Shukri and Minister for Immigration and Multicultural and Indigen Ous Affairs
[2003] AATA 997
•3 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 997
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/586
GENERAL ADMINISTRATIVE DIVISION ) Re MARYAM SHUKRI Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis QC, Deputy President Date3 October 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd]The Hon RNJ Purvis, QC Deputy President
CATCHWORDS
IMMIGRATION – Prospective Marriage (subclass 300) visa – character test – Visa Applicant knowingly provided false information to the Respondent in refugee visa application – application for refugee visa refused – Visa Applicant a party to the deception designed to mislead the Respondent – Tribunal satisfied that the Visa Applicant is not of good character – decision affirmed
LEGISLATION
Migration Act 1958 sections 234, 501
Ministerial Direction 21
CASE LAW
Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422
Goldie v Minister for Immigration & Multicultural Affairs (1999) 56 ALD 321
Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244
Re Lachmaiya and Department of Immigration & Ethnic Affairs (1994) 19 AAR 148.
Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421
REASONS FOR DECISION
3 October 2003 The Hon R N J Purvis QC, Deputy President the application
1. In this matter Ms Maryam Shukri ("the Applicant") has applied to the Tribunal for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") refusing to grant to Mr Fredi Moshi ("the Visa Applicant") a Prospective Marriage (subclass 300) visa. The decision under review was made on 7 March 2003.
2. In the reasons given by the Respondent for the above decision, it was stated amongst other matters (T2, p.9):
"I am satisfied there is evidence which suggests that Mr Moshi is not of good character because of his general conduct in the past.
…
While Mr Moshi claims he did not know the details, he has attempted to deceive the Department by submitting a 'refugee' application knowing he was not a refugee but that a 'refugee' story had been fabricated on his behalf.
…
I have doubts about the genuineness of Mr Moshi's relationship with an Australian permanent resident and his intention to marry her. I believe the engagement that led to the lodgement of a subclass 300 Prospective marriage application has been contrived for the purpose of gaining entry to Australia after other avenues failed.
…
Weighing up the above evidence of past and present conduct, I am not satisfied that Mr Moshi passes the character test as defined under s501(6)(c)(ii).
…
In providing false information to the Department in his refugee application, Mr Moshi has breached the … Migration Act 1958.
…
Mr Moshi knowingly provided false information to DIMIA because he wanted to be accepted as refugee. Although he claims to have not known the content of the claims, he allowed the translator to prepare a story that would 'guarantee' him a refugee visa while knowing he did not have refugee-type experiences in Iraq.
…
There is no evidence to suggest that he would not resort to providing false information at any time in the future order to achieve his desired outcome.
…
The humanitarian caseload in Athens is characterised by a high level of fraud and repeat applications perpetuating the fraudulent claims of refugee status. Mr Moshi arrived alone in Greece and was advised by people in the Iraqi community on what actions to take to 'guarantee' a refugee visa.
…
The applicant has [presented false or misleading claims] and in so doing has shown a significant disregard for the Australian immigration and protection system. This is a practice that would not be condoned by Australia and the community.
The refusal of the applicant's visa may deter others in the broad community from seeking to enter Australia through fraudulent means.
…
Given the nature of the offences committed by Mr Moshi it could be surmised that the Australian community may expect his visa to be refused.
…"
3. The Respondent contends in the present application that:
· The Visa Applicant is a person who does not pass the character test because he is not a person of good character having regard to his past and present general conduct
·The decision of the Minister's delegate to refuse the grant of a visa to the Visa Applicant should be affirmed under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
the hearing
4. At the hearing of the application the Applicant appeared on her own behalf. The Respondent was represented by Ms Jodi Maurer, a solicitor employed by the Australian Government Solicitor.
