Seth and Minister for Immigration, Multicultural and Indigenous Affairs
[2005] AATA 976
•5 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 976
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/396
GENERAL ADMINISTRATIVE DIVISION )
Re RINA SETH Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND
INDIGENOUS AFFAIRSRespondent
DECISION
Tribunal Dr KS Levy, Member Date5 October 2005
PlaceBrisbane
Decision The Tribunal determines that:
(a) The decision under review should be set aside.
(b) The matter is remitted to the respondent with the direction that in the exercise of the discretion pursuant to section 501 of the Migration Act 1958, the application for a Visitor (Short Stay)(Subclass 676) visa should not be refused.
(c) The respondent can impose any bond, or condition, or undertaking or limitation as to time or other matter, which is reasonable in the circumstances.
…….............[Sgd]............................
KS Levy
Member
CATCHWORDS
IMMIGRATION – application for Visitor Short Stay (Subclass 676) Visa – relevance of prior breaches of Immigration Laws – enduring moral qualities – good character – discretion to allow grant of visa.
Migration Act 1958 ss 499, 500, 501
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wati v Minister for Immigration and Multicultural Affairs [2000] AATA 984
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321REASONS FOR DECISION
5 October 2005 Dr KS Levy, Member Introduction And Background
1. This is an application by Rina Seth, daughter of the visa applicant, Mr Mahendra Kumar Baruchi. The applicant has made application under section 29(1) of the Administrative Appeals Tribunal Act 1975 and seeks review of a decision under section 500(1) of the Migration Act 1958 (“the Act”) rejecting an application for a short term visa for Mr Baruchi who is the applicant’s father. The respondent seeks the Tribunal to affirm the original decision under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
1. The visa applicant lodged an application for a Visitor (Short Stay)(subclass 676) visa on 29 March 2005. A Notice of Intention to Refuse the Application under section 501(1) of the Act was sent to the visa applicant on 8 April 2005 and subsequently, a second Notice of Intention to Refuse the Application was forwarded on 3 May 2005. The visa applicant responded with a number of submissions dated 12 May 2005. The decision to refuse the visa application was made on 18 May 2005 and formally sent to the visa applicant on 20 May 2005. On 23 June 2005, the present application for review of the decision was lodged in the Administrative Appeals Tribunal.
2. The visa applicant has been refused entry to Australia on the basis that he is not of good character. He seeks a special visitor (short stay) visa to attend a ceremony known as Shati which is planned to be performed on his grandson’s first birthday on 7 October 2005. It is claimed that there is cultural significance and importance for the maternal grandfather of the child to participate in this ceremony, and that the ceremony should be completed as a matter of priority.
3. It has been requested that this matter be given considerable urgency. As at the day of the hearing, the ceremony which the visa applicant seeks to attend for his grandson is 7 days from the date of the hearing.
4. The applicant was represented by Mr Samit Seth, Solicitor, and husband of the applicant. The respondent was represented by Mr Johnson Lo of Clayton Utz, Solicitors.
Issue For Determination
5. The issues for determination in this matter are –
(i)whether Mr Baruchi satisfies the character test under section 501(6) of the Act; and
(ii)if the visa applicant does not satisfy the character test, whether there is any ground for exercising a discretion under section 501(1) of the Act in respect of this applicant.
Legal Framework
6. The legislation which is relevant to resolve the issues for determination in this matter are sections 499, 500 and 501 of the Act.
7. The Administrative Appeals Tribunal (“the Tribunal”) has jurisdiction to review the decision of the delegate by virtue of section 500(1)(b) of the Act. No issue was taken as to the standing of the applicant in bringing this application for review.
8. Section 501 relevantly provides:
“Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)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.
Note: Character test is defined by subsection (6).
….
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
9. In making the legal determinations required in section 501, the Minister may give directions in this regard, as set out in section 499. The relevant provisions of section 499 are as follows:
“Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
….
(2A) A person or body must comply with a direction under subsection (1).”
10. In accordance with section 499, the Minister, on 23 August 2001, issued a Direction under section 499 which is relevant in determining this application. That Direction is formally known as “Direction – Visa Refusal and Cancellation under Section 501 – No. 21” hereinafter referred to as Direction no. 21).
