Re Wati and Minister for Immigration and Multicultural Affairs
[2000] AATA 984
•10 November 2000
CATCHWORDS – IMMIGRATION – whether applicant for visa not of good character – effect of serious breach of migration laws – discretion not exercised – decision affirmed.
Migration Regulations
Migration Act 1958 ss. 499, 501(1), 501(6)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27 September, 1994, Decision No. 9753)
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822)
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84; (1996) 68 FCR 422
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
DECISION AND REASONS FOR DECISION [2000] AATA 984
ADMINISTRATIVE APPEALS TRIBUNAL )
) T1998/136
GENERAL ADMINISTRATIVE DIVISION )
Re: PUSHPA WATI
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 10 November 2000
Place Hobart
DecisionThe Tribunal affirms the decision of the respondent dated 17 August, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 7 September, 1998, the applicant, Mrs Pushpa Wati, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), dated 17 August, 1998. The Minister's decision was to refuse to grant to Pushpa Wati's husband, Mr Ram Krishna, a spouse (subclass 309) visa under the Migration Regulations ("Regulations"). At the hearing, Pushpa Wati and the Minister were represented by their solicitors, Mr Sparkes and Mr Shears respectively. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with three character references given by Pdt. Sunil Krishna Menon, a Hindu priest and marriage officer dated 26 November, 1997, Parvez Akbar, a barrister and solicitor in Nadi, dated 1 December, 1997 and Davis Shardanand, Company Secretary of B.W. Holdings Ltd dated 21 October, 1994 in support of Ram Krishna. Pushpa Wati and Ram Krishna gave oral evidence in support of her case and Mr Angus Murray Pryor gave evidence in support of the Minister's case. Mr Pryor said that
THE ISSUE
The first issue is whether Ram Krishna passes the character test set out in s. 501(6) of the Migration Act 1958 ("Act"). If he does not pass that test, the second issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa he seeks.
BACKGROUND
On the basis of the material in the T documents and on the basis of the oral evidence, I am satisfied that Pushpa Wati was born on 12 April, 1945 in Fiji. She did not attend school and cannot read or write either the Hindi or English languages. On 16 January, 1963, she married Ram Krishna, who was born on 14 February, 1944. He completed five years of education at the primary level. Ram Krishna is able to write in the Hindi language but only a little in English. His understanding of spoken English is limited. He has been employed variously as a farm worker, a carpenter and with a civil engineering company since that time.
Pushpa Wati and Ram Krishna married in Fiji where they continued to live and have four children; three sons and one daughter. Their fifth child, a son, died on 25 February, 1984. On 3 September, 1993, they were divorced.
On 30 August, 1992, Pushpa Wati travelled to Australia with an Australian citizen, Mr Ivan (also known as "John") Mally. She remained until 30 October, 1992 when she returned to Fiji. In 1993, Pushpa Wati applied to migrate to Australia on the basis of a de facto relationship with Mr Mally. Her application was successful and she entered Australia in December, 1993. She has since parted company with Mr Mally.
On 12 October, 1994, Pushpa Wati sponsored Ram Krishna's application for a prospective marriage (class 300) visa. Mr Kenneth McArthur, Senior Migration Officer, interviewed him on 24 November, 1994 in relation to that application. His application was refused on 25 November, 1994 on the basis that the delegate was not satisfied that they intended to live in a genuine and continuing marital relationship. On 15 November, 1995, Ram Krishna and Pushpa Wati remarried. Pushpa Wati then became an Australian citizen on 7 May, 1996.
Pushpa Wati sponsored another application made by Ram Krishna on 20 November, 1997. That was for a spouse (class 309) visa. Mr Angus Pryor, a Senior Migration Officer, interviewed him on 14 August, 1998 in relation to his application. His application was subsequently refused on 17 August, 1998 and that is the decision under review.
Pushpa Wati lives on her own in Hobart. She does not work and receives a benefit from Centrelink.
THE EVIDENCE
Separation of Pushpa Wati and Ram Krishna
Ram Krishna - interview with Mr McArthur, Senior Migration Officer, 24 November, 1994
Ram Krishna said that he and Pushpa Wati stopped sharing a home in 1990. At that time, she was working in a motel and, on most nights, worked overtime. He talked to her about her doing this. As she did not like his doing so, he said, she moved out of his house and started to rent in Nadi. She took one of their sons with her and lived with him until she met Mr John Mally.
