Sekhon and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 639

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1415

GENERAL ADMINISTRATIVE DIVISION		)
Re		Semantal Sekhon

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date6 July 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Professor GD Walker     
  Deputy President  

CATCHWORDS

IMMIGRATION – refusal of contributory parent visa – visa applicant fails the character test on the grounds of his past and present general conduct – discretion that the tribunal may exercise where the visa applicant fails the character test – examination of the visa applicant’s arrival and illegal stay in Australia, examination of his subsequent arrivals in Australia using false documents, examination of false and misleading statements and documents – necessity to balance the protection and expectations of the Australian community against any hardship to his two children who are Australian citizens – held

Migration Act 1958 ss 499, 501, 501

REASONS FOR DECISION

6 July 2005	Professor GD Walker, Deputy President
Summary

1.      The visa applicant, Pirthpall Singh Sekhon, who is a citizen of Malaysia and aged 55, came to Australia on 20 April 1987 on a visitor visa.  He became an unlawful non-citizen on 18 October 1987 and remained in Australia illegally until located by compliance staff on 30 August 2000.  On 7 September 2000, he departed Australia under supervision and under a three-year exclusion period.  On 27 September 2000 he changed his name and between June 2001 and June 2004 entered Australia on a number of occasions using his new identity.  On 8 July 2003, using his new identity, he lodged an application for a contributory parent visa to reside in Australia with his two children.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Mr Sekhon’s visa application on the grounds that he remained in Australia as an unlawful non-citizen, that he used aliases to obtain two taxi licences and work illegally, and that he entered Australia using a new identity when he had been excluded from re-entering Australia because of his previous immigration breaches.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Ms Semantal Sekhon, was born in Selangor, Malaysia, on 31 May 1957 (T p85) and is aged 48.   Her registered birth name was Semantal Kaur (T p85).  On 12 September 1982, Ms Sekhon married the visa applicant (then using the name Pirthpall Singh), her first husband.  Two children were born during their marriage, a daughter, Amreta Kaur Sekhon, born 15 April 1986, now aged 19, and a son, Rashpall Singh Sekhon, born 27 February 1987, now aged 18.  Ms Sekhon and her two children came to Australia on 24 July 1987 on a visitor visa valid until 21 October 1987.  On 15 April 1991, Mr Sekhon and Ms Sekhon were divorced (T p83).  Ms Sekhon and her children remained in Australia unlawfully until located on 8 November 1995.  On 15 November 1995, they left Australia under supervision.  On 19 July 1996, Ms Sekhon was granted a spouse visa to reside in Australia (having already been divorced) and on 20 May 1999, she was granted Australian citizenship (T p86).  On 6 November 1994, Ms Sekhon married her second husband, Mr Singh Bajwa.  They were divorced in 1999.  Two children were born of this marriage, a son, Gurdave Singh Bajwa, born in 1991, and a son, Hardave Singh Bajwa, born in 1993.   On 3 August 2000, she registered a change of name from Semantal Kaur to Samantal Sekhon with the Registry of Births, Deaths and Marriages in Sydney, New South Wales (T p84).  Ms Sekhon is in receipt of social security benefits. 

4.      The visa applicant, Pirthpall Singh Sekhon, was born in Kuala Lumpur, Malaysia on 4 April 1950 and is aged 55.  He was registered at birth as Pirthpall Singh (T p80).  On 12 September 1982, he married the applicant. His daughter Amretha was born in April 1986 and his son Rashpall born in February 1987.

5.      On 20 April 1987, Mr Sekhon came to Australia on a visitor visa valid for six months.  His visa was issued in the family name Pirthpallsingh, christian names Utam Singh (T p157).   The applicant and their two children arrived on visitor visas on 24 July 1987.  On 17 October 1987, Mr Sekhon became an unlawful non-citizen in Australia and on 21 October 1987, Ms Sekhon and their two children became unlawful non-citizens.

6.      On 16 May 1991, the applicant and visa applicant were divorced (T p83).

7.      On 1 March 1993, the visa applicant applied for a taxi driver authority in the false name of Pirth Paul Singh (T p46) and on 7 April 1993, made a further application for a taxi driver authority using the false name of John Paul Taylor (T p50).