Evidence
11. The following documents were tendered by the legal representatives.
Exhibit 1Copy of a Birthday Card Invitation relating to the purpose of the Visa Application
Exhibit 2“T” Documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 3Supplementary “T” Documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 4Immigration Entry Card of the visa applicant dated 20 December 2000
Exhibit 5Immigration Entry Card of the visa applicant dated 3 December 2003
12. The visa applicant gave telephone evidence. The applicant, Ms Seth provided oral evidence in-person.
13. In oral evidence, Mr Baruchi was cross-examined by Mr Lo. The visa applicant was referred to his application in October 1982 where he was granted a 24 hour transit visa. He was referred to page 12 of the “T” Documents which was part of the reasons for refusal of the current application. In paragraph 12 on page 12, the visa applicant was referred to the fact that on 19 October 1982, he was granted a 24 hour transit visa. The Department has concluded that the visa applicant’s intention was not to transit but to remain permanently in Australia. The visa applicant failed to depart within 24 hours and remained unlawfully in Australia, accompanied by his wife and three children.
14. The visa applicant admitted that if he got the opportunity he would overstay. He admitted that he knew it was unlawful but did not think it was a serious breach of the law. He also worked in Australia during that period when he overstayed unlawfully. He admitted he realised he was not permitted to work when he overstayed his visa.
15. On 17 June 1983, during the period of unlawful stay within Australia, the visa applicant made an application for change of residence status. That application was refused, as was a subsequent request for Ministerial intervention. Whilst he was supposed to make arrangements to depart Australia, he did not leave. He denied that he did not make arrangements to leave but stated that he had no business or occupation in his own country and, therefore, he chose to remain unlawfully in Australia with his wife and three children. It was for this reason that he did not depart.
16. For the period 1983 to 1985, the visa applicant admitted that he had worked illegally in Australia and that he knew that he was not permitted to work. In April 1985 he was told to depart the country. Instead, he bought an illegal identify and then obtained a birth certificate, a Medicare card and driver’s license and worked under assumed names. He was aware that this was unlawful. He was subsequently arrested and deported from Australia on 31 August 1985. At that time he was subject to a five year exclusion period, but notwithstanding that, he applied less than one month later for a visitor visa in the name of Mahendra Khatri. He arrived back in Australia on 16 November 1985 (2½ months after being deported) and still without a visa. He was travelling under that name with a Fijian passport and admitted that he had two Fijian passports, each in different names. The visa applicant’s true purpose was to overstay a two day transit visa which was granted to him.
17. He commenced a de facto relationship with a Ms Jaitun Narayan and continued to remain in Australia. On 24 August 1987 he was detained by officers of the Department of Immigration, Multicultural and Indigenous Affairs and admitted that he had been working illegally in Australia under the assumed name of Edward Gorden. He then applied on 31 August 1987 for a permanent residency, and was sponsored by his de facto spouse, Ms Narayan. The application for permanent residency was refused on 25 September 1987. He remained in Australia and applied for reconsideration of that decision on 12 November 1987, and this application was subsequently refused. On 17 December 1987 the visa applicant was charged with the offence of “entering Australia without a permit” and was convicted in the Sydney Central Court and fined $600 plus $400 in court costs.
18. The visa applicant remained in Australia and lodged a further appeal against the refusal decision. The refusal was upheld in January 1988 and the visa applicant was deported on 13 February 1988.
19. The visa applicant then made a second de facto visa application in July 1989. This was refused in June 1990. He applied again in November 1990 for a spouse (subclass 100) visa which was subsequently granted on 5 June 1991 on the basis that he was sponsored by Ms Narayan. He remained in Australia until 5 June 1994, despite the fact that his relationship with Ms Narayan had broken down some 6 to 12 months earlier.
20. The visa applicant has since obtained New Zealand residency and has a New Zealand passport. He has subsequently been granted a visa to visit Australia as the holder of a New Zealand passport and he has been granted a Special Category (subclass 444) visa. He has been granted such visas on three further occasions as follows:
(a) 15 July 1999 to 21 July 1999;
(b) 20 January 2000 to 22 January 2000; and
(c) 20 December 2000 to 6 January 2001.
