Saxena and Minister for Immigration and Multicultural and Indigen Ous Affairs
[2003] AATA 960
•26 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 960
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1189
GENERAL ADMINISTRATIVE DIVISION ) Re PRASHANT SAXENA Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, QC Deputy President Date26 September 2003
PlaceSydney
Decision The decision under review is set aside. The application is remitted to the Respondent with a direction that the application is not to be refused on the ground that the Applicant does not satisfy the Character Test.
[Sgd] The Hon RNJ Purvis QC
Deputy President
CATCHWORDS
IMMIGRATION - skilled independent overseas student visa – Applicant refused on basis of not of good character – Applicant convicted in 2000 for ‘use of false instrument with intent – Applicant taken advantage of by other party of offence parties of offence – Respondent granted temporary visa in spite of offence – offence not ‘very serious’ – decision set aside.
LEGISLATION
Migration Act 1958, section 501
Ministerial Direction 21
Migration Regulations 1994, Schedule 2 and 4.
REASONS FOR DECISION
26 September 2003 The Hon R N J Purvis, QC Deputy President THE APPLICATION
1. This is an application by Mr Prashant Saxena ("the Applicant") seeking review by the Tribunal of a decision made by a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent"), on 10 February 2003, refusing to grant to him a Skilled Independent Overseas Student (Residence) DD 880 visa.
2. In the notice of decision to refuse the visa, the Respondent inter alia stated:
" The Delegate of the Minister for Immigration & Multicultural & Indigenous Affairs has after exercising the discretion decided to refuse the grant of visa to you pursuant to s 501(1) of the Act. The particular ground under which you did not pass the character test is s 501(6)(c)(ii) of the Act. "
3. The ‘Issues for Consideration for Possible Refusal under subsection 501(1) of the Migration Act 1958’ includes a finding on character which states (G docs, p5):
"Finding on Character
8. Mr Saxena has provided an Australian Federal Police Certificate dated 17 April 2002, which details that on 27 July 2000, Mr Saxena was convicted for the offence of "Use of False Instrument with Intent" and sentenced to "Recognizance to be of Good Behaviour for 18 Months"
…
9. The circumstances of the offence are such that, on 6 July 2000, Mr Saxena attempted to apply for a personal loan of AUD20,000 at a branch of the National Australia Bank, using three false pay slips and a photocopy of a vehicle registration certificate.
…"
4. And as to the exercise of the available discretion, noted (G docs, p.7-8):
"15.Mr Saxena committed the offence less than two years before the date of lodgement of his application for permanent residence…
17.Mr Saxena put forward the following factors by way of mitigation in his submission to the department when he stated, in part:
“I was working part time and often required money from my parents for education and living costs. I discussed this matter with one of my friends who advised me that you can get a loan and pay it off later."
…
18.Mr Saxena's migration agent put forward the following factors in relation to Mr Saxena's mitigating circumstances, when he stated, in part:
“Mr Saxena has been mislead by another when he sought to apply for a loan. His actions have led to this conviction and good behaviour bond”.
…
20.Mr Saxena has not previously been warned about the risk of visa refusal under s 501, and based on the information at hand, has not since re-offended.
…
21. Mr Saxena does not have any previous convictions in Australia.
…
22.Mr Saxena put forward the following factors concerning his rehabilitation in his submission to the department when he stated, in part:
“And I was charged with the offence of attempt to use false instrument in order to get loan. I pleaded guilty in front of them and co-operated to full extent in their investigation… I have always been a law abiding citizen all my life and have never been involved in any sort of unlawful activity. I am a God fearing person and always believe in peace. I feel very sorry for this and promise not to indulge in anything unlawful”.
…
26.It is open for you to find that refusal to grant a visa to Mr Saxena would serve as a deterrence factor against others committing similar offences. The Government has a strong interest in deterring others from committing offences of this nature.
…
28.The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offences are such that the Australian community may expect that Mr Saxena's visa application be refused.
…
32.Mr Saxena does not have any family residing in Australia, and has not made any statement to indicate that he is involved in any business or other ties to the Australian community.
…”
the hearing
5. At the hearing of the application, the Applicant was represented by Mr Ray Turner, solicitor, Senior Associate with Yardell Wright Stell Lawyers, the Respondent by Mr Andrew Grimm, solicitor, of Blake Dawson Waldron Lawyers.
