Ribarich and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1014
•31 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1014
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/159
GENERAL ADMINISTRATIVE DIVISION ) Re ISMETA RIBARICH Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date13 October 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED Maqsood Ahmad be granted a visa to migrate to Australia. ..............................................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. V2005/159
GENERAL ADMINISTRATIVE DIVISION )
Re :ISMETA RIBARICH
Applicant
And :MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DIRECTION [2005] AATA 1014
Tribunal :Mr J. Handley, Senior Member
Date :31 October 2005
Place :Melbourne
1. On 13 October 2005 I published written reasons for decision. The decision, as published was:
The decision under review is set aside and in substitution IT IS DECIDED Maqsood Ahmad be granted a visa to migrate to Australia.
2. I am now advised and I agree that the decision in the above terms, was beyond power.
3. Accordingly I am satisfied that there is an obvious error in the text of the decision and I DIRECT that pursuant to s.43AA of the Administrative Appeals Tribunal Act 1975 the Registrar alter the decision by deleting the decision as published and substituting the following:
The decision under review is set aside and remitted for reconsideration with a direction that the visa not be refused pursuant to s 501 of the Migration Act 1958.
........................
Senior Member
MIGRATION – applicant refused entry to Australia – failed to pass “character test” – applicant a resident between 1991 and 2004 – first entered as a student – initiated a number of legal proceedings – all unsuccessful – married to an Australian citizen residing in Australia – extensive evidence of good character – never engaged in any criminal activity – discretion available by the legislation and Ministerial Policy – decision set aside
Migration Act 1958 (Cth) s 501, s 496, s 497 and s 499
Ministerial Direction No 21 – Visa Refusal and Cancellation Under Section 501
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Barwick and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 412
REASONS FOR DECISION
13 October 2005 Mr John Handley, Senior Member 1. Ms Ismeta Ribarich and Mr Maqsood Ahmad were married at Melbourne on 5 September 2003. Ms Ribarich is an Australian citizen. Mr Ahmad is a citizen of Pakistan where he now lives. He was resident in Australia between 9 January 1991 and 4 July 2004, when he departed at the expiration of a bridging visa. Applications were made to the Australian High Commission in Islamabad on 31 August 2004 for Mr Ahmad to return to Australia. The respondent refused, by a decision made on 11 January 2005, citing a failure on the part of Mr Ahmad to satisfy the “good character test” under the Migration Act 1958 (the Act). It is that decision under review by these proceedings.
2. Mr Ahmad and Ms Ribarich both completed applications, as a “Partner” and as a “Sponsor” respectively, on 17 June 2004. The applications were lodged by a migration agent acting on their behalf on 28 July 2004. The decision under review is in response to both applications.
the legislation
3. Section 501 of the Act provides that the Minister may refuse to grant a visa to a person if that person does not pass. the “character test”. The “character test” is found at s501 (6). It provides an extensive list of circumstances that, if committed, would not permit a person to pass. For the purpose of these proceedings the relevant part is paragraph (c) namely:
(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;
4. In the present application the decision under review was made by a delegate of the Minister. Section 501 (1) provides that the Minister may refuse a visa. Section 496 and 497 of the Act refers to the delegation by the Minister to a person of his or her powers conferred under the Act. There was no issue on this point and I assume for the purposes of these proceedings that the person who made the decision under review has been properly delegated under these sections. (The person who made the decision is described as a “delegate”).
5. In addition to the “good character test” found at s 501 (6), s 499 provides that the Minister may give written Directions, to a person or a body, about the performance of the functions under the Act and the exercise of powers. At pages 35 – 38 of the T‑documents is a copy of the Direction made by the Minister under s 499. It is entitled “DIRECTION NO.21 – DIRECTION ‑ VISA REFUSAL AND CANCELLATION UNDER SECTION 501 – NO. 21”. There is provision in the Act to have the Directions “binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach”. The Direction comprises “PART 1 – APPLICATION OF THE CHARACTER TEST” and “PART 2 – EXERCISING THE DISCRETION”. I will return to s 501 (6) and the Ministerial Direction later in these reasons.
the facts
6. A brief history of Mr Ahmad’s residence in Australia may be summarised as follows:
7. After arrival in Australia and being the holder of a student visa, Mr Ahmad was accepted into the Master of Applied Science (Petroleum, Geology and Geo Physics) degree at the University of Queensland. In February 1992, it was deemed that he had not made satisfactory progress and his involvement in the course was terminated. He lodged a number of appeals against that decision to the University Senate, the Anti-Discrimination Tribunal in Queensland, the Queensland Supreme Court and the Federal Court. Representations were also made on his behalf to the University by the Post-Graduate Students’ Area Committee, the South Brisbane Immigration Community Legal Service and by Dr Batchelor, a Chartered Engineer, in support of his reinstatement into the course. All appeals were unsuccessful. During the currency of the appeals processes, Mr Ahmad was the subject of a number of interviews with officers of the Immigration Department and on occasions, visas permitting him to stay were issued. On other occasions he was a resident of Australia without a valid visa.
