Re Tuiono and Minister for Immigration and Multicultural Affairs
[2001] AATA 92
•12 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 92
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1525
GENERAL ADMINISTRATIVE DIVISION )
Re ELAONA TUIONO
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block
Date12 February 2001
PlaceSydney
Decision The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS
Immigration and Citizenship – spouse visa - refusal on character grounds – whether failure to pass the character test – protection visa application – visa applicant did not meet criteria for refugee status – whether claims made by visa applicant were false – no evidence of false claims – overstay of visa – whether discretion should be exercised – hardship to applicant
Migration Act 1958 – sections 234, 235, 417, 499, 501
Re Abdul-Kader and Minister of Immigration and Multicultural Affairs [2000] AATA 1055
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463
Re Msumba and Minister for Immigration and Multicultural Affairs [2000] AATA 87
REASONS FOR DECISION
12 February 2001 Deputy President J Block
(a) The decision under review is the refusal, dated 21 September 2000, by a delegate of the Respondent, of an application by Mrs Simaima Palu Tuiono ("the Visa Applicant") for a Class UF Subclass 309 Spouse (Provisional) and a Class BC Subclass 100 Spouse (Migrant) Visa; her application was sponsored by the Applicant, who is her husband.
(b) The Applicant was represented by Mr Ofeina Sikahele, an immigration agent, and the Respondent was represented by Mr Paul Loftus of Blake Dawson Waldron, solicitors. The Tribunal had before it the T Documents and also the Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeal Tribunal Act 1975, together with exhibits as follows:
Exhibit A1 is a petition by about 60 persons supporting the grant of a Visa to the Visa Applicant.
Exhibit A2 is a character reference by Mr Arthur Rotorua Fonua.
Exhibit A3 is a certificate by David Mathieson of Southcorp Packaging dated 25 January 2001.
Exhibit A4 is a character reference by the Reverend 'Ofa Moala dated 11 January 2001.
Exhibit A5 is character reference by Raymond King dated 17 December 2000.
Exhibit A6 is a character reference by Ana Hurley (undated).
Exhibit A7 is a character reference by Moana Palu dated 18 December 2000.
Exhibit A8 is a cutting from a newspaper dated 25 June 1999.
Exhibit R1 is the Visa Applicant's application to the Refugee Review Tribunal ("RRT"), dated 10 June 1994; it is relevant to note that Exhibit R1 includes a statement by the Visa Applicant to the effect that in seeking a review by the RRT of the refusal of her protection visa application, she wished to give oral evidence before the RRT.
(c) Three witnesses were called by Mr Sikahele, (although only two appeared), and including the Applicant himself. Witness statements were not provided to the Respondent or the Tribunal prior to, or even at, the hearing; however Mr Loftus was good enough to agree to allow the matter to proceed without the production of statements.
(d) The Supplementary T Documents are numbered sequentially after the T Documents; documents contained in the T Documents are proceeded by "T", while documents contained in the Supplementary T Documents are proceeded by "S"; page references refer to either set of documents.
I commence, in order to set out the scene and the background, by including a number of documents or extracts from documents as follows:
(a) The Applicant's Statement of Facts and Contentions (undated), which reads as follows:VISITORS VISA
The applicant applied for a tourist visa in Tonga. She had intended to travel to Australia as a tourist and then return back at the end of her visit.
The applicant arrived into Australia on 15/06/93 on a tourist visa. Her visa allowed her to remain in Australia as a tourist until 16/09/93.
She was then advised that she could lawfully lodge for a Protection visa. Her Protection visa application was lodged on 26/09/93. Her application form was signed on 21/09/93, only 5 days after her tourist visa expired.PROTECTION VISA APPLICATION
When the Migration Officer during the interview asked the applicant 'Did you consider yourself to be a refugee?' the applicant answered 'no' , but I didn't like being illegal there'.
I do not feel that this is conclusive evidence that her application was a frivolous one.
The word 'refugee' may conjure up many perceptions in the minds of many people, and a lot of the time the images that people associate with refugees differ markedly depending on ones background and past personal experiences.
Her Protection visa application was lodged to enable her to remain behind in Australia. She did not consider herself to be a refugee, but she was lead to believe that there could be a possibility that she might qualify to be a refugee, primarily on the basis of being a woman in Tongan society.
I feel that the applicant would not have fully understood the definition of a refugee, as it is difficult enough for refugee law practioners to understand, let alone your average lay-person. The relevant part of Article 1 of the Convention as amended defines a refugee as a person who:"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country ...".
So when she was asked the question, 'did you consider yourself to be a refugee?', it is not unreasonable for somebody with little knowledge of the Refugee convention, and what is required to be proven in order to establish a claim of persecution for the sake of the convention to answer, 'no'.
