Shvarts and Minister for Immigration and Multicultural Affairs - [2001] AATA 840

DECISION AND REASONS FOR DECISION [2001] AATA 840

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1777

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Alexander Shvarts
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date8 October 2001
PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Mohammed Habibir Rahman Khan passes the character test under s 501(1) of the Migration Act 1958
.

.............................................
Deputy President
CATCHWORDS
IMMIGRATION – Business visa – sponsor - character test – past and present general conduct – whether Visa Applicant gave false and misleading information in application form for grant of visa – general deterrence – risk of recidivism - expectations of Australian community – best interests of the child

Validity of Ministerial Direction No. 17 – where Direction not binding on the decision-maker - where Part 2 of Direction considered government policy and a guide to exercise of discretion

Acts Interpretation Act 1901: ss 46(1)(b)
Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)(c)(i)(ii)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 17 – Visa Refusal and Cancellation under s 501
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Iriving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897
Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854
Lachmayia and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Leyden v Minister for Immigration and Multicultural Affairs [2000] AATA 551
Re Policarpio v Minister for Immigration and Mutlicultural Affairs [2001] AATA 658
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648
Turini v Minister for Immigration and Ethnic Affairs [2001] FCA 822

REASONS FOR DECISION

Mr R P Handley

This is an application by Alexander Shvarts ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 19 October 2000 to refuse the grant of a sub class 457 – Business (Long Stay) visa to Mohammed Habibur Rahman Khan ("the Visa Applicant").
At the hearing, the Applicant was represented by Mr R Raashed, Migration Agent, of Hidayah for Migration, Media and Language Services, and the Respondent was represented by Glen Cranwell, Solicitor, of Clayton Utz Lawyers. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant, and by Abdul Jabbar, Fayez Hossain, Abdul Satar and Tony Maguire.
Background
Mr Khan was born in Bangladesh on 1 April 1964 and is aged 37. Prior to his coming to Australia in 1996, Mr Khan worked as a refrigeration and air-conditioning technician in Dhaka. On 24 January 1996, Mr Khan entered Australia on a business visa valid until 24 April 1996, with the stated aim of exploring the possibility of starting a livestock business between Bangladesh and Australia. On 16 April 1996, Mr Khan lodged an application for himself and his family to migrate to Australia. That application appears to have been refused on 1 October 1999. Meanwhile, Mr Khan worked as an air-conditioning and refrigeration technician for Alpha Home Appliances at Maroubra, the proprietor of which is the Applicant in the current matter.
On 18 August 1999, Mr Khan applied for a long stay temporary business visa (sub-class 457), sponsored by Alpha Home Appliances. Mr Khan's wife and two children were included as dependents in the application. On 19 November 1999, Mr Khan departed Australia for Bangladesh. On 7 December 1999 Mr Khan was interviewed at the Department of Immigration and Multicultural Affairs ("the Department") office in Dhaka, Bangladesh, by Mr Maguire. On 8 May 2000, Mr Maguire visited Shameem Refrigeration Works in Dhaka where Mr Khan stated that he had worked. On 19 October 2000, a delegate of the Respondent decided to reject Mr Khan's application for a visa. On 28 November 2000, the Applicant lodged an application for a review by the Tribunal.
Relevant Law and Policy
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 are met. The relevant ground in the current matter is paragraph (c), as follows:
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;…
Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a sub-class 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a) the applicant satisfied the Minister that the applicant passes the character test; or
(d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
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. This 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".
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.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Khan is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a sub-class 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, he should be granted a visa.
Evidence
Mohammed Habiba Rhaman Khan (the Visa Applicant)
After leaving school in August 1980 at the age of 16, Mr Khan studied a refrigeration course at the German Polytechnic Institute in Dhaka which he completed in 1981. He obtained work as a refrigeration mechanic for approximately three years with Republic Refrigeration in Dhaka. About the beginning of 1985, he obtained employment as the head refrigeration mechanic with Shameem Refrigeration in Dhaka where he worked until about December 1988. In March 1998, Mr Khan went on holiday to Japan having obtained a visitor's visa. While he was there, he met a person from Bangladesh engaged in similar work who suggested he go for an interview with a refrigeration company, Sanden Company Limited, in Higashi Obokata. At the interview, the manager of the office inspected his passport to see if he had the correct visa and permission to work. Having inspected Mr Khan's passport, the Manager told him that he would organise a work permit for him and Mr Khan assumed that they did this and kept the permit for him.