8. In March 1994 he applied for a skilled migrant visa and that application was refused. A number of appeals followed that decision all of which were unsuccessful.
9. In April 1998 he made an application for a protection visa. That application was refused and appeal proceedings were instituted. Later, he became a member of the Lie class action and later, when his membership “lapsed”, he made an application under s 417 for Ministerial intervention.
10. On 5 May 2004 the Minister refused to intervene. At that time all appeal mechanisms as above had been concluded and adverse decisions had been made. Mr Ahmad departed Australia on 4 July 2004. He has not ever been convicted in Pakistan or in Australia of any criminal offence nor is he known to law enforcement agencies in Pakistan or Australia. There is no allegation made in the decision under review that he has any criminal conviction or ever been involved in any criminal activity.
11. It was alleged that he is not of “good character” because he provided misleading information in his applications, had breached visa conditions, was “unlawful” for periods of time and was engaged in “spurious claims” to prolong his stay in Australia. That conduct was regarded as “very serious” by the delegate and Parts 1.9 of the Ministerial Direction was referred to. Additionally, it was decided that the past conduct of the applicant may be repeated if he was granted a visa to reside in Australia, “should he have the need to apply for welfare benefits or have dealings with other Australian Government Agencies”.
12. Additionally, the delegate decided that the ‑
Islamabad caseload is characterised by a high rate of attempted fraud and false claims and identities. The culture in Pakistan encourages sharing of all personal information and it is generally the case that applicants share information on visa applications and decisions with a wide range of people. Refusal of such cases, especially under s 501 is an effective general deterrent. (Page 9)
Finally it was decided that the Australian community has an expectation that the Government allows entry into this country only of persons who are prepared to obey Australian laws. However, Mr Ahmad “has shown that he is not such a person” (Page 9).
13. Mr Ahmad gave evidence in these proceedings by telephone from Pakistan. There were many occasions when his evidence was difficult to hear and comprehend. The following has regard to his evidence at the hearing and a lengthy and detailed submission made by him in January 2005 (T‑documents pages 130 – 171) in response to a request made by the delegate on 15 December 2004. Additionally, T‑documents, where relevant, will be referred to.
14. In his submission, Mr Ahmad recorded that he had obtained a Bachelor of Science in Applied Geology in 1986 and a Master of Science in Applied Geology with first class honours from the University of Punjab in 1988. He was offered the opportunity to undertake Post Graduate studies in Petroleum, Geology and Geo Physics at the University of Queensland which he accepted. He was also offered the position of a Research Assistant Grade 1 with the University in the Geographical Sciences and Planning Department. On 10 February 1992, the Head of Department in the Department of Earth Sciences at the University of Queensland, wrote a letter confirming that Mr Ahmad had been studying towards a Master of Science in Applied Geology, Petroleum Geology and Geo Physics since February 1991 and had satisfactorily completed eight units. On 14 February 1992, four days later, the Dean of the Faculty of Science wrote to Mr Ahmad notifying him that advice had been received by the Head of Department, that he did not have the “necessary background to continue with the Master of Applied Science (Petroleum Geology and Geo Physics) degree”. Mr Ahmad was then deemed to have failed to have made satisfactory progress and his enrolment was terminated (refer T‑documents, pages 147 and 151).
15. Mr Ahmad then obtained support for continuing enrolment from Dr Batchelor, a Chartered Engineer, the South Brisbane Community and Legal Service and from the Post Graduate Students’ Area Committee. Appeal proceedings were ultimately instituted in a number of different Courts and Tribunals (refer above).
16. In evidence at the hearing, Mr Ahmad said that he had been progressing satisfactorily with his studies and said the decision made to terminate his enrolment was “shattering”. He said that to this day he does not understand why that decision was made. He said that the appeal processes were not instituted by him to extend his time in Australia. Mr Ahmad said that he had spent considerable monies in University fees and living costs in Australia and had “lost everything – including my employment with the University”. The appeal processes were instituted to attempt to have the University exercise its discretionary powers permitting him to be re-enrolled.
17. In 1994, Mr Ahmad applied for a “skilled migrant” visa. More precisely the application was then made for a sub-class 816/818 visa. It appears from a decision of the Migration Internal Review Office (made after the applications were refused) that he did not qualify for either visa because he had not qualified as a refugee before November 1993 (sub-class 816) and did not qualify for skilled migrant visa (818) as he was not enrolled in a post-secondary educational institution in Australia in the 1993 academic year.
18. Mr Ahmad said in evidence that he believed that his application for skilled visa would be successful because of the qualifications that he held from Pakistan and by reason of completing the first year of the degree course from the University of Queensland. He said that he thought he would be “treated sympathetically” and pursued appeals to the Immigration Review Tribunal and to the Federal Court. In his written submissions Mr Ahmad said that he believed that he would qualify for a sub‑class 818 visa because he “had the skills and met the requirements”. He said the application was made without legal assistance or advice.