Ram Krishna - evidence at the hearing.
In his oral evidence, Ram Krishna said that he and Pushpa Wati separated in 1992. She left him because she had a friend, Mr John Mally, who told her that he would help her. To his knowledge, Pushpa Wati did not live with Mr Mally as his wife. Ram Krishna said that Pushpa Wati returned to live with him three months after their separation.
Pushpa Wati - interview with Mr Robert Gardner, Senior Migration Officer, 1 September, 1994
In her statement to Mr Gardner, Pushpa Wati stated that she had separated from Ram Krishna in 1988 because of her husband's drinking and abuse. She rented a house with friends. The children lived with their father and a relative cared for them. In 1988, the youngest two surviving children were aged 9 and 7 years (T documents, pages 112-113). Custody of those two children was given to Pushpa Wati with reasonable access to Ram Krishna (T documents, page 107).
Pushpa Wati – evidence at the hearing
Pushpa Wati said that she and her husband separated about a month or two before their divorce in 1993. She had not developed a relationship with anyone other than her husband in the early 1990s.
Pushpa Wati's involvement with Mr Mally and the divorce and remarriage of Ram Krishna and Pushpa Wati
Ram Krishna – interview with Mr McArthur, Senior Migration Officer, 24 November, 1994
Krishna Wati told Mr McArthur that Pushpa Wati had lived with one of her sons in rented accommodation in Nadi until she had become involved with Mr Mally. He was a guest at the motel and she had occasionally taken him to their house to visit while they were still married. That involvement had started, Ram Krishna initially said, in 1990. He said: "When she moved out in 1990, I found out that she was in a relationship with John." (T documents, pages 77). He later said in the interview that she had met Mr Mally in 1991 or 1992 (T documents, pages 80).
Mr Mally would visit Fiji for four months each year for a holiday. Pushpa Wati would stay with Mr Mally but, when Mr Mally was not in Fiji, would also stay with Ram Krishna "from time to time" (T documents, pages 79). Mr Mally knew that she did this, Ram Krishna told Mr McArthur, as he would not send the rent money for the apartment at Nadi.
Ram Krishna said that he did not know why Pushpa Wati had asked for a divorce; "she just asked for one" (T documents, page 78). He did not ask her why she wanted one. She told him that she wanted to leave him and live with Mr Mally and that was reason enough for him.
Ram Krishna said that Pushpa Wati had lived with Mr Mally, "as a domestic servant, not as John's wife". (T documents, page 79). He later said that he did not know if they had a marital relationship. He did not ask Pushpa Wati as he thought that it might upset her.
Ram Krishna understood that Pushpa Wati could not live with Mr Mally in Australia as his family had treated her as their domestic staff or housemaid. Mr Mally said that he could not do anything about it as she was not his wife. Ram Krishna later said that she had left Mr Mally when he had made her pay for a telephone call that she had made to him in Fiji. He had not had contact with her during the 3 months she was in Australia but she had contacted him at the end of it to invite him to join her in Australia.
Ram Krishna – interview with Mr Pryor, Senior Migration Officer, 14 August, 1998
There was no transcript of the interview between Mr Pryor and Ram Krishna as it was not taped but there is a file note of it written by Mr Pryor (T documents, pages 190-192). It contains his observations of the manner in which Ram Krishna's answered the questions and his conclusions as to the veracity of the answers he gave (T documents, pages 190-191). I have not taken those observations into account in reaching my conclusions.
Ram Krishna told Mr Pryor through an interpreter that he and Pushpa Wati had divorced because she met a man who said that he would help her to get to Australia. She had wanted to do it and it was not his idea. The man had advised her to divorce him so that she could get a visa to go to Australia. Later, Mr Pryor recorded that:
"I asked PA [permit applicant] if SP [sponsor] and John Malle lived together. He said they did in A/a [Australia] and in Fiji. They lived together for a few years in Fiji. I asked PA whether he gave his consent for the divorce. He said 'yes'. I asked him why he gave it. He said that SP wanted to go to A/a so he let her go. I said to PA that it sounded to me like he was a party to her efforts to get to A/a. He said that John Malle was very sick and PA and SP had helped him. So he helped them in return by getting SP a visa.
I asked PA whether John Malle had entered a false relationship with SP so she could go to A/a. PA said that he did not know John's intentions but he was a friend and they took his advice. I asked PA what was John's advice. PA said that John told them that if they got divorced SP could go to A/a.