Staff of the company took him to the hospital where he was issued with a medical card which he used to obtain medicine. They also took him to the Gunma Bank where he opened a bank account and was issued with a bank book. His pay went into this account and he used it for depositing and withdrawing money. Mr Khan produced his payslips, his medical card and a passbook for the Gunmar Bank (A3, A2 and A1). Mr Khan said he had no problems with his papers while he was working in Japan. He believed that he had permission to work there and said he was never detained by the Police or Immigration Officials. He was not asked to leave the country in May 1994 when he returned to Bangladesh. He returned home because his wife was very sick. He was taken to Narita Airport by friends and flew from there to Dhaka. He experienced no problems in passing through immigration control at the airport.
Having arrived home in Dhaka, Mr Khan once again obtained employment with Shameem Refrigeration as a refrigeration mechanic, where he worked from November 1994 to January 1996. However, during this time he was looking for business opportunities with a view to starting his own business. On 14 August 1995, he went to India with Mr Daluddin, a friend of his older brother in Dhaka, with the object of exploring the possibility of setting up a livestock business. At that time, there were heavy rains in India, his passport was badly damaged by rainwater while he was travelling and was not legible. He therefore completed an application form which he gave to his travel agent to take to the Bangladesh High Commission in New Delhi to obtain a new passport for him. Mr Khan said he he did not go to the High Commission himself at this time because he was too busy investigating livestock business opportunities.
Mr Khan's duplicate passport was issued in New Delhi on 21 August 1995 (T8, p69). Mr Khan did not notice that an incorrect date of birth, 10 June 1958, had been inserted in the passport. He said he did not become aware of the incorrect date until he was in Australia in 1996. Mr Khan was pressed about this in cross-examination. Mr Cranwell pointed out that if Mr Khan's explanation was correct, he must have passed through Customs Control at various national ports of entry on about seven occasions before he became aware of the incorrect date of birth in his passport in 1996. Mr Khan was, however, adamant that he did not realise his passport contained an incorrect date of birth until he was in Australia. When he became aware of this, he sought to have the mistake rectified by applying to the Bangladesh High Commission in Canberra for insertion of his correct date of birth which is 1 April 1964. An endorsement was made in his passport noting his correct date of birth on 28 August 1997 (T8, p73). In his statement (A5), Mr Khan said it took some time to organise this endorsement of his date because he had to obtain the original of his secondary school certificate from Bangladesh which showed his date of birth (T11, p97).
From India Mr Khan and Mr Daluddin travelled to Mauritius because it had been suggested to them that there were livestock business opportunities there. Fodder for cattle is very good in Mauritius and Mr Khan said he wanted to get a first hand understanding of the industry and prices there. Cattle grow faster in Mauritius because of the good fodder and other conditions. Mauritius imports cattle from India and other countries. While in Mauritius, Mr Khan applied for a visa to visit Australia at the Australian High Commission in Port Louis. He signed the application for the visa himself, and the visa was issued to him without him being interviewed. Mr Khan said he wanted to learn about the breeding of cattle in Australia. He and Mr Daluddin wanted to explore the possibility of importing live cattle into Bangladesh from Australia, for which they had access to capital of AUD$50,000 and could raise further capital could be raised through a bank loan. Mr Khan left Mauritius to return home to Bangladesh on 31 August 1995 (T8, p74).
Mr Khan arrived in Australia on 24 January 1996 on the basis of the visa granted in St Louis which was valid for a stay of three months. Mr Khan said he had researched the livestock industry in Australia before going there but, after Mr Daluddin had two days of face to face discussions with a livestock supplier in Melbourne, it became clear that what he and Mr Daluddin had been contemplating was not feasible and they decided to drop the idea. Mr Khan said he was rather heart broken when his high hopes for establishing a livestock business were dashed. However he was still interested in exploring other business opportunities in areas where he had some technical expertise, and so he and Mr Daluddin parted company, and Mr Khan travelled to Sydney. He found that refrigeration equipment in Australia was more expensive than in Bangladesh and there were no business opportunities available to him in terms of importing equipment in Bangladesh. After about one month he obtained a job. In Mr Maguire's record of interview with Mr Khan (T19, p120), Mr Khan is recorded as saying that after he found a job in Sydney he was told by the proprietor that he would need to have work permission before he could commence working. Mr Khan said he went to see a migration agent who lodged a migration application for him and after a couple of weeks he got the necessary work permission. He went back to the business, Alpha Home Appliances of Maroubra, with the work permission only to find that the business had changed hands. However, the new owner, the Applicant, Alexander Shvarts agreed to take him on.