It is a well-documented fact, and there is an abundance of evidence (eg. United States Human Rights Reports on Tonga) that woman in Tongan society are heavily discriminated against. In turn 'discrimination' has been held in the Courts to be a valid instance of 'persecution' (Chan's Case). Further, the Courts have also held that it is enough that an applicant is 'persecuted' in their country of origin if the government has failed or is unable' to protect aggrieved persons from discrimination or persecution.
This is a valid claim and it is not as 'frivolous' as it is made out by the Principal Migration Officer in Fiji.
There has been two known cases that have been decided in Australia where the applicant's, who were Tongan nationals, were found to have suffered persecution according to the definition of a 'refugee' under the Refugee Convention.
After the Protection visa application was refused, the applicant applied for a review of this decision with the RRT and then later sought the direct intervention of the Minister. This is not unreasonable, and the applicant was well entitled to apply for such reviews.
UNLAWFUL NON-CITIZEN
I do not believe that the applicant should be considered to be a bad person per se because they had simply overstayed their visa, without first conducting investigations into the circumstances that prevailed at the time which forced the applicant to remain in Australia as an unlawful, and the applicants intentions at the time.
The Department of Immigration and Multicultural Affairs own statistics revealed that of the estimated unlawful non-citizens in Australia as at 30/06/1999, there were just under 25,000 unlawful non-citizens in Australia. The two countries with the highest unlawful non-citizens were the United Kingdom with 5,759 and the United States with 4,646.
I do not believe that it would be correct to conclude that all these people were of 'bad character' per se because they may have simply remained in Australia beyond the lawful date of their visa. It is not possible to foretell the future, and for this reason, there is always bound to be circumstances tied to why certain migrants may remain in Australia beyond the valid date of their visa which occur at a future date and which could not have been anticipated.
The applicant returned to Tonga on her own initiative.
She returned to Tonga to apply for a Spouse visa.
(b) The Respondent's Statement of Facts and Contentions, dated 31 January 2001, reads as follows:
FACTS
1. The Applicant was born on 20 December 1961 (Tp 61).
2. The Visa Applicant was born on 1 July 1973 (Tp 65).
3. On 15 June 1993, the Visa Applicant initially entered Australia on a visitor visa valid for 3 months (Tp 7).
4. On 15 September 1993, the validity of the Visa Applicant's 3 month visitors visa expires.
5. On 26 September 1993, the Visa Applicant lodged a protection visa application (Sp 3).
6. On 6 May 1994, the application for protection visa was rejected by a delegate of the Minister for Immigration and Multicultural Affairs (Sp 6).
7. On 10 June 1994, the Visa Applicant lodged an appeal of this decision with the Refugee Review Tribunal (the "RRT').
8. On 15 June 1994, the RRT affirmed the decision of the delegate of the Minister to refuse to grant the protection visa (Sp 7)
9. On 13 July 1995, the Visa Applicant became an unlawful non-citizen,
10. At some time between 15 June 1995 and 10 August 1995, the Visa Applicant sought Ministerial intervention under Section 417 of the Migration Act 1958 ("the Act").
11. On 10 August 1995, the Ministerial intervention under s417 was declined by the Minister (T2).
12. In November 1997, the Visa Applicant first met the Applicant (Tp 71).
13. On 25 July 1998, the Visa Applicant married the Applicant (Tp 55).
14. On 2 December 1999, the Visa Applicant departed Australia (Tp 7).
15. On 3 April 2000, the Applicant made an application for a spouse visa based on her marriage to the applicant (Tp 54).
16. On 5 September 2000, the applicant was interviewed by Department of Immigration and Multicultural Affairs (the "Department") at the post in Suva (Tp 92).
17. On 21 September 2000, the applicant's application for the spouse visa was rejected by a delegate of the Minister (Tp 6 ).
CONTENTIONS
18. The factors to be considered in the exercise of the power in s.501 of the Act are set out in the Direction – Visa Refusal and CancelIation under section 501 - No.17 made by the Minister pursuant to s.499 of the Act ("the policy"). The Respondent contends that the Tribunal is bound to apply the policy (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
19. The exercise of the discretion in s.501 involves a two-stage process:
(a)a consideration by the decision maker of whether or not the Applicant passes the Character Test; and
(b)if the Applicant does not pass the Character Test, a consideration by the decision maker of whether the discretion should nevertheless be exercised to grant a visa, taking into account primary and other considerations.
PART (a) - APPLICATION OF THE CHARACTER TEST
Character of the Visa Applicant20. The Respondent contends that the Visa Applicant does not pass the character test based on the following general conduct and conduct in contravention of the Migration Act 1958 by the Visa Applicant:
(a)lodging a Protection Visa application on the 26 September 1993 including false claims in her application;
(b)lodging an application on 10 June 1994 in the Refugee Review Tribunal for review of the Department's decision to refuse her a Protection Visa and maintaining the false refugee claims that year before the Department of Immigration and Multicultural Affairs; ,
(c)maintaining the false or misleading claims for refugee status to the Minister for Immigration in an application made between the dates of 15 June 1995 and 10 August 1995, when applying for Ministerial intervention under s417 of the Act;
(d)staying in Australia as an unlawful non Citizen between 13 July 1995 to 2 December 1999; and
(e)working for periods of time during the time she was an unlawful non-citizen.