6. The documents lodged with the Tribunal pursuant to section 500(6F) of the Migration Act 1958 (“the Act”) (as amended) were admitted into evidence and marked G1 – G18. The following documents were tendered on behalf of the Applicant, admitted as exhibits and marked accordingly, namely:
EXHIBIT
DESCRIPTION
A
Application for Graduate School Temporary Visa, with accompanying documents 1-61 dated 10 May 2002
B
Application for Skilled Independent Overseas Student Visa dated 14 June 2002 with accompanying documents idx.1-17
C
Letter from Applicant's agent to Adelaide Skilled Processing Centre dated 22 January 2003
D
Letter from the Respondent to the Applicant dated 9 December 2002
E
Original outline of evidence of Ms Hongyan Yi dated 29 August 2003
F
Letter dated 8 September 2003 from the Applicant's representatives enclosing 7 character references
The Applicant and Ms Hongyan Yi were cross-examined on their evidence.
CHRONOLOGY OF RELEVANT EVENTS
7. A chronology of relevant events not at issue between the parties is as follows:
1975 8 February Applicant born in India
1999 21 February Applicant arrives in Australia as the holder of a student visa extended until 23 July 2003
2000 6 JulyApplicant arrested for presenting false documents in relation to an application for a loan from the National Australia Bank
2000 27 July Applicant pleads guilty and is convicted of using a false instrument with intent
Applicant meets Ms Yi
2000/2001 Applicant informs Ms Yi of conviction
2002 3 JuneApplicant applies for a Subclass 497 (Graduate Skilled (Temporary)) visa
2002 17 June Applicant applies for Subclass 880 (Skilled-Independent Overseas Student (Residence)) visa
2002 23 July Applicant granted Subclass 497 visa
2002 9 December Applicant issued with ‘Notice of Intention to Consider Refusing Visa’ in relation to Subclass 880 visa
2003 10 February Application for Subclass 880 visa refused by the Respondent
legislative provisions and direction
8. By section 501(1) of the Act, the Minister may refuse to grant a visa to a person, if that person does not satisfy the Minister that he or she passes the character test.
501 Refusal or cancellation of visa on character grounds
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
…"
9. The words ‘good character’ used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made by the decision-maker and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321 at 324 it was said:
"The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standard 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."
10. A determination as to whether a person is or is not of a good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(e) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.
11. Direction 21 as here relevant provides:
"PART 1 - APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ...
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).
…
Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct
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 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.
…
Subparagraph 501 (6)(c)(ii) - past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
…
(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;
…
PART 2 - EXERCISING THE DISCRETION
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … 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.
Primary Considerations
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 or other close relationship between a child or
children and the person under consideration, the best interests of the child or children.
Protection of the Australian Community
2.4 The Government seeks to take reasonable steps to protect the
Australian community from the actions of criminals and to take action
to lessen the risk of crime and disorder within the Australian community.…
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
a. The seriousness and nature of the conduct
2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:
…
(l) serious theft (including “white collar” crimes):
· such crimes are of concern because of the amounts of money
involved and/or the disruption caused to individuals, business and
Government;
…
b. likelihood that the conduct may be repeated (including any risk of recidivism)
2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.
…
c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons
2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:
(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
…
Expectations of the Australian community
2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... 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 or should be removed from Australia. …
The best interests of the child
2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.
…
OTHER CONSIDERATIONS
2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
…
(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;
…
(i) whether the application is for a temporary visa or permanent visa;
12. Schedule 2 of the Migration Regulations 1994 (“the Regulations”) made under the Act, refer to subclass 497 - Graduate - Skilled Visa and relevantly provide as follows:
“497.22 Criteria to be satisfied at time of decision
497.221The Minister is satisfied that the applicant intends to comply with any condition subject to which the visa is granted
497.222 The applicant satisfies public interest criteria 4001…
497.223The Minister is satisfied that the expressed intention of the applicant to make a valid application for a Skilled-Independent Oversees Student (class DD) … is genuine.”
13. The Public Interest Criteria 4001(1) relevantly provides:
"Either:
(a)the applicant satisfies the Minister that the applicant passes the character test (2); or
(b)the Minister is satisfied after appropriate enquires that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)The Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
…"
the criminal offence integral to a finding as to character
14. On 27 July 2000, the Applicant pleaded guilty at Parramatta Local Court to a charge of ‘Use False Instrument with Intent’. He was convicted and placed on a ‘Recognizance to be of Good Behaviour for 18 Months’.. He had not before and has not since the conviction offended.
