Singh and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 370
•8 April 2004
CATCHWORDS – IMMIGRATION
– bridging visa – character test – general conduct – false statements – bigamous marriage – whether good character – whether discretion should be exercised – decision affirmed.
Migration Act 1958 s. 20, 31, 499, 500, 501 and 501G
Migration Regulations 1994 rr. 1.03 and 1.15A; Schedule 2, cl. 309.211(2)
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994)
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Jones v Dunkel (1959) 101 CLR 298
Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
DECISION AND REASONS FOR DECISION [2004] AATA 370
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/247
GENERAL ADMINISTRATIVE DIVISION )
ReSATWINDER SINGH
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 8 April, 2004
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent dated 23 February, 2004.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 24 February, 2004, the applicant, Mr Satwinder Singh, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 23 February, 2004. In that decision, the delegate refused Mr Singh’s application for a Bridging E (Class WE) visa on the basis that he did not pass the Character Test under s. 501(6)(c)(ii) of the Migration Act 1958 (“the Act”).
At the hearing, Mr Singh was represented by Mr Hughan, of counsel, and the Minister by his solicitor, Mr Fell. The documents lodged pursuant to s. 501G of the Act were admitted in evidence. Also admitted were a written statement and a statutory declaration dated 1 August, 2002 by Mr Singh, a bundle of documents (including a Migration Record Case Dump, Statutory Declarations by Reeta Devi Varma dated 30 July, 2002, Rajesh Bhatia dated 24 July, 2002, Angila Singh dated 12 July, 2000, Sunita Devi Singh dated 3 July, 2000, Robert William Etherton dated 23 March, 2004 and Donna Brckova (undated)), an undated letter by Rajesh Bhatia, a letter dated 31 July, 2003 to the Australian High Commission from the Additional District Registrar – birth and death – and District Health Officer, search warrants for premises in Doveton, Noble Park and Doncaster East, copies of photographs and documents seized as a result of the execution of the warrants and a copy of a letter seized from the Doveton address. Mr Singh gave oral evidence in support of his own case.
As the decision under review has been made under s. 501 of the Act and as Mr Singh is within the migration zone, the Minister is permitted to lodge documents that are within her possession or under her control, that are relevant to the making of the decision and that contain non-disclosable information (ss. 500(6F)(a) and (b). “Non-disclosable information” means:
“… information or matter:
(a)whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i)prejudice the security, defence or international relations of Australia; or
(ii)involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b)whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or.
(c)whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.” (s. 5(1))
The Minister has lodged a bundle of documents falling within this description. Section 500(6F)(d) sets out the manner in which the Tribunal is to regard those documents:
“the Tribunal may have regard to that non-disclosable information for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the person making the application.”
As the provision is expressed in permissive, rather than mandatory terms, the Tribunal must decide for itself whether or not it will have regard to the non‑disclosable material. Whatever it does, it must bear in mind its duty to accord procedural fairness to the parties and particularly the applicant who has not seen the material. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437, Merkel J observed that there were two courses open to the Tribunal if it were to comply with both its statutory duty not to reveal non-disclosable information and yet accord procedural fairness:
“… In the context of the statutory scheme (including s 438(3)) and the flexibility of the requirements of procedural fairness the Tribunal may have discharged that duty by disclosing, in an appropriate manner, the gravamen of the relevant prejudicial allegations without revealing the identity of, or otherwise exposing the informant. Alternatively, because the Tribunal decided not to rely on those allegations and there was no overriding consideration of necessity (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299-300), the Tribunal may have discharged its duty by taking the necessary steps to have the matter dealt with by a differently constituted Tribunal which had not seen the letter. As neither course was followed by the Tribunal it failed to accord procedural fairness to the applicants and thereby fell into jurisdictional error: see Aala at 89 [5], 101 [41], 135 [142], 143 [170], and 153 [210] and S157/2002 [v Commonwealth of Australia (2003) 195 ALR 24] at 32[25], 47[83].” (paragraph 50)
I have adopted a third course. In order to ensure that the gravamen of the non-disclosable material was made known to Mr Singh and his counsel, I had to read it. Being satisfied that the gravamen of it was put, I have had no further regard to it. The relevant issues were put to Mr Singh and answered by him. It is to his answers that I have had regard. I am not assisted in this case (and I confine my remarks to this case) in making my decision by having regard to material that cannot be tested in any other way.