21. The policy indicates at paragraph 1.9 that the Tribunal should consider certain matters (where they arc relevant to the facts of a particular case), and, where they are relevant, would, in the absence of countervailing factors, constitute a failure to pass the character test. The following matters listed in paragraph 1.9 are relevant in this case:
Paragraph 1.9(b) of the policy states "whether the non citizen has, in connection with any application for the grant of a visa...provided a bogus document or make a false or misleading statement."
(ii) Paragraph 1.9(c) of the policy state "whether the non-citizen has ever made a false or misleading declaration on an approved form...about the non- citizens character or conduct or both."
22. The Respondent contends that the applicant has engaged in the conduct which would fall squarely within paragraphs 1.9(b) and (c), and as a result she does not pass the character test.
23. The lengthy and sustained flouting of Australian law by the Visa Applicant outweighs any supportive character references and associated indicia of recent good conduct of the visa applicant, or any remorse shown by her for her actions over the preceding years.
24. Taking the Visa Applicant's conduct as a whole, the Respondent contends that she does not pass the character test.
PART (b) - EXERCISING THE DISCRETION
25. If the Applicant docs not pass the Character Test, the Tribunal nevertheless has a discretion to decide whether or not to allow the Visa Applicant to remain in Australia. In exercising that discretion, the Tribunal must have regard to a number of "primary" and "other" considerations as outlined in the policy.
Primary Considerations
Protection of the Australian Community26. The respondent contends that, taking into account the three indicia under this heading, i.e. the seriousness of the Visa Applicant's conduct, the risk that the visa applicant will re-offend and the need to deter others from similar conduct, the protection of the Australian community weighs heavily against the discretion being exercised in favour of the Visa Applicant.
Seriousness of the conduct
27. Paragraph 2.6(c) states that presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia is considered by the government to be very serious. The seriousness, of the Visa Applicant's conduct is considered under the heading of the "Protection of the Australian community" and is a primary consideration. Having regard to the policy, the Respondent contends that the Visa Applicant's conduct in circumventing Australia's Immigration laws is very serious.
28. The Tribunal in the past has treated immigration malpractice as very serious (see for example Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148).
The risk of recidivism
29.The Visa Applicant has shown a disregard for Australian laws and general dishonesty in order to attempt to obtain advantages for' herself. The Respondent contends that this conduct and her illegal residence and employment in Australia over several years would indicate that there is a risk the Visa Applicant may engage in deceptive conduct if she is allowed to enter Australia.
General deterrence
30.The refusal of the visa to the Visa Applicant will send a clear message to others that conduct similar to the Visa Applicant's is not acceptable to the Australian community and non-citizens can expect to be refused entry if they engage in similar conduct (Paragraph 2.11 of the policy). In this regard see Msumba and Department of Immigration and Multicultural Affairs (McMahon DP, 8 February 2000, unreported at paragraph 39).
Expectations of the Australian community
31.The Applicant has provided fraudulent and misleading information to the department and then remained as an unlawful non-citizen for four and a half years since her last effort at securing refugee status. The respondent submits that in light of such conduct, the Australian community would expect that she would not be granted a visa. The Australian community regards such offences as serious as evidenced in the penalties imposed on these types of offences by s234 of the Act (imprisonment for 10 years or 10,000 penalty units, or both). The respondent contends that the expectations of the Australian community weigh against allowing the applicant to enter and remain in Australia.
Best Interests of the Child
32.The Visa Applicant and Applicant do not have any children.
Other Considerations
33.There are factors in this case which are in favour of the Tribunal exercising its discretion to allow the Visa Applicant to enter and remain in Australia, despite the finding that the Visa Applicant does not pass the character test. These include the fact that the applicant is in a genuine relationship with an Australian Citizen. This is a secondary consideration. Hardship to the applicant and the Visa Applicant are also secondary considerations weighing in favour of the exercise of the discretion.
34.Alternatively, the visa applicant's parents, brothers and sisters remain resident in Tonga as.does her extended family. There is no impediment to the applicant residing in Tonga with his wife and her family.
35.As a result of these considerations, the Respondent contends that the primary considerations outweigh the secondary considerations of hardship to the visa applicant and the applicant.
CONCLUSION
36.The Respondent contends that the Visa Applicant does not pass the character test as a result of her past conduct. The primary considerations of the protection and expectations of the Australian Community outweigh the hardship to the Applicant and the Visa applicant such that the discretion to allow the Visa Applicant to enter and remain in Australia, despite the finding that she does not pass the character test, should not be exercised in her favour.
It may be noted that during the hearing the Tribunal, at the request of Mr Loftus, and with the consent of Mr Sikahele, allowed an amendment to clause 21 of the Respondent's Statement of Facts and Contentions so as to include a reference to clause 1.9(a) of Direction 17.