15. It is this conviction and the events associated with it, that the Respondent relies upon as being indicative of the true nature of the Applicant's character and as justifying a refusal to exercise the available discretion in his favour.
16. The offence is more particularly described on the Court Attendance Notice as (G docs, p.18):
"That Prashant SAXENA on the 6th day of July 2000, at CASTLE HILL, in the State of New South Wales, did use an instrument, to wit, three pay advice slips which was, and which the said Prashant SEXENA [sic] knew to be false, with the intention of inducing another person to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that another person's or to another person's prejudice."
17. In the NSW Police Service Fact Sheet, the Applicant's ‘Antecedents’ are noted as (G docs, p.16):
"The defendant is a single man, he is a student andhas [sic] been in Australia since February 1999. He is currently on a students visa which expires on March, 2001. The offender fully cooperated with police inquires. He is currently studying a Masters degree in Information Systems at Central Queensland University. The offender is not known to police and he is away from his family in India. There is no indication to Police that he will not attend court as required.”
and the ‘Full Facts’ referable to the offence as:
"FULL FACTS
About 11.00 am on Thursday, 6 July 2000, Prashant SAXENA and Tauseef REHMAN attended the National Australia Bank branch on Victoria Ave, Castle Hill. SAXENA entered the bank for a pre arranged appointment to have a $20 000 loan approved.
SAXENA presented staff at the bank documents in order to obatin[sic] the loan. Amongst the documents were three payslips and a photocopy of a vehicle registration certificate. The three pay slips indicated that SAXENA was working 38 hours a week with a security company. The vehicle registration form was presented in order to show the loan was being provided to purchase a car and it gave the details on who the $20 000 cheques [sic] was to be paid to. Staff at the bank became suspicious because a similar loan application had been applied for using the same registration form.
Police were called and attended the bank. SAXENA was spoken to and placed under arrest. Police also spoke with REHMAN who was seated in a car outside the bank. REHMAN was arrested and conveyed to Castle Hill Police Station.
SAXENA participated in an electronic interview where he told police that he met REHMAN at a home loans office in Harris Park through an (sic) friend. SAXENA needed money in order to pay his education costs. SAXENA is on a student visa and is studying in Australia. As a part of his visa conditions he is not permitted to work more than 20 hours per week.
SAXENA provided REHMAN with his personal details in order to obtain a personal loan. When the loan was approved SAXENA contacted REHMAN and arranged to take (sic) go to the bank together. REHMAN provided SAXENA with three false pay slips indicating he worked 38 hours per week and the vehicle registration certificate.
SEXANA [sic] stated he knew the items were false and agreed that he used the items to obtain the loan. SEXANA [sic] signed certain parts of the loan application however the bank did not give any money to the applicant.
REHMAN also participated in an electronic interview where he told police he was a loan consultant ‘ No 1 Home Loans' a business that is run from Harris Park. REHMAN initially denied any involvement in the offence however when faced with overwhelming evidence of his participation made admissions into providing the pay slips and registration certificate for SEXANA [sic] loan application.
REHMAN was spoken to in relation to a number of similar applications and he made certain admissions before requesting the services of a solicitor."
18. In a statement prepared by him, the Applicant with reference to the offence, or as he described it, "the incident which happened with me", stated (G docs, p.20):
"…I was working part time and often required money from my parents for education and living costs. I discussed this matter with one of my friends who advised me that you can get a loan and pay it off later easily. He then introduced me to one of his acquaintances, his name was Rehman. I was told that he is a Consultant for a Home Loan Company and can organise a Personal Loan for me.
I approached him to discuss the issue and he assured me that there will not be any problem in getting a personal loan as my Credit Report was good. He took my details. I told him that I am working with a company (Abacus Security) but getting paid through one of their sub-contractors (PR Security) and provided pay slips for the same as well. He said that as PP Security has no land line number (as they had only a mobile number to contact) so we better give Abacus Security as my Employer. He called up Abacus Security and confirmed the same as well.
He applied for the loan on my behalf over the phone and called me on the same day that it has been approved. He told me that he will organise an appointment for me with the bank, for the disbursement of the amount requested. He asked me to come on 6th July 2000 at his office from where we were to go to Castle Hill National Australia Bank branch, where the said amount was to be disbursed. On our way to the branch he gave me payslips from Abacus Security; which he made himself showing my full-time employment with them. He also told me that the type of loan was a Car Loan and he asked me to provide the bank, the Registration of the car which I was intending to buy. I told him that it should be a personal loan as I need the money for other purposes and not for buying the car. Then he said that the bank will give the cheque in favour of the car owner and then we will get the money back from him after we pay him some money. I asked if it will be IK, [sic] then he said don't worry I will take care.