On 18 April 1996, Mr Khan applied for a migration visa, Subclass 126 Independent for he and his family to migrate to Australia. The application was lodged at the Department's office in Auckland and on 26 April 1996, Mr Khan applied for and was granted a Bridging Visa Class A Visa at the Department's office in Sydney. That bridging visa remained in effect until Mr Khan's migration application was refused by the Department's representative in Bangkok on 1 October 1999. Mr Khan said he never had any problems with immigration officials or the Police while he was working in Australia. He left Australia on 19 November 1999 and did not overstay. This is not disputed by the Respondent who had informed him that his Bridging Visa Class A would cease on 19 November 1999 (A4).
Prior to departing Australia, Mr Khan was sponsored by the Applicant for a Subclass 457 visa, an application for which was lodged at the Department's Bangkok office on 18 August 1999. Mr Khan was interviewed in Dhaka by Tony Maguire of the Department's Bangkok office on 7 December 1999. Mr Khan said there was no interpreter available during the interview and there were some words used by Mr Maguire that he did not understand. Where Mr Maguire asked questions that he did not understand, Mr Khan did not answer. Mr Maguire asked Mr Khan about his time in Japan, about his proposed livestock business, and his work in Dhaka. He identified various mistakes in the documents which Mr Khan said had been caused by his preparing the application in a hurry. For example, he stated that his employment with Shameem Refrigeration had ceased in February 1996 rather than January 1996. This was a mistake in the reference provided by Abdul Jabbar, the proprietor of Shameem Refrigeration.
Mr Khan said that he could not understand Mr Maguire's English when he was asking for details of the time that he had worked in Japan and whether Mr Khan had been ordered to leave Japan by immigration officials, so he kept quiet and did not answer. Mr Khan was asked in cross-examination about his competency in English. He said he speaks Bengali in Dhaka and agreed that his English is limited. He occasionally finds it difficult to understand spoken English and sometimes does not express himself well in English. He acknowledged that whilst in Australia, he read air-conditioning magazines in English. He said if he did not understand, he would ask his friends what was meant. He said in supervising other staff at Alpha Home Appliances he did not experience any difficulties with his English because a lot of the terminology was technical and his work otherwise tended to involve him showing other staff, for example, the apprentice what to do. Similarly, in dealing with clients, he had few problems because most of his conversation with them involved terms which were technical to the business. Mr Khan said he had undertaken two terms of a 90 days general English course involving attending for two hours on three days a week. This was in late 1996 or early 1997. He said his English improved after undertaking this course. Nevertheless, Mr Khan acknowledged that in his 1996 visa application, he should have stated that his English was limited rather than "functional or better" (T8, p48).
Mr Khan said while he was working for Shameem Refrigeration in Dhaka he was known by his nickname Ratan and that his employer might not have known his full name. During the second period of his employment with Shameem during November 1994 to January 1996, he said there were about 16 or 17 technicians with whom he worked in the showroom. However, Mr Khan was often out on site answering calls. Mr Jabbar worked in the office, which was separate from the showroom, and called him Ratan Khan. There was no record keeping system in terms of employees signing in and off on each day. Mr Jabbar paid him in cash at the end of the month and Mr Khan did not recall his having to sign for his pay. Record keeping systems such as those which are kept in the west were not kept in Bangladesh.
Abdul Jabbar
Mr Abdul Jabbar said he has been the proprietor of Shameem Refrigeration Works since 1978. In his statement (A6), Mr Jabbar said Mr Khan, who was known to him by his nickname Ratan, was employed by Shameem Refrigeration from 11 May 1983 to 19 October 1988, and from 3 October 1994 to 10 January 1996. Mr Jabbar said it is customary for people to be known by their nick name or alias because, commonly, a person's full name is too long to remember. Mr Jabbar said Mr Khan was an air-conditioning and refrigeration technician with most of his work being in the showroom or on outside calls and not in the office. Mr Jabbar said that in 1996 Shameem Refrigeration Works had at least 20 employees. He said he is not in the habit of keeping extensive records because this creates more work. However, he has to keep some records of employees in order to establish the dates of their employment. He agreed that he had provided references for Mr Khan on 28 December 1999 (T21, p124) and 28 February 2000 (T23, p127). Mr Jabbar acknowledged that the Office Manager, who might have organised the references, could have obtained the employment dates from the employee.
Mr Jabbar was asked about the visit by Mr Faarhan who was employed by the Australian High Commission in Dhaka. Mr Jabbar said that when Mr Faarhan first visited Shameem Refrigeration Works, Mr Jabbar wanted to avoid answering questions so as not to be involved. He asked Mr Faarhan to produce a photograph for the person he was enquiring about and when he did not have one, Mr Jabbar said that he did not know the person. Mr Jabbar said that he was busy at the time and cannot now recall all the details.