21. Despite having been granted visas on four occasions (1991, 1999, 2000 and 2000-2001) the visa applicant again applied to visit Australia on 20 November 2003. On that occasion, he was returning his mother from New Zealand to India and then wished to visit his children in Australia on the return trip to New Zealand. However, by the time he was returning from India, he visited Australia on 3 December 2003, at which time a visa had not been approved. He was subsequently refused entry to Australia and departed on 4 December 2003. Under cross-examination, he was referred to page 362 of the Supplementary “T” Documents where it was put to him he had not declared previous names used on the application form as required. The visa applicant stated that he was under the impression that that was not required to complete that detail as that information was already held by the Department. He agreed again that he did not take the matter seriously and apologised.
22. The applicant, Ms Rina Seth, daughter of the visa applicant then gave oral evidence. Ms Seth stated that she had given letters of support to the Department on behalf of her father. She stated that these were in the nature of references or assurances that he could, and would, comply with any conditions of entry placed on a visa. She indicated that her father would be staying with her and her husband, and that she would look after him for the duration of his visit. She indicated that they could provide financial or any other support that may be necessary.
23. Ms Seth referred to the fact that he had been allowed to visit three times previously. Also, the ceremony for which her father seeks a visa is not a religious ceremony but is a cultural ceremony where the grandfather of the child performs ceremonial activities and gives blessings. When asked what this meant to her, she said that she felt there would be no-one in her family at the ceremony if her father cannot attend and she thought that would mean a lot for her young son in future years if he had photographs indicating the presence of his grandfather. At this stage, Ms Seth became quite emotional during the course of her evidence. She stated that the application was made in March 2005 but was refused. She and her husband then changed the date of the ceremony for 7 months to have it coincide with the child’s first birthday. As he will be one year old within one week, she indicated that this ceremony where the child would get blessings from her side of the family cannot be delayed indefinitely. She said the ceremony, according to the cultural traditions cannot be done by her brother, but only by her father.
24. In terms of the motivation for her father to comply, she indicated that he now has a business and a mortgage of $40,000 over that business in New Zealand. He looks after a dairy and would need to return fairly quickly to his business. She also indicated her mother would not be able to come as she is also occupied in the business. In addition she is not well enough to travel. Under cross-examination, Ms Seth explained that the ceremony of Shati, involves the tying of a gold chain to the child’s wrist. She said that it must be done while the child is young and within one year of his birth. She had taken the child to New Zealand once when he was 3 or 4 months old but she said that travelling with a child was quite difficult. Also, the custom requires that in-laws have to be there. Her husband’s side of the family have a business to run and also have other travel plans in the near future. In addition, they have arranged about 100 people to attend the child’s first birthday on 7 October. She regarded this ceremony as very important. Cost and inconvenience were regarded as relevant factors for both the visa applicant and her in-laws and that this was seen as possibly the only occasion where they could reasonably undertake the cultural ceremony..
Consideration
25. The Minister or the Minister’s delegate may refuse to grant a visa to Mr Baruchi in this case if he does not satisfy the decision-maker that he passes the character test (section 501(1)). The character test is provided for in section 501(6). The applicant will not pass the character test if, having regard to the applicant’s past or present criminal conduct or his past or present general conduct, the person is not of good character (section 501(6)(c)).
26. In determining whether the visa applicant satisfies the character test as provided for in section 501(1), the Minister may give a direction under section 499(1). As stated earlier, the Minister has issued Direction No. 21 in this regard. The Tribunal is bound by the various factors set out in that Direction as section 499(2A) states:
“A person or body must comply with a direction under subsection (1).” (My emphasis)
27. I regard the content of the Direction as requiring mandatory consideration of the various factors and balancing considerations contained therein (see also decision of the Full Court of the Federal Court in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 587).
