Re Policarpio and Minister for Immigration and Multicultural Affairs
[2001] AATA 658
•19 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1688
GENERAL ADMINISTRATIVE DIVISION )
Re Ofelia Policarpio
Applicant
And Minister for Immigration and Multicultural Affairs
Respondent
DECISION
Tribunal J Block, Deputy President
Date19 July 2001
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 not be refused under section 501 of the Migration Act 1958.
…….…………………………
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – sponsor – character test – protection of the Australian community – expectations of the Australian community – best interests of a child – level of risk to community – seriousness and nature of conduct – risk of recidivism – whether visa refusal may prevent or discourage similar conduct – false information on visa application
Administrative Appeals Tribunal Act 1975 – section 37
Migration Act 1958 – sections 234, 487
Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648.
Re Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586
Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551
Re Cafarella and Minister for Immigration and Multicultural Affairs [2001] AATA 30
Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 148
Re Soufan and Minister for Immigration and Multicultural Affairs [2001] AATA 650
Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339
REASONS FOR DECISION
Mr J Block, Deputy President
(a) This is an application for the review of a decision made by the Respondent on 25 October 2000 refusing an application for a subclass 309 (spouse provisional) visa by Muhammad Talha ('the Visa Applicant') and in respect of whom the Applicant, his wife, was the sponsor.
(b) The Applicant appeared on her own behalf while Mr Z Chami of Clayton Utz, solicitors, appeared for the Respondent.
(c) The Tribunal had before it the T documents and also Supplementary T documents furnished pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:
Exhibit A1 Statement by the Applicant received in Tribunal on 16 February 2001
Exhibit A2 Bundle of documents including wedding video, letters and various certificates
Exhibit A3 Bundle of documents referable in the main to the Visa Applicant but also including a statutory declaration by Ms Martin who did not give evidence
Exhibit A4 Photographs of Applicant and Visa Applicant taken at the wedding in May 1999
(d) The party cited as the Respondent in this matter is the Minister for Immigration and Multicultural Affairs, notwithstanding references in the T documents and supplementary documents to the Department of Immigration and Multicultural Affairs as Respondent, and having regard to the fact that the relevant decision was made by the Minister's delegate.
(e) This matter came before me first on 20 April 2001; the Applicant appeared on her own behalf on that occasion carrying in her arms her small daughter, born on 10 September 2000, and referred to in these reasons as 'the baby'. The baby cried at intervals throughout the hearing; as a consequence, the evidence of the Applicant (who was assisted by an interpreter in the Tagalog language) was given in circumstances of considerable difficulty. After the Applicant had given evidence, the Visa Applicant gave evidence by telephone link to the Pakistan. The Applicant had assured the Tribunal that the Visa Applicant was fluent in English and indeed his evidence indicated that this was so. However, during his cross-examination, the Visa Applicant asked for an interpreter in the Urdu language. Mr Chami very fairly pointed out that to refuse a request of this nature has been held by the Federal Court to be an appealable error. In these circumstances and in the afternoon of 20 April 2001, the matter was adjourned for this specific purpose. It came before me again on 10 July 2001. Interpreters in the Tagalog and Urdu languages were available to assist the Applicant and Visa Applicant respectively, although it must be noted that each of them answered questions in English without hesitation and without waiting for the translator's interpretation on a number of occasions. The transcript for 20 April 2001 indicated that the Applicant's evidence had been clearly transcribed, notwithstanding the cries of the baby, so that it was unnecessary for the Applicant's evidence to be recommenced. It was thought desirable however in the case of the Visa Applicant, and in the interests of fairness, to start afresh.
(a) I commence by way of background and in order to set the scene by including a number of documents.
(b) The Respondent's statement of facts and contentions dated 28 February 2001 contains a most helpful chronology and is useful in other respects; it is set out in full as follows: -"RESPONDENT'S FACTS AND CONTENTIONS
FACTS
25/12/1968 Or 23/03/1971 Mr Talha MUHAMMAD ("Muhammad") aka Talha Bin ZUBAIR - the Applicants's spouse, is born in Faisalabad, Pakistan. [T6,39] and [T10,111]
18/10/1995 Muhammad's subclass 560 (student) visa application, lodged in the name Talha Bin ZUBAIR, is refused. [T2,10]
13/03/1998 Muhammad lodges another subclass 560 (student) visa application in the name Talha Bin ZUBAIR [T6, 37-45]. At question 7 of the application form, 'your marital status', Mr Muhammad had ticked "married". [T6, 39]
28/03/1998 Letter to Australian High Commission from Muhammad. He seeks urgent issue of visa because English classes in Australia commence on 30 March 1998 [T7, 89]
04/04/1998 Further letter to Australian High Commission from Muhammad regarding visa application stating that English classes commenced on 30 March 1998. [T8, 90].
07/04/1998 Letter to Muhammad from Australian High Commission advising of refusal of subclass 560 (student) visa. [T9, 91]
13/05/1999 Ms Policarpio marries Muhammad in Faisalabad, Pakistan. [T10, 94]
07/06/1999 Muhammad submits an application for a subclass 309 Spouse (provisional) visa in the name of Muhammad, TALHA. [T10, 93-110]. At question 9 of the application form which asks an applicant 'have you been known by any other names? (including name(s) before marriage or an alias(es)', Muhammad answered 'no.' [T10, 94]
07/06/1999 Sponsorship for migration to Australia signed by Muhammad and Ms Policarpio. [T11, 136-141]
10/06/1999 Letter to Muhammad from Australian High Commission acknowledging receipt of application. [T12, 142]
21/07/1999 Muhammad lodges a subclass 676 (visitor) visa application in the name Talha, Muhammad. [T13, 143- 146]
22/07/1999 Letter to Muhammad from Australian High Commission advising of refusal of subclass 676 (visitor) visa. [T14, 148]
15/09/1999 Letter to Australian High Commission from Ms Policarpio enclosing copies of telephone accounts so as to evidence genuineness of relationship. [T15, 151-158].