Mr Jabbar said that Mr Madal is no longer working for him. He had commenced employment as Assistant Manager with Shameem Refrigeration Works probably in January 1996. Mr Madal would have usually worked in the office unless he was going elsewhere to pay bills.
Fayaz Hossain
In his statement (A7), Mr Hossain said he had worked for Shameem Refrigeration Works since January 1990. From 1990 to December 2000 he was employed as the Manager and from January 2001 until now as Deputy General Manager. He recalled Mr Khan whom he said they knew as Ratan. He said Mr Khan had last worked for Shameem Refrigeration Works in early January 1996. He worked as an air-conditioning mechanic sometimes in the workshop, most of the time out on site with clients. He said the Lake Circus Branch of Shameem Refrigeration Works employs between 30 and 35 employees. The number fluctuates according to the needs of the business. They employ extra employees if needed. Generally, the business only keeps records of employees while they are employed and for a few years afterwards.
Mr Hossain said Abdul Sattar used to work as Deputy Manager at the Gulshan Branch. It was Mr Satta who signed the reference for Mr Khan dated 10 June 1996 (T11, p94). Mr Hossain said he had prepared the reference issued to Mr Khan on 18 April 1996 (T9, p79) on the instruction on Mr Jabbar. Mr Hossain acknowledged he had not worked at Shameem before 1990 but said he had checked the records in relation to Mr Khan's employment between 1993 and 1998.
Mr Hossain said he had not seen the person who had visited Shameem Refrigeration Works from the Australian High Commission but had heard about the visit from others at the business. Mr Hossain said in his statement that he now noticed an error in the reference provided by Mr Sattar in that Mr Khan had worked for Shameem until 10 January 1996 and not 10 February 1996 as appears in the reference. As Mr Khan no longer works for Shameem, Mr Hossain was not in a position to comment as to how this error occurred.
Mr Tony Maguire
In his statement (R1), Mr Maguire said he has been an employee of the Department since 1988 and, in the course of this time, has interviewed over a thousand persons in relation to visa applications. He said the standard procedure is to offer the interviewee the services of an interpreter. If an interpreter is refused but during the course of the interview it appears that the interviewee is having difficulty understanding the questions, the standard procedure is to suspend the interview until the assistance of an interpreter can be obtained.
Mr Maguire said he had a specific recollection of the interview he conducted with Mr Khan on 7 December 1999. He had offered Mr Khan the services of an interpreter, but Mr Khan declined and, even though Mr Maguire had made it clear that Mr Khan could ask for an interpreter in the course of the interview if he needed one, he did not do so. Mr Maguire said his recollection is that Mr Khan did not have any difficulty understanding the questions but was, nevertheless, reticent in providing answers on some occasions. Mr Maguire said he believed that Mr Khan could understand the questions – Mr Maguire kept the language simple and rephrased the questions where it seemed necessary. He said the interview flowed fairly freely but agreed that Mr Khan's English was not perfect.
Mr Maguire said he had touch-typed a record of the interview (T19, p118) on to a personal computer during the course of the interview, including direct quotations, if he felt it important to do so. Mr Maguire said he tidied up his record of the interview after its conclusion. Otherwise, his practise is to summarise answers to questions.
With respect to questions which Mr Maguire asked about Mr Khan's stay in Japan, Mr Khan made it clear that the authorities had discovered his being there and that he had no longer had permission to stay. Mr Maguire said that Mr Khan had to leave Japan because he was illegal and had been told to leave the country as he had no permission to work. When Mr Maguire explained why his stay in Japan was of concern, Mr Khan chose not to answer any further questions. When Mr Maguire pressed him, Mr Khan said the authorities had compelled him to leave. He did not during the course of the interview mention that his wife was a reason for his leaving Japan.
With regard to the visa application which Mr Khan had lodged in St Louis, Mr Maguire said the original application had been destroyed after two years and that the only record he was able to access was the Department's movement record (T25, p131) which showed the date of grant of the visa. Mr Maguire said he asked Mr Khan questions about the issue of his first visa, because he was trying to get a better picture of him. Mr Maguire said Mr Khan could not tell him anything about the proposed livestock business. Mr Maguire said whilst he was in Dhaka in December 1999, he tried to check with Shameem Refrigeration Works to see whether Mr Khan had been employed there, but without success. Mr Faarhan, a locally employed officer in Dhaka, was therefore asked to check with Shameen Refrigeration Works about Mr Khan's employment. When Mr Maguire was in Dhaka again in May 2000, he visited Shameem Refrigeration Works to check details of Mr Khan's employment. He was accompanied on the visit by Mr Faarhan. Mr Faarhan told him later that he had received a call from Mr Jabbar who had told him that he did not want anything more to do with the matter.
Mr Maguire's impression was that Mr Khan's story was full of inconsistencies. Mr Khan could not offer any explanation for various discrepancies in the dates relating to his employment. Mr Maguire said he believed Mr Khan had made false declarations in obtaining his visitor visa in 1996: he did not believe Mr Khan's story about the incorrect date of birth in his duplicate passport, and believes that Mr Khan worked illegally in Japan. Mr Maguire said he thought this amounted to a pattern of deception by Mr Khan.
Submissions on the Facts
The Applicant
Mr Raashed asked the Tribunal to note that Mr Faarhan was not available for cross-examination, as had been requested by the Applicant. Mr Raashed acknowledged that there was some discrepancies in the stated dates of Mr Khan's employment but said, nevertheless, that the references provided by his former employers are genuine. He referred to Mr Jabbar's evidence in this regard. Some of the confusion had arisen as a result of Mr Jabbar's evidence knowing him as Ratan rather than by his full name. Mr Raashed said there was no evidence that Mr Khan had sought to falsify the date of birth stated in his duplicate passport issued in New Delhi. This was a mistake made by the Bangladesh High Commission, which was corrected by Mr Khan when he became aware of this while he was in Australia.