28. Direction No. 21 discusses the requirements for an applicant to pass the character test. If the applicant does not pass the character test, then there is a discretion to be exercised. In relation to the application of the character test, only section 501(6)(c)(ii) is submitted by the respondent as being relevant. Paragraph 1.9 of Direction No. 21 states that so far as relevant, in the absence of any countervailing factors, an applicant will fail to pass the character test in relation to the factors in section 501(6)(c)(ii):
(a)where the applicant indicates contempt or disregard for the law e.g. breaches of immigration law;
(b)where the applicant provides bogus documents or makes false or misleading statements;
(c)where the applicant has ever made a false or misleading declaration on an approved form about the applicant’s character or conduct or both;
(d)where the applicant has been removed or deported from Australia or from another country.
29. The applicant’s solicitor argued that the visa applicant, despite having a number of incidents of illegal entry to Australia in the past, has since come to Australia lawfully four times in more recent years and that there were no issues on those occasions as he has not overstayed. He argued that submissions made by the respondent that the visa applicant had made false and misleading statements more recently could not be seen to be an attempt to mislead as he had declared on his application that he had previously been deported. He said that the visa applicant had in the past received bad advice and that he had since apologised for his past behaviour. He acknowledged that the visa applicant’s past conduct had been “shaky” but that he had paid the price for those errors and that he would abide by any condition put on a visa, if granted.
30. The respondent’s solicitor argued that the visa applicant is not of good character as he had admitted gaining a second passport while in Fiji, admitted overstaying his previous entry visas deliberately and that they were not “misunderstandings”. He also referred to the visa applicant apologising in the past but that he had repeatedly provided false and misleading applications.
31. In submitting that the visa applicant is not of good character based on his past and present general conduct, the respondent referred the Tribunal to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 in relation to “good character”. The respondent also referred to Re Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 and to Wati v Minister for Immigration and Multicultural Affairs (2000) AATA 984 in relation to the seriousness of the visa applicant’s conduct over a 23 year period. In addition, the respondent argued that the following incidents are evidence that Mr Baruchi is not of good character:
“(a)overstaying his 24 hour transit visa in 1982 (and remaining in Australia illegally for approximately 3 years);
(b)making false statements to the Department when detained in 1985 (using the assumed name of Robert Lyndal BROWN);
(c)being deported from Australia in 1985 with the imposition of a 5 year exclusion period;
(d)entering Australia in 1985 without a visa (less than 3 months after he was deported) under the name Mahendra KHATRI after having his application for a visitor visa refused;
(e)overstaying his 2 day transit visa in 1985 (and remaining in Australia illegally for approximately 2 years);
(f)making false statements to the Department when detained in 1987 (using the assumed name of Edward GORDEN);
(g)working illegally in Australia between 1982 and 1987 using various assumed names;
(h)committing the offence of ‘entering Australia with a permit’ as convicted by the Sydney Central Court in 17 December 1997;
(i)being deported from Australia in 1998;
(j)providing false and misleading statements in connection with various visa applications in 1985, 2003, and 2005; and
(k)arriving in Australia without a visa on 3 December 2003 after being advised that he required a valid visa to enter the country” (paragraph 10 of the Respondents
32. In assessing the visa applicant’s character based on these facts, the Tribunal has first considered the meaning of “character”. That term is defined by the Concise Oxford Dictionary (New Edition) as:
“Person’s … idiosyncrasy, mental or moral qualities; moral strength; reputation.”
The Macquarie Dictionary defines this term as:
“…the aggregate of qualities that distinguishes one person or thing from others.”
33. ‘Good character’ has also been referred to by Lee J in Irving v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 422 at 431 as referring to “enduring moral qualities” and that “good character” does not refer to “….the good standing, fame and repute of that person in the community”. His Honour also referred to the appropriate test being an objective test as the use of a subjective test would be inappropriate owing to the fact that referees provided by the applicant are likely to result in an unrepresentative view of bystanders who know the applicant, owing to the biased selection process which would be involved. He also distinguished “enduring moral qualities” from “reputation” and said that those without a good reputation could be shown to have been reformed or to be of good character and, conversely, those of good reputation could be shown by objective methods to be a person of bad character. In this regard, the Tribunal has endeavoured to be mindful of paragraph 1.11 of Direction No. 21 in endeavouring to maintain a balanced assessment. There, the Direction states that:
“…Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion….”