05/01/2000 Letter to Muhammad from Australian High Commission regarding interview date.[T16, 159]
19/01/2000 Departmental interview with Muhammad. Muhammad claimed that the only previous visa application he had ever made was a visitor application and that he has never been known by any other names.[T17, 160- 161]
07/03/2000 Letter to Australian High Commission from Muhammad regarding relationship with Ms Policarpio. [T19, 164 -165]
07/03/2000 Letter to Australian High Commission from Ms Policarpio regarding relationship with Mr Muhammad. Ms Policarpio claims her marriage is genuine. [T18,162]
14/04/2000 Letter from the Excel Medical Centre regarding Ms Policarpio's pregnancy. [T20, 166]
03/05/2000 Letter to Australian High Commission from Michael Hatton MP enclosing copy of letter from Ms Policarpio regarding relationship with Mr Muhammad. [T21, 167]
08/05/2000 Letter to Michael Hatton MP from Australian High Commission advising status of Muhammad's visa application and migration officer's character concerns re Muhammad. [T22, 169]
11/09/2000 Letter to Australian High Commission from Ms Policarpio regarding premature birth of child. [T23, 170]
25/10/2000 Departmental letter to Muhammad, advising refusal of subclass 309 (spouse provisional) visa under s501 of the Migration Act 1958 (Cth). [T1, 5]
03/11/2000 Ms Policarpio applies to the Administrative Appeals Tribunal for review of departmental delegate's decision refusing the grant of the visa to Muhammad.[T1, 3 - 4]
CONTENTIONS
The Minister for Immigration and Multicultural Affairs (the "Minister") contends that Muhammad is a person who does not pass the "character test". The Minister contends that:
Muhammad fails to pass the character test because he is not a person of good character having regard to his past and present general conduct; and
The decision of the Minister's delegate to refuse Muhammad the grant of a sub-class 309 visa should be affirmed - section 43(1)(a) of the Administrative Appeals Tribunal Act, 1975.
RELEVANT LEGISLATION
The relevant legislation includes section 499, section 500 and section 501 of the Migration Act 1958 (the "Act").
The Administrative Appeals Tribunal (the "AAT") has jurisdiction to review the decision of the delegate by virtue of section 500(1)(b) of the Act.
The applicant Ofelia Policarpio has standing and is entitled to make an application for review of the decision because she would have been entitled to seek review of the decision under part 5 of the Act, see section 338(5) and section 347(2)(b) of the Act.
Section 501, where relevant, provides that:
"501(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.501(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined in subsection (7)); or(b)the person has or has had an association with someone or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(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; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would;
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise the person passes the character test."
On 16 June 1999 the Minister signed a direction issued pursuant to s.499 of the Act. Section 499 provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of functions or the exercise of powers under the Act. The direction is referred to as "Direction - Visa Refusal and Cancellation under Section 501 - No 17" (the "Minister's Direction").
CONTENTIONS AS TO LAW IN RELATION TO GOOD CHARACTER
The Minister contends that Muhammad is not of good character based on his past and present general conduct. The term "good character" refers to the "enduring moral qualities of a person". The enduring moral qualities of a person require objective assessment and must be proved as a matter of fact, see Irving v. Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR84 per Lee, J at page 94.
FALSE AND MISLEADING STATEMENTS
Muhammad's history shows that he has, on numerous occasions, given false and misleading statements in connection with visa applications and to departmental officers. In particular, Muhammad provided the following false claims:
in question 9 of the application for a subclass 309 Spouse (provisional) visa lodged on 7 June 1999, he falsely stated that he was not known by any other name or that he had an alias [T10, 94]. The application for the subclass 560 student visa, lodged on 13 March 1998, was lodged in the name of Talha Bin Zubair [T6, 39];
Muhammad gave his date of birth for the subclass 560 student visa as 23 March 1971, [T6, 39]. In the application for the subclass 309 visa he said his date of birth was 25 December 1968 [T10, 94] - see also [T10, 111];
in question 67 of the subclass 309 Spouse (provisional) visa Muhammad failed to disclose and, thereby concealed, that he has a brother in Qatar and another brother in Australia [T10, 103] [T6, 49] and [T18, 162];
in question 18 of the application for the subclass 309 Spouse (provisional) visa Muhammad stated that he had not previously been married or in a defacto/common law relationship [T10, 95]. In the application for the subclass 560 student visa, at question 7 of the application form, Muhammad indicated that he was married [T6, 39];
at the interview conducted by senior migration officer Christine Grimm on 19 January 2000 Muhammad denied:
- that he had any relatives, including brothers, in Australia;
- that he made applications for a student visa in March 1998;-that the photograph attached to that application and shown to him was of him; and
-said 'it was coincidental' that the applicant in that case (Talha bin Zubair) was fathered by a person having the same name as his own father.
When confronted about these matters Muhammad continued to deny the truth in an effort to extricate himself from the uncomfortable position that he had created for himself [T17, 160-161]. The evidence was overwhelming. [The apology proffered (see paragraph 9 below) subsequent to the interview should be assessed as against the strength of the evidence with which he was confronted.]
Muhammad sent a letter in which he apologised for his actions at interview[T18,162]. He said that he was "sorry". The value of such an apology must be assessed against the evidence presented to him at the interview. He did not provide any explanation for adopting the two identities or why he denied or failed to declare the truth at interview.
The Minister contends that Muhammad would have maintained the lies that he had given on his application form(s) and would not, but for being confronted by Christine Grimm with the truth, have corrected them - see "declaration" [T10, 108].13. It is a crime to mislead and deceive a person who exercises powers or performs duties for the purposes of the Migration Act or the Regulations, see section 487 of the Act. Muhammad intended to mislead and deceive the Department by concealing the truth in his application form and then steadfastly denied the truth at the interview.
CONCLUSION AS TO GOOD CHARACTER14. The Minister contends that Muhammad is not of good character. The Minister is satisfied that Muhammad does not pass the character test, given his false and misleading statements made during the interview and in his respective visa applications.
15. The Full Federal Court has stated in Goldie v. Mima (1999) 56 ALD 321 that:
"The concept of good character in section 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant's character in the sense of [his] enduring moral qualities is so deficient as to show it is for the public good to [refuse the grant of the visa]".16. The Minister contends that it is in the public good to refuse his visa because his character is deficient in the necessary degree. The Minister contends that this is so, mindful of what was said by Deputy President McMahon in Re Lachmaiya and DIMA (1994) 19 AAR 148 at 155, because :
"The observance of truth in dealing with officials in migration
matters (particularly where the truth is known only to the person making the
statement) is of fundamental importance to the control mechanism which this
country exercises in visa applications when dealing with the many reasons for
coming to Australia. To lie consistently……, over a period
of years, is to subvert the administration and, in the context of the Act, to
demonstrate that [the person] is not a person of good repute or good
character. Australia can have no confidence that he would not again transgress
in matters where truth and good faith could be deceptively withheld".THE DISCRETION
17. If the AAT finds that Muhammad is not of good character the discretion in s.501 of the Act is enlivened. In exercising the discretion the Minister's Direction must be followed and applied. In exercising the discretion the AAT must have regard to the three "Primary Considerations" and a number of "Other Considerations". The AAT must also have regard to the importance or weight placed by the Government on the Primary Considerations, (see paragraph 2.2 of the Minister's Direction). The three Primary Considerations are:
(a) protection of the Australian community;
(b) expectations of the Australian community; and
(c) the best interests of the child.