Mr Raashed said Mr Khan never made any false claims concerning his involvement in the livestock business. He only ever said he was exploring business opportunities in the livestock business. With regard to the time that Mr Khan spent in Japan, Mr Raashed said Mr Khan had explained how his new employer in Japan had made the necessary arrangements to permit him to work. Mr Khan had no problems while working in Japan over a period of five years. Mr Khan disputes the alleged confession recorded by Mr Maguire that he had been in Japan illegally and had been asked to leave. Mr Raashed said the Respondent had failed to establish anything illegal in relation to Mr Khan's time in Japan.
Mr Raashed noted that Mr Khan had been in Australia legally and did not violate his visa conditions. He was entitled under his bridging visa to remain in Australia until 19 November 1999 which was the day on which he left. There was no evidence of any fraud or deception by Mr Khan nor any evidence that he had disregarded Australia's immigration laws.
With regard to the interview with Mr Maguire, Mr Raashed noted that Mr Maguire had recognised that Mr Khan's English "was not perfect". Mr Khan did not understand the importance of particular facts in relation to the issues in question and did not understand all the questions that he was being asked and so chose not to answer.
In conclusion, Mr Raashed said there was no evidence of any illegality on the part of Mr Khan, nor of any pattern of deception or of an intention to wilfully mislead the Department. Mr Raashed agreed that there were some minor mistakes in terms of dates of employment in Dhaka, but these were honest mistakes involving the proprietor of Shameem Refrigeration Works.
The Respondent
Mr Cranwell for the Respondent, said it was not believable that Mr Khan could have passed through immigration controls on at least five occasions without having noticed that the date of birth stated in his passport was incorrect. Secondly, he stated that Mr Khan's claims about his involvement in the livestock industry are bogus. Mr Khan had told the Tribunal he knew little about cattle or the livestock industry, of which he had no experience. His story about spending two days exploring the industry on arrival in Australia and then having his high hopes dashed and being heartbroken, when it appeared that there were no business opportunities for him in the livestock industry, was not credible, and was a concoction for the purpose of obtaining an Australian visa. Mr Cranwell noted that, after two days in Melbourne, Mr Khan went to Sydney and obtained a job as a refrigeration mechanic.
Thirdly, Mr Khan had admitted to Mr Maguire that he had to leave Japan because he had no work permit. His explanation to the Tribunal that he had returned to Dhaka because of his wife's illness, was not credible, nor were his claims that he did not comprehend some of the questions put to him by Mr Maguire, given that Mr Khan had refused the offer of an interpreter and claimed to have good communication skills having attended an English course in Australia and lived and worked in Australia for approximately four years. Mr Shvarts had also noted in a letter to Mr Maguire dated 11 November 1999 (T29, p142) that Mr Khan has good communication skills. Mr Cranwell said Mr Khan's claims of a lack of comprehension were a convenient way of explaining why he had not answered difficult questions put to him by Mr Maguire.
Fourthly, Mr Cranwell pointed to incorrect answers given by Mr Khan on the visa application forms which he completed. Mr Khan had, for example, said he had never been required to leave a country. Incorrect dates were given concerning his employment history and incorrect dates were contained in the reference he supplied. Some of these mistakes with dates Mr Khan had acknowledged. Mr Cranwell contended that these four matters constituted a pattern of deception.
Findings
The difficulty for the Tribunal in making relevant findings in this case is the lack of hard evidence. Most of the matters relied on by Mr Maguire and in turn the Respondent are largely matters of supposition lacking any corroborative evidence. Mr Khan has provided an explanation for the matters queried by the Respondent although some of these explanations differ from Mr Maguire's account of his interview with Mr Khan. However, as Mr Raashed pointed out, given that Mr Khan's competency with English has not been tested, his statement that he did not understand all the questions put to him by Mr Maguire needs consideration.
With regard to the issues of fact to which Mr Cranwell drew attention in his submission on the facts, the Tribunal makes the following findings:
(a)Mr Khan's duplicate passport did contain an incorrect date of birth which he had corrected by the Bangladesh High Commission in Canberra. The only advantage to Mr Khan of having a date of birth in his passport which stated his age as six years older than he actually was, would seem to be in terms of his maturity and experience. In the present case, the Tribunal is unable to conclude this would be of any great advantage to him.
(b)There is no evidence to show that Mr Khan did otherwise than to claim that he was exploring business opportunities in the livestock industry. There is no evidence of his having claimed to have been involved in that industry previously. However, in the Tribunal's view, Mr Khan's explanation of his travel to Mauritius and Australia is somewhat implausible.
(c)There is no evidence other than Mr Khan's alleged admissions to Mr Maguire in the interview on 7 December 1999, that Mr Khan was in Japan unlawfully or worked there unlawfully or that he was asked to leave the country. Mr Khan's explanation for his being in Japan and of his leaving Japan because his wife, who is in Dhaka, was sick, is, in the Tribunal's view, a reasonable one.
(d)There have been a number of minor inconsistencies in dates with respect to Mr Khan's employment. However, in the Tribunal's view, these are merely minor inconsistencies and, in part, mistakes made by Mr Khan's previous employers in Dhaka probably as a result of their more limited record-keeping systems. The Tribunal places no great weight on such inconsistencies because they do not appear to have any significant impact on Mr Khan's visa applications.
(e)The Tribunal notes that, while he was in Australia, Mr Khan complied with immigration requirements, was permitted to work under the terms of his bridging visa, and departed Australia by the required date when his subclass 126 independent visa was refused. The Tribunal also notes that Mr Khan worked for his sponsor Alpha Home Appliances, for over three years and that the proprietor of this business, the Applicant, has given an endorsement of Mr Khan's character. In a letter dated 11 November 1999 (T29, p142), the Applicant wrote of Mr Khan's "hard work, dedication, loyalty, reliability and high professional skill". The fact that the Applicant has continued to support Mr Khan through the visa application process is an indication of the regard in which he holds him.