(c) S1, (page 137), is a page from the Visa Applicant's protection visa application; in respect of question 53 (headed 'A. The basis of your claim to refugee status'), inquiring as to why she was unable to benefit from her country's protection, the Visa Applicant answered:
I am unable to benefit from my country's protection because I am a woman and the Government of Tonga do not have a special provisions in the law for women. To me, women need special protection
And in answer to question 54 (headed 'B. The basis of your fear of persecution'), inquiring as to her fears for herself and her family if she returned to her home country, she answered:
I fear of persecution because my family is treated by the police as rebel and opposition to the government. Thus, I am a victim of the system.
(d) The decision of the RRT is contained at S7, (pages 156-164); the RRT's 'Reasons for Decision' are set out at pages 162-164 as follows:
The Tribunal accepts that the Applicant may be in a position of economic disadvantage if she returns to Tonga, but the fact that women are discriminated against is not the same as saying that they face a sustained violation of their human rights to the extent that can be characterised as persecution. Even in Tonga, where the strong Polynesian cultural tradition has discouraged the rise of women to positions of leadership, some have become members of the legislature and served responsible positions in various occupations. (US State Department Country Reports of Human Rights Practices for 1993, page 751)
Accordingly, the Tribunal finds that the Applicant does not have a well-founded fear of persecution, on account of being a woman, if she were to return to Tonga.
The Applicant made a claim stating that her family fears persecution as they are treated by the police as "rebels and opposition" to the Government. There is no doubt that the King and a small group of hereditary nobles dominate political life in Tonga and assert authority largely through their control of substantial land holdings and their predominant role in the Legislative Assembly (see US State Department County Reports on Human Rights Practices for 1993, page 750). However, the Legislative Assembly consists of nine people's representatives and in elections held in February 1993, the Pro-Democracy Movement extended its influence with the election of strong supporters to six of the nine people's representative seats. It is also the situation that, since 1991 there have been continued calls for more democratic change both by people inside and outside of the government establishment. The Pro-Democracy Movement, which originated in 1986, was formally established in 1992 and recently it was reported that,"commoner politicians campaigning for democracy in royal and nobility- dominated Tonga have formed a political party aiming to introduce Westminster-style reforms to the kingdom … The kingdom's most popular people's member of Parliament, 'Akilisi Pohiva, said the Tonga Democratic Party had the support of five of the nine commoner MPs." (See Sydney Morning Herald, 11 August 1994, page 10).
The success enjoyed by the Pro-Democracy Movement and the fact that its members and supporters have not suffered any punishment for expressing their political beliefs shows that the Applicant's family would not face persecution in Tonga for their support of the same ideals.
Despite the privileged position of the nobility, it is possible for commoners to rise to Cabinet positions in government and to accumulate wealth and status (see US State Department Country Reports on Human Rights Practices for 1993, page 751). Accordingly, the Tribunal does not accept that the less advantaged position enjoyed by commoners in general or the problems experienced by the Applicant amount to persecution in a Convention sense or that she is unable to benefit from her country's protection.
It follows that although the Applicant may suffer personal hardship by returning to the country of her nationality, she cannot be regarded as a refugee for Convention purposes.
(e) T13, (pages 92-98), is a handwritten record of an interview of the Visa Applicant by Mr Whitehead, Senior Migration Officer, in Tonga on 5 September 2000. Mr Whitehead's handwritten text, (at pages 92-93), reads as follows:
no interpreter req'd
……………
explained penaltiesWhen go to Aust? 1993 3 months
Did you always intend to o/stay? No
Your length of o/stay suggests otherwise? I liked it there, went with mum.
Did she overstay? No, she applied for residence.
What apply for in A/a? Refugee 94-95
Did you consider to be a refugee? No, but I didn't like being illegal there.
When decision made? 94 – 95
What do then? I didn't lodge another application.
Records show you applied for RRT? – Well I guess that I did then.
Apply anything else? Not sure.
Records show s147 consideration.
Leave A/a voluntarily? Yes
DIMA ever come to your house or work, other? No
Why not leave after PV refused? B/c of friends. I knew I would have to come back one day.
………………………………
The Visa Applicant gave evidence by telephone link to Tonga. An interpreter in the Tongan language was made available and his services were occasionally used. However, it was clear that the Visa Applicant is perfectly fluent in English, even to the point of being able to use colloquial phrases. In respect of her evidence:
(a) The Visa Applicant came to Australia on a visitors visa valid for 3 months in June 1993. She did so in order to accompany her mother and also to visit family in Australia.
(b) On 26 September 1993, and after her visitors visa had expired, the Visa Applicant lodged an application for a protection visa. Her evidence was that she consulted Mr Finau, an immigration agent, as to how she could obtain residence in Australia. She said that she knew that she was not a refugee.
(c) However, and after advice from Mr Finau, who advised her that there were grounds upon which she may be able to claim refugee status, her application was written out by Mr Finau and signed by her after she had approved it.