5. There was admitted into evidence the written material lodged with the Tribunal by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1-T17. The following documents were tendered by the Applicant and marked accordingly:
EXHIBIT
DESCRIPTION
Exhibit A
Statement of Ms Maryam Shukri dated 7 April 2003
Exhibit B
Five references, various dates
Exhibit C
Stars Palace Reception Centre booking sheet
Exhibit D
Work contract Re Fredi Moshi and original contract in Greek
Exhibit E
Document of Ware Street Medical Centre, signed by Dr W Menashi dated 19 September 2003
6. The Applicant, the Visa Applicant, the Applicant's mother and Ms Susan Bakos gave evidenc, on which all but Ms Bakos were cross-examined.
chronology of relevant events
1980 16 March Visa Applicant born in Iraq
1984 13 April Applicant born in Iraq
1997Applicant and her family arrive in Athens
2000Visa Applicant arrives in Athens
2001 1 April Visa Applicant met the Applicant in Athens
2001 2 May Relationship between the Applicant and Visa Applicant commences
2001 9 August Applicant arrives in Australia with her parents and her brothers as a permanent resident
2001 7 December Visa Applicant applies for Refugee and Humanitarian (Migrant) visa in Athens
2001 31 December Applicant and Visa Applicant become engaged by telephone
2002 19 May Visa Applicant's application for Refugee and Humanitarian visa refused
2002 1 October Visa Applicant lodges application for a Prospective Marriage subclass 300 visa
2002 4 December Visa Applicant interviewed in Athens
2002 13 December Visa Applicant again interviewed in Athens
2003 7 March Application for Prospective Marriage visa refused on character grounds
legislative provisions and ministerial direction
7. Section 234(1) of the Act provides:
"234 False Papers etc.
(1)A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
…
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
8. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.
9. 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
…"
10. 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 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."
11. As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
12. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) 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.
13. 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
….
2.5 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:
…
(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…
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;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"
the refugee and humanitarian (migrant) class xb application
14. On 7 December 2001, the Visa Applicant whilst in Athens Greece applied to enter Australia on a subclass 200 Refugee visa (T4, p25).
15. In the application form and in answer to the question "Why did you leave your country of citizenship or usual residence?" it was written (T4, p25):
" I am the emigrant 'FREDI GORGEES MOUSHI' Iraqi nationality, born in Baghdad in 1980.
On 1/12/1998: They called me for the compulsived Military service, and after conclusion the training period. I was transferred to 'Residence of Border Forces Leader Ship' in baghdad.
On 13/6/1999 I was in military task jail guard and the arms warehouse and be over night and I was from the hour 10pm - 12pm and at my military task conclusion, I saluted my weapon to the guard whom after me.
On14/6/1999 In a morning larrestede with All Guardes over night this for being slit warehouse a steal meantime, our task for insight that be slit warehouse a steal before this time.. and they start investigate with all guardes solitude to.
And they use the cable for hit me and more one torture he was with me. Because of I am the christian only in the military unit and mean time the investigation me thrust with pencil in the my bosom from the investigation officer captain: Doler Al-Dulime; he was a security officer unit and after two month from the torture and the investigation. I was transferred to a persian of the military intelligence on 12/8/1999 and they interrogated with me again with more torture and I stay there (56) day's.
On 8/10/1999 a private court which it was formed by the 'Border forces Leader' and they judge me with hold while (1)year and (6)month's, from this the period investigation and to be the reign in justice for me.
On 1/12/2000 I was release from the jail after I cease the detention period.
After all that I was transferred to a squad 'AL - Ahwar' in the (Messan) south of Iraq.”
And in answer to the question "Describe how you left your country of citizenship or usual residence and travelled to the country where you are living now?" it was written (T4, p.33):
"On 8/12/2000 I aescape from the army to the north of 'Iraq' - zakho
On 15/3/2001 I escape from (Zakho) with helper a smuggler and we crossed thethe boarders to turkey.