ISSUES
The first issue is whether Mr Singh passes the character test set out in s. 501(6) of the Act. If he does not pass that test, the second primary issue is whether the discretion in s. 501(3) should be exercised to refuse to grant him the visa.
BACKGROUND
On the basis of Mr Singh’s own evidence, both oral and written, as well as those in the documents to which I refer, I have made the findings of fact set out in the following paragraphs.
Mr Singh was born in Punjabi in India on 12 August, 1967. He was given the name of Satwinder Singh by his parents but he has also used the name of Jasbir Singh and, when using that name, has shown his date of birth as 13 April, 1972. He has five sisters, of whom two live in India (Daljit Kaur and Manjit Kaur, both of whom are married), one in England (Parmjit Kaur) and two in Australia. Of the two in Australia, his sister, Sarbjit Kaur, lives in Australia at Noble Park with her husband and their three children and his other sister, Gurwinder Kaur lives at Doncaster East with her husband, their one child, his two children from a previous marriage and her mother. Mr Singh’s father, Tej Singh, and mother, Harbans Kaur, are separated. His father lives for five or six months of the year in India and the other five or six months in Australia. When he lives in Australia, he lives at Noble Park. His mother has only travelled to India on one occasion to see the children but she caused a lot of trouble and now remains in Australia. She lives with one of his sisters, Gurwinder Kaur, and her family at Doncaster East.
Mr Singh completed his secondary schooling when he was 16 or 17 years of age. He took a year more than most as he had studied English. Mr Singh then studied motor mechanics as the Indian Institute of Technology. He travelled to Australia as a tourist in 1989 arriving on 26 September, 1989. He held a Subclass TR676 Visitor visa at the time and was permitted to remain for six months. On 18 January, 1990, Mr Singh lodged an Application to Remain Permanently in Australia (Form 690). On 4 December, 1990, his visa was extended until 26 February, 1990. Mr Singh was detained by officers of the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) on 28 November, 1991. His application to remain permanently was refused on 19 December, 1991. Mr Singh then lodged an Application for Refugee Status in Australia (Form 306) on 23 December, 1991. He was released from detention on 31 December, 1991 on a bond on his undertaking to report to the Department. His application for refugee status was refused on 16 June, 1992. The decision was affirmed on review on 16 March, 1993. Mr Singh left Australia voluntarily on 3 February, 1994.
While in Australia, Mr Singh met Marie Jordan, who lived next door to his sister, Sarbjit Kaur. They married but later separated with Ms Jordan withdrawing her sponsorship of Mr Singh’s application to remain permanently in Australia. During that period, Mr Singh also became engaged to Jasbir Kaur. They remained together for one year. When Mr Singh returned to India on 3 February, 1994, he lodged an application for Prospective Spouse visa (Subclass T0300). He did that on 4 February, 1994 but Jasbir Kaur ended their engagement and, on 13 May, 1994, withdrew her sponsorship of his application.
On 28 April, 2000, Mr Singh married Bonnie Kayla Chand, who was born on 17 April, 1980. The certificate recording their marriage states that each was unmarried at the time of the wedding. She lives at Doveton with her mother, Sunita, her brother, Shamal, and a boarder, Tony. Mr Singh met Bonnie Chand in circumstances I will set out below. They first met face to face in India in April, 2000 when she travelled to that country. On 28 April, 2000, they were married. Mr Singh then lodged an Application for Migration to Australia by a Partner with the Australian Embassy in New Delhi in the name of Jasbir Singh. His application was granted and, on 16 November, 2000, was granted a Subclass UF309 visa in the name of Jasbir Singh.
Mr Singh then applied for a Provisional Spouse Visa to enable him to travel to Australia. He did so in his new name of Jasbir Singh and did not tell the Department of his previous applications. Bonnie Chand and her family knew him as Jasbir. Mr Singh was granted a visa on 18 December, 2001 and travelled to Australia.