(d) The Visa Applicant said that as a woman in Tonga she was prejudiced in relation to men, who generally received more favourable treatment as regards employment and remuneration.
(e) Her evidence as to persecution was that her father is a democrat and in opposition to the Government, and that as a result he, her mother and she herself, were subjected to questioning and prejudicial treatment by the police.
(f) The Visa Applicant's evidence as to police questioning was extremely vague; she referred merely to questioning by the police, but without specifying when this occurred or how often it occurred, or indeed what questions were answered. And, so it would seem, questioning was as far as it went; there was in other words no evidence as to phone tapping, arrests or worse. At a later stage of her evidence the Visa Applicant said that applications for official permits made by members of her family took longer for approval than they did for other applicants. She particularised this by noting that, because of her father's connections with a democratic party, the police delayed the processing of his gun license. Apparently it took an unusually long period of time for her father to receive a license for a gun he owned. It may be noted in passing that the mere fact that the Visa Applicant father was permitted, with official consent, to own a gun would tend to indicate that the police did not think that they had anything to fear from him.
(g) After the protection visa application had been lodged, the Respondent sent a notice of consideration, dated 30 March 1994; (that notice was not before me). As to whether that notice was sent to the Visa Applicant or to Mr Finau is not clear; in any event there was no response.
(h) After the protection visa application was refused an application was made for review by the RRT. The third paragraph on S7, (page 157), reads as follows:The Applicant was given an opportunity to appear before the Tribunal to give evidence as letters advising her of this were sent on 4 May 1995 and 11 May 1995. However, she did not respond to any of this correspondence. Checks with the Department revealed that the letters were sent to the last known address provided by the Applicant, The Tribunal is satisfied that she has been given an opportunity to appear before the tribunal. Accordingly, her application has been determined on the basis of her written submissions and information available to the Tribunal about conditions in Tonga.
There was in fact no response to either of the letters dated 4 May 1995 and 11 May 1995. The Visa Applicant thought that these letters might have been sent to Mr Finau; however the remarks by the RRT quoted above indicates that they were sent to the address provided by the Visa Applicant. It is conceivable that that address might have been the address of her agent (ie. Mr Finau).
Moreover, and despite her statement in her application to the RRT (Exhibit R1) that she wished to give oral evidence before the RRT, she did not do so. She said that she went to the office of Mr Finau; however she found that his office was closed and accordingly she simply left. She did not say that the visit to Mr Finau's office took place on the day of the RRT hearing. Mr Sikahele made a statement to this effect from the bar table, indicating also that Mr Finau had closed his practice.
An application was subsequently made for Ministerial consideration under section section 417 of the Migration Act 1958 ("the Act"). Although that application was not before me, I was told that it was made by Mr Finau on behalf of the Visa Applicant. That statement is not, however, readily reconcilable with the statement that, by the time of the RRT hearing, Mr Finau's office had been closed.
After her application under section 417 of the Act was refused, the Visa Applicant decided nevertheless to remain in Australia; in effect she went "underground" for a period of approximately four years, and in which time she worked during three separate periods for three separate employers. That work was illegal and, as was admitted by the Applicant, in breach of section 235 of the Act.
(j) She met the Applicant in November 1997, married him in July 1998 and left for Tonga in December 1999. Mr Sikahele said from the bar table that he had advised that, to apply for a spouse visa, she would have to go back to Tonga in order to make the necessary application.
(k) The Visa Applicant now resides with her parents (who are in their sixties) and is supported by them, her brother (who lives in Tonga and works on his plantation), and by the Applicant himself; the Applicant sends her money on a regular basis.
(l) The Visa Applicant was asked at the interview with Mr Whitehead on 5 September 2000 whether she needed an interpreter, and she said that she did not; (see Mr Whitehead's handwritten notes quoted at paragraph 2(e) of these Reasons). She agreed that she told Mr Whitehead that she had not considered herself a refugee. However, she said in her oral evidence that she was nervous.
(m) Some considerable time was taken up with the question of why, if the Visa Applicant did not consider herself a refugee, she nonetheless persevered after the refusal of her protection visa application, with applications to the RRT and to the Minister under section 417 of the Act. Mr Sikahele contended that this was explicable on the basis that all three applications could be treated as one composite whole, and as if each subsequent application followed as a natural progression from the proceeding application. The Tribunal does not consider that that explanation is in all the circumstances credible.
(n) The Visa Applicant said that she always intended to return to Tonga but at some future time. She stayed in Australia and worked illegally (in order to support herself) because she did not want to return to Tonga. In the result she returned to Tonga after her marriage to the Applicant, after receiving advice, (as set out previously), from her new agent (Mr Sikahele).