Discussion of the law

Mr Cranwell made a submission on the validity and application of Direction No. 17 – Visa Refusal and Cancellation under section 501 of the Migration Act 1958. Mr Cranwell argued that Direction No. 17 is binding on the Tribunal and that recent Federal Court decisions which have found Direction No. 17 invalid were wrong. However, even if these decisions were correct, he contended that severance of the offending paragraphs is possible in accordance with s 46(1)(b) of the Acts Interpretation Act 1901. Finally, he argued that, even if invalid, the Direction is a solemn declaration of Government policy which can and ought to be applied by the Tribunal.
Mr Raashed, for the Applicant, submitted that the Direction is invalid and of no effect because it goes beyond the power conferred by s 499(1) of the Act. Section 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". In particular, Mr Raashed argued that the Direction impermissibly purports to fetter the discretion conferred by s 501 of the Act and the Regulations. Severance of the offending paragraphs of the Direction is not possible because they are integral to the Direction.
There have been a number of recent Federal Court decisions on the validity of Direction No. 17. In Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 (4 May 2001), Dowsett J found the Direction to be invalid because it seeks to fetter the exercise of discretion - by prescribing that some factors (the "primary considerations") can have more weight than others – and is therefore inconsistent with the decision-maker's power to refuse or cancel a visa under s 501 of the Act. The Tribunal notes, however, that Part 1 of the Direction which concerns the application of the character test, was not relevant in that decision and the inconsistencies identified by Dowsett J were in relation to the considerations affecting the exercise of the discretion in Part 2 of the Direction.
Aksu (supra) was followed in Ruhl v the Minister for Immigration and Multicultural Affairs [2001] FCA 648 (1 June 2001). Cooper J agreed with Dowsett J that Direction No. 17 operates to limit the exercise of discretion in a way that is inconsistent with s 501 of the Act.
However, in Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822 (29 June 2001), Whitlam J expressed his opinion that the decision in Aksu (supra) was wrong and that Direction No. 17 was a valid direction under s 499(1) of the Act with which the Tribunal was bound to comply.
Then, in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 (6 July 2001), Stone J said that, in her opinion, both Aksu (supra) and Ruhl (supra) are correct in their interpretation of Direction No. 17.
Finally, in Jahnke vMinister for Immigration and Multicultural Affairs [2001] FCA 897 (12 July 2001), Drummond J, whilst not agreeing with all of Dowsett J's reasoning in Asku (supra), said, nevertheless, at paragraph 18:

Paragraphs 2.2 and 2.17 of the Direction impose an unlawful fetter because they lay down a general rule that, in no case, can a non-primary consideration telling against cancellation of a person's visa under section 501 be given more weight than any of the three primary considerations, no matter how powerfully that non-primary consideration may favour allowing the particular person to retain the visa

Drummond J's discussion was directed at Part 2 of the Direction with Part 1 not being in contention.

Thus, a number of recent authorities state that Direction No. 17 is invalid, although they are principally concerned with the fetter which arises in Part 2 of the Direction and not with regard to the guidance provided in Part 1 as to the application to the "character test". The Tribunal notes that in Turini (supra), Whitlam J specifically held Part 1 of the Direction to be a valid exercise of power under s 499(1) of the Act.
The Tribunal also had regard to a recent decision by Deputy President Block RePolicarpio and Minister for Immigration and Multicultural Affairs [2001] AATA 658 (19 July 2001). Having discussed the recent Federal Court decisions, Deputy President Block said that in his view the Direction was binding on him. However, he said that even if the Direction is not binding, it unquestionably sets out the applicable policy. He referred to Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, where Brennan J stated at 640 – 641:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion which is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies, which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to a purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases...The Minister must decide each of the cases...on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, the policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of a power…

Thus, Deputy President Block concluded that whilst he was of the view that the Minister's direction is binding on the Tribunal, even if it is not, it is a clear statement of policy to which he should have regard.