Mr Singh worked for furniture makers, FH Products in Mordialloc. He obtained that work some two weeks after he arrived but, in September, 2003, began to experience pain in his back. He began on light duties and then had a month’s absence from work before returning for three days each week. On the basis of the evidence of his general practitioner who has treated Mr Singh since approximately September, 2003 (Exhibit C), I find that she has been treating him for lumbosacral back pain due to lumbar facet joint dysfunction with some discogenic irritation at L3-L4. His back pain is being treated with physiotherapy and anti inflammatory medication in the context of light duties at work and a graduated return to work. His general practitioner is of the view that prolonged periods of sitting and heavy lifting exacerbate the pain. Mr Singh’s physiotherapist has also written of the treatment that he has been given and expressed the view that his treatment has been prolonged because he has worked for most of the time. On the basis of his own evidence, we find that Mr Singh has accepted additional work outside the furniture factory. In January, 2004, Mr Singh has started work as a part-time taxi driver and he has also worked as a part-time cleaner for Melbourne Cleaning. He was not able to continue this work after his detention on 19 February, 2004.
On that same day, 19 February, 2004, Mr Singh lodged two applications for a Bridging E (Class WE) visa. One was under his own name of Satwinder Singh and the other under the name of Jasbir Singh. Bonnie Chand had prepared those applications.
THE EVIDENCE
Mr Singh said that the agent who had recommended that he change his name was a friend of a friend. His marriage certificate to Bonnie Chand was in the name of Jasbir Singh and showed his date of birth as 13 April, 1972. When asked by Mr Fell whether he knew that changing his name was something that the Australian authorities would not think to be a good thing, Mr Singh replied that he knew that it was not a good thing but he wanted to come to Australia. He changed his name because he wished to come to Australia. He lodged a birth certificate with the Australian authorities showing his date of birth as 13 April, 1972 and his name as Jasbir Singh. The birth certificate was a false document and that is confirmed by a letter from the Additional District Registrar Birth – Death (Exhibit 2). He was told by the agent, he said, that if he had the certificate, there would be no doubt. The false birth certificate was provided to him by the agent who misguided him and whom he had paid. Mr Singh said that the agent gave him everything but did not approach him directly because he, the agent, was scared.
Mr Singh gave evidence that his marriage to Bonnie Chand had been arranged by Rajesh Bhatia, who was a friend of her mother’s sister and of his father. In his oral evidence he said that Bonnie Chand’s aunt had told the friend that the family was looking for a boy, who did not drink, for her niece. Rajesh Bhatia spoke to his father, Mr Singh said, and his father said that he would think about it. In his statement, he said that Bonnie Chand’s father had spoken to Rajesh Bhatia in 1998. In his oral evidence, Mr Singh said that he was then introduced to Bonnie Chand’s aunt some five or six months before the wedding. After that meeting, he spoke with his wife, Bonnie Chand, on the telephone and met her when she travelled to India in April, 2000. That was some two weeks before their wedding on 28 April, 2000. Bonnie Chand stayed only for a week after their wedding and she then returned to Australia. She later returned to India but Mr Singh could not remember when that was. In cross-examination, Mr Singh said that he could not recall precisely the dates when arrangements were made for his marriage. He could not recall whether arrangements began in 1998 or in 1999 some six months before the wedding.
Mr Singh said in giving his evidence that the house in which Bonnie Chand lived at the time he came to Australia was rented. Since his arrival, he said in giving evidence that he and his wife had bought it. That was about a year ago and he said that they bought it for their future. When he was unable to work full-time at the furniture factory, they found it difficult to maintain the mortgage payments. In order to gain extra money, he began part-time work. In reply to Mr Hughan, Mr Singh said that the loan for the house had been obtained only in Bonnie Chand’s name. When asked by Mr Fell why it had not been obtained in his name as well, Mr Singh replied that they had not done so as he is not a permanent resident in Australia. The money that they used to pay for the house came out of their joint account, he said. Bonnie Chand used all of his money to pay for the house and for household expenses.
Mr Singh confirmed in cross-examination that he lives with Bonnie Chand at Doveton where he and Bonnie Chand share a room. He also confirmed that his mother lives with one of his sisters at a house in Doncaster East. Mr Singh acknowledged that a search warrant had been executed at the Doveton property. He identified two framed photographs kept in the room occupied by Bonnie Chand at Doveton. One was in a frame inscribed with the words “Cool Couple”. Mr Singh identified the two persons in each photograph as Bonnie Chand and her school friend, Rod (Exhibit 9). They were kept on a shelf to the side in the room and Mr Singh acknowledged that there were not photographs of him in that room. He did not agree with Mr Fell’s proposition that Rick was a boyfriend and not simply a school friend. Mr Singh said that Bonnie Chand and her school friend had been on holidays together from 3 January to 17 January, 2004. He did not escort them but they went on his “say” and he was happy for them to do so as he could not take holidays. Photographs of Bonnie Chand and Rod on that holiday, a valentine’s card from Rod to Bonnie Chand and an invitation addressed to Bonnie and Rod were admitted in evidence (E 11). A letter written by Rod to Bonnie Chand was also placed in evidence (E 12). Mr Singh said that he was in a genuine spousal relationship with Bonnie Chand.