Each of the Primary Considerations will be addressed in turn.
PROTECTION OF THE AUSTRALIAN COMMUNITY18. Breaches of the immigration law prima facie constitute a failure to pass the character test within the meaning of section 501(1) of the Act (see paragraph 1.9 of the Minister's Direction). Muhammad provided false and misleading information in connection with an application for the grant of a visa. This type of conduct is considered to be very serious and is specifically referred to in paragraph 1.9(b) and 2.6(c) of the Minister's direction [T5, 25].
19. Muhammad admitted to providing false and misleading information only after being advised of the evidence held by the Department of Immigration and Multicultural Affairs. Whilst he explained how he obtained his two identities, he did not provide a convincing or satisfactory explanation for doing so. Based on Muhammad's immigration history and behaviour to date, the Minister contends that it is likely that Muhammad would repeat such conduct if he felt it would result in benefit to him, see paragraph 2.10 of the Minister's Direction.
20. The Minister contends that since the conduct of Muhammad is regarded as very serious then as a primary consideration in assessing the character of Muhammad, such disreputable conduct should be given primary weight.
21. The Minister contends that the refusal to grant Muhammad a visa would prevent or discourage similar conduct by like-minded persons, see paragraph 2.11 of the Minister's Direction. The Minister also notes the comments of senior migration officer, Christine Grimm, that the "Islamabad case load is characterised by a high rate of attempted fraud and false claims…Refusal of such cases, especially under s.501, is an effective general deterrent".[T2, 13]
22. The Minister further contends that because the application submitted by Muhammad is one that ultimately leads to a permanent visa then the level of good character required of an applicant, is and should be higher than that for ordinary temporary visa holders.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY23. The Minister contends that the Australian community expects that the Australian Government will maintain the integrity of visa categories by only allowing the entry into Australia of people who are prepared to obey Australian laws. Muhammad has shown that he is not such a person. The false statements and declarations made by Muhammad, in an attempt to secure a visa, conflicts with that community expectation, see paragraph 2.12 of the Minister's direction.
THE BEST INTERESTS OF THE CHILD24.The Minister contends that the best interests of the child are unlikely to be adversely affected by refusing the grant of the visa to Muhammad. This is because;
- no personal physical relationship between Muhammad and the child exists;
-the child is a newborn and adaptation to life in Pakistan would not be an obstacle;
- the child has not developed ties to Australia;
-the mother has no immediate family members in Australia but would have an extended family in Pakistan;
-the mother and Muhammad have indicated their preparedness to live together in Pakistan.
-Muhammad comes from an affluent and successful family. He has had a tertiary education. The child can obtain a tertiary education in Pakistan. There is no impediment from an educational standpoint in the future.
-the child is an Australian citizen and forever retains the ability to settle in Australia in the future.
OTHER CONSIDERATIONS
25. The Minister notes that the weight to be accorded to these other considerations cannot individually outweigh a primary consideration (see paragraph 2.2 of the Minister's Direction).
26. Each of these other considerations will be addressed below.
(a)There would be no disruption to Muhammad's family residing in Australia. Muhammad's brother in Australia is not the holder of a permanent visa or the bearer of Australian citizenship His spouse has indicated that if Muhammad is refused a visa she would reside in Pakistan with him.
(b)There was a reasonable suspicion over the genuineness of the marriage [T2, 11].
(c)There may be some degree of hardship to the Applicant however many parents raise children without the assistance of a partner or spouse. In any event the Applicant's spouse has indicated that if Muhammad were to be refused a visa she would reside in Pakistan with him. The spouse has no family members in Australia. There would be no disruption to Muhammad's brother in Australia, who is neither the holder of a permanent visa or an Australian citizen.
(d)Family composition: Muhammad's family, other than his brother in Australia and another in Qatar, all live in Pakistan.
(e)The Minister is not aware of any outstanding matters outside of Australia which would give rise to ongoing liability or the evasion of any legal matters.
(f) see (e) above.
(g) see (e) above.(h)Muhammad has apologised for failing to explain the false and misleading statements that he provided in the interview but this should be considered in light of the Minister's contention at paragraph 8 above.
(i)The application is one that leads to a permanent visa. The Minister repeats and relies upon paragraph 22 above.
(j) Not known to the Minister.
(k) Not relevantINTERNATIONAL OBLIGATIONS
27. There are no international obligations relevant to this case.
CONCLUSION
The Minister submits that the decision of the delegate refusing the grant of the visa to Muhammad should be affirmed."
(c) The Visa Applicant wrote to the "Honorable Tribunal" by e-mail on 31 January 2001; that letter which is included in Exhibit A2 reads as follows: -
"…
I explain about, what I did in my application, sir I applied my real name and BOD in married application, the first application as student that not my real name and the second time I did same thing. I wrote as a married in that application because I heard to someone that easy to get a visa if you applied as a married person. That's the true that only lying. I am very sorry that maybe I can get easy the visa to come to Australia.
In my married application I used my real name because, we don't like to use any wrong information about family matter (married) because it is matter of family generation. I want every thing in married is genuine.
This is the reality of my case and you will understand about my family who distrub (stet) and psychological upset by the decision of embassy in Pakistan after the more than 1 ½ years and every months promise with us.
If you are in my situation that I never see my wife when she carries my baby 7 months and I never share the problems with her about her pregnancy due to every month have hopoe (stet) of decision from embassy. After she delivered my baby untill (stet) now I have not right to seen my baby. How do you feel that if something wrong with my fafmily (stet) that time what gonna happen for me. I mostly feel very crazy to see her when ever I ring to her and recive (stet) new pictures, listen her voice on phone.
I was so depressed. I want to see her with my baby but embassy not under-stand this feeling of father. How I felt that time and untill (stet) now, I wish you feel it. The fact is I want to see my child, sometime I can't sleep properly I always hears my Iman crying. I want to share to wife about her problem but I can't because I am hare (stet). Sometimes I feel guilty to myself why did that stupid thing my wife will not suffered for that. Even she still breading when she delivered my baby. She till had to visit my baby in hospital every day. I supposed to do that. Sometime I told her on phone don't visit to hospital every day she had to be rest in home is good for her. But she told me who will go with our baby, nobody els (stet).