19. In April 1998, Mr Ahmad made an application for a protection visa. In his submission he said that he “generally feared returning to Pakistan . . . as my brother had become involved with the SIPEH-L-SIHAB (SSP) a SUNNI group . . .”. The submission records that members of that organisation, and their families, had been “gunned down and killed . . . and for this reason I sought protection in Australia. I feared that it would be assumed that I was supportive of my brother’s involvement in the SSP”.
20. In evidence at the hearing, Mr Ahmad said that he continues to remain in fear of persecution in Pakistan despite now living there. He said that in the past year more than 4000 people had been killed in Pakistan and the “situation here is very sensitive. I am not secure”.
21. In cross-examination, Mr Ahmad agreed that he had been living in Pakistan for more than 12 months and despite the fears expressed in his application, he has not been assaulted or the subject of threats. He said that he spends a lot of his time in Lahore and outside major cities. He agreed that in his application for a protection visa that he had said that he was at risk of assassination or persecution anywhere within Pakistan. He agreed that the Refugee Review Tribunal had not made a decision in his favour and indeed had made a finding that some of the documents upon which he relied were “not genuine”. He said that he did not regard the decision as “correct” but he did not appeal it. He said “after so many failures I was near collapse”.
22. In February 2002, Mr Ahmad became a member of the “Lie” class action upon advice he received from a solicitor in Sydney. He said that he later learnt that his membership of that class action had been withdrawn. He said he did not know why that had occurred. He learnt that his membership had been withdrawn or had lapsed from an officer of the Immigration Department in Brisbane when he made an application for extension of a visitor’s or bridging visa. He said his solicitor did not notify him that the appeal had been withdrawn. In his written submission, Mr Ahmad recorded similar information to that given in evidence but additionally recorded that he agreed to become a member of that class action because he was then in continuing fear of returning to Pakistan and Mr Joel, his solicitor, had advised him that membership of the class action “could help me in this regard”.
23. In cross-examination, Mr Ahmad said that he learnt of Mr Joel and his role in acting on behalf of members of the class action from another person at a Mosque in Brisbane. He said he spoke with Mr Joel on an average of once per month over the three year period that he was a member of the class action. He said that he never saw a copy of the decision ultimately delivered by the High Court and said that he had not ever been informed by his solicitor that he should make an application as an individual. He also said that he had never been advised that there was a time limit on making such an application.
24. In August 2003, Mr Ahmad made an application for Ministerial intervention under s 417 of the Act. In his written submission, he agreed that the purpose of that application was to allow him to remain in Australia. He recorded that at that stage he had met and “fallen in love with my wife Ismeta Ribarich”. He recorded that he had become very involved with, and close to, her family and her grandchildren. It was his belief that his circumstances met Ministerial guidelines for intervention and had been advised “there was a possibility that the Minister might consider my case favourably”. In evidence, Mr Ahmad said that he made the application on the basis of “public interest or compassionate grounds”. He said the application was made in good faith and he wanted his “special circumstances” considered.
25. The respondent’s representative lodged a Statement of Facts and Contentions which raised a significant issue concerning the absence of “good character” on the part of Mr Ahmad. It was alleged that for a cumulative three of the 13 years that he resided in Australia, Mr Ahmad was without a current visa.
26. In evidence, Mr Ahmad said that there were occasions when he did not have a current visa but said that this was by reason of misunderstanding. He said that some of the occasions where he was without a visa occurred during the appeal proceedings that he had instituted. He said that he was not “in hiding” nor was he “living underground”. To the extent that it was alleged that he had failed to comply with a notice from the Department, Mr Ahmad said that he was then living at a Mosque in Brisbane and the address provided by him was not “false” as alleged. He acknowledged that persons might find it difficult to comprehend that he would live at a Mosque, it being a place of worship, but he said a number of other Muslim men lived at the Mosque. He said in exchange for residing there, he volunteered to assist the Imam with Bible and Koran lessons for students. He said he was not paid a fee for that activity. It followed that he also denied an allegation put that he had been “working” in the absence of an appropriate visa. He said whilst living at the Mosque, he did not receive a notice from the Department, but acknowledged that such a notice had been sent. He said that there were difficulties with the collection and distribution of mail to persons within the Mosque and he assumed that the notice that had been sent to him had been misplaced.
27. In his statement Mr Ahmad admitted that there were occasions that “for a brief period” he was “unlawfully present in Australia”. However, he said that there were occasions where he was “slow to report to the Department of Immigration for a period of time” because he was depressed. He said he had sought legal advice from various agencies and had otherwise maintained contact with the department. He referred to the record of the visas that have been granted to him over the years. He recorded in his statement that if there was an intention on his part to hide or evade detection or provide false addresses, he would not have repeatedly returned to the Department to seek visas and extensions of visas. Additionally, he submitted that if he was perceived by the Department as being a risk, visas would not have been continually granted to him.