Mr Singh said that he had not told the Department’s officers that he had previously tried to come to Australia and of his short-lived attempts to remain here. He said that he had not done so as he had always been refused. Were he to tell them, he was scared that they would refuse him again and he wanted to join his parents. Mr Singh said that he had changed his name so that he could come to Australia. One of the “agents” had misguided him, Mr Singh said, by telling him that if he were to apply in another name, he would succeed. Many others had done that and were now well settled in Australia. When asked by Mr Hughan whether he thought that Australian officials might think that it would be seriously wrong to attempt to gain entry in a different name, Mr Singh replied that he was not knowledgeable enough. Had he known, he would not have done anything wrongly. He has never been in any trouble. Mr Singh also said that Bonnie Chand had not known that he had changed his name. He acknowledged that he had used a false name and a false identity when he lodged his application to come to Australia. In addition, he had signed a Statutory Declaration on 1 August, 2002 in a false name and, on 19 February, 2004, signed an Application for a Bridging visa (Subclass 050) in that same false name (Exhibit 1, page 53).
Mr Singh said that he was detained by officers of the Department some time after 6.10am on the morning of 19 February, 2004. At that time, he was at the house in which his mother, sister and brother in law lived at Doncaster East. He said that he had been driving the taxi that night and was very tired. He wanted to sleep and also to see his mother, who had undergone surgery for an eye condition on the previous day. Mr Singh said that he had arrived at the house at about 2.00 or 2.30am.
Mr Singh said that his mother had been crying since he has been detained. Consequently, she is not feeling well. Her sight has been affected as a result of the operation. When asked if he had discussed with Bonnie Chand what they would do if he had to leave Australia, he replied “not yet”. If he is not permitted to remain his “life will be spoiled”, he said. If he were released from detention on conditions, he would comply with them as he did on the previous occasion.
In cross-examination, Mr Singh said that he had been married to Marie Jordan and Bonnie Chand and been engaged to Jasbir Kaur. He had not been married or engaged to any other person. Mr Singh said in cross-examination that Jasbir Singh ended their engagement when his father told her that he, Mr Singh, was seeing someone else. What his father had said was not true but when he told her that she refused to believe him. Mr Singh said that his father had never liked him. At the time he spoke to Jasbir Singh, his father had been drunk and he told a lie. There had been discussions with another girl when he was in India and she was in Australia but there was no engagement.
Mr Singh identified two photographs kept side by side in two hinged photograph frames. One was a photograph of him and the other was a photograph of his ex-wife, Gurwinder Kaur (Exhibit 5). There were photographs of their marriage kept in an album (Exhibit 4). The photographs were taken from the Doncaster East address. Mr Singh said that the photographs in the album of his wedding. The photographs of him and his wife had been brought to Australia by his mother and his sister. In re‑examination, he said that he did not know where in the house the photographs were kept. He had no interest in them.
When reminded that he had been asked whether he had been married to anybody other than Marie Jordan and Bonnie Chand, Mr Singh said that he “did not think about this one” and she had not “come to his mind”. Since he has been in the detention centre, Mr Singh said that he has become quite forgetful and cannot remember things. He said that he had married Gurwinder Kaur in 1996 but was not married to her anymore. Mr Singh said that he did not get on well with her from the beginning but his father always respected her. His father supports her and she lives with him in India together with her two children by Mr Singh. Those children are boys born in 1996 and 1997. He said that he has not had a relationship with Gurwinder Kaur since their youngest son was born. That was in 1997 or 1998. He and Gurwinder Kaur do not have a divorce certificate as it is not easy to get a divorce in India, Mr Singh said. In re-examination, he said that he last lived with her in 1997 or 1998. He has not obtained a divorce from her and has not applied for a divorce. His father had always been against him so he never agreed to his divorcing Gurwinder Kaur or let him do it. Gurwinder Kaur’s cousin is a criminal and is always threatening him, he said. At the hearing, Mr Singh said that he had told Bonnie Chand that he was still married “only a little while ago”. She was a bit upset and angry as to why she had not been told before. He had not told her earlier, as he would have “had more problems” such as “normal problems in a family like when the lady finds out”.