The Tribunal was of the view that some evidence, presumably available, but which was not presented, was equally relevant as the evidence actually before the Tribunal. In this regard:
(a) Mr Finau was not called to give evidence. His evidence as to the manner in which the protection visa application came to be made and as to his advice to the Visa Applicant would certainly have been relevant. Mr Finau would presumably have been able to testify as to the advice he gave when he was first consulted and thereafter as subsequent applications were made. He would have been able to testify as to why letters were not answered, and the circumstances in which the Visa Applicant failed to give evidence before the RRT, as to whether, (and if so when), his office was closed. Always assuming that the grounds stated were not false, there does not seem to be any good reason why he should not have been willing to give evidence.
(b) It is the Visa Applicant's father who is a member of a Tongan political party and a so-called "rebel" and opponent of the Tongan government. If he and his family were indeed being persecuted, one cannot help but wonder why he was not called to say so, and to detail the nature of the persecution or feared persecution. The same comment applies, although perhaps to a lesser extent, to the Visa Applicant's mother. There was no explanation as to why they did not give evidence.
(c) The Tribunal also thought it odd that Mr Whitehead was not called in order to give evidence as to his interview with the Visa Applicant. Mr Loftus said that the Respondent did not think that this was necessary; there may be some merit in this view.
(d) At a later stage of the hearing, and indeed during submissions, I suggested to the parties that I would be prepared to adjourn the hearing in order to enable the parties to procure additional evidence along the lines set out previously. I did so purely because it seemed to me that, especially in respect of the Visa Applicant, there may be additional evidence which could conceivably support her version of events; neither party wished to accept that offer.The Visa Applicant said also that the Applicant knew that she was illegal in Australia within two weeks of their meeting, but that he did not know of her refugee applications; although he was present throughout the Visa Applicant's evidence, the Applicant said in his evidence that he knew of the refugee application before he married her. And that was not the only discrepancy between his evidence and hers. She spoke of two visits, each of four weeks, by the Applicant to Tonga after their marriage; he in contrast spoke of three visits enduring in aggregate for some 18 weeks in all.
As to the evidence of the Applicant himself:
(a) He came to Australia from Tonga as a student aged 21. Although he had originally intended to study agriculture, he completed one year of science at Macquarie University in Sydney and then dropped out without taking a degree. He worked for a company in Queensland for some years. There was also a marriage to an Australian woman which lasted for some years but ended in divorce; there were no children of that marriage.
(b) From about 1992 onwards he has been employed by Southcorp Packaging, at first as a factory hand, but rising in time and with training, to be a machine operator and having the status of a supervisor.
(c) The Applicant spoke of his love for the Visa Applicant and the fact that he had assured her that if this visa application were refused he would join her in Tonga. However, he was understandably reluctant to do so because of his fear that he will not be able to obtain suitable work in Tonga. In the meantime he sends money to the Visa Applicant periodically and also to his widowed mother who lives in Tonga; (the Applicant is one of seven siblings, 5 of whom live in Tonga and one other in Australia). The Applicant spoke in graphic terms of the substantial burden of debt which he has undertaken in order to meet his financial commitments; an aggregate figure of $35,000 in respect of bank loans and credit cards was mentioned.Oral evidence was given by the Reverend Ericksson, who is the Minister of the Bankstown Uniting Church. At one state there was a separate Tongan branch. Even though it now forms part of the same entity, the Tongan community still treats its church as a meeting place, and more or less as a social club. The Applicant was the secretary for some considerable while, although he has now stepped down in order to devote himself to this application. Reverend Ericksson said that he did not know until the hearing the specifics of what the Visa Applicant has done in relation to her immigration status. Indeed, and although he spoke of the Visa Applicant as a leading member of the ladies group in the congregation, he really knew her only for a period of eleven months, and then only as a prominent member of his Tongan congregation.
(a) Exhibits A2 - A7 inclusive are character references in support of the Visa Applicant by persons both in Australia and in Tonga. It may be said, in general terms, that they tend to gloss over her breaches of the Act. For example, Raymond King (Exhibit A5) said:
I was not aware had exceeded her Visa limitation on her visit in Australia until she spoke of returning to Tonga to await the result of an application for permanent residency.
He then went on to said that she
returned to Tonga of her own free will to put right her mistake.
Ana Hurley, in Exhibit A6, said in paragraph (iii) that:
She may have disregarded the department's decision a few years back [r]egarding her status in Australia but she had never committed any other crime and offences to even suggest that she is a bad person…….
(b) Exhibit A1 is a petition in support of the Visa Applicant, signed by some 60 persons; the opening part, prior to the signatures, reads as follows:
I the undersigned, hereby wish to support the grant of a spouse visa to Ms.Simaima Tuiono (nee Palu) of 6/25 Cornellia Street, Wiley Park 2196 to migrate to Australia.
I understand that she is the lawful spouse of Mr.Elaona Tuiono of the above address. I also understand that is a person of good character, despite the fact that she may have carelessly in the past signed a previous Refugee visa application.
I believe that Ms.Simaima Tuiono is a fit and proper person, and she is of good character, and as a new migrant would contribute positively to Australia.
