Veskio made it clear that in his position Mr Leyden had responsibility for a multimillion dollar export business. If Mr Leyden did leave the company it would have a significant and negative impact on both this export initiative and also on the contribution being made by Mr Leyden to Australian society at large.
Mr Leyden's stepdaughter, Ms Melanie Amber Leyden, also gave personal testimony about her very close relationship with Mr Leyden and her dependence upon him. She indicated that she would be most distressed if he had to leave Australia as a result of an adverse decision in regard to Ms Aslam's visa application. She also testified regarding her positive views of Ms Aslam, and her general character, as well as to the strength of the relationship between Mr Leyden and his fiance (see transcript 23 May 2000: 50-54).
CONCLUSION
The decision under review is set aside and the matter is remitted to the Minister with a direction that Ms Aslam, the visa applicant, meets the requirements of the character test under s501 of the Act.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President.
Signed:         .....................................................................................
  Associate
Date/s of Hearing   22, 23, 24, 25 May 2000
Date of Decision   July 2000
Solicitor for the Applicant          Mr R. Kessels
Advocate for the Respondent Ms A. Connor