34. The Tribunal has also taken account of the judgment of the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324 where it was stated that:
“The concept of good character in s 501 is not concerned with whether an applicant meets the highest standards of integrity but with a less exacting standard than that. It is concerned with whether the applicant’s character in the sense of his…enduring moral qualities is so deficient as to show that it is for the public good to [refuse the grant of the visa].”
35. The Tribunal has taken account of all of the evidence and the submissions by the legal representatives as well as the legal authorities and statutory law referred to above. On any view of the visa applicant’s past, the Tribunal believes that he cannot be regarded as being of “good character” in the common usage of that term. However, the visa applicant is not to be regarded as having a character, either past or present, which has brought him within the realms of a “substantial criminal record” as outlined in section 501(7). Clearly, he has not been sentenced to death, or sentenced to imprisonment for life, or imprisonment for 12 months or more on either one or more occasions. Equally, the state of his mental health has not been challenged. There has also been no allegation that he in any way has been drug addicted associated with criminals, or been involved with any acts or violence that would likely to be a security risk for Australia.
36. Nevertheless, he has demonstrated a pattern of behaviour that has not had any regard for the immigration laws of Australia. There is clear evidence, together with admissions by the visa applicant, that he has in the past overstayed visas in Australia on a number of occasions, worked illegally, had an assumed identity as well as Medicare card and a driver’s license based on that false identity. While in 1999 and 2000 he visited Australia lawfully on three occasions, he more recently reverted to some of the behaviours demonstrated between 1982 and 1988. On that more recent occasion in December 2003, despite having been advised by the Australian High Commission in New Zealand that he required a visa before he could come to Australia, he nevertheless arrived in Australia on 3 December 2003 after having taken his mother to India and on his way back to New Zealand, notwithstanding that he had no advice of approval that a visa had been issued to him. Clearly, his impulsive and self-indulgent behaviour of the past was evident again in 2003 on the basis that it was cheaper and more convenient for him. His self-serving needs took priority over his ability to have some respect for Australian immigration law.
37. However, notwithstanding that a pattern of unlawful behaviour in relation to the immigration laws of Australia were evident with the visa applicant from 1982 through to 13 February 1988 when he was deported, from that date until December 2003, a period of approximately 16 years, the visa applicant had not breached Australian immigration laws. During that period he made two applications for de facto visa applications, both of which were refused and with no associated breach of immigration laws. Mr Baruchi also made four subsequent applications for visas (either spouse visa or special category visa based on the applicant’s New Zealand Passport), all of which were granted and for which no overstay or other breach of immigration law was put into evidence.
38. However, this pattern of apparent reformed behaviour ended in December 2003 when the visa applicant, having been advised by the Australian High Commission in New Zealand that he could not visit Australia without a visa, and having applied for such a visa, visited Australia on 3 December 2003 on returning from taking his mother to India, and with the full knowledge that he had no approval to enter Australia. Unfortunately, a lengthy period of demonstrating lawful behaviour has now been discredited. Also, in the course of the hearing of this matter, when the visa applicant’s evidence had gone not more than five minutes, he sought to disturb proceedings so that he could attend to his personal business affairs and asked for the Tribunal to call him back at his convenience. While the Tribunal acceded to that request with a firm warning to Mr Baruchi, it indicated the degree of importance that he put on the lawful process which had been initiated for his benefit. The Tribunal has concluded that there remains some serious doubt that the visa applicant could be regarded as being of “good character”, notwithstanding that he is not to be regarded as being at the upper end of the spectrum of bad character and does nor exhibit a risk to the safety and welfare of the Australian community as specified in the objects of Direction No. 21.