In particular the second paragraph is couched in words which, in all the circumstances, can be characterised as odd, in referring as it does to an "understanding of her character" and a refugee visa application signed "carelessly".
(a) Before turning to deal with the "Direction under Section 499 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 – Direction No.17" (referred to henceforth as "Direction 17"), it is desirable in my view to analyse the Visa Applicant's evidence in order to consider whether, on a balance of probabilities, it could be said that her conduct was false or misleading within section 234 of the Act. I was, in this regard, particularly mindful of the decision of Deputy President McMahon in Re Abdul-Kader and Minister of Immigration and Multicultural Affairs [2000] AATA 1055, and in which he said (at paragraph 22):
Those fears may not have been sufficient to constitute persecution for a convention reason. Nevertheless, they were honestly expressed. On the evidence before me, there was no attempt to deceive either the Department or the Refugee Review Tribunal or, for that matter, the Minister. As this is the whole basis upon which the Respondent made the decision to withhold the Spouse Visa, the decision under review must be set aside. The matter is remitted to the Respondent with a direction that the application for the visa under review is not to be refused on section 501 grounds.
The effect of the decision of Deputy President McMahon in Re Abdul-Kader is that notwithstanding that a protection visa application fails, there will be no breach of section 234 of the Act where the application was neither false or misleading. It does not appear to have been necessary for Deputy President McMahon to consider questions of illegal work contrary to section 235 of the Act.
(b) In this instance, there must be some considerable doubt as to whether the Visa Applicant's claims were "honestly expressed" and so that the decision in Re Abdul-Kader is distinguishable on its facts.
(c) In the first instance the Visa Applicant said that she knew right from the outset that she was not a refugee, but that after a discussion with Mr Finau she thought that she might be able to claim that she was. Had she confined her protection visa application to a claim for refugee status purely because of discrimination against women in Tonga, that application would have failed; however it would not have been possible to say that it was false or misleading. It was the further allegation as to persecution which is open to considerable question and exposes the Visa Applicant's credibility to doubt. She spoke vaguely of police questioning, but did not particularise it in any way. The RRT found that her claims as to fear of persecution were not substantiated. The RRT went into some considerable detail as to what is meant by the term "persecution". It is clear that not every form of harm constitutes persecution, and indeed it is very doubtful whether the Visa Applicant suffered or even feared harm amounting to persecution. Her credibility in this regard is open to question in particular because:
In respect of her protection visa application and the subsequent RRT application, three letters went unanswered; if this had happened once only, one might have been able to consider that the failure to answer arose from a misunderstanding, but not when it happened on three separate occasions.
(ii) Her explanation as to why she did not give evidence before the RRT is not credible. In the first instance it does not seem likely, in the light of subsequent section 417 application, that Mr Finau has closed his office by the time of the RRT application. But even assuming that he had, the Visa Applicant, who is by no mean unintelligent or unresourceful, could have found another agent, as indeed she did in the course of time when she consulted Mr Sikahele.
(iii) She admitted to Mr Whitehead that she knew she was not a refugee.
(iv) The fact that when all of her applications failed, she then became an illegal non-citizen, working illegally in Australia over a lengthy period.
(d) The inference to be drawn is that if the Visa Applicant made the three applications in question in order to stay in Australia and for no other reason, and notwithstanding the fact that she knew that she was not, and never had been, a refugee. In this context, her claim as to a fear of persecution was, in my view, misleading, thus bringing her, on a balance of probabilities, within section 234 of the Act, and leaving aside breaches of section 235 of the Act in respect of her illegal work.
This brings me to consider Direction 17. Clause references in this paragraph 9, (where I consider the character test), and in paragraph 10, (where I consider the part 2 discretion), should be construed as references to clauses in Direction 17.
(a) The fourth to point of clause 1.9(a) reads as follows:
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 …... :
·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.
(Emphasis added)
And clauses 1.9(b) and 1.9(c) read as follows:
(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;
I consider that for the reasons set out previously, clauses 1.9(b) and 1.9(c) do apply in that, on a balance of probabilities, there were misleading statements or declarations. But, in any event, it was conceded that there were breaches of section 235 of the Act, thus bringing the Visa Applicant within the fourth dot point of clause 1.9(a).
(b) Clause 1.11 requires me to take into account recent good conduct; there was no evidence of any. I note in this context that Re Msumba and Minister for Immigration and Multicultural Affairs [2000] AATA 87, indicates (at paragraph 40) that this reference relates to recent good conduct in an immigration sense. It may be that the concept is wider; before she went back to Tonga, the Visa Applicant played a prominent role in the branch of the church of which the Applicant was the secretary. But even if relevant, it is hardly recent.
(c) It must follow then, that the Visa Applicant does not satisfy the character test.
This brings me to the discretion in part 2 of Direction 17:
(a) Clause 2.3 provides that there are three primary considerations, as follows:In making a decision whether to refuse or cancel a visa there are three primary considerations:
(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.