I crosse the boarders from turkey to Greece also illegaly with helper a smuggler and I entered greece on 2/4/2001. "
Further in answer to the question "What do you believe may happen to you, or any of the people included in this application, if you return to your country of citizenship or usual residence? Please explain why” it was written (T4, p34):
"I think…
I will be arrested and detain for the following reasons:
A. I was asked (by force) to join Iraqi army again and I refused that; and the members of the security and AL - Ba'ath party were Looking for me.
B. I left, Iraq, from north of Iraq illegaly.
for that…
I ask the God, that your excellency will help me to migrate to Australia to save my future also to live in peace in safe country "
To the question "If you return to your country of citizenship or usual residence, do you think the authorities of that country would protect you?" it was written (T4, p.42):
"I escaped from the authorities in Iraq (my home country) so.
I cann't to return again to Iraq and for that the authorities in Iraq never will protect me but on the contrary it likes to kill me."
When asked whether people included in the application had served in a military organisation, the word "yes" was ticked and particulars given as to the Visa Applicant serving in Iraq with the Iraqi army as a soldier from 1 December 1998 to 1 December 2000 and that he left the army, "I escape from army" (T4, p.35).
16. The Visa Applicant used an interpreter, Laith Salah Wailim, to write out the answers, the interpreter declaring that he read over the English language answers to the Visa Applicant in Arabic. The Visa Applicant signed the form declaring the answers to be "complete, correct… in every detail ” (T4, p.39).
17. The Refugee application was refused by the Respondent on the basis that (T5, p.42):
"The applicant is a citizen of Iraq living in Greece. However, on the basis of information contained in the application, I am not satisfied the applicant is subject to persecution in their home country.
…
The applicant's claims were also considered against the criteria for all the subclasses of visas in the Refugee and Humanitarian (Migrant) (Class XB) class of visa. The applicant was found not to satisfy the criteria for the grant of any of the subclasses of visas found in the Refugee and Humanitarian (Migrant) (Class XB) visa. This application is therefore refused pursuant to section 65 of the Migration Act 1958."
18. The application was so refused even be it the matters stated in the application were at that time taken to be correct.
19. However, the material contained in the answers set forth above was false and untrue. Notes taken at an interview conducted by the Respondent with the Visa Applicant held in Athens, on 4 December 2002, record his being asked: (T10, p.105)
"You applied for refugee status?”
and the reply was:
"…
- I had no problems
- I had no status in this country so I applied
- I didn't know that those statements were on the application
- I signed the application but I don't speak or understand English so I don't know what is there
- I want apply for refugee so I gave the signed form to a translator and he completed it - I didn't check the details"
The notes of the interview further record his being asked (T10, p.106), " Why did you leave your home country?" and he replied "I had no problems I just left, economic reasons, not done military service, I was at school, didn't get called up".
20. On 3 January 2003, the Visa Applicant wrote a letter to an officer of the Respondent in Athens in which letter he inter alia stated: (T13, p119)
"…
When I reached to Greece I've been advised by some people to apply for Humanitarian Visa as refugee in Australia as I was alone here and was in need to live in a stable and peaceful country like Australia, though I requested the help of a person to write and translate my story since I don't speak or write English.
He asked me some information about me, then he told me that he will write to me a story that I will guarantee to get the refugee in Australia, since I didn't know about the situation as I was new here in Greece. I regretfully accepted that without realizing what he wrote in my story, hopefully be accepted as refugee.
…
I have informed you during the interview that I left Iraq to Greece for economic reason and I ensure this and regret every other claims written by the person who made that story for me at that time."
21. In his evidence before the Tribunal, the Visa Applicant confirmed the inaccuracies accepting that he entered Greece on 2 April 2002 but stating that he did not “desert the army" and did not leave through Turkey. He said he would not need protection if he returned to Iraq, he did "not leave illegal". When asked in cross-examination whether he knew Laith Wailim he said that he did not know him personally, but that when he first arrived in Greece, and wanting to come to Australia for a "better life", he was "told that this man does such things. I went to meet him but did not realise he was going to create a story for me". The Visa Applicant acknowledged in his evidence, that at the time the form was written out, he did not think that he was a refugee. He never "compulsorily" left Iraq. He did not understand himself to be a refugee.
other relevant facts
22. The Visa Applicant and the Applicant were both born in Iraq, the Visa Applicant on 16 March 1980 and the Applicant on 13 April 1984. The fathers of the Applicant and the Visa Applicant are second cousins.