I asked PA whether SP ever expected to continue her relationship with John. PA said SP did not but it was just something they did because they were friends. I said to PA that he was a part of that arrangement. He said 'yes'." (T documents, pages 191-192)
Mr Pryor recorded Ram Krishna's response to his question why he had remarried Pushpa Wati in the following way:
"… He said she had not found anyone else in A/a and had been alone and they had been married for a long time before so they decided to re-marry. …" (T documents, page 192)
Ram Krishna – evidence at the hearing
In his oral evidence, Ram Krishna said that Mr Mally would visit him and Pushpa Wati at their house. That had occurred while she was working at the motel. Mr Mally had told Pushpa Wati that, if she divorced her husband, she could get a permanent residency visa. Pushpa Wati told him that she wanted a divorce from him so that she could go to Australia. If she divorced him, she could get a visa. He agreed to that course of action as he did not want to upset her or break her heart. As a consequence, he agreed with whatever she said. He did not even think of coming to Australia himself. He just did what was asked of him. His heart was broken when he and his wife were divorced. He let her go for her own happiness. Ram Krishna said that he is alone at the moment and his children have grown up and gone.
He is a very simple fellow, Ram Krishna said, and did not even give it a moment's thought that the relationship between Pushpa Wati and John Mally would not last. When asked if the relationship with John Mally had been contrived to enable Pushpa Wati to travel to Australia, Ram Krishna replied that John Mally had manipulated all of that. If he had not come to their place, she would not have gone with him; she would not have got carried away.
When asked whether Pushpa Wati told him that she wanted to go to Australia or whether she told him that she wanted to go to Australia with John Mally, Ram Krishna said that she wanted to go to Australia; she did not say about being with John Mally. Ram Krishna was also asked whether he asked Pushpa Wati what Australia had that was better than he, her husband, was. He replied that he thought that John Mally was saying that he would help make a new life for them. They are poor people. He did not think that "these things" would happen. When asked what he meant by "these things", he responded that he did not think that he would be left alone. She left him and he did not think that he would be left alone. "I am too simple a person", he said.
He said that his wife had remarried him as she had married him before, he was now on his own and she would not leave him on his own. Until this year, she had visited him in Fiji each year since 1994. It is only in 2000 that she has not returned to visit. She telephones him.
Ram Krishna said that he had cousins and their children in Australia but he had never met them. Later, he said that they live in Sydney and they visit him when they travel to Fiji. He and Pushpa Wati had no ties in Australia. Pushpa Wati had no relatives or ties. As far as he knew, Ram Krishna said, Pushpa Wati and John Mally are no longer friends and she has not talked to John Mally for a long time.
Ram Krishna's daughter lives in Fiji where she is married with three children. His youngest son is not married and lives in Fiji. His two elder sons are both married; one lives in Tonga and the other in New Zealand.
Ram Krishna recalled the interview with Mr Pryor as he felt that Mr Pryor had been very rough with him. As he is a very quiet person, Ram Krishna had felt very upset and angry. He also felt that the woman who interpreted at that interview had not been interpreting properly. Ram Krishna felt that he did not understand what was being said. Mr Pryor had become very angry and had told him to say just "yes or no" in answer to his questions. He felt that he could not, though, as he could not give accurate answers.
Pushpa Wati – evidence at the hearing
Pushpa Wati said that she met Mr Mally when he went to Fiji in 1991. He sent in her application for a tourist visa in 1992. Mr Mally also met her husband. He said that he could help them. He said to her husband that he was very poor. If, he told her husband, he gave her a divorce, she could go to Australia and Mr Mally could then help him. Mr Mally did not show the papers to her husband. She stayed with Mr Mally for two months after arriving in Australia but then found out that he was doing nothing to help her husband. Mr Mally probably tricked them, she said. It was a mistake, she said. She did not completely understand why she had come to Australia. John Mally was a married man. Her husband was lonely in Fiji. She did not understand correctly. Mr Mally paid for her ticket to travel to Australia. Neither gave money to the other.
Pushpa Wati said that Mr Mally had suggested to her that she told immigration officials that her husband had physically abused and tortured her. Otherwise, she would not get a visa. She did so but it was a lie. When she divorced her husband, she still loved him and he still loved her. They would never have divorced if Mr Mally had not suggested it. Her husband was not happy to divorce her. She talked to him about divorcing and told him what John Mally had told her. In particular, she told him that John Mally would take her to Australia and he would make arrangements for Ram Krishna later. Mr Mally, however, changed his mind.