Sir we want to see each other for ever time live togather (stet) in Australia with my family, very sweet Iman Bint Talha. Where she have a good future and health.
Hope you would appriciate (stet) my problems and give relief of all thing as soon as possible.
…"
(d) T18 is a letter written by the Visa Applicant to the Australian High Commission in Islamabad on 7 March 2000 and following an interview with Ms Christine Grimm on 19 January 2000. That letter reads as follows: -
"…
I write this letter to explain the reality about my case which you wanted to on 19, Jan 2000. It was my mistake that could not explain there sorry about that.
I used name & date of birth (DOB) by birth instead of Education documents name & DOB. In our country when child start to go school, the parents have to fill the form in that form you can Write the DOB & Name w/o any evidence, due to this mostly Name & DOB not identical with birth certificate, after the 10th class certificate you can get the NI Card if you want to correct the DOB & Name which you have by birth, you have to show birth certificate but you can, t change The birth certificate.
You know I used my DOB & Name by birth because I applied as a student in your Embassy with the help of agency and in last application my agency told me to apply as a Married person so I can get the Visa easy.
I have a brother there, he is doing own good business by the name Zubair Enterprises Pty Ltd. He married with Australian girl. I did not show my brother there because there some people Very jealous to him and in our point of view if
I show to him then that people try to disturb my Case as a non-real marriage as they did.
After the completion of my master degree education I joined the Crescent Green Wood Ltd. After Elite Export Pvt, Ltd Faisalabad in that duration I applied as a student for higher education in your Embassy. After I start my own business and deal with local market, and I try to built export company as name ZUBAIR ENTERPRISES in Pakistan. Last year my parents were looking a girl for me and sometime they also discuss with brother. My brother and my parents offer me to visit Singapore and met with this girl if you like each other then we will arrange your marriage. I met to her there and fond (stet) her good women as my brother gave to me information about her. We stay there one week, in that week we like each other and I invited To her to visit Pakistan. After that we touch each other with letters & Telephone and after Couple of months my parents fixed my married with her. We celebrated our wedding functions in our home with prayers of our relatives & friends. I introduced and visit to her different friends, relatives. They were very happy to see her.
I send you some evidence about your satisfaction. I hope you will give big consideration for This letter and I appriciate (stet) for every thing which you did and you are doing for us. Kindly Give us nice response as soon as possible.
…"
(a) Three witnesses gave evidence as to the genuineness of the marriage of the Applicant and the Visa Applicant. Ms Estrilita Villafeurte (a friend) and Ms Maria Magdalena Polcarpio (mother of the Applicant) both gave evidence by telephone and in the case of the Applicant's mother, with the assistance of the Tagalog interpreter. In the afternoon of 10 July 2001 Ms J. Vallejo, another friend of the Applicant, gave evidence in person. All three of them testified as to the genuineness of the marriage between the Applicant and the Visa Applicant. In each case the evidence was of little probative value simply because not one of them has ever met the Visa Applicant, who has never been in Australia. Mrs Policarpio (mother of the Applicant) came to Australia for the birth of the baby. She said that her son-in-law, the Visa Applicant, sent money to the Applicant "now and then" to help her (the Applicant) with the support of the baby. She said that she herself could not help financially because she is, like the Applicant, unemployed. In fact the evidence of the Visa Applicant revealed that he has never sent any money to the Applicant, although he has borne certain expenses while she was in Pakistan. Ms Vallejo said that the Applicant was having a bad time looking after the baby and that if the Visa Applicant was here in Australia and helping financially, the Applicant would be able to go back to work since she would be able to afford the services of a babysitter. It may be noted that the Applicant has a commerce degree, obtained in the Philippines and that prior to the birth of the baby she worked at Clancy's Supermarket as a dairy controller; this apparently involved the packing of dairy goods in deep freeze compartments.
In respect of the evidence of the Applicant: -
(a) She entered Australia in 1998 as a tourist. In 1990 she commenced a defacto relationship with a "Mr Khan", who was also originally from Pakistan. It was on the strength of that relationship (which ended in 1994), that the Applicant obtained residency rights in Australia; she became a citizen of Australia in 1997.
(b) From 1990 until the time of her marriage in 1999, the Applicant worked at Clancy's supermarket.
(c) The Applicant had a friend (also from the Philippines) who was and is married to (although now parted from) Faizal Zubair who is a brother of the Visa Applicant. Faizal and his wife suggested to the Applicant that she meet the Visa Applicant in Singapore; Faizal paid for her air ticket to Singapore where she met the Visa Applicant. (Subsequent evidence revealed that Faizal lived in Australia illegally for some years in the 1990's before returning to Pakistan; his wife, after stays in both Pakistan and the Philippines is now back in Australia.)
(d) The Visa Applicant and the Applicant decided within one day of their first meeting to marry and they were married in a brief ceremony in Singapore in March 1999. The Applicant then returned to Australia but in May 1999 journeyed to Pakistan where they were again married in a more formal and elaborate ceremony. She stayed in Pakistan for some weeks with the Visa Applicant's family on that occasion.
(e) In January 2000 the Applicant went back to Pakistan for some three months and stayed with the Visa Applicant and his family. It was during that visit that the baby was conceived. The baby was later born (prematurely) in September 2000. In February 2001, the Applicant and the baby went to Pakistan and returned on 17 April 2001, two days prior to the first hearing. The cost of this trip was paid out of monies provided in respect of social security by Centrelink for the baby. She said that her husband was unable to pay for the air ticket on this occasion because, as she put it, "we don't have enough money, but when I do he spent everything".
(f) The Applicant is unemployed and lives on Social Security. While the health of the baby is good, the Applicant needs a gall-stone operation but cannot have it without the assistance of someone to care for the baby. She said that her mother would not be able to assist because her mother is herself ill.
(g) The genuineness of the marriage was put in issue to some limited extent because of a "dob-in" letter written to the Islamabad embassy on 6 October 1999; that letter (T180/81) reads as follows: -
"…
My main reason to take your time and give you a bit of background is to inform you regarding a recent application lodged by his brother in Pakistan for Australian Residency. He has organised another Filipino woman to go and helped his brother obtaining his visa in Pakistan, Her name is Feeli (or something similar) and his brother name is M Talah, His brother's original name is Talah Bin Zubair and he has changed his name to simply dodge the immigration department. It is also to be considered that He has paid this woman A$20,000.00 to make this all happen. I can also assure you that this whole fiasco is not my imagination and this woman did enter Pakistan in the month of May this year and departed in the month of June. I am sure that you can verify these dates by the wedding date in his application for visa.