Rehman was supposed to get substantial portion of the loan account as well. I was never made aware that the same car registration had already been used in another previous loan application. I was confused with this proposition, but couldn't say anything at that stage as we were already at the parking lot for the bank. He stayed in the car and advised me to go to the bank with all the paperwork.
The paperwork I had contained my identification, key cards, bank statements, payslips and registration. When I forwarded those documents to the bank, they got suspicious and called the Police, as they had already processed few applications for the same car I had registration for. They asked me that if I was controlled by someone else and came to know that Rehman was sitting in his car in the parking area and got him arrested as well.
He was caught with several other applications out of which some of them were for the same car. I admitted that those payslips were false… "
19. The Applicant was examined and cross-examined on his evidence, referable to the circumstances associated with his committing the offence. He confirmed the matters set forth in his statement. He expressed regret for his "stupidity" and in admitting his conduct accepted "full responsibility for his actions". He said that he has learnt "a very big lesson" and "will not engage in anything unlawful in the future".
20. He said that whilst interested in borrowing money in aid of paying his university fees - he was a full fee paying student - no amount was mentioned to him and he did not initially tell the consultant what he planned to do with the money. It was only when he was on the way to the bank that the consultant mentioned the amount of $20,000 and that sums of $4,500 and $1,500 would be deducted in favour of the consultant and an associate and only the balance of $14,000, paid to the Applicant, even be it he would have to repay to the bank the $20,000 together with interest.
21. It was submitted on behalf of the Respondent that the Applicant engaged in a deliberate attempt to obtain a loan by deception. The evidence given by him as to his not discussing the amount of the loan with the consultant was said to be implausible and should not be accepted by the Tribunal. Intent to deceive was integral to the offence. The Applicant knew, it was said, that he was presenting false documents and his conduct is properly described as criminal.
22. As the Tribunal assesses the evidence, it is apparent that the whole arrangement was to the disadvantage of the Applicant and it is not surprising that he expressed relief on being apprehended. He was clearly being taken advantage of by the consultant and the consultant's associate. He was a naive student, seeking funds by way of a loan to assist in meeting his study expenses. He was seeking to obviate the need to rely upon his parents.
23. Whilst the Applicant knew what he was doing and that it was wrong he was in his innocence propelled into the situation by another. The Magistrate reflected the situation in the leniency of the sentence imposed.
24. The Tribunal is satisfied that the offence committed by the Applicant, whilst such as might be condemned, was not in the circumstances indicative of the Applicant's true character and moral qualities. He was clearly induced to cooperate with the consultant, the latter using the Applicant for his own advantage. The conduct of the Applicant may well be criticised but the Tribunal is satisfied that the reaction of the Applicant to his apprehension and court appearance is itself more indicative of the true nature of his character, than his conduct in presenting the payslips given to him by the consultant.
character issue
25. It can not be said that a person is not of good character merely on account of he or she having committed a criminal offence. It is necessary for an appreciation to be obtained as to the nature of the offence and the circumstances in which it was committed, all in the context of assessing the factors detailed in section 501(6) of the Act. In the present instance, as has already been mentioned, there is not any act or thing adverse to the character of the Applicant, other than the July 2000 conviction and the circumstances relating to the offence upon which the charge was laid.
26. There is, before the Tribunal, evidence by way of references as to the character of the Applicant (Exhibit F). The referees speak of the Applicant being "an honest man. He is a bright young man with positive attitude towards life… I feel he committed an honest mistake … honest faithful person who interacts respectfully with his PS and elders…", "I always found him to be totally honest and he has never made any attempt to hide the truth… openly admits getting caught up with the wrong crowd and being persuaded to try and obtain a loan from a bank with false statements… was a one of (sic) offence and Prashant recognises that he was easily lead (sic). He has not associated with these people since this incident and since then he had lead (sic) an exemplary life", "I feel it was only a one act of misjudgment on his part for which he is very sorry", …"found him to be a person of very good character. I have found him to be gentle, caring and hard working… He has also told me about the unfortunate circumstances surrounding the bank loan incident. We have talked about the issue in the past and I am aware that he has felt very repentant about the whole incident… I have found him to be a trustworthy and reliable person", "…very good neighbourer (sic), a humble and hard working person to the best of my knowledge", "…honest, sincere, hard working and well behaved young man".