39. The Tribunal noted there was evidence of instability in his life in 1982 when he, accompanied by his wife and three young children, endeavoured to seek refuge in Australia rather than return to India. However, there is now evidence of greater stability in his life and that he has settled and is conducting a business in New Zealand with the woman to whom he was initially married (and who is the mother of the applicant in this matter). The visa applicant and his wife are now residents of New Zealand and have New Zealand passports. That may account for the now diminished interest of the visa applicant in applying for residency in this country. But while one can appreciate he would like to visit his children in Australia from time to time, the pattern of his “character” does not seem to have fundamentally changed. Even in December 2003, he came to Australia, notwithstanding that he had prior knowledge of the requirements by the Australian High Commission. Also the long and practical experience he has had with the Australian immigration authorities and not deterred his behaviour.. Even at the hearing, the visa applicant admitted to contemptuous disregard for Australian immigration law by his repeated attempts to enter or apply for residency despite his previously being excluded for a 5 year period. The Tribunal therefore finds the visa applicant is not of good character. Consequently, the discretion in section 501 of the Act is enlivened. In exercising the discretion, there is a mandatory requirement for the Tribunal to follow and apply the Minister’s Direction, that is, Direction No. 21. In that regard, the Tribunal must have regard to the three “primary considerations” and a number of “other considerations”.
§ Primary Considerations
40. The three primary considerations are:
(A) protection of the Australian community;
(B) expectations of the Australian community; and
(C) the best interests of the child.
41. Each of these factors are considered below. In considering these, the Tribunal took note of paragraph 2.2 of Direction No. 21 in relation to the weight to be given to various considerations. In that paragraph, it is stated that the Government is conscious of the need to balance the various factors concerned and should have regard to the primary and other considerations. It is also noted that:
“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.”
(a) Protection of the Australian Community
42. In paragraph 2.4 of Direction No. 21, the Government’s objective here is to ensure that the Australian community is protected from the actions of criminals and to minimise the risk of crime and disorder within the Australian community. Particular concern is noted about offences in relation to drugs and crimes of violence.
43. Paragraph 2.5 refers to the three factors which are relevant to the assessment of the level of risk to the Australian community of the entry or continued stay of a non-citizen. These are considered below–
The seriousness and nature of the conduct
44. This factor highlights a number of examples, in particular drug offences, organised criminal activity, serious crimes against the Migration Act 1958, including offences relating to providing false or misleading information or documents in connection with entry or stay in Australia, sexual assaults, armed robbery, murder, terrorist activity, kidnapping, blackmail, extortion, arson and other serious offences of dishonesty or violence.
45. In relation to the issues to determine the seriousness and nature of the conduct, the only one of the issues listed relevant to Mr Baruchi based on the evidence relates to the propensity to provide false or misleading information in relation to applications for entry into Australia. There was certainly a pattern of this in the 1980s. Since 1988, the respondent suggests that the application in December 2003 failed to disclose all previous identities the visa applicant had used. Mr Baruchi responded that he thought that would be well-known to the authorities and be on his record. As a result he said he did not believe he had to complete that. Also, he declared he had been deported. While the Tribunal decides that the visa applicant has been cavalier or avoidant in his declaration of matters of detail, the declaration of his deportation was undoubtedly done with the knowledge that his other aliases or other history would undoubtedly be quickly ascertained by the Department’s systems.
46. The other issues in relation to the seriousness and nature of the visa applicant’s conduct relate to whether there have been convictions, including the number and nature of offences, the time between offences, the time that has elapsed since the most recent offence, and any mitigating circumstances. In this regard there is one conviction in 1982 for illegal entry and a fine of $600. There has been no formal conviction by a court since that date and, with the exception of the visa applicant’s attempt to enter Australia at the end of 2003, there had been a long period between breaches of Australian Immigration Law. No particular mitigating circumstances are evident other than his desire to minimise his own cost and inconvenience.
The likelihood that the conduct may be repeated (including any risk of recidivism)
47. Paragraph 2.10 of Direction No. 21 refers to the relevance of a person’s previous general conduct and total criminal history, in assessing the likelihood of an offence and recidivist behaviour. As has been stated previously, there is a pattern of non-offending behaviour between February 1988 through to December 2003 when there was a further attempt to enter Australia without a visa. Also, this latest offence was committed after having been specifically warned by the Australian High Commission in New Zealand at the time of submitting his application for a visa on that occasion. The Tribunal is of the view that the visa applicant has demonstrated that if it were convenient for him, he would choose to act in his own interests above the requirement to abide by Australian immigration laws. Therefore, the inference can be drawn, given the pattern of behaviour and the visa applicant’s attitude and evidence during the hearing, that the period of non-offending behaviour is more likely to be attributable to stability in his life elsewhere rather than any reformed attitudes for Australian law. He is therefore to be regarded as a recidivist and a potential future offender. However after considering this aspect of Direction No. 21, given his present circumstances and more recent behaviour, it is unlikely that there is a serious risk of his overstaying a visa, if granted, on this occasion owing to his commitments and business in New Zealand.
Whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)
48. The circumstances of this case have a number of familial and cultural factors which provide some emotional compulsion for the visa applicant to wish to come to Australia. Despite his previous record, particularly during the 1980s, it is unlikely to be a case which would contribute to general deterrence of similar potential offenders under Australian immigration law.
49. In considering the factors above, the facts do not reveal any major issue which might be a risk for protection of the Australian community.
(b) Expectations of the Australian Community
50. Paragraph 2.12 of Direction No. 21 refers to the fact that the Australian community expects non-citizens to obey Australian laws. The Direction states that where a non-citizen has breached, or is a significant risk of breaching, Australian laws or has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse a visa application. Decision-makers must have regard to the Government’s view in relation to these expectations.
51. The Tribunal considers that members of the Australian community would find it repugnant that the visa applicant flouted Australian immigration laws on so many occasions in the 1980s. The fact that there is indication of a recurrence of that behaviour in December 2003 would be indicative of a level of character which the community might expect would be regarded extremely seriously where an applicant has been considered for residency or citizenship.
52. In this case, the application is for a temporary visa of up to two weeks. In view of the visa applicants apparent business and personal circumstances, the fact that his children are Australian citizens, and that he has a grandson who turns one year old in less than one week, and that the sole purpose for the request for a visa is to participate in a cultural ceremony said to be of importance, the Australian community would be tolerant of a visa for such a short period in these circumstances. This is perhaps reinforced by consideration of the types of serious offences and serious conduct listed in paragraph 2.6, which, apart from the self-serving behaviour of the visa applicant in relation to immigration declarations, there is no other evidence of any of the serious offences which relate to the Government’s objectives to protect the safety and welfare of the Australian community. Given the Government’s recent express intentions to provide even tighter control over issues of safety for the community against those entering Australia, there is no issue in the evidence here which provides serious risk to the Government’s objectives. Consequently while the Australian community would have expectations of law abiding behaviour by a foreign national, it also likely to be sympathetic for the request for a visa and that there has been a relatively lengthy period without significant breach.
(c) Bests Interests of the Child
53. Paragraph 2.13 refers to consideration being given to where the child is or would be less than 18 years of age at the time the decision is intended to come into effect. In general terms, the concern is that the child’s best interests would be served if the child remains with its parents and that the decision-makers have regard to the nature of the relationship between the child and the non-citizen, that is, the visa applicant in this matter.
54. The respondent submits that if the visa application is denied, there may be disappointment for the family members but it could not be said to cause any hardship for his grandson. The Tribunal agrees with this submission. However while the best interests of the child are not factors which provide any factors of great moment in favour of the visa applicant here, the emotional content and joy that might be created for the family and the signifigance of the cultural ceremony are not adverse to the best interests of the child.
Other Considerations
55. Paragraph 2.17 of Direction No. 21 states that it may be appropriate to take into account matters which are generally given less weight than that given to the primary considerations. The considerations shown refer to, inter alia, the degree of hardship which would be caused to immediate family members lawfully resident in Australia, including whether family members can travel overseas to visit the visa applicant and the relationship between him and the immediate family members in Australia; any evidence of rehabilitation or recent good conduct; whether the applicant is for a temporary visa or permanent visa; and whether there are any significant compassionate circumstances.
56. The respondent argues that no weight should be placed on the fact that this is a temporary visa and there is no evidence of rehabilitation and recent good conduct, given the behaviour recorded in December 2003. The Tribunal agrees with the respondent’s submission about the recent conduct of the visa applicant, as has been stated previously. However, the fact that the application is for a temporary visa and that the visa applicant apparently has an ongoing business in New Zealand, that he has reunited with his former wife (the applicant’s mother) and that the purpose of the visit request is to celebrate a cultural ceremony with his one year old grandson, does, in the Tribunal’s view, create other considerations which at least must be given some positive consideration.