I do understand that you are pretty busy and tied up with your usual workload but I just thought that I will notify you of the dirty tricks these obnoxious people are pulling.
I can also assure you that if you need any further assistance in this matter, I will only be pleased to provide the same.
…"
(h) The Applicant denied that her marriage was not genuine and denied in particular that she received any money as alleged by the "dob-in" letter referred to in the preceding sub clause. In the absence of any contrary evidence as to the alleged payment, the Tribunal accepts her evidence that she did not receive any money in consideration of the marriage. That the marriage was arranged to some considerable extent cannot be doubted. The Applicant was born in 1962; her evidence was that she was under pressure to marry by her mother, that she herself was anxious to marry and have a family, and appreciated that time was marching on for her in biological terms. It seems likely moreover that so far as the Visa Applicant was concerned, the Applicant's Australian citizenship of and right to reside in Australia was an attractive, and perhaps even the most attractive feature, so far as he was concerned. The Visa Applicant, as revealed by his own evidence, had long wished to come to Australia and had made two student visa applications, in 1995 and in 1998, both of which were refused. The evidence before me indicated a desire for marriage on her part; the evidence similarly indicated a strong desire for Australian residence by the Visa Applicant. It is hard on any other basis to explain a marriage which took place on so slight an acquaintance, and so soon after first meeting. It is at least conceivable that the Visa Applicant would not have married the Applicant in the absence of that attracting feature. But that said, there was no evidence before me which would suggest that what may have started as a marriage of convenience did not become a real relationship. On the contrary, the evidence was that the relationship has indeed become a genuine one. I do not think that I can attribute much weight to the "dob-in" letter; apart from any other considerations, the Visa Applicant had no need to pay the Applicant any money when she so obviously desired marriage. The Applicant converted to the Visa Applicant's faith (Islam) and she has lived with his family in Pakistan. They have corresponded frequently during periods of enforced absence. The Applicant did not in any way resent the Visa Applicant's failure to send her any money for the baby; the evidence was that, contrary to the evidence of the Applicant's mother, he did not at any stage send any money at all. There was evidence before me that the exchange rates between the two currencies is such that any money he could have sent would not have materially aided her; he said also that he gave her rings and jewellery while she was in Pakistan and that, as he put it, "they understood each other". However strange this may seem, it is apparently accepted by the Applicant, who does not feel that the Visa Applicant has let her down in any way.
Notwithstanding her conversion to Islam, the Applicant did not like life in Pakistan. She made it clear in dramatic (and indeed even melodramatic) terms that she would not, even if the visa was refused, be prepared to live in Pakistan. She said that if the visa were refused she would kill herself. Why she feels so strongly about Pakistan was never made clear. She married a Pakistani and converted to Islam for his sake. She has no family in Australia; he has parents and five siblings in Pakistan. The Visa Applicant's family are not living in difficult circumstances. The Visa Applicant's father is a doctor and teacher; there was evidence before me in the T documents that it is a family of very considerable means and even wealth, although the Visa Applicant in his evidence said the family means were moderate. (This aspect will be reverted to later in these reasons.) The family lives in Faisalabad which is a city of some two million people; it has schools and hospitals, although perhaps not as many as are needed for a population of this size. As to education prospects, the Visa Applicant is well-educated.
(j) The Applicant, who was more or less silent throughout the proceedings, repeatedly and plaintively said that she wanted her family together in Australia and was not prepared to countenance any other possibility. I note in this context that because she was unable to do so, I, in broad terms, lead the evidence of her witnesses. It should also be noted that Mr Chami behaved with scrupulous and commendable fairness throughout, and went out of this way to point out factors which might favour the Applicant's case.
I turn next to consider the evidence of the Visa Applicant.
(a) He was born in Faisalabad on 25 December 1968. After matriculating in that city in 1986 he obtained a Bachelors degree in statistics and mathematics from Government College in Faisalabad. He then studied further at Government College in Jhungi, culminating in the award in 1995 of a masters degree in statistics; and that degree was in fact conferred by the University of the Punjab. In 1995 he took up employment with a multi-national company called Crescent Greenwood in Hyderabad, firstly as a training instructor and then as a quality controller. He said that after two years he moved back to Faisalabad where he was employed again for two years by Elite Export as a production planner. He said that after two years with Elite and in February/March 1998 he commenced his own garment business in 1998. The Tribunal notes the dates as given by the Visa Applicant in his oral evidence were inconsistent in some respects with some of the other evidence before the Tribunal; (two years at each of Crescent Greenwood and Elite Exports would mean that he could not have commenced his own business until 1999).
(b) His own business was commenced with capital provided by his father and himself out of savings. That business was, he said, wound down after his marriage in anticipation of a move to Australia. As to what he has done precisely since his business was wound down is unclear; it would seem that he has from time to time done some part-time work while waiting for a visa. It is possible that he has received financial support from his father, although he did not say so.
(c) In each of 1995 and 1998, the Applicant applied for student visas to Australian educational institutions. He first applied in order to study for an MBA at Alpha Beta College in 1995. In 1998 he again applied in order to study for an MBA at Macarthur University which is part of the University of Western Sydney. In each case he was refused; he said that the Australian authorities refused because they feared that he would not return to Pakistan and furthermore, and in the case of his first application, because his knowledge of English was not sufficient. (On the evidence before me any such fears on the part of the Australian authorities were probably justified.) He said that he wanted to obtain an MBA in Australia in order to return to Pakistan since this would advance his employment opportunities there. Although he obtained his Masters degree through the medium of English, his English was, as he put it, "bookish". He then embarked on a study of English culminating in an examination where his marks were acceptable if moderate.
(d) Each of the Visa Applicant's student visa applications was made in a name which was different from his own and which indicated a date of birth in 1971. The Visa Applicant gave evidence at some length as to the name variation. He sought to explain that the different name was the name contained in his educational qualifications. His evidence as to the differing dates of birth was less clear. Although Mr Chami from the bar table fairly and generously conceded that in the Islamic world names can take different forms, it seemed to the Tribunal that it is likely that the visas were applied for in a false name, that this may be so is clearly indicated by his letter dated 31 January 2001 and quoted in full earlier in these Reasons.