8.      On 30 August 2000, Mr Sekhon was located by Department of Immigration and Multicultural and Indigenous Affairs compliance officers and detained until his supervised departure from Australia on 7 September 2000.  He had remained in Australia as an unlawful non-citizen for a period of 13 years.

9.      On 27 September 2000, Mr Sekhon changed his name to family name Sekhon, given names Pirthpall Singh (T p173).  Mr Sekhon subsequently travelled  to Australia, under his new identity, using electronic travel authorities on 30 June 2001 departing 5 August 2001; arriving 4 November 2001 and departing 1 January 2002,; arriving 15 April 2002 and departing 10 June 2002; arriving 2 January 2003 and departing 1 March 2003; arriving 4 June 2003 and departing 3 September 2003; arriving 10 September 203 and departing 7 October 2003; arriving 30 November 2003 and departing 29 February 2004; and arriving 2 March 2004 and departing 1 June 2004 (T28 pp173-174).  

10.     On 18 June 2003, Mr Sekhon lodged an application for a subclass 103 (parent) visa with the Perth Offshore Parents Centre of the department (T15 p117). He subsequently withdrew this application on 8 July 2003 and lodged, in its stead, an application for a subclass 143 contributory parent (migrant) visa (T p125) sponsored by the review applicant, Semantal Sekon.  Receipt of the application was acknowledged by the Perth Offshore Parents Centre of the department on 29 July 2003 (T18 p155).

11.     On 4 February 2004, a migration officer at the Perth Offshore Parents Centre advised Mr Sekhon that he was considering refusing his contributory parent visa application on the grounds that he remained in Australia unlawfully for a period of almost 13 years, he worked illegally as a taxi driver using two aliases, he has an outstanding debt to the Commonwealth, and he obtained a passport in a new name and entered Australia using his new identity despite being excluded from re-entry into Australia and allowing him until 10 March 2004 to comment on the department’s intention (T21 p160).  On 6 February 2004, Mr Sekhon made written submissions to the Perth Offshore Parents Centre, in which he stated that he made a “foolish choice to stay unlawfully in Australia”, that he came to Australia using the electronic travel tickets because he wanted to visit his children and because his children’s mother had difficulty with the children, his daughter having run away from home and his son being involved in a car accident while driving without a licence.  He said that he applied for a contributory parent visa because he was advised it would be “quicker” than a parent visa application and added, “please allow me to stay and work in Australia so that I can look after my children” (T22 pp164-165).  Letters in support of his application were also sent to the Perth Offshore Parents Centre by the applicant Semantal Sekhon and his two children Rashpall Sekhon and Amreta Sekhon (T pp166-168).

12.     On 4 June 2004 Mr Sekhon attempted to enter Australia on an electronic travel authority when an immigration airport inspector became aware that he was subject to an exclusion period under public interest criteria.  When questioned, he told the officer that he had been staying in Australia for the purpose of caring and providing for his children.  Mr Sekhon was subsequently refused entry and his travel documents were cancelled on the grounds that he had previously overstayed in Australia, he returned to Australia within his three year exclusion period, and that his intention was not to travel to Australia for tourism purposes as he had been residing in Australia as a “de-facto resident” (T27 pp170-172).  Mr Sekhon returned to Malaysia on 4 June 2004 where he has resided since.

13. On 22 September 2004, having considered the submissions of Mr Sekhon, a delegate of the respondent decided to refuse the grant of a visa to Mr Sekhon on the grounds that he did not pass the character test because of his past and present general conduct, including that he remained in Australia as an unlawful non-citizen for approximately 13 years, that he revisited Australia using a different name despite being subject to an exclusion period under public interest criteria, and that he worked unlawfully in Australia including as a taxi driver using two aliases, and having elected to exercise his discretion under s 501(1) of the Migration Act 1958 (“the Act”) to refuse the grant of a visa.  That decision was notified to Mr Sekhon, care of the applicant, on 23 September 2004 (T2 p5).  On 3 November 2004, Ms Sekhon lodged an application for a review of this decision by the tribunal.

14. At the hearing, the applicant appeared in person and the respondent was represented by Timothy Webb, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties at the hearing. Ms Sekhon gave oral evidence in person and Mr Sekhon gave evidence by telephone from Malaysia.