In the present case, the Respondent contended that even if portions of Part 2 of the Direction are contrary to the rule against the fettering of a discretion, then the offending portions should be severed by application of s 46(1)(b) of the Acts Interpretation Act 1901 which permits an instrument to be read and construed as a valid instrument to the extent that it is not in excess of power. By contrast, the Applicant submitted that the offending paragraphs could not be severed because they are integral to the scheme of Part 2 of the Direction.
THE TRIBUNAL'S APPROACH TO DIRECTION NO. 17

Having reviewed the above authorities, the Tribunal decided that it was appropriate to treat the two parts of the Direction separately. Part 1 provides guidance to decision makers on the application of the character test in s 501(1) of the Act. The Tribunal does not accept the Applicant's submission that paragraphs 1.9, 1.10 and 1.11 of the Direction fetter the exercise of the discretion. Such a submission was rejected by Whitlam J in Turini (supra) at para 23, and does not appear to have been argued in the other recent Federal Court decisions referred to above.
Secondly, with regard to Part 2 of the Direction, which addresses the situation where a non-citizen does not pass the character test but a decision maker is, nevertheless, required to exercise his or her discretion as to whether to refuse or cancel a visa. In the Tribunal's view, the clear weight of authority is that Part 2 of the Direction is invalid by reason of the attempt to fetter the exercise of discretion. However, to the extent that Part 2 represents the Government's policy with respect to the refusal or cancellation of visas, the Tribunal's view is that it should take into account such policy without fettering its discretion by giving pre-eminent weight to particular considerations. The Tribunal is not inclined to attempt the severance of objectionable parts of Part 2 of the Direction. It might, however, be argued that by treating Part 1 of the Direction as valid and Part 2 as invalid, the Tribunal is recognising a broader application of severance and the reading or construing of an instrument in accordance with s 46(1)(b) of the Acts Interpretation Act 1901.
In summary, in the present case, the Tribunal intends to adopt the following approach to Direction No 17. Firstly, the application of the "character test" in s 501(6)(c) will be made by reference to a discussion of what is meant by "good character" noting, for example, Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, where, 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's entry's character in the sense of his or her 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…

Part 1 of Direction No. 17, which is binding on the Tribunal, will also be used as a guide. In this regard, the Tribunal also notes the Full Federal Court decision in Irving v Minister for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422 at 94 where Lee J emphasised that "a reference to the enduring moral qualities of a person…is an objective assessment apt to be proved as a fact".
Secondly, if the Tribunal decides that, in its view, the Visa Applicant does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal will have regard to Part 2 of the Direction as a guide to the exercise of its discretion as if this were government policy and not a binding Direction. The Tribunal will disregard the instruction in Part 2 that the decision-maker should give greater weight to some considerations than to others on the basis that this constitutes a fetter on the decision-maker's discretion.
Application of the Law
The Respondent contends that Mr Khan does not pass the character test by virtue by s 501(6)(c) of the Act having regard to "the persons past and present general conduct". At the hearing, as set out above, the Respondent sought to rely on four matters:
(i)the false date of birth in Mr Khan's passport;
(ii)his bogus claims with regard to his involvement in the livestock industry;
(iii)his having been illegally in Japan;
(iv)the incorrect answers which he gave to questions on the visa applications forms.
In considering whether the Applicant has satisfied the Tribunal that Mr Khan passes the character test, the Tribunal had regard to Mr Khan's "enduring moral qualities" ((Goldie), supra). The Respondent referred the Tribunal to paragraph 1.9(b) of the Direction which directs decision-makers to consider:
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 statements;…
The Respondent contended that Mr Khan had made false or misleading statements in connection with his visa applications. In the Tribunal's view, the Respondent's contentions as to the alleged false and misleading statements are largely based on supposition without any corroborating hard evidence. The Tribunal is unable to find a pattern of "deception" as Mr Maguire, the original decision-maker did. In the Tribunal's view, a consideration of paragraph 1.9(b) of the Direction does not therefore assist in this matter.
With regard to other information concerning Mr Khan's character, there is a reference from Mr Jabbar, Mr Khan's previous employer at the Shameem Refrigeration Works in Dhaka, where Mr Khan worked until January 1996. There is also a more recent reference from the Applicant, for whom Mr Khan worked for three years in Australia and who is Mr Khan's sponsor with respect to the current visa application. The Applicant provides a glowing endorsement of Mr Khan's good character. The Tribunal also notes Mr Khan's compliance with Australia's immigration laws with regard to recent visa applications. The Tribunal is, however, uncertain as to what to make of Mr Khan's original application for a visa in 1995. His explanation of looking for business opportunities with respect to the livestock industry in Australia and than abandoning this as not being feasible only two days after arriving in Australia strikes the Tribunal as implausible. On balance, however, the evidence points to Mr Khan being of good character sufficient to meet the standard in Goldie (supra), and the Tribunal therefore finds that he passes the character test under s 501(1) of the Act.
In the alternative, were Mr Khan not to pass the character test, as noted above, the Tribunal will have regard to Part 2 of the Direction as a guide to the exercise of its discretion as if this were Government policy and not the binding Direction. The Tribunal will disregard the instruction in Part 2, that the decision-maker should give greater weight to some considerations than to others, on the basis that this constitutes a fetter on the decision-maker's discretion. Part 2 of the Direction states that a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out in paragraphs 2.3 to 2.16 and the other considerations are set out in paragraphs 2.17 to 2.23.
The three primary considerations to which the decision-maker should have regard are:
(a) the Australian community and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental 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 for 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