Clause 2.3 must be considered in conjunction with clause 2.5, which reads as follows:
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)
In this matter clause 2.3(c) does not apply. I accept also that there is little or no likelihood of recidivism.
(b) As to the expectations of the Australian community, clause 2.12 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. This statement has been repeated in numerous cases, on occasions coupled with a reference to the fact that the Australian community expects that the Act will be interpreted in a humane fashion; (see, for example, Deputy President McMahon's decision in Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at paragraph 34); this latter statement has generally been included in cases involving children or ill-health. In this case it is clear that the Visa Applicant's disregard for Australian immigration laws has endured over many years.
Mr Sikahele asked me to accept that Exhibit A1 (the petition) is indicative of the views of the Australian community. This cannot be tenable, both having regard to the limited number of signatures (approximately 60), and the unsatisfactory nature of the preamble. In fact, when one considers Exhibit A1, it is clear that the focus is to some considerable extent on the Applicant. Put in other words it would seem that a number of the Applicant's friends and fellow churchgoers wished to support him in his desire to bring his wife back to Australia.
I think it relevant to refer to the words of Deputy President Purvis in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, where he said (at paragraph 47):
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.
(c) What then of deterrence? Numerous cases of this kind have indicated, in the clearest possible terms, that it is necessary to send a strong message to persons who breach Australia's immigration laws, that their breaches will not be rewarded by the grant of a visa.
It was in this context that Mr Sikahele advanced two particular arguments. The first was that, albeit after a number of years in Australia, the Visa Applicant went back to Tonga of her own free will and at no cost to the Australian government, (her husband having paid the airfare involved). In fact, of course, she went back on Mr Sikahele's advice and because she could not otherwise have applied for a spouse visa. In the same context Mr Sikahele contended that to refuse a visa would send a message to those persons still illegally in Australia that to go back to their home countries would be inadvisable, simply because they might not then be able to return to Australia for want of a visa. This argument need not be taken seriously.
(d) As to clause 2.6(c), Mr Sikahele contended that to stay in Australia is not an offence, even though the person involved is thereby rendered liable to deportation; I am inclined to think that there is merit in this point. He contended also that clause 2.6(c) catches only serious crimes, and being those involving sentences of twelve months or more; this contention was based on the proposition that the Visa Applicant breached section 235, but not 234 of the Act. I have previously said that it is likely, on a balance of probabilities, that there were breaches of section 234 of the Act. If this is incorrect, the admitted offences under section 235 of the Act must be considered. I consider that they too are very serious having regard to all of the circumstances, and particularly the lengthy period of time involved. It must be remembered that clause 2.6(c) of the Direction 17 contains the words (at the beginning):
serious crimes against the Migration Act 1958, including, but not limited to, …
(Emphasis added)
The maximum penalty for a breach of section 235 of the Act is $10,000.
(e) I must then take into account, but only as a secondary consideration, clause 2.17. To deny a visa to the Visa Applicant would cause hardship to each of the Visa Applicant and the Applicant. The Applicant was a very credible witness; his achievements in Australia are deserving of commendation, and his generosity to his family in Tonga is also praiseworthy. Indeed the character references before me were indicative of support for the Applicant as much as for the Visa Applicant. I accept that for the Applicant to return to Tonga would be very difficult. That said, he is a citizen of Tonga who speaks Tongan. His mother and siblings (excepting for a sister in Australia) live in Tonga. It is possible that as a trained machine operator some work may be available, although he did say that Tonga has no factories comparable to that of his employer, Southcorp Packaging. It was in this context that Mr Sikahele contended that for the Applicant to have to go to Tonga would inevitably mean that he will not be able to discharge his accumulated debt of $35,000; this is not in my view a relevant point. It must always be remembered that the Applicant was aware of the Visa Applicant's difficulties before he married her.
11. Mr Loftus, in his closing submissions, referred me to numerous decided cases, and in particular to the statement by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 as to the desirability of consistency in decision making. He referred me also to the Full Federal Court decisions as to character in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 153 ALR 463; and Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; I note that all of these cases were decided before Direction 17 came into force, and it is possible that they are no longer as relevant as they were on the basis that Direction 17 now constitutes the regime, (binding on the Tribunal), within which a matter of this nature must be decided.
I note in conclusion that I have some considerable sympathy for the Applicant who came across in the witness box as singularly likeable and worthy of credit. The problems in respect of the Visa Applicant were not of his making, and indeed for the most part occurred long before he ever met her. But the hardship factor (a secondary consideration) is not sufficient to outweigh the factors against and, in particular, the fact that the Visa Applicant for many years simply treated Australia's immigration laws as if they did not apply to her. In all the circumstances the decision under review is affirmed.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.
Signed: ……………………………………….
AssociateDate of Hearing 2 February 2001
Date of Decision 12 February 2001
Representative for the Applicant Ofeina Sikahele
(of Australian Immigration Law Services)Solicitor for the Respondent Paul Loftus
(of Blake Dawson Waldron)
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