Mr Singh was shown notes of an interview by an officer of the Department and Mr Singh’s sister, Sarbjit Kaur, and her husband Jaswant Singh at their Noble Park home (Exhibit 7). Sarbjit Kaur is recorded as saying of her brother:
“… He is married to Gurwinder Kaur and they have 2 boys aged 6 and 4. They live at the same address as her father.” (Exhibit 7)
Mr Singh said in cross-examination that he was not married to Gurwinder Kaur. She was staying with his father but otherwise he did not know what she was doing. He had already said that he could not get a divorce certificate from India.
Mr Singh identified two photographs seized pursuant to a search warrant executed on the Noble Park property. One of those photographs showed Mr Singh holding his elder son and the other showed him with both his sons and his wife, two sisters and the son and daughter of one of his sisters (Exhibit 6). Mr Singh said he telephones his sons occasionally. When he first came to Australia, he telephoned weekly but he has not telephoned for the last year.
In a Decision Record dated 19 February, 2004, a delegate of the Minister noted that Mr Singh had been asked at 10.00am that morning to write a response to the Department’s letter setting out a Notice of Intent to Consider Cancellation (Exhibit 1, page 38). He asked to speak with the delegate in the absence of the interpreter. The delegate recorded what he told her as:
“He gave the names of a number different persons who had been involved in contrived marriages and stated that he knew many more
He claimed that his brother-in-law had been beating him and taking all his money
He claimed that his mother-in-law and brother-in-law were blackmailing him
He claimed that he married his wife for money
He claimed that he paid his wife $6,000 on arrival to Australia and had been giving all his pay ($6-700 per week) to his wife’s family
He claimed he promised to pay his wife $35,000 but that the family continued to black mail him and threatened to withdraw his wife’s sponsorship if he did not pay
That to date he had given his wife approximately $65,000” (Exhibit 1, page 41)
Mr Singh later declined to provide a written response, the delegate noted, and, in the presence of the interpreter told her that:
“He said that another (unknown) person had given him the information about the contrived marriages
He denied paying his wife any money for the marriage, claiming that he had been putting the money in to a joint account.” (Exhibit 1, page 41)
In cross-examination, Mr Singh said that he had stated to the delegate that he had paid Bonnie Chand $65,000 because he had heard some girls say that they had been beaten. They were given permanent residence on the basis of domestic violence. He agreed with Mr Fell that the statements that he had made to the delegate were false but said that “She didn’t ask me; all these things I told her myself”. Mr Singh denied that he had given any money to Marie Jordan to marry him or to Jasbir Kaur to become engaged.
CONSIDERATION
Framework of Act
Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 (“Migration Regulations”) (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of a particular class are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Bridging Visa is that, at the time the decision is made, the person satisfies the requirements of public interest criteria. Schedule 4 sets out the public interest criteria.
At the time that the delegate’s decision was made and of this review, criterion 4001 in Schedule 4 of the Migration Regulations provided that:
“Either:
(a)the applicant satisfies the Minister that the applicant passes the character test; or
(b)the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or
(c)the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.”
Section 501(2) of the Act provides that:
“The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)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:
“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.”
The Direction
Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it. On 23 August, 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction – Visa Refusal and Cancellation under section 501 – No. 21 (“the Direction”).
In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
“In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
… When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.”
The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
“The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.”
The Direction - application of the character test
The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, the Minister deals with each of the four grounds specified in s. 501(6). Only those in s. 501(6)(c) are relevant in this case. Of them, the Minister stated in the Direction:
“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.”
In considering whether a person is not of good character when measured against s. 501(6)(c)(ii), the Minister directs decision-makers to take the following into consideration:
“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:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(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;
(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
1.10 In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence which the applicant has been charged; or
(b) resulted in non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. 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 (see Part 2).”