Relevant Law and Policy

15. Under s 501(1) of the Act, 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 a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:

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:

…

(ii)       the person’s past and present general conduct;

the person is not of good character; …

16. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

17. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Issue

18. The issue for the Tribunal to determine in this case is, therefore, whether Mr Sekhon is not of good character having regard to his past and present general conduct so as to be precluded from the grant of subclass 143 contributory parent (migrant) visa. If the tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.

Evidence

19.     Mr Sekhon gave oral evidence by telephone from Malaysia.  He did not require the assistance of an interpreter.

20.     Mr Sekhon admitted that he had been unlawfully in Australia for almost thirteen years, but said that he had on two occasions consulted solicitors in order to investigate ways of regularising his position.  He had been advised that the only course available to him was to apply for a protection visa.  He had declined to take that course on the ground that he was not a refugee, but said his solicitors had assured him that that presented no problem, and that even people from England applied for protection visas.  The advantage was that the matter would eventually go to the Minister, who had a discretion to grant a visa.  He said he could not recall having been made aware that he was the subject of a three year exclusion period after his monitored departure on 7 September 2000, following his detection by compliance staff.  The fact that on returning to Malaysia he had immediately changed his name and obtained a new passport in that name was due, he said, to the fact that in Malaysia there is a custom of adding a person’s father’s name after his or her surname, and that this practice had resulted in confusion in his case.  He had changed his name simply in order to remove his father’s name.  The fact that he had ticked the “No” box in answer to a question on his visa application form as to whether he had ever left Australia to avoid deportation he attributed to “an honest mistake”.

21.     When asked whether he had ever worked in Australia, he declined to answer, but when the question was repeated he admitted that he had worked as a taxi driver between 1989 or 1990 and 2000.  He denied working in any other forms of employment.  He admitted working as a taxi driver under the false name John Paul Taylor in order to avoid detection by the department.

22.     As regards his other violations, he said that it was wrong of him to have done it and he regretted the impact of his wrongdoing on his children. 

23.     He had applied for the contributory parent visa because his absence had negatively affected his children.  He had not remarried since divorcing the applicant in 1991 and that was his only marriage.  He wanted to be with his family and considered himself Australian.  If granted a visa his priority would be to see his daughter.  He wanted to move the family to Darwin because life in the city (Sydney) had exerted a bad effect on the children and his daughter accused him of deserting her mother.  He was confident that his daughter would accompany him to Darwin if he moved there.  He did not, however, know where she was now currently living and had not been in Australia since 4 June 2004 when he was refused entry.  His next priority after seeing his daughter would be to find employment and he thought he would have no difficulty in obtaining work as a truck driver. 

24.     Ms Semantal Sekhon said that she was married to the visa applicant from 1982 until their divorce in 1990.  Both the children of that marriage are now over 18, her daughter Amreta living in Sydney and her son Rashpall with her. 

25.     Mr Sekhon’s breaches of migration law, she said, were serious but were the result of “a mistake” and she wished to apologise on behalf of Mr Sekhon and the family.  Her brother had died two years ago and she was now lonely and needed someone around her, not having any other family in Australia.  She is currently taking a course in child care at a TAFE in Blacktown, and expected to finish the nine-week course in two weeks’ time.

26.     She admitted that after coming to Australia for the first time on 24 July 1987 on a visitor visa valid until 21 October 1987, she remained unlawfully until located by compliance officers on 8 November 1995, following which she made a monitored departure on 7 December 1995, having made no attempt to regularise her status.  She admitted having subsequently made three false statements in application forms denying that she had ever left Australia to avoid deportation, and simply said that she did not know why she had done it. 

27.     Ms Sekhon again returned to Australia on a spouse visa, having married her second husband, Singh Bajwa, in November 1994.  They were divorced in 1999, but since then Mr Bajwa still visited the children regularly, once or twice a week, and gives money for their support.  Amreta, her daughter from her marriage to the visa applicant, left home and has been living in a de facto relationship since November 2004.  She does not visit her mother. 

28.     Ms Sekhon said it would be a great help for her if the visa applicant came to Australia and stayed with her and Rashpall.  He would work, she would work, and they would be a family together.  Rashpall needed money to undertake his tertiary courses, but she could not afford to help him as she was managing only to pay the bills from her social security payments.  It was put to her that it might seem rather odd that she planned to be reunited in a family setting with an ex-husband she had divorced 14 years ago (and had subsequently been married to another man with whom she had two more children), but she insisted that she thought they could live together as a family.  She made no mention of any plans to move to Darwin.