28. In his statement, Mr Ahmad said that he does not have any criminal record, has always lived peacefully and acknowledged and obeyed Australian and Pakistani law. He said that if allowed to re-enter Australia he would abide by all laws and would not pose any threat to the Australian community. Mr Ahmad submitted that he wished to resume cohabitation with his wife and resume study and seek employment. He said that his marriage was genuine and he and Ms Ribarich are “very much in love”. It was submitted that she is dependant upon him for emotional assistance and support, having regard to injuries that she suffered in a motor car accident. He also wishes to resume a relationship which he commenced with Ms Ribarich’s children and grandchildren. He said it would be “impossible” for Ms Ribarich to live in Pakistan with him because he continued to perceive himself at risk of persecution but additionally he said that she would not be familiar with Pakistani language or culture.
ismeta ribarich
29. Ms Ribarich is the applicant in these proceedings and the wife of Mr Ahmad. She completed a Statutory Declaration on 28 June 2004 found at pages 80 – 81 of the T‑documents. In that statement she said that she first met Mr Ahmad in March 2002 having been introduced by the Imam of the Holland Park Islamic Society in Brisbane. Thereafter she said they contacted each other frequently. She declared “our love for each other had blossomed over the next few years and I have not felt so happy in my life for many years. He is my soulmate and I feel privileged to have found such a wonderful man as a husband”. The declaration records that she and Mr Ahmad married on 5 September 2003 in Melbourne and then returned to live in Queensland. She said that she and Mr Ahmad have strong family values and beliefs and have much in common despite each being from different cultures. She said it is his intention to return to Australia to continue his study and to obtain employment in the mining or petroleum industry.
30. In evidence, Ms Ribarich said that she is presently a registered aged care nurse working varying shifts. She said she works for three or four days per week depending on the state of her health. She was previously self-employed as a security guard and private detective. In order to undertake that employment, she had to satisfy licensing authorities that she was of “good character”. Ms Ribarich has also been engaged as both a volunteer and later, a paid employee assisting Bosnian refugees.
31. Ms Ribarich said that Mr Ahmad is a person of “good character” because he tells the truth to the best of his abilities and knowledge, he does not lie, steal, kill or threaten others. She said that she depends on Mr Ahmad to assist her having regard to injuries which she previously received and to assist her and her children domestically. Presently she lives with her two adult daughters, Dina and Jasmin and with Dina’s twin boys. She said she and Mr Ahmad are very attached to her children and the grandchildren and they miss him. She contacts him daily either by telephone or by text message in Pakistan.
32. In cross-examination, Ms Ribarich said that Mr Ahmad presently lives with his mother and sister in Pakistan. She said that he had moved to a different part of Pakistan for approximately six months and was in hiding because he was scared of being killed. She said that he had told her that he has “no life” in Pakistan and has spoken about suicide. He said that Pakistan society is corrupt and he has no money to pay bribes to obtain employment. She said there was an occasion when he was talking to her in the English language on a mobile telephone outside a Mosque and he was beaten because it was thought that he was a spy.
33. Ms Ribarich said that she met her husband in 2002 but she did not know much detail about his previous immigration status. She said that he then had a solicitor and was then waiting on a decision from an appeal. She said that she knew that he had some immigration problems before marriage and she also knew of the “trouble” that he had had with the University of Queensland. Ms Ribarich said that she knew her husband had applied for a bridging visa in 2003. She was informed of the visa grant at page 290, issued on 31 July 2003 and said she was not aware that he had been directed to leave Australia on 30 August 2003 (being the week before their marriage on 5 September 2003).
dina ribarich
34. Ms Ribarich is the daughter of the applicant, Ms Ismeta Ribarich. She said she is the mother of twin boys, one of whom has epilepsy and the other is asthmatic. She said she is divorced from her husband who last had contact with the children in February 2004. She said that she is dependent on her mother for assistance with her children and at home.
35. Ms Ribarich said that the marriage between her mother and Mr Ahmad is “genuine” and the relationship “continues”. She said her mother speaks with Mr Ahmad on the phone very often and their phone bill runs into thousands of dollars. She said that Mr Ahmad is a gentleman whom she trusts and the extent of his relationship with her and the other members of the family is such that they have learnt to speak some Urdu.
36. In cross-examination, Ms Ribarich said that she and her mother had spoken about whether she would live in Pakistan with Mr Ahmad in the event that his appeal was unsuccessful. They have concluded that she would be unable to afford to travel, that she would be unable to cope with the Pakistani culture and would find it impossible to adopt a Pakistani lifestyle. She said her mother has been depressed since Mr Ahmad left Australia and she also is dependent upon her mother for financial assistance.
kashmir khan
37. Mr Khan gave evidence on behalf of Mr Ahmad. He said that he holds degrees in engineering and management and has worked in the engineering industry for the last 23 years in Pakistan, Jordan and Australia.