She gave as her reason for travelling to Australia with John Mally that he was sick and she would care for him. Pushpa Wati said that she lived with Mr Mally for two months after her arrival in Australia. They did not live as man and wife. She remarried Ram Krishna as Mr Mally wanted her to be a housemaid. She loves Ram Krishna. They talk to each other on the telephone twice each week. If he were not granted a visa to enter Australia, she said that it was "hard to say" what she would do. Her husband did not have any money or any place to live. She lives alone and has only one friend in Australia. She does not have any relatives here. Pushpa Wati said that she last saw Mr Mally last year.
Pushpa Wati said that Ram Krishna did not think of coming to Australia in 1993. His first expectation of coming was in 1995. That was when she married him again. He wanted to come. He wanted them to live together. Pushpa Wati did not think that Ram Krishna had the expectation of coming in 1994 even though that was the year in which she had first sponsored his visa. She sponsored his application because John Mally was not doing anything to help him. It was her idea that he came to Australia, she said, and not Ram Krishna's. John Mally had only talked of bringing her to Australia. He had said that later he would do something for Ram Krishna. Mr Mally told Ram Krishna that he would do something for him later. Her husband was happy about that, she said.
CONSIDERATION
Framework of Act
Section 501(1) of the Act provides that:
"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."
The "character test" is set out in s. 501(6), which provides that:
"For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal history (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, 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."
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 16 June, 1999, the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act.
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community."
Character test
The direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). In introducing the directions regarding that paragraph, the Minister states:
"1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is 'not of good character' on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that the a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct."
Only s. 501(6)(c)(ii) is relevant in this case and, with regard to that, the Minister directed:
"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 fact of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
.engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
continual evasion or non-payment of debt;
.continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
.involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10…
1.11General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen's character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2)."
In this case, the focus is upon Ram Krishna's past and present general conduct as set out in s. 501(6)(c)(ii) rather than upon the other criteria in that provision. That requires a consideration of what is meant by the expression "general character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 Deputy President McMahon said that:
" 'Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)
After considering that structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
"These are overall requirements important in the administration of immigration procedures. 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, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya 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." (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 27 September, 1994, Decision No. 9753) and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs (unreported, 7 November, 1994, Decision No. 9822) and Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (unreported, 2 May, 1996, Decision No. 10910). In Prasad, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (paragraph 7)
What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be approved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
"[8]… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 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 for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry." (page 324)
"[24]… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal's decision on this ground, so it is unnecessary to pursue this question." (page 327)
Having heard the evidence of both Ram Krishna and Pushpa Wati, I am satisfied that they are both unsophisticated people. They are even naive. Mr Mally was not called to give evidence and is not in a position to give his version of events. On the evidence that I have been given, his part of the matter is not reflected in a positive light regardless of what I find in relation to the actions of Ram Krishna and Pushpa Wati. Whether that is a fair reflection, I am not in a position to assess in his absence.
On the basis of the evidence I do have, I find that, at all relevant times, Pushpa Wati intended that her husband join her in Australia at a later time. She had thought that Mr Mally would arrange that for her but, when his help was not forthcoming, she attempted to arrange it herself by sponsoring his application for a visa in 1994. Her actions, however, do not of themselves reflect adversely upon her husband.
What is important in this case is what Ram Krishna knew of the matter. It is Pushpa Wati's evidence that he knew that the purpose of the divorce was to enable her to migrate to Australia and that Mr Mally would make arrangements for him later. In his evidence, Ram Krishna denied that he knew anything of the arrangement but his final answers are most telling. He thought that John Mally would make a new life for them and he did not think that he would be left alone. It seems to me that he could not have had those thoughts unless he agreed to the divorce to enable Pushpa Wati to travel to Australia and ultimately to travel here himself to rejoin her. He could not have had those thoughts unless he regarded the relationship between Pushpa Wati and Mr Mally as either a sham or as inconsequential. His lack of sophistication or naivety is not such that he did not know that divorce usually means separation.