The authorities regarding “good character”
In this case, the focus is upon Mr Singh’s past and present general conduct as set out in s. 501(6)(c)(ii). That requires a consideration of what is meant by the expression “good character”. It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 where Deputy President McMahon said that:
“`Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.” (pages 154-155)
After considering the structure and purpose of the Act and particularly that of s. 20, Deputy President McMahon noted that emphasis is given in s. 20(1) to the giving of false information and concluded that:
“These are overall requirements important in the administration of immigration procedures. 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. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.” (pages 155-156)
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (AAT 9753, 27 September, 1994) and Deputy President McDonald in Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 and Re Naidu and Department of Immigration and Ethnic Affairs (1996) 42 ALD 137. In Prasad, Deputy President McDonald added:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” (page 781)
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person’s reputation or repute, Lee J expressed that to which it does refer in the following passage:
“Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion …
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.” (page 94)
Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so it is unnecessary to pursue this question.” (pages 324 and 327)
Does Mr Singh pass the character test?
In this case, I am satisfied that Mr Singh has falsely portrayed himself as a person who he is not. That person is Jasbir Singh who was born on 13 April, 1972. He has portrayed himself as Jasbir Singh when he married Bonnie Chand and gave as the date of his birth the date he had adapted for Jasbir Singh when he lodged his Application for a Provisional Spouse Visa after his marriage to Bonnie Chand. In doing so, I find that he had procured and relied on a false birth certificate. He had paid for that birth certificate from an agent, who I find gave him advice as to how he could successfully gain permanent entry to Australia. I also find that he has previously overstayed his visa in Australia. That was in 1990 and 1991 when he stayed for some twenty one months after the expiration of his visa on 26 February, 1990.
In addition to his false name and false date of birth, I also find that Mr Singh has been untruthful about his marital status to those close to him as well as to those outside his immediate family unit. On the basis of his own evidence, I find that he did not tell Bonnie Chand that he was already married to Gurwinder Kaur when he married her on 28 April, 2000. I also find that he did not disclose her existence when asked whether he had been previously married to anyone other than Marie Jordan and Bonnie Chand. It was not until photographic evidence of her existence and of their marriage was put to him that he remembered her existence. His explanation for his forgetfulness was very flimsy. It was that he has become quite forgetful since being detained on 19 February, 2004. While I can understand that detention is a very anxious time for him, he did not indicate forgetfulness in any other area of his evidence where he might be expected to forget a detail of his life somewhat smaller than a wife and two small sons. I find that he did not forget his marriage to Gurwinder Kaur but chose not to mention it.
Whether or not Mr Singh’s marriage to Bonnie Chand is a sham or not and whether or not he is living at the house in Noble Park are matters on which I have the evidence of Mr Singh, the photographic evidence and statements made by various persons in support of Mr Singh’s Application for a Provisional Spouse Visa. I have not summarised the evidence of Reta Devi Varma (close friend of Bonnie Chand’s parents), Rajesh Bhatia, Angila Singh (Bonnie Chand’s aunt) and Sunita Devi Singh (Bonnie Chand’s mother) to the effect that the marriage between Bonnie Chand and Mr Singh is a genuine marriage. All are dated July, 2002 other than a letter from Rajesh Bhatia which is undated. It could be expected that Bonnie Chand might be expected to have been called on behalf of Mr Singh. She is well-placed to speak about their relationship and her relationship with her school friend with whom she went on a fortnight’s holiday earlier in the year. The rule in Jones v Dunkel (1959) 101 CLR 298 permits an adverse inference to be drawn against a party who fails to call a witness who might be expected to favour his or her case. It has some applicability in proceedings in the Tribunal but is to be applied with discretion (Re Perring and Australian Postal Corporation (1993) 31 ALD 693 (Einfeld J) while bearing in mind the Tribunal’s powers to call witnesses itself (Re Bessey and Australian Postal Corporation (2000) 60 ALD 529 (Senior Member Bayne and Dr Miller and Air Marshal Gration, Members). In this case, I did not consider it appropriate to call Bonnie Chand to give evidence; in view of the evidence that I already have, I would have felt compelled to advise her that she was not required to incriminate herself and the result could have been very curtailed evidence from her.