23. The Visa Applicant was educated in the country of his birth, freely leaving it and settling in Greece late in the year 2000. His parents and two brothers live in Iraq.
24. The Applicant arrived in Australia with her parents and three brothers on 9 August 2001 and is a permanent resident. She had, prior to migrating to Australia, lived with her family for more than three years in Greece and it was there that she first met the Visa Applicant on 10 April 2001. The Applicant last saw the Visa Applicant just prior to her departure for Australia but has been corresponding with and telephoning him on a regular basis since that time. The Applicant and Visa Applicant became engaged by telephone, on 31 December 2001, about three weeks after the Visa Applicant made his false refugee application. At the time of the engagement the Applicant was not aware that the Visa Applicant may not be able to migrate to Australia.
25. The Applicant has made tentative arrangements for a wedding in Australia. Whilst both parties, and particularly the Applicant, are young, the Tribunal accepts that there is a genuine relationship between them, a union endorsed by the Applicant's mother who said "I know Fredi, he is a good person otherwise I would not give my daughter to him".
character of the visa applicant
26. The Visa Applicant was clearly a party to the deception designed to mislead the Respondent, this even if he was not aware of the wording of what was written in his refugee application. If he did not provide the interpreter with the false information, he well knew that the interpreter was to write material deemed sufficient to attract refugee and or humanitarian consideration.
27. But he signed his application and the interpreter declared that the contents were read over to the Visa Applicant in his own language. The Visa Applicant denies that this was so. However, it seems to the Tribunal to be unlikely that a person acting as an interpreter and clerical assistant to the Visa Applicant and not charging for the services would sign a declaration to the effect that he had "accurately interpreted/translated all the information" into the Visa Applicant's language, Arabic, if this was not so.
28. The Tribunal is satisfied that the Visa Applicant was a party to the provision of false information to the Respondent, this with the intent to mislead the Respondent into accepting him for migration to Australia.
29. Whilst references of two cousins of the Applicant speak well of the Visa Applicant, whom they knew in Iraq, they do not attest to knowledge of his relevant behaviour and conduct. There is no evidence as to the Visa Applicant's present or recent good conduct.
30. The Tribunal is satisfied that the Visa Applicant is not of good character within the meaning of the Act and Direction 21. He demonstrated a contempt for and disregard of the law of Australia. He was a party to the providing of false and misleading information. Even if he did not know the details of what was written and even if it was not read over to him, which situation the Tribunal does not accept, he was aware that a position was being presented supportive of his being seen to warrant refugee status. He knew that he was not a refugee yet he made the claim.
deterrence
31. The Applicant in a letter of 7 April 2003 (Exhibit A) and with reference to the Visa Applicant's Refugee application wrote:
"How can he deceive the Department, while he did not know what was his story about in his first application as refugee? Many Iraqi people apply for the 'refugee category' even with their economic Reasons, not knowing what is the Refugee category is meant or all about. So he only tried his luck knowing that his true economic Reasons, which were mentioned, and not the false political Reasons which were fabricated by the person he employed. Therefore there was neither deception nor any lies towards the Department of immigration."
32. In her evidence before the Tribunal the Applicant spoke of people going to "agents" and of "hearing stories of people creating stories for application".
33. Ms Susan Bakos, a friend of the Applicant and her family and the person who has helped the Applicant to process the present application, said that she "knew of people writing things not the truth, helping people. These people are not registered for migration".