38. In a declaration found at pages 77 – 78, Mr Khan said that he has known Mr Ahmad since 1992 and regarded him as a close friend. He said that Mr Ahmad had earned his respect as a friend “based on the solid grounds of integrity, selflessness, dependability, values and morality”. He described Mr Ahmad as “mature, well groomed (and) well educated” who holds a Masters Degree in Geological Sciences from a University in Pakistan and his academic background has “placed him in the category of educated/professional class of our society which is a stepping stone for nation building”. He deposed that Mr Ahmad’s professional qualifications in geological science would permit him to work in the mining industry in outback Australia or off-shore. He thought that Mr Ahmad was “more Australian than Pakistani”. He has frequently observed Mr Ahmad and Ms Ribarich since their marriage and thought that he had found his “soulmate after a long bachelor period of life in Australia”.
39. In evidence, Mr Khan said that he has a long history of supervising persons in major construction projects in Pakistan, Jordan and in Australia where he presently supervises 25 people. He said he migrated to Australia on the basis of his qualifications and obtained a visa in the skilled migrant category. He has subsequently obtained Australian citizenship.
40. Mr Khan said that he understood that compliance with visa laws was important and he would not defend any person “to do something against the law of a country – but how much is the crime?”. He said he was surprised to learn the cumulative total of the period of time that Mr Ahmad had been in Australia without a visa, but said that, “I wouldn’t withdraw any of my opinions of him”. He said that Mr Ahmad is a person of “good character” because as an employee, he would benefit the employing business, he would be loyal, not a criminal, and would not cause loss of property. He said a person of bad character would be a thief or a person who would damage property or other people. He regarded Mr Ahmad as a person of “good character”. He said that Mr Ahmad was a person of integrity and thought that the ten years that he had been spending in Australia prior to his marriage had been like a gaol for him. Despite this he said Mr Ahmad did not have any bad feelings for Australian society and had not ever come to the notice of Australian police nor had he been disobedient. He said Mr Ahmad was perceived in the Pakistani community as a person of “good character” and was a bridge between numerous ethnic groups.
41. Mr Khan said that Mr Ahmad would find it difficult, if not impossible, to return to Pakistan. He said he had been out of that country for almost 14 years and it would be virtually impossible to obtain employment. He said political, ethnic, religious and economic differences (compared) to Australia would be enormous in Pakistan. He described Australia as being “heaven”.
42. Mr Khan said that it would be impossible for Ms Ribarich to live in Pakistan. He said that by Pakistani culture she would be confined to a home and would have to obey strict Pakistani laws of conduct. He said that her independence would be denied. He also thought that she would be ostracised by the Pakistani community if she attempted to live a life as she had lived in Australia. He said that she would find Pakistani society to be alien. Mr Khan said that he had not ever known of a woman of Western background living as the wife of a Pakistani man in Pakistan.
43. In re-examination, Mr Khan said that he has spoken with Mr Ahmad on the telephone and had been told that he was depressed and was in a “living hell”. He said Pakistani society was corrupt and construction projects only progress after payment of a bribe which he said was 34 per cent of the project cost. Mr Khan said that when he returned to Pakistan, after he lived in Jordan, he said “life was upside down”.
44. Mr Khan said that he travelled to Melbourne from Brisbane to give evidence on behalf of Mr Ahmad because he wanted to support him. He said that he had not ever travelled to Melbourne previously. He said there were many jobs in the petroleum and geological industries in Australia and said that Australia was in desperate need of persons with Mr Ahmad’s qualifications.
submissions
45. Mr Smith lodged a Statement of Facts and Contentions prior to the commencement of the hearing. It contained a summary of the events preceding Mr Ahmad’s departure from Australia. It was submitted that Mr Ahmad was a person of “good character”, that he has no criminal convictions and whilst acknowledging that there was a period of time when Mr Ahmad was without a visa, it was a relatively short period and did not otherwise offend the proper exercise of the discretion in considering Mr Ahmad’s character. It was submitted that Mr Ahmad was a person who was engaged as a volunteer in Australia and did not “work”, as was alleged. Additionally it was submitted that upon the evidence, Mr Ahmad did not receive a letter from the Department advising of an intention to deport him. It was submitted that Mr Ahmad was entitled to make the applications he did from time to time to various Courts and Tribunals because he genuinely felt aggrieved and was entitled to exercise his rights.
46. In the event that Mr Ahmad was found to be a person of “good character”, it was submitted that confidence could be held that he would comply with Australian laws and that there was no risk of any recidivism.
47. In oral submissions at the conclusion of the hearing, Mr Smith submitted that s 501 (6) (c) should be interpreted as the nature of “general conduct” being the equivalent of “criminal conduct” of which in the present case it was submitted there was no evidence. It was submitted that the authorities upon which the respondent would rely were authorities of the Tribunal involving persons with criminal convictions or having made false applications which, in the presence circumstances, had no relevance.
48. In written submissions prior to the commencement of the hearing, Mr Wee on behalf of the respondent, discussed the combined operation of s 501, the Ministerial Direction and s 234 (making false statements) and concluded that Mr Ahmad was not a person of “good character” and should not be granted a visa to enter Australia again.