In view of the evidence that I have, I am satisfied that Mr Singh is not living with Bonnie Chand. He was at the Doncaster East address in the early hours of 19 February, 2004. That evidence on its own is neutral for Mr Singh did say that he was tired, that his mother’s home at Doncaster East was closer than Noble Park and he wanted to enquire about his mother’s health after her eye operation. When taken with other evidence, though, it loses its neutrality. Two pieces of that evidence are the album of photographs of his wedding to Gurwinder Kaur and the framed photograph of him and Gurwinder Kaur. Mr Singh acknowledged that there were photographs of his wedding to Gurwinder Kaur. His explanation is that they were photographs kept by his mother and sister. This may be so but another piece of evidence to which I have had regard is that his photograph was not found at the Noble Park house. If this were his usual place of residence and he lived in it, it would be expected that, if there were a photograph of a man in his wife’s bedroom at the Noble Park house, it would be a photograph of her husband. I find that the only photographs on display on the shelf in that bedroom were those of Bonnie Chand and her school friend, Rod. The caption “Cool Couple” on one of those photographs and the closeness they portray in that photograph suggest that Bonnie Chand and Rod are indeed a couple. Rod’s letters and the card he wrote to her also suggest that they have a very close relationship and much closer than that of school friends. It is also apparent from Rod’s letters that they have met more recently and certainly after they left school. The card inscription began “My Sweetheart”. The note on the envelope in which Rod sent a valentine’s card stated “Feb 14th 2002 Rod bought me a b/ful Ring” (Exhibit 11). These documents were found at the Doveton address. I have also had regard to the invitation addressed to both of them in 2003, the fortnight’s holiday they had in January, 2004 and the photograph of Rod that is kept on Bonnie Chand’s keyring. Finally, there is no evidence from her to counteract what could be clearly inferred from the evidence. Taking all of this evidence into account, I conclude that they are indeed a couple.
It is feasible that Bonnie Chand and Rod are a couple and she and Mr Singh are in a genuine marriage. Marriage is a very personal matter between two people, who adapt it to suit their own special relationship. Consequently, it may exist in many guises. In this case, I find that there is no continuing relationship between Bonnie Chand and Mr Singh. Whether there was one at some stage, however briefly, is not a matter on which I have sufficient evidence to make a finding. Mr Singh’s absence both from her holiday and from the photographic reminders she keeps in her bedroom as well as his presence in the Doncaster East house and the fact that Bonnie Chand and Rod are a couple persuade me that they do not have a continuing relationship.
The Australian community expects candour from those who wish to come to Australia and it also expects that its requirements will be honoured for their own sake and not only when a person has been “caught out”, as it were. Their absence is regarded seriously for the integrity of the administration of Australia’s migration laws relies in large measure on the honesty and good faith of those who seek to gain entry. Mr Singh has not demonstrated that candour or good faith. When he overstayed his visa in 1990 and 1991 he did not display good faith. He did not simply overstay for a short period but for an extended period approaching two years. He has shown his lack of candour when he failed to reveal his continuing marriage to Gurwinder Kaur and has not revealed her existence or that of his sons to the Department. He has relied on a false identity and false birth certificate to come to Australia. He has not reported to the Department that he is not living with Bonnie Chand in a relationship that is continuing. That is so even though he has applied for a Provisional Spouse Visa. In his circumstances, a primary criterion that must be satisfied if he is to be granted that visa is that he is Bonnie Chand’s spouse (Migration Regulations, Schedule 2, cl. 309.211(2)). In order to be regarded as Bonnie Chand’s spouse, he must be regarded as in a “married relationship” as defined in rr. 1.03 and 1.15A of the Migration Regulations. It is not enough that they are married (and there is a question in this case whether they are validly married) but they must have a mutual commitment to a shared life as husband and wife to the exclusion of all others, their relationship is genuine and continuing and they either live together or do not live separately and apart on a permanent basis (rr. 1.15A(1)(a) and (1A) and see also rr. 1.15A(1) and (2) – (5)). Even when presented with documentary evidence of his marriage to Gurwinder Kaur, he was reluctant to acknowledge that he continued to be married to her. That was despite his acknowledgment that they had not divorced. At the hearing, he persisted in describing Rod as Bonnie Chand’s school friend despite the clear evidence that he is much more than that. Having regard to all of these matters, I have concluded that Mr Singh has not passed the character test.
The Direction – exercise of the discretion
Turning to the exercise of the discretion should a person fail to pass the character test, the Minister has directed that there are both primary and other considerations to which a decision-maker should have regard. Decision-makers are directed that they:
“… 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.” (Direction, paragraph 2.2)
The three primary considerations are:
“(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 relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children.” (Direction, paragraph 2.3)
The Minister then deals with each primary consideration in turn. The consideration of the protection of the Australian community requires me to consider three factors: the seriousness and nature of Mr Singh’s conduct; the likelihood that he will repeat it; and whether visa refusal might prevent or discourage similar conduct in the future.