Application of the Law and Findings of Fact

29. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(b) and (c)(ii), Mr Sekhon passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

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 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 section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

30. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Mr Sekhon does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

31. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of his or her past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b), 1.9(c), and 1.9(d), which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)); or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)); or has ever made a false or misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)); or where the non-citizen has previously been removed from Australia (paragraph 1.9(d)).

32.     Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.

33.     In this case, the visa applicant has accumulated a very substantial record of immigration law violations, including the following:

· Mr Sekhon was an unlawful non-citizen from 18 October 1987 to 7 September 2000 and made no attempt to regularise his status in Australia (see s 14(1) of the Act).

· For an unknown period between his entry into Australia on 20 April 1987 and his detention on 30 August 2000, Mr Sekhon performed work in Australia either in contravention of a condition of his visitor (UA-V12) visa or while an unlawful non-citizen . That is an offence under s 235 of the Act carrying a penalty of up to $10,000. Mr Sekhon worked under the names “Pirth Paul Singh” and “John Paul Taylor” and thereby adopted false identities with intent to deceive.

·     Mr Sekhon made statements that were false or misleading in his applications for a subclass 976 electronic travel authority (visitor)) visa made on 8 January 2001, 8 January 2002, 3 December 2002 and 1 March 2004.

·     Following his supervised departure from Australia on 7 September 2000, Mr Sekhon returned to Australia on 30 June 2001, 4 November 2001, 15 April 2002, 2 January 2003 and 4 June 2003, within the three year exclusion period and in the knowledge that the exclusion period applied.

·     Mr Sekhon repeatedly entered Australia on the basis of subclass 976 (electronic travel authority (visitor) visas when he did not have an intention only to visit Australia temporarily for tourism purposes (Mr Sekhon resided in Australia from 30 June 2001 to 5 August 2001, 4 November 2001 to 1 January 2002, 15 April 2002 to 10 June 2002, 2 January 2003 to 1 March 2003, 4 June 2003 to 3 September 2003, 10 September 2003 to 7 October 2003, 30 November 2003 to 29 February 2004 and 2 March 2004 to 1 June 2004).

34. This record, notably including working unlawfully, which is a criminal offence under s 235 of the Act carrying a maximum penalty of $10,000, is clear evidence of a pattern of disregard for the law within paragraphs 1.9 (a), (b) and (c) of Direction No 21. There is no evidence of any significant countervailing factor, and Mr Sekhon’s initial refusal to answer a question about his unlawful work in Australia was itself a negative indication on his character. In my view Mr Sekhon fails the character test.

35. Having decided that Mr Sekhon does not pass the character test by reason of his immigration misconduct, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Mr Sekhon. In exercising this discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that 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.

36.     Paragraph 2.3 sets out the primary considerations:

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.

Paragraph 2.4 explains:

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.

37. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

38.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”. 

Protection of the Australian community

39. As regards the first primary consideration, the seriousness and nature of the conduct, it is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(c) that offences against the Act, including “making a false or misleading statement in connection with entry or stay in Australia”, are to be treated as very serious. Mr Sekhon remained in Australia as an unlawful non-citizen for a very lengthy period of approximately 13 years and worked unlawfully during much of this time as a taxi driver, using two false identities. He then changed his identity and re-entered Australia eight times when he knew that he was the subject of a three-year exclusion period from re-entering Australia. In so doing, he made numerous false statements to the department and to the New South Wales Department of Transport. Such behaviour must be regarded as very serious.

40.     The Direction also requires the tribunal to take into account the likelihood that the conduct may be repeated (including any risk of recidivism) in considering the protection of the Australian community.  In Beale v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 714 the tribunal stated:

In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition.  However the risk of recidivism is not constrained in this way.  If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.

41.     A letter dated 20 January 2005 from a Mr Sieng Vutha (Exhibit A1) described as executive director of Intermediary Agent for Development-Cambodia, based in Kampong Thom province, Kampuchea (sic) states that Mr Sekhon has done good work with a non-governmental organisation in that country.  That shows some degree of rehabilitation, but I nevertheless think that evidence as a whole suggests that there is a likelihood that Mr Sekhon may engage in similar conduct in the future.  That arises from his persistent conduct in breach of Australia’s migration laws over an extensive period of time including overstaying, working without permission and making false statements to gain entry to Australia.