49. It was submitted that Mr Ahmad was unlawfully in Australia for a cumulative total of three and a half years during the 13½ years that he resided between 1991 and 2004. It was submitted that he would have been aware at the exclusion from the Queensland University that his visa had then expired and he was then “unlawful” until he was granted a visitor’s visa in April 1992. Upon the expiry of that visa he was then an unlawful citizen for over two years until September 1994. Thereafter he embarked on a course of appeals to various Courts, Tribunals and Government Agencies which appeals were either futile or spurious – and in so far as the protection visa application was concerned – were false. The effect of these appeal mechanisms was submitted as having no purpose other than to extend Mr Ahmad’s time in Australia.
50. It was submitted that Mr Ahmad should not be allowed to return to Australia in order to “lessen the risk of crime and disorder within the Australian community”. It was submitted that Mr Ahmad was a person who had made false claims which constituted a crime under the Act. Additionally, Mr Ahmad is a person who has attempted to deceive Australian officials and breached laws in order to remain in Australia which, on balance, amounted to Mr Ahmad being a person who disregards Australian immigration laws and in those circumstances he is not a person of “good character”. Additionally it was submitted that the Tribunal cannot be satisfied that Mr Ahmad would not continue to disregard Australian laws.
51. In oral submissions at the conclusion of the hearing, Mr Wee adopted the Statement of Facts and Contentions lodged prior to the commencement of the hearing. Further he submitted that Mr Ahmad was a person who did not take responsibility for his conduct in Australia that he was evasive in his answers, despite being a person of some sophistication, and continued to apply for bridging visas for no reason other than to extend his time in Australia.
52. On balance it was submitted that the combined effects of s 234 of the Act, and the absence of intimate knowledge by Ms Ribarich of his immigration history and misconduct, all suggest that he is not a person of “good character” and the application made by him should not succeed.
conclusion and reasons for decision
53. Exercise of the discretion as to whether Mr Ahmad is a person of good character is to take account of the provisions of s 501 of the Act and the Ministerial Direction. Section 501 (1) applies in the context of persons who are refused a grant of a visa. Sub-section (2) applies in the context of a person who has had a visa cancelled. In the present application, Mr Ahmad is a person who has been refused a grant of a visa. It is that decision which is under review by these proceedings. Sub‑section (2) provides that a visa may be cancelled if the holder of the visa does not satisfy the Minister that they can pass the “character test” but additionally, the Minister must reasonably suspect that that person does not pass the “character test”. That latter requirement is not found within ss (1). The decision-maker in the present application specifically made findings that there was a reasonable suspicion that Mr Ahmad did not pass the “character test”. That was an error.
54. Mr Smith submitted that s 501 (6) should be interpreted as the concept of “past and present general conduct” having the same character and intent as “past and present criminal conduct”. I know of no authority for that proposition and on the literal interpretation of the language of the sub-section, I am not satisfied that that interpretation is correct. The sub-section clearly distinguishes by its language that criminal conduct has a different concept and intent to general conduct, and clearly that must be so.
55. It was submitted by the respondent that Mr Ahmad has engaged in criminal conduct to the extent that he made a false application and provided false documents in his protection visa application. Specifically, the provisions of s 234 of the Act were relied upon. That section provides a penalty of imprisonment of ten years or 1000 penalty units or both. I am not prepared to find as a fact that Mr Ahmad has committed a criminal offence with respect to his protection visa application.
56. I note that the Refugee Review Tribunal made a finding to affirm a decision not to grant a protection visa. I also note that that Tribunal made a finding that some of the documents upon which Mr Ahmad were not credible. Indeed there was a specific finding by that Tribunal that some of the documents submitted by Mr Ahmad were “not genuine” and no weight was given to them. The Refugee Review Tribunal relied on “independent country information” (refer page 266) and to journal and newspaper articles. I note that the Refugee Review Tribunal relied on “The News on Friday” and an article then published under the headline “No Sects, We’re Muslims”. It also relied on a journal article from The Christian Science Monitor of June 1997, under the headline, “A Nation Awash in Graft and Told to Be Accountable”. The reference to that article was preceded by commentary by the Refugee Review Tribunal that “Transparency International has rated Pakistan as the world’s second most corrupt country after Nigeria”. That reference apparently is to a finding, based on information from the Australian Consulate in Pakistan, that “social factors contribute to widespread acceptance of corruption, document fraud is pervasive and that any kind of civil documentation may be purchased or obtained from friends, relatives or personal contacts”. Those findings inherently contain very adverse references to Mr Ahmad and his motives. They are unproved and untested. Whilst acknowledging that a finding was made against Mr Ahmad, I am not satisfied that the reasons for decision of the Refugee Review Tribunal amount to him having committed a criminal offence or, indeed, amount to him having been engaged in “past and present criminal conduct”. The decision of the Refugee Review Tribunal was made on 14 January 2000. Mr Ahmad left Australia on 4 July 2004, some four and a half years later. In the interim he was granted visas from time to time. On occasions those visas were extended. There is nothing on the evidence, or from the documents, which would indicate that criminal proceedings were ever contemplated against Mr Ahmad with respect to the alleged false documentation or representations, and in the circumstances a more than sufficient opportunity would have been provided to Australian authorities to institute criminal proceedings.