27. It is contended, on behalf of the Respondent, that the Applicant does not pass the character test based on his past criminal conduct. It is maintained that his conduct is to be regarded as very serious, conduct which, whilst falling short of criminal fraud, is on a ‘civil standard of proof’ disreputable and reflects poorly on his moral qualities. In the absence of countervailing factors, it is said to constitute a failure to pass the character test. It is said that the offence committed by the Applicant is a "fraud based offence" and the conviction reflects strongly on the Applicant's poor moral qualities. It is further maintained that the Applicant's cooperation with the police and his plea of guilty, whilst being considered as counterweighing factors, are insufficient to detract from the serious nature of the offence. It is said that the Applicant potentially stood to benefit "to no small extent through his criminal conduct".
28. On behalf of the Applicant, it is contended that the conduct complained of, whilst criminal in it’s nature, falls short of the standards set out in the Act and Direction 21. Further, it is submitted that the conviction did not result in a term of imprisonment, it was an isolated incident and contrition was displayed.
29. The Tribunal is satisfied that, within the meaning ascribed to the notion of "good character" in the decisions already noted, the Applicant's character in the sense of his enduring moral qualities is not by reason of his conviction in 2000 and the facts associated with such conviction, such as to show that it is for the public good to refuse his application for a visa. As already noted the conduct may well be criticised, may well be condemned and may well be thought to be inconsistent with appropriate civil conduct. However, it is to the Applicant's character that the legislation is directed and the Tribunal is satisfied that his conduct in this regard is not such as to adversely reflect upon his true moral qualities.
discretionary considerations
30. The Tribunal is satisfied that a finding as to character favourable to the Applicant is appropriate in the circumstances of this application. Accordingly, discussion as to the exercise of the available discretion is not necessary.
31. However, the representatives of the parties made lengthy submissions as to this aspect and it is appropriate that the Tribunal makes some relevant observations.
32. The considerations warranting attention have earlier been detailed.
§ community expectations and skilled independent overseas student (class dd) visas
33. Under cover of a letter, dated 10 May 2002, the Applicant's Migration Agent forwarded to the Respondent an application for a Graduate Skilled (Temporary) UQ 497 Visa. Together with other documents was a statement by the Applicant as to his “criminal history” and the associated circumstances. The regulations relevant to the grant of such a visa have earlier been detailed. Such an application is made preparatory to an application for a visa, the like of which is the subject of this application. The earlier application was granted.
34. It is maintained on behalf of the Applicant that the grant by the Respondent to the Applicant of the temporary visa is tantamount to the Respondent recognising that the Applicant did not constitute a threat to the Australian community and that the community would expect that a visa be granted. There is merit in this submission. Further, it was open to the Respondent to move to terminate the Applicant's visa or refuse to grant him a further visa at any time after the conviction of the Applicant. This was not done.
35. The Applicant completed his studies and obtained his post graduate diploma in Information Systems Management. It is in recognition of this achievement that he is enabled to apply for a graduate visa. Preferential treatment is thus afforded to such a graduate. In the context of community expectations, an Applicant for a graduate visa should be one who not only prospectively will make a significant contribution to the country but also one who appreciates the advantage that has been afforded. Thus there is a heightened expectation of not offending against Australian law. The Applicant, even be it the offence is considered in the circumstances as not serious and not adversely reflecting upon the moral qualities of the Applicant, did not meet this expectation of the Australian community. However, this finding would not mean that the community would expect the Applicant not to be granted the relevant visa, this after taking into consideration the relevant circumstances.
§ hardship
36. The Applicant is engaged to be married to Ms Hongyan Yi, a lady who holds a Permanent Australian Residence Visa. She and the Applicant met in 2000 whilst studying together at Central Queensland University. They continued to study together.
37. On an occasion in 2000/2001 before the couple became engaged, the Applicant told Ms Yi of his conviction and the circumstances relating to it.
38. Ms Yi has recently returned to Australia from China where she worked in her brother's clothing business. She intends to manage the Australian operations of the business. The Applicant is working (or was prior to his present detention) as a manager with Mistreal Pty Limited, a multiple site franchisee of Shell Company Australia Pty Limited. The Visa Applicant and Ms Yi plan, if the Applicant is enabled to remain in Australia, to establish a business and work together in it.