34. If the visa be refused, the decision under review affirmed and this on account of the falsities and untruths set forth in the Refugee application, then a message should go to people who "create stories" and who "write things not the truth" and to people who encourage and promote the fabrication of answers in aid of seeking entry to Australia, that the same will be counter-productive and will result in applications more likely than not being refused. If the practice is prevalent, as might well be concluded from the evidence of the Applicant and Ms Bakos, the refusal of a visa on account of the application containing false representations and untruths may well act as a deterrent for further conduct of a like nature.
hardship
35. Even be it the Applicant is still a teenager, the Tribunal accepts the genuiness of the relationship between the Visa Applicant and the Applicant. The Applicant is presently a student living in Sydney in rented accommodation, with her parents and brothers. She says that if the subject decision is affirmed she will travel to Greece and there marry the Visa Applicant.
36. The Visa Applicant is presently sharing accommodation in Athens with one of the Applicant's brothers. The Visa Applicant says that he and the Applicant could live comfortably in Athens if a visa is not granted.
37. The Visa Applicant does not have any members of his immediate family in Australia.
decision
38. The Tribunal as aforesaid is satisfied and so finds that the Visa Applicant is not of good character. It turns it’s attention then to the discretionary considerations.
39. Conduct, the like of that engaged in by the Visa Applicant, cannot be seen as other than very serious. Direction 21, as earlier mentioned, makes reference to offences, which entail the making of false or misleading statements in connection with entry into Australia. Section 234 of the Act makes it an offence for a person to provide a statement or information that is false or misleading in connection with an application for a visa. The severity of the penalties prescribed by the Act are indicative of the seriousness of such conduct. The importance of observing the truth when dealing with officials in migration matters, especially when the truth is known only to the person making the statement, has been referred to in a number of decisions of the Tribunal (see Tremlett v MIMIA (supra) and Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421).
40. The Visa Applicant engaged in a course of conduct designed to mislead the Respondent into granting him a visa. He was knowingly a party to the making of false statements. He has demonstrated a preparedness to act in breach of the law in aid of achieving his own ends. There is a risk that he may well act again in this manner.
41. The making of false statements or unfounded applications runs counter to public policy and such conduct is to be deterred. If, as was said in evidence, conduct of this nature is prevalent and false statements or ‘bogus applications’ are considered appropriate in certain sections of prospective migration populations, then this is to be discouraged. Affirming the decision not to grant a visa to the Visa Applicant may well, as earlier indicated, deter other people from concealing the truth in order to obtain an advantage to which they otherwise would not be entitled.
42. It is an expectation of the Australian community that an application for a visa based upon untruths and false representations should be refused. Deceptive conduct is not conducive to the obtaining of a preferential entitlement to enter Australia.
43. There are not any relevant children in this application.
44. As earlier indicated, some hardship will be experienced by the Applicant in the event of the decision under review being affirmed. She is presently living in Australia with her parents and brothers and undergoing a course of study. She would, in the event of a visa not being granted and her intention to marry the Visa Applicant being maintained, leave Australia and travel to Greece where she would settle.
45. There are no members of the Visa Applicant's immediate family living in this country.
46. The primary considerations in this matter outweigh the other matters that warrant the Tribunal's attention. The community is to be protected from people who engage in conduct the like of that perpetrated by the Visa Applicant. The nature of his conduct and the ends sought to be attained by the stratagem adopted warrant a visa being refused. The Tribunal is also minded of the message that such a refusal should send to people who might be like minded as was the Visa Applicant. In order for a visa to be obtained, entitling an applicant to enter Australia, the community expects no less than honesty and truthfulness in the answers provided and information given in application forms and in interviews with officers of the Respondent.
47. For the reasons herein before set forth, the Tribunal is of the opinion that the decision to refuse the Visa Applicant a Prospective Marriage visa is the correct decision based on the material before it.
48. The decision under review is affirmed.
I certify that the 48 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 of Hearing 22 September 2003
Date of Decision 3 October 2003
Representative for the Applicant Self-Represented
Solicitor for the Respondent Ms Jodi Maurer
0
2
0