(e) It is likely then that both visas were applied for in false names. The second of the applications (in 1998) went much further in that it contained a number of untruthful statements; in particular, it invented the presence of a wife who was cited by name as his closest relative and who would, according to the application, be supported by his father. Moreover his father's means were specified in that application as very considerable indeed. The Visa Applicant in his oral evidence before me said that his father was a man of moderate means; however, the written evidence before me suggests a man of great wealth and occupying an important position. As to why incorrect names were used in the student visa applications was never satisfactorily explained. The invention of a wife was explained on the basis that a married man who left his wife behind in Pakistan would not be able to marry in Australia and thus, and in these circumstances would be more likely to be granted a visa. I refer in particular in this regard to questions 7, 15, 23 and 34 (T6) which is the second student visa application, all of which questions were answered untruthfully.
(f) The spouse visa application made in 1999 contained more lies; in the first instance it did not include, amongst his siblings, Faisal, his brother, who was then living illegally in Australia and even though the relevant question was couched in the clearest possible terms. The Visa Applicant's statement to me that he misunderstood the question cannot be accepted in the light of his training in English and his further studies in English.
(g) The Applicant's train of lies to the immigration authorities continued when he was interviewed by Christine Grimm in Islamabad on 19 January 2000. T17 at page 160 reads relevantly in this regard as follows:"…
Q: Do you have family in A/A – eg parents, brothers, sisters, cousins, uncles etc? No.
Q: Have you made previous Australian visa applications? After marriage my wife sent a sponsorship letter & I applied for a visitor visa (held on … file).
Q: Any other applications for any sort of visa? No.
Q: You were prev. advised about providing false/misleading info. Do you have anything you want to tell me about your previous answers? No.
…"
Of course the answer as to family in Australia was false in that he had a brother then in Australia. He also answered untruthfully as to his previous student visa applications. That latter answer was foolish given that the Australian authorities were by this time aware of the fact that he had made unsuccessful previous student visa applications.
(h) At the meeting with Christine Grimm, he was shown a photograph which formed part of one of his student visa applications. He denied in the first instance that it was his photograph and also said that someone else must have used it. He was given an opportunity to comment on that interview, which lead to the letter at T18 (p162/3) which has been quoted earlier in these Reasons in subclause 2 (d).
In order to complete the record I note that T pages 39, 41, 44 and 43 contain the false answers referable to the invented wife; T page 103 is referable to the spouse visa application.
(j) In his evidence before the Tribunal the Applicant said that he sought to study in Australia for an MBA so as to enable him to be better able to obtain employment opportunities in Pakistan. The Tribunal doubts whether this evidence can be accepted. In the first place he already had a masters degree which qualified him for the jobs which he in fact obtained. In the second place, there are numerous countries in which an MBA can be obtained and moreover countries whose MBA's are if anything more prestigious than those conferred in Australia. Without intending any disrespect to Australia, an MBA from any of the well-known business schools in the United States of America such as Harvard, Yale or Stanford would be of more value. The Visa Applicant did speak of a much earlier application to a United Kingdom institution which failed because his English was then too weak. There was no evidence before me as to that much earlier application to an English institution.
(k) The Respondent's statement of facts and contentions quoted earlier in these Reasons sets out in detail those actions on the part of the Visa Applicant which could constitute breaches of the Migration Act 1958 ("the Act"). I have in preceding subclauses of this clause sought to deal in detail with the most flagrant examples. It is likely that on a balance of probabilities the balance was in breach on numerous occasions of section 234, and also section 487 of the Act; the maximum penalty prescribed in particular for breaches of section 234 of the Act is such that his breaches must be treated as very serious indeed, and certainly within clauses 1.9 (a) and 2.6 (c) of the Minister's Direction (as defined in the Respondent's Statement of Facts and Contentions).
(a) This brings me then to consider the Minister's Direction having regard in particular to the recent decision of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 and Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648.
(b) In Re Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586, a decision handed down on 26 June, I held that the Minister's Direction is binding on me, or at the very least constitutes policy to which I should have regard. Clause 12 of my decision in Wang reads as follows:
"12. (a) I next turn to consider the "Direction - Visa Refusal and Cancellation under Section 501 – No.17" ("the Direction").
(b) Mr Poynder very fairly conceded that on any basis the Direction constitutes policy to which I must have regard.
(c) I have previously held that the Direction is binding on me, notwithstanding the recent Federal Court judgments in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. (I have not previously commented on an even more recent judgment in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648.) I refer in this regard to paragraph 6 of my decision in Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496 (and repeated in Re Awa (supra) at paragraph 3(d)) as follows:6. (a) I now deal with the "Direction – Visa Refusal and Cancellation under section 501 No. 17" ("the Direction"). The Direction was made under section 499 of the Act and is in its terms expressed to be binding on all decision-makers, and including this Tribunal.
(b) It is convenient at this point to consider a recent judgment of the Federal Court in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514. That judgment of Dowsett J was handed down on 4 May 2001. I became aware of it on the day prior to the hearing and arranged for my associate to phone the representatives of both parties, in order to give them notice that it might be relevant.
(c) Paragraphs 32 and 34 of the judgment in Aksu (supra) read as follows:
32 In my view, the Minister was not bound by the Direction. He had the unfettered discretion conferred by s 501. If he treated himself as bound by it, then he erred. Given his adoption of the briefing paper as his reasons, it seems that he did so. However he was entitled to give such weight to the various factors, as he thought appropriate. Had he simply chosen to place more weight upon the so-called primary considerations than upon other matters, having regard to the facts of the case, there could have been no criticism of the decision. However it is clear that his decision as to the pre-eminence of the primary considerations was not based upon his assessment of this case. According to the briefing paper (and therefore according to his reasons) he has chosen to proceed upon the basis that a consideration which is not a primary consideration cannot be more important than a primary consideration simply because the policy says so.
….
34 The Minister's adoption of the briefing paper implies his adoption of the "binding" nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly "binding" nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.
It would seem that in Aksu (supra) the Respondent Minister made the relevant decision personally and that he did so by reference to, and on the strength of a briefing paper; it would seem also that that briefing paper may not perhaps have been in all respects complete. It is clear though, that the Minister considered himself bound by the Direction, which was of course, a Direction of his own making. The Court however, came to the conclusion, as set out above, that the Direction was not binding on the Minister. This leaves open the question of whether, assuming the Direction is not binding on the Minister, it is binding in accordance with its terms on a delegate of the Minister or this Tribunal. It may be arguable that, if the Direction is not binding on the Minister, it is equally not binding on his delegate or on the Tribunal which, after all, stands (so to speak) in the shoes of the Minister.