57. The Ministerial Direction usefully publishes the policy of the Minister, and therefore the Australian Government, with respect to the issues to be considered when deciding whether to refuse, cancel or grant visas. Its preamble specifically identifies the document as providing guidance to decision-makers. The decision‑maker in the present application specifically referred to Part 1.9 (a) and (b) of the Direction in finding that provision of misleading information is to be regarded as “very serious”, “as a reason to find that a person does not pass the character testing”. With respect, the Direction does not impose such a strict interpretation. The Direction provides that when considering whether a person is of “good character” against s 501 (6) (c) (ii), the matters referred to, if relevant, would “in the absence of any countervailing factors” constitute a failure to pass the “character test”. Clearly the section provides for the exercise of a discretion, and not a mandatory finding.
58. The decision-maker relied on Part 1.9 (a) but it cannot have any application in the present proceedings. That part refers to contempt or disregard for the law or human rights. The examples specifically given, that is, contemplated as constituting “contempt or disregard for the law or for human rights”, include business activities reflecting other person’s moral qualities, evasion or non-payment of debts, continual disregard for payment of family maintainance, involvement in organised crime, terrorism, drug activities, political extremism, extortion, white collar crime, fraud, breaches of immigration law or involvement in war crimes against humanity. It was not alleged that Mr Ahmad was ever engaged in this type of activity
59. Paragraph (b) of Part 1.9 does have relevance because it refers to a non‑citizen who has made an application for a grant of a visa and has provided a bogus document or made a false or misleading statement. The decision-maker was of the view that the applications that had been lodged by Mr Ahmad for protection, review and Ministerial intervention and his involvement in the Lie class action, were made spuriously and for no purpose other than to extend his time in Australia (page 9). But there was no finding by the decision‑maker that the applications involved the provision of a bogus document or a false or misleading statement. The delegate decided that Mr Ahmad “appears to have provided misleading information . . .” (page 9). That has the character of allegation only and is unsupported, in the decision, by fact.
60. I am puzzled that Mr Ahmad made his application for protection visa after he had been in Australia for many years. It does give rise to a suspicion that the application was made after all other avenues of appeal had been exhausted and for the purposes of extending his time in Australia. I am however not prepared to find that the application was bogus or with dishonest intent without that application being the subject of specific enquiry in these proceedings, which did not occur. I acknowledge the findings made by the Refugee Review Tribunal and its decision, but I am not bound by it. I am obliged to exercise my discretion, not to adopt the outcome of a discretion exercised elsewhere.
61. The other applications made by Mr Ahmad were, in my view, well within his entitlement and legitimately made.
62. Mr Ahmad’s expulsion from the degree course at the University of Queensland was, on the documents read, very surprising and it is not difficult to imagine that he would have felt aggrieved. The Head of Department wrote a letter confirming that Mr Ahmad had completed the first semester course work satisfactorily but four days later, the Dean expelled Mr Ahmad from the course because of advice received from the Head of Department. I do not know that the reason for this action have ever been satisfactorily explained to Mr Ahmad. He is more than entitled to exercise his rights of appeal to the University Senate and, as he felt that he was being discriminated against, was entitled to bring proceedings or at least make enquiries through the Anti Discrimination Tribunal and the Ombudsman in Queensland. He is also entitled to exercise his rights to appeal to the Federal Court. What must also not be overlooked is that on the documents read, Mr Ahmad spent in excess of $15,000 in fees and some $10,000 in living costs which has all been lost. The Dean of the Faculty of Science recorded that Mr Ahmad did not have “the necessary background”. If that was so, why was Mr Ahmad initially accepted into the course and, why did the University need 12 months to reach that conclusion? The number of appeals and the period of years over which they spanned, clearly indicates that Mr Ahmad was seeking to redress what he understood were wrongs or errors committed by the University and, or, to seek an explanation. He was also motivated by his intent to pursue his studies in Australia and expand on the qualifications that he brought with him. As is recorded on many occasions in the documents lodged, his ultimate objective was to work in Australia and upon the evidence heard from Mr Khan, opportunities for employment do exist for suitably qualified persons.
63. The application for a skilled migrant visa would appear to have been made either upon error or incorrect advice. That application was dismissed because Mr Ahmad was not registered in a tertiary institution in 1993. There is no evidence that he knew that he would not qualify and therefore there is no evidence that that application was false, misleading or bogus.
64. Having exhausted all other rights of appeal, Mr Ahmad was entitled under the legislation to request intervention by the Minister.