Examples of what the Government views as serious offences are set out in paragraph 2.6. These include in subparagraph (c) serious crimes under the Migration Act, which in turn, include providing false or misleading statements. The Respondent pointed to a number of decisions emphasising the importance of observing the truth when dealing with officials in migration matters. For example in Re Lachmayia and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155, Deputy President McMahon said:
…the observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia…

The Respondent contends that Mr Khan made false and misleading statements in order to obtain his visas. As the Tribunal has found above, the Respondent's contentions as to the facts are based on supposition and are not supported by hard evidence. This poses difficulties for the Respondent in seeking to argue that Mr Khan should be denied a visa in order to protect the Australian Community.
Paragraphs 2.10 and 2.11 refer the decision-maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. The Tribunal does not accept that Mr Khan's conduct has demonstrated that there is a risk of recidivism. With regard to general deterrence, whilst the Tribunal recognises that people should be deterred from making false or misleading statements for the purpose of obtaining visas, in the current matter, it has not been established that Mr Khan has made false or misleading statements.
The second primary consideration is the expectations of the Australian community. In this regard, the Tribunal notes that Mr Khan complied with Australia's immigration laws while he was in Australia and no breach of those laws has been established in relation to his conduct outside Australia.
The third primary expectation is the best interests of the child or children of the Visa Applicant. Mr Khan has two children who live with him in Bangladesh and who have not visited Australia. The separation of the children from their parents is not an issue in the current matter.
Paragraph 2.17 of the Direction notes that the decision-maker may need to take into account other considerations. These may include:
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances;…
The Tribunal notes the sponsorship of Mr Khan by the Applicant who is the proprietor of Alpha Home Appliances. The Applicant has praised Mr Khan's conduct as an employee of his for over three years between early 1996 and when Mr Khan departed Australia on 19 November 1999. It appears that Mr Khan has the necessary qualifications and skills to undertake work which is a necessary part of the Applicant's business.
In conclusion, in the Tribunal's view, a balancing of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should be exercised in Mr Khan's favour.
Thus, the decision under review should be set aside and the matter remitted to the Respondent for reconsideration with the direction that Mr Khan passes the character test under s 501(1) of the Migration Act 1958.
POST SCRIPTUM – DIRECTION NO. 21
After drafting this Statement of Reasons, the Tribunal became aware that 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 – which revoked and replaced Direction No. 17. The new Direction No. 21 is a minor modification of the wording of Direction No. 17, involving amendments to paragraphs 2.2, 2.17, 2.19 and the addition of a new para 2.21. The Tribunal is bound by the new Direction from the date that it was made.
The modifications to paragraphs 2.2 and 2.17 are those which are of significance in terms of the criticisms directed at Part 2 of Direction No. 17 in recent Federal Court decisions. The sentence:
Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa

has been omitted from Direction No 21. Also, in paragraph 2.17, the word "generally" has been added to the second sentence which now reads:

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 to the primary considerations (Tribunal's emphasis)

In the present case, where the Tribunal has made its decision by reference to Part 1 of Direction No. 17, the modifications in Direction No. 21 do not affect the Tribunal's decision.
The changes to Part 2 of the Direction appear to address the concern expressed by the Federal Court in, for example, Aksu (supra) and Ruhl (supra) about the fettering of discretion. In the present case, the Tribunal has also addressed this problem and has applied Part 2 of the Direction as if it were guide to the exercise of its discretion and not binding on the Tribunal. The Tribunal, rather, has adopted a balancing process when considering both primary and other considerations, and thus in this way, the Tribunal's application of Part 2 of the Direction is in accordance with the modification to paragraph 2.17 by Direction No. 21.
Accordingly, the decision under review is set aside and the matter is remitted to the Respondent for reconsideration with a direction that Mr Khan passes the character test under s 501(1) of the Migration Act 1958.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 & 21 August 2001
Date of Decision  8 October 2001
Solicitor for the Applicant         Mr R Raashad, Hidayah for Migration, Media and Language Services
Solicitor for the Respondent    Mr G Cramwell, Clayton Utz Lawyers