(d) The opening portion of the judgment in Aksu (supra) sets out a list of cases considered by His Honour. It does not cite the judgment of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, which would appear to indicate that the Tribunal is bound by the Direction. Rokobatini (supra) was, it is true, concerned with a different direction, although also one pursuant to section 499 of the Act, and at a time when section 499 was in a slightly different form. However, the Tribunal considers that it is authority for the proposition that where the Minister issues a direction under section 499 of the Act, that direction is binding on the Tribunal. Paragraphs 16 and 17 of Rokobatini (supra) (at 587) read as follows:
16 This submission raises similar, but not identical, issues as are involved in the primary judge's conclusion that the reasons of the tribunal were, in fact, in accordance with the direction. In view of our finding as to the error of law, it is unnecessary to pursue this latter argument to its conclusion. Underlying each is the question as to whether there is any relevant difference between applying the policy on the one hand, or the direction on the other, in the circumstances of this case. Even if the direction did not bind the tribunal at the time of its decision, it will certainly bind the tribunal if the case is returned to it.
17 The most obvious difference between the two is that the direction must be followed by reason of s 499 of the Act, whereas the policy might be taken into account in the manner discussed in various decisions of the court. While this is a radical difference, its significance is lessened, and perhaps eliminated, in the present case as it appears the tribunal may in truth have set out to give effect to the policy.
(e) Mr Loftus contended that the judgment in Aksu (supra) in relation to the finding that the Direction was binding on the Minister was obiter, in that it was not necessary for the purposes of His Honour's decision in that case. That argument appears to me, to be tenable. It is also arguable, that Aksu (supra) is distinguishable, in that it turns on a particular facts situation, and where the Minister made the relevant decision in reliance on an incomplete briefing paper.
(f) Assuming, though, that the finding of His Honour as to the binding nature of the Direction was not obiter, and assuming also that Aksu (supra) is not distinguishable, I consider that I should prefer the view of the Full Federal Court in Rokobatini (supra) and hold that the Direction is binding on this Tribunal.
(g) Even if the Direction is not binding, it unquestionably sets out the applicable policy. In paragraph 12 of his judgment in Aksu (supra), Dowsett J refers to the judgment of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 in the following terms:
12 Brennan J considered the matter in re-hearing the same matter, reported sub nom Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 - 641:
The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, providing the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be:
"... that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision."
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... . Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be) ... . The Minister must decide each of the cases ... on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of a power ... .
(h) It follows then, that at the very least I should treat the Direction as policy, and to which I should, having regard to the decision of Brennan J in Re Drake (No 2) (supra) have regard. I note also that Brennan J in the same case stated that consistency in decision-making is desirable.
(i) As I understand the decision in Aksu (supra), Dowsett J considered that the Direction was invalid because it operated as a fetter on the Minister's discretion. Moreover, so His Honour found, it was couched in language which gave so high a degree of importance to the primary considerations, that it negated the effect of the non-primary considerations. At paragraph 23 His Honour said:
23 The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s.501
The validity of the Direction was considered by Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161. Dowsett J in referring to that judgment said, at paragraph 25 of Aksu (supra):
25 I turn now to the decision of Sackville J in Bustescu. At par 23 of his Honour's reasons, the relevant direction is set out. There are only two primary considerations, namely the expectations of the Australian community and the interests of children. However, it seems that the former encompasses both community protection and expectation of removal. In par 21 of the Direction (see par 25 of the judgment) other issues are considered, including hardship. It is indicated that the Government considers that such matters should be taken into account but given less weight than primary considerations. It seems that there is no provision to the effect that "no individual consideration can be more important than a primary consideration ...". At par 37 et seq, his Honour considered the validity of the Direction, saying:
As I have noted, the applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act ... . According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be "given less weight than the primary considerations" ... . It follows, so it was said, that where a decision-maker has to weigh a potential deportee's serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former.
(j) Bustescu (supra) was considered by the Full Federal Court in Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698. I refer in this regard to paragraph 29 of the judgment in Lau (supra), reading as follows:
29. It is not necessary to set out parts of the General Direction. It makes clear that it is necessary to balance a number of important factors in reaching a decision as to deportation. A decision-maker is required to have a due regard to the important placed by the government on the two primary considerations nominated, but it states a balancing process should also be adopted, one which takes into account all relevant considerations. It is clear that it is open to a decision-maker to regard the primary considerations as not government the outcome in a particular case. It has been held that the Direction does not have the rigid operations as that for which the appellant contends: Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 (Sackville J). It is apparent that the Tribunal weighed factors affecting the appellant and his family, but that what tipped the balance was the serious nature of the crimes and the likelihood that he might re-offend.
(k) It must always be remembered that the Direction, in its terms states a consideration of the primary considerations alone does not suffice. The second, third and forth sentences of clause 2.2 of the Direction require a balancing process, in the following terms:
…. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the direction to refuse or to cancel a visa….
(l) Clause 2.17 of the Direction, moreover, makes it clear that the other considerations must be taken into account in the balancing process. Nor indeed, does clause 2.17 purport to set out an exhaustive list of other considerations. On the contrary, it states in its terms that "[t]hese other considerations may include".
(m) It follows then that it is conceivable that when weighing all the relevant facts, non-primary or other considerations may be sufficient, depending on the facts, to outweigh the primary considerations and this could occur whether or not any of the primary considerations could correctly be categorised as relevant.
(n) In summary then, the Direction, which in its terms is directed at the Minister's delegates and this Tribunal, does no more or less than require the latter to weigh all of the various considerations, and to come to a decision on the balance of those considerations. I do not think that the fact that some of them are said to be primary requires an interpretation that they are all important, since if this were so, the others would be otiose.
(o) It is then my view that the Direction does bind this Tribunal and, even if it does not, it should be considered as a clear statement of applicable policy."
(c) For the reasons set out in clause 12 of my decision in Wang and having regard in particular to the judgement of the Full Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, I remain of the view that the Minister's direction is binding on the Tribunal, or even if it is not, it is a clear statement of policy to which I should have regard.
(d) Mr Chami suggested (and I think that there is much to be said for his suggestion) that pending resolution of the precise status of the Minister's Direction, I should have regard to it but on the basis that I can and should weight the various considerations, whether primary or otherwise, as I think appropriate and without attributing primacy or precedence to any particular consideration.
(e) It is clear that having regard to the breaches of the Act to which I have already referred, the Applicant does not pass the character test; it is noted in this context that there was no evidence before me of countervailing good conduct, whether good conduct in the immigration sense or otherwise.
(a) On the basis that the Visa Applicant cannot pass the character test, I must then consider the discretion contained in part 2 of the Minister's Direction. Clause references in this clause 5 related to numbered clauses in the Minister's Direction.