65. A similar fact scenario to the above was considered by the Honourable R M J Purvis QC, Deputy President, in Re Barwick and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 412. At paragraphs 31 and 32 of that decision it was decided:
31. I do not find that the Visa Applicant sought to circumvent Australia’s Immigration Laws. She did seek to rely on procedures available to her and with honest intent. Whilst for a part of her stay in Australia she was not legally entitled to remain, she did not act with an intent to breach the law. She believed at all times that she was legally able to reside with her relatives and then her husband in Australia.
32. The Visa Applicant did not show a disregard for Australian laws in order to obtain advantages for herself. She was entitled to make each of her several applications to the Respondent based on a situation, which she maintained, and the Tribunal accepts, as truthfully narrated. The Respondent did not maintain otherwise. I do not see a situation existing which would be replicated by another person. The circumstances were peculiar to her. She did not engage in activities, which indicate a disregard for the law. This being so the Australian community, that is the informed, right thinking middle of the road Australian, would expect that she would be allowed to enter and remain in Australia.
66. I would adopt the above two paragraphs although I acknowledge the concession made by Mr Ahmad in his written documents that there were occasions when he was aware that he was unlawfully in Australia. I am satisfied that he believed that he could lawfully remain in Australia during the currency of these proceedings. I am not satisfied that the proceedings he instituted were intended to frustrate the operation of the Migration Act or the Ministerial Policy. But he did not then hide or live underground and the frequency of his attendances at DIMIA offices and the making of applications for (and being granted) visas subsequently indicates that he is a person who did not seek to evade detection from Australian authorities.
67. I was impressed in these proceedings by the extent of support Mr Ahmad has received from persons in Australia. There are a number of character references in the T‑documents, some of which were from persons not called to give evidence at the proceedings, but they all indicate that Mr Ahmad is a person of “good character, integrity and honesty.” I was moved by the evidence given by Mr Khan in the proceedings. That he travelled to Melbourne from Brisbane to give evidence personally, when he could have appeared via telephone or video, is a testament to the regard in which Mr Ahmad is held by Mr Khan. I was also impressed by the evidence of Dina Ribarich and Ms Ribarich. Having read the lengthy submission prepared by Mr Ahmad and the attached documents, both including his acknowledgement of errors that he has made, satisfies me that he is a person of “good character, honesty and integrity”.
68. In reaching these conclusions as to Mr Ahmad’s character I acknowledge the findings made by the Full Federal Court of Spender, Drummond and Mansfield JJ in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 where the Court decided ‑
The concept of good character in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entries 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.
69. I am not satisfied that the Australian public would be at risk upon Mr Ahmad re-entering Australia. Nor am I satisfied that he has moral qualities that are enduring and are so deficient that he should be refused entry. I dismiss the finding made by the delegate who, on the one hand, acknowledged that there was “no need to repeat the conduct should he be granted a visa to reside permanently in Australia” but on the other hand, deciding that it was not possible to “rule out that this conduct may be repeated should he have the need to apply for welfare benefits or have dealings with other Australian Government Agencies”. That finding, in my view, is unduly harsh and unfair and without warrant.
70. Additionally, I am not satisfied, as unfortunately was the delegate, that the application by Mr Ahmad should be refused to demonstrate “an effective general deterrent” to other persons in Pakistan which has a culture “which encourages sharing of all personal information and it is generally the case that applicants share information on visa applications and decisions with a wide range of people”. Whilst there might be information known to the Australian Consulate in support of that allegation, there is nothing which links Mr Ahmad to persons who do share or exchange such information (if such persons do exist). Mr Ahmad must be treated on his merits, based on his circumstances, and his character. It is not fair or correct to assess his character by regard to him as a member of a nationality or class of persons.
71. Finally, a very important issue in this proceeding is the marriage of Mr Ahmad to Ms Ribarich which I am satisfied was genuinely undertaken and genuinely entered into by both persons. I am satisfied, on the evidence heard, and from the documents read, that they do have a genuine commitment to each other and have expressed their love for each other. I am satisfied on the evidence heard that it would be virtually impossible for Ms Ribarich to travel to Pakistan to resume her marriage in the event that the application was unsuccessful. A combination of her Western culture, female, her age, virtual impossibility of assimilation and adoption into Pakistani society, her state of health, inability to fly and her overwhelming commitment and devotion to her family and children in Australia all satisfies me that it would be inappropriate for her to leave Australia. On the other hand, by reason of the continuing marriage and the preference that it be resumed, it would be far more expedient for Mr Ahmad to return to Australia and resume the relationship. He does not have any criminal connections, there is no evidence of him being engaged in any criminal activity and many persons in Australia support him as a person of good character.
72. In all of the circumstances I am satisfied that Mr Ahmad is a person of “good character” and does pass the “character test”. In those circumstances the decision under review should be set aside and in substitution his application for a visa to migrate to Australia should be allowed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
AssociateDate of Hearing 27 September 2005
Date of Decision 13 October 2005
Solicitor for the Applicant Paul Joseph Smith Migration ServiceSolicitor for the Respondent Bryan Wee, Office of the Australian Government Solicitor
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