39. The Applicant and Ms Yi say that, as one is of Indian birth the other Chinese, it would be easier for them to live together in Australia than in India or China. They are both fluent in English.
40. It is accepted by the Tribunal that hardship would be experienced by Ms Yi if her fiance is not able to remain in Australia.
§ risk of re-offending and deterrence
41. It is contended on behalf of the Respondent that there is a likelihood of the Applicant re-offending and a need to discourage conduct, the like of that engaged in by the Applicant. The Tribunal is satisfied on the basis of the evidence before it, the contrition displayed by the Applicant and the forthright manner in which he gave evidence, that there is not a risk of recidivism. The Tribunal is satisfied that the offence committed by the Applicant is not ‘very serious’ although it is serious. That is, the use of a fraudulent instrument to obtain an advantage is anti-social conduct but again the degree of criticism that may be afforded to a person engaging in such conduct must depend upon the factors relevant to such conduct. The Tribunal is satisfied that the Applicant is unlikely to engage in other ‘fraudulent conduct’ in the Australian community. It is also seen as highly unlikely that refusal of a visa would deter another person from committing a similar offence. The offence was not related to any application for a visa.
§ expectations of the community
42. As already discussed in these reasons, the Australian community would expect that a non-citizen and especially a student non-citizen, deriving benefit from being able to study in Australia, would obey the law whilst in Australia. However as earlier noted, considering the circumstances relating to the commission of the offence and the naivety of the Applicant, the Australian community would not expect that on this ground alone a visa be refused. If other factors were present which reflected upon his character then the offence might well, with such other factors, heighten such an expectation. But not in this matter.
\generally and decision
43. The Respondent maintains that the conduct of the Applicant was disreputable "falling short of fraud". The Tribunal is satisfied that the conduct was not appropriate to the Applicant. It does not consider the offence, in the circumstances of this matter, to be ‘very serious’ and does not find that the Applicant is likely to engage in ‘fraudulent conduct’ in the future. Whilst it is a truism that the community would expect a person in the position of the Applicant to obey the Australian law, likewise the community would not expect, in the relevant circumstances, that an Applicant be refused the relevant visa.
44. It is true, as maintained on behalf of the Applicant, that in the context of protection of the Australian community, the Respondent did allow the Applicant to remain in Australia following his conviction and indeed granted to him a Temporary Student Visa. This does reflect upon or indicate the view taken, by officers of the Respondent, in relation to this discretionary consideration. The matters referred to in paragraph 2.6 of the Ministerial Direction, being instances of ‘serious conduct’, do not refer to offences the like of that committed by the Applicant. The closest is ‘serious theft (including white collar crimes)’ and this hardly equates the offence to which the Applicant pleaded guilty. The matters considered relevant and to be taken into account when assessing the seriousness of an offence, are not seen in the conduct of the Applicant. The Applicant had not before and has not since his conviction engaged in any antisocial conduct. There is little likelihood of his re-offending.
45. Whilst it is true to say, as did the representative of the Respondent, that the student visa granted to the Applicant in 2002, the Graduate Skilled (Temporary) visa, was as it’s description notes, "temporary", it was as the regulations clearly indicate made in anticipation of the subject application, that is a permanent residence application being in due course made. The fact of the earlier visa being granted, whilst not precluding a refusal of a subsequent visa, nevertheless is indicative of the attitude taken by the Respondent at that time.
46. The Applicant does not represent a risk to the Australian community.
47. As earlier noted, there would be hardship experienced by Ms Yi, the Applicant's fiancée, in the event of the decision under review being affirmed. Whilst it is true to say that Ms Yi was aware of the offence and the conviction prior to her engagement to the Applicant, nevertheless there is a degree of hardship that would be experienced by her.
48. The Tribunal is satisfied that if it’s finding on the issue of character had been adverse to the Applicant, which it is not, that due consideration of the discretionary factors would have persuaded it to make a finding in favour of the Applicant.
49. For the reasons herein before detailed, the Tribunal is satisfied that the decision under review should be set aside and the matter remitted to the Respondent for further consideration, with a direction that the application is not to be refused on the ground that the Applicant does not satisfy the Character Test.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, Deputy President.
Signed: A. Krilis
AssociateDate/s of Hearing 15 and 16 September 2003
Date of Decision 26 September 2003
Solicitor for the Applicant Mr Ray Turner
Solicitor for the Respondent Mr Andrew Grimm
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