In view of his answers on these matters and in view of Pushpa Wati's evidence that he did know the reason for their divorce and that there would ultimately be arrangements made for his travelling to Australia, I find that he did know. I do not accept his oral evidence at the hearing that he did not know. In reaching this conclusion, I also note that Ram Krishna's answers to various questions over the years have been inconsistent and that his answers have been inconsistent with those of Pushpa Wati. He initially stated in the interview in 1994, for example, that his wife left him in 1990 for Mr Mally but at the hearing said that it was some two years later in 1992. Also in the 1994 interview, he said that he had met Mr Mally in 1991 or 1992 and that was inconsistent with his statement that Pushpa Wati had left him for Mr Mally in 1990.
As a result of my finding that Ram Krishna did know that the arrangements made between Pushpa Wati and Mr Mally were intended ultimately to lead to his being taken to Australia, I have also concluded that his actions show a disposition to place his personal interests above his wider duty to abide by the migration laws of the Australian community whom he seeks to join. In the context of the Act, it seems to me that this disposition assumes a greater importance than it might in some others. This is so because the need for honesty and integrity in each individual is very important in the administration of Australia's migration laws. Unless each applicant shows honesty and integrity it is much more difficult to ensure that all applicants for entry are treated fairly and that their claims for entry are assessed by the same standards. It is for the public good, when viewed both internationally and domestically, that fairness and equity are maintained when there are many wishing to enter Australia and there are standards to be met.
Balanced against this consideration are the good character traits shown by Ram Krishna to others. The letter of Davis Shardanand does not assist in this regard as it simply refers to Ram Krishna's period of employment and his wages. The references of Pdt. Sunil Menon and Parvez Akbar do take matters a little further. Mr Krishna's family had been clients of Parvez Akbar's firm for quite some time. Mr Krishna was described as being of "… good character and is a law abiding citizen. He has a pleasant personality and hails from a religious background." (T documents, page 144). Pdt. Sunil Menon described Ram Krishna as an "… asset to my village and he is a very reliable person." (T documents, page 143) None of the character referees was called to give evidence and so I do not know whether they were aware of the background to Ram Krishna's application for a visa.
If knowledge of that were not to make any difference to their references, I would conclude that Ram Krishna has shown reliability and diligence in the context of his own community. They are indications of his having a good character as is the love he shows for his wife. When those traits are balanced against the considerations of the need to maintain fairness and equity in the administration of Australia's migration laws, however, I do not consider that Ram Krishna's good traits outweigh the poor traits he has indicated in trying to circumvent those migration laws. Consequently, I find that, for the purposes of the Act, he is not of good character.
Discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed to:
"… 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 discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (paragraph 2.2)
The three primary considerations are:
"2.3 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."
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Ram Krishna's conduct; the likelihood that he will repeat it and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of his conduct, I must have regard to:
"(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia." (paragraph 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Ram Krishna as mitigating factors (paragraph 2.8(a)).Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct.
Consideration must be given to the expectations of the Australian community as they have been identified by the Minister as follows:
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa should be removed from Australia. …" (paragraph 2.12)
Ram Krishna's actions in entering Australia were not consistent with the public good in so far as the administration of its migration laws are concerned. It is a serious breach of those laws. It does not automatically follow that refusing him a visa is necessary for the protection of the Australian community. In this case, however, I have concluded that the discretion should not be exercised in his favour. He has not only been part of an attempt to circumvent Australia's migration laws but he has maintained that position even when his wife has abandoned it. At one level that is understandable as he is lonely without his wife and particularly so now that his children have left home. She also would seem to be lonely. At another level, it shows that he is prepared to continue to state a position in order to gain a benefit for himself. I am satisfied that they are both unlikely to offend against any other laws of Australia were Ram Krishna permitted to enter this country. The fact that I am satisfied that they are both likely to lead law abiding lives in the future does not, in this case, outweigh the need to deter others from adopting the same course of conduct to gain entry to Australia. It is a relatively easy course to pursue. Ram Krishna has sold property in the expectation of coming to Australia and so faces at least some hardship if he remains in Fiji. That, consideration does not, without more, justify the discretion being granted in his favour. He took that course of action as a result of his plan to circumvent Australia's migration laws.
For the reasons I have given, I affirm the decision of the respondent dated 17 August, 1998.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)Signed: .....................................................................................
M Martinez AssociateDate/s of Hearing 25 October 2000
Date of Decision 10 November 2000
Solicitor for the Applicant Mr B Sparkes
Solicitor for the Respondent Mr J Shears
Australian Government Solicitor
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