(b) Clause 2.3 provides that the primary considerations are:"(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and(c)in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."
(c) Clause 2.3 must then be considered in the light of clause 2.5 of the Minister's Direction, which provides:
"2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)."
(d) I do not believe that recidivism is a real risk. Mr Chami asked the Visa Applicant whether, if he were granted a visa, he would again offend. His reply was memorable; he said that in that event he would not have any need to "play all of these tricks any more."
(e) The Australian community does expect non-citizens to obey its laws; so much is self-evident.
(f) As to deterrence, Mr Chami referred to clause 1 (c) of part D of T page 13 which reads as follows:
"The Islamabad caseload is characterised by a high rate of attempted fraud and false claims. The culture in Pakistan encourages sharing of all personal information and it is generally the case that information on visa applications and decisions is shared by applicants with a wide range of people. Refusal of such cases, especially under s.501, is an effective general deterrent."
(g) To grant a visa in these circumstances would in my view (and has been said in many such cases) prima facie send entirely the wrong message. The question of deterrence has been raised in many cases. In paragraphs 8(f) and 8(g) of my decision in Re Batula and Minister for Immigration and Multicultural Affairs [2001] AATA 496, I said in this context (and also in relation to the context of expectations of the Australian community, and referring in this regard to decisions of the Tribunal in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 and ReAyaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 ):
"(f) As to deterrence Dr Garg contended that there is no evidence as to whether refusals of visas do, or do not deter conduct of this nature. As I have said on previous occasions, it is unlikely in the nature of things that empirical evidence would be available as to the extent to which this is so. But certainly, the grant of a visa in these circumstances would send entirely the wrong message. I refer in this context to paragraph 84 of the decision of Deputy President Chappell in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 which reads (in part) as follows:
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.I refer also to paragraph 47 of the decision of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, which reads as follows:
47. The Applicant in his evidence spoke of others obtaining false passports in South Africa and travelling to countries using the false documentation. He spoke of people to his knowledge living in Australia by virtue of the use of false identity material. These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
(g) As to the expectations of the Australian community, it is of course trite to say that the Australian community expects non-citizens to obey its migration law. I refer in this regard to Re Esguerra and Minister for Immigration and Multicultural Affairs [2000] AATA 554 (paragraph 27), Re Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790 (paragraphs 44 and 45) and Re Santos and Minister for Immigration and Multicultural Affairs [2000] AATA 567 (paragraph 71)."
I refer also in this context to the decision of Deputy President McMahon in Re Lachmaiya and Minister for Immigration and Multicultural Affairs (1994) 19 AAR 148, and in particular the passage quoted in the Respondent's Statement of Facts and Contentions quoted earlier in these Reasons.
(h) To refuse a visa would constitute hardship to the Applicant, more particularly if she is as determined as she says, that she will not go to Pakistan. The Visa Applicant was asked whether she and the baby would be legally allowed to take up residence in Pakistan; he said that he had not made enquiries. However, it is doubtful whether Pakistan would refuse residency rights, especially in the light of the Applicant's conversion to the faith of the Visa Applicant. That hardship is very severe according to the Applicant; however, on close analysis it is also clear that this is so on a subjective but not an objective basis. She did after all marry a Pakistani in Singapore and converted to his faith; she would be a welcome member (according to the evidence of the Visa Applicant) of his apparently distinguished and at least comfortably-off family. And it must be remembered that she has no family, other than the baby, in Australia.
While Faisalabad may not offer as much in the way of medical cover and educational opportunities as does Sydney, it does have facilities. The Visa Applicant himself is well educated.
(j) The interests of the baby must be treated as being of primary importance. The baby, who is a little girl, is a citizen of Australia. Clearly her best interests would be served by her being with both of her parents. That could occur in Australia or in Pakistan. That said, it does seem clear that especially for a female the opportunities in Australia will be better. In Islamic cultures opportunities for women are sometimes limited. It is true that Pakistan has had a female Prime Minister, but this occurred in somewhat exceptional circumstances. The Applicant, who was more or less silent (except when giving evidence) throughout, did not make any great point of the manner in which women are treated in Pakistan. This aspect was considered by me in more detail after the conclusion of the hearing and when I came to consider decided cases which might be relevant in this area. I refer in particular in this context to the decision of Deputy President Chappell in Re Leyden and Minister for Immigration and Multicultural Affairs [2000] AATA 551 where he found that the position of women in Pakistan can be very difficult indeed; see in particular clause 51 of his decision, reading as follows:"51. 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 …"
(k) I do not think that it is right to say that the Visa Applicant has had no relationship with the baby; it has been limited through force of circumstances but I have no reason to doubt his devotion.
(l) The Applicant's health is such that she must have someone to care for the baby while she has a gall-stone operation. This could take place in Pakistan but it is likely that to have the operation in Australia would be preferable, even if not by any means mandatory.
(m) When one weighs up all of the various considerations one comes to realise that this is a case which could go either way. I should perhaps make it clear that were it not for the child and the fact that her interests are of primary importance I would affirm the decision under review. But the child's interests are such that they have the effect that the scales should in my view be balanced in favour of the family being reunited in Australia. I am mindful in this regard of Australia's international obligations under the Convention on the Rights of the Child, the relevance of which was discussed by Deputy President Forgie in Ly and Minister for Immigration and Multicultural Affairs [2000] AATA 339. I think that it is also relevant (although of marginal relevance only) that the baby was conceived before the notice of the decision to refuse the spouse visa; the baby appears to have been conceived at a time when the Visa Applicant believed that he would be reunited with his wife. (I refer in this context to my decision in Re Cafarella and Minister for Immigration and Multicultural Affairs [2001] AATA 30.) I further note that the facts in this case are reminiscent in some respects of those in Re Soufan and Minister for Immigration and Multicultural Affairs [2001] AATA 650, a recent oral decision given in this Tribunal on 7 June 2001 by Deputy President Wright, and where he found in favour of the grant of a visa. On balance then, and while recognising that this decision may be thought in some respects to be controversial, I consider that I should refuse to affirm the decision under review. As I have indicated, this arises in particular from my consideration of the interests of the baby. The Visa Applicant's cynical and dishonest conduct over a number of years are such that he could and should consider himself distinctly fortunate.
In all the circumstances then, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with the direction that the visa be not refused on character grounds under section 501 of the Act.
I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: [Sgd] Rachael Quinn
AssociateDate/s of Hearing 20 April and 10 July 2001
Date of Decision 19 July 2001
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr Zac Chami
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