42.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance and the concept is perhaps better expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.  Granting a visa to someone who has shown such blatant disregard for Australian immigration laws would send entirely the wrong message to anyone contemplating similar misconduct.  In Ayaad v Minister forImmigration and Multicultural Affairs [2000] AATA 935, the tribunal described the rationale for that approach in these words:

Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourable considered.

Expectations of the Australian community

43.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal … 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.

44.       In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who seek to subvert it.  While most people would feel real sympathy for Ms Sekhon’s predicament, Mr Sekhon’s migration law violations have been so serious, individually but also especially cumulatively, that community expectations would distinctly favour the refusal of a visa in this case.  

The Best Interests of the Child

45.     Mr Sekhon has two children who are now both over the age of 18 years. Their interests are therefore not relevant to this section but will be dealt with as an other consideration.

Other Considerations

46.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct. 

47.     Mr Sekhon has two children living in Australia, his daughter Amreta, who is now aged 19, and his son Rashpall, now aged 18.  No submissions were received from Amreta before or at the hearing.  In a letter to the tribunal dated 17 March 2005, Rashpall Sekhon acknowledged that while his father had made “a lot of mistakes”, it was very hard not to have his father around and his mother found it very hard to raise and support four children on her own.  He wrote:

Please allow my father to return back to his family, without a father here to guide us there is no telling where our family could end up, we need him here to survive and it would be a lot of weight of my mothers shoulders and also mine, so I will be able to study, for my sake please, this is our last resort (Exhibit A1).

48.     Rashpall attended the hearing but did not give evidence.  According to a letter dated 2 February 2005 from Ms Sekhon’s niece Jasveen Deo (Exhibit A1), Rashpall is “in the process of moving out” of the home.

49.     Amreta left home in November 2004 and is now living in a de facto relationship.  She does not visit her mother.  Her father has no idea where she lives now and is thus not in close contact with her, making it unlikely that he will be able to influence her life in the way he hopes (such as by moving to Darwin).  She is leading an independent life and it is improbable that they will all live together as a family as Ms Sekhon hopes.  There is also no evidence about the current strength of the relationship between Ms Sekhon and Mr Sekhon – they were, after all, divorced 14 years ago, and Ms Sekhon has had another marriage and two more children since then.  She believes he would be able to contribute to the cost of Rashpall’s tertiary education, but he can do that from Malaysia.  In his explanation of his reasons for wanting a visa and of what he planned to do if he obtained one, Mr Sekhon did not mention Ms Sekhon at all, let alone as a priority.  It is clear that his main focus is on his daughter and it seems probable that he has no real interest in being reunited with his ex-wife.

50.     Mr Sekhon has a brother and a sister in Malaysia, giving him a support network in that country that will tend to mitigate any hardship which he might otherwise experience.

51.     In evidence submitted to the department before the decision was made (T23 p166) and in a letter submitted to the tribunal dated 17 March 2005 (Exhibit A), Ms Sekhon said that the interests of her two sons from her second marriage, Gurdave Singh Bajwa, now aged 14, and Hardave Singh Bajwa, now aged 12, should also be considered because the visa applicant has assisted her with their upbringing and has become a father figure to them.  She did not pursue that point at the hearing, however, and her letter did not provide any information on whether Mr Sekhon provides financial assistance for these two children, nor did any of the oral evidence at the hearing.  Ms Sekhon did say, however, that her second ex-husband, Mr Bajwa, sees the two children of that marriage twice a week and contributes financially to their support, so they are unlikely to suffer any hardship if a visa is refused. 

52.     I think Ms Sekhon is genuine in her expressed wish to see Mr Sekhon come to Australia.  She may therefore suffer some emotional hardship if he does not, depending on how strong the relationship is today on his side, a point on which, as I have said, there is no evidence and all the indications are that he has no interest in it.  Nevertheless, her hardship will be qualified by the fact that she has all her children here in Australia and the assistance of Mr Bajwa with two of them.

53.     I therefore find that the secondary considerations do not outweigh the primary considerations in this case.

54.     The decision under review is affirmed.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date of Hearing  8 June 2005
Date of Decision  6 July 2005
Representative for the Applicant               Applicant appeared in person

Representative for the Respondent          Mr T Webb, Clayton Utz solicitors