Conclusion
57. The Tribunal finds that the visa applicant is not of good character. This is so in general terms as well as considering the visa applicant’s past and more recent general conduct in relation to the statutory provisions and Direction No. 21. The Tribunal also notes that while the visa applicant does not pass the character test, some of the possible offences which would be of serious concern to the Government for the safety and welfare of the community in Australia, are not evident in the characteristics of the current visa applicant, apart from his propensity to avoid or omit, deliberately or otherwise, relevant information when dealing with written forms for the Department of Immigration. While the visa applicant has been held to be not of good character, equally, he is not a serious risk to the Australian community as there are no offences of drugs of violence; and there is no evidence of any serious offence of the type listed in Direction No. 21. There is a pattern of compulsive behaviour and a disregard for the civil immigration authorities. He has had one conviction in 1982 which resulted in a fine of $600. There is no overwhelming general deterrence factor in refusing a visa in this case, nor is there any real issue in relation to the best interests of the child.
58. The expectations of the Australian community, looking objectively at the behaviour of the visa applicant in the past, would regard that past behaviour with some disdain. Balanced against that is the time period which has elapsed since the majority of that reprehensible behaviour and that the visa applicant’s life appears to have stabilised and developed where he conducts his own business in New Zealand. The community would take this into account as a balancing consideration.
59. Equally, there are other considerations which should be taken into account in considering whether a visa should be granted in this case. There is a relatively lengthy law abiding period by the visa applicant where there has been, with one exception, no subsequent breach of Immigration Laws. The Tribunal is of the view that this is attributable to his stability of employment in New Zealand. He also has some emotional bonds particularly with his daughter and she with him. She regards his attendance for the cultural ceremony and for it to align with the child’s first birthday to be of importance for the child. Her emotional display at the hearing was evidence of that. While it would not be beyond the realm of possibility for the applicant and her husband to visit the visa applicant in New Zealand, this would undoubtedly place further hardship and cost on them and, in many respects would penalise them for the visa applicant’s past unacceptable behaviour.
60. The solicitor for the visa applicant, the applicant’s husband, has previously undertaken to provide a bond in his application in 2003. He indicated at the hearing that any condition or surety required by the Department could also be met. The visa applicant’s daughter has given an assurance that Mr Baruchi would remain with her and her husband and would have all support necessary to ensure that he complied with the timelines specified in any visa. The Tribunal was satisfied that the applicant and her husband were people of truth and that they understand that there would be detrimental effects if Mr Baruchi did not comply with any conditions specified, if a visa was to be granted. The matter has now become one of timing and importance. It is an application for a temporary visa of short duration. The circumstances are such that the Tribunal believes that notwithstanding the visa applicant’s previous reprehensible past behaviour, that he would not now appear to pose a serious risk of recidivism in his present circumstances. The Tribunal is not of the view that at the present time, Mr Baruchi’s enduring moral qualities are so deficient that it would be for the public good to refuse a temporary visa. (see Goldie’s case (supra)) The Tribunal notes that it would not have formed the same view if the application had been for more permanent status or residence.
61. Therefore, the Tribunal decides that the discretion in this matter should be exercised in favour of Mr Baruchi being provided with the opportunity to be present for his grandson’s first birthday and to perform the cultural ceremony which the applicant requests. The Department should be entitled to impose any reasonable bond or conditions as to time or other relevant consideration which it regards as being necessary. It is clear that both the applicant and respondent would need to ensure that some urgency is given to finalising the application, and satisfying any conditions imposed by the respondent.
62. The Tribunal determines that:
(a)The decision under review should be set aside.
(b)The matter is remitted to the respondent with the direction that in the exercise of the discretion pursuant to section 501 of the Migration Act 1958, the application for a Visitor (Short Stay)(Subclass 676) visa should not be refused.
(c)The respondent can impose any bond, or condition, or undertaking or limitation as to time or other matter, which is reasonable in the circumstances.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 29 September 2005
Date of Decision 5 October 2005
Solicitor for the Applicant Mr S Seth
Solicitor for the Respondent Mr J Lo - Clayton Utz Lawyers
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