Of particular significance in relation to the seriousness and nature of Mr Singh’s conduct, I must have regard to the Direction that:
“It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…
(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;
…” (Direction, paragraph 2.6)
In assessing such matters, regard must also be had to any relevant factors put forward by Mr Singh as mitigating factors (Direction, paragraph 2.8(a)). Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Singh’s case, it is relevant to have regard to:
“the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.” (Direction, paragraph 2.10(c))
General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (paragraph 2.11(a)).
Consideration must be given to the second primary consideration i.e. the expectations of the Australian community as they have been identified by the Minister as follows:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. 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. …” (Direction, paragraph 2.12)
The third primary consideration relates to the best interests of a child. The matters to which the Minister has directed a decision-maker’s attention in considering the best interests of the child are:
“(a) the nature of the relationship between the child and the non-citizen;
(b) the duration of the relationship including the number and length of any separations and reason/s for separation; the hypothetical prospect for developing a better/strong relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;
(c) the age of the child;
(d) whether the child is an Australian citizen or permanent resident;
(e) the likely effect that any separation from the non-citizen would have on the child;
(f) the impact of the non-citizen’s prior conduct on the child;
(g) the time (if any) that the child has spent in Australia;
(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;
(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and
(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.” (Direction, paragraph 2.16)
The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
“32 An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.” (page 142)
In looking at the best interests of the child, regard must also be had to the High Court’s judgement in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. (Mason CJ, Deane, Toohey and Gaudron JJ, McHugh J dissenting). The Court was concerned with the relevance of the United Nations Convention on the Rights of the Child (“the Convention”) in making administrative decisions under the Act. Articles of that Convention with particular relevance in this case state:
“Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. …
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.…
4.…
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …
3.…”
The majority in Teoh accepted that the Convention, which was ratified by Australia on 17 December, 1990 and which had come into force for Australia on 16 January, 1991, had not become part of the municipal law of Australia. They rejected a submission that its absence from the municipal law meant that it could never give rise to a legitimate expectation. The majority continued:
“No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason – legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343; 112 ALR 529; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266) particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention (cf Simsek v MacPhee (1982) 148 CLR at 644) and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.” (page 365)
Before returning to that, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
“(a) the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;
(b) …
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen’s family, both in Australia and overseas;
(e) …
(f) …
(g) …
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)…” (Direction, paragraph, 2.17)
Should Mr Singh not be refused a visa on the basis of his not passing the character test?
In considering the answer to this question, I have borne in mind the view expressed by Deputy President Block in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 when he said in relation to paragraph 2.3(b) of the Direction relating to the expectation of the Australian community:
“It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. …” (paragraph 7(m))
Beginning with the seriousness or otherwise of Mr Singh’s conduct, I have had regard to the view expressed in paragraph 2.6 of the Direction that presenting false or forged documents and making false or misleading statements in connection with a person’s staying in Australia are regarded by the Government to be very serious. I have also had regard to the nature of Mr Singh’s actions. He has not simply relied on a false identity and carried that through for his own purposes but he has drawn others into the web he has created with his false identity. Bonnie Chand is one such person. Whether she knew of Mr Singh’s subsisting marriage to Gurwinder Kaur or not is a matter on which I am unable to make a finding but, whether she did or not, I find that she has been drawn into a bigamous marriage with Mr Singh. Gurwinder Kaur may, or may not, be a person who has been aware of Mr Singh’s actions all along. Again, I am unable to make a finding regarding that but again she and their sons are persons who have been drawn into the web. Mr Singh has also consciously set out to draw the Department into the web knowing that he could not obtain entry to Australia if he were to use his own name. On the assumption that he could properly have been regarded as the spouse of Bonnie Chand at some stage (albeit bigamously and so by virtue of the provisions of rr. 1.15A relating to a de facto relationship), he has compounded his attempt to deceive the Department by not advising it that he was no longer in a marriage relationship of exclusivity with her and so could not be regarded as her spouse. If he was not in such a relationship at any time, the date of his compounding his deception of the Department is merely backdated. Having regard to the nature of the deceptions in which he engaged and their ongoing nature, I find that his conduct is a matter of serious concern. He has placed his interests above all others. He has ignored the laws of the country that he would have as his home and has done so deliberately and over an extended period of time.
I find that the likelihood of his repeating his conduct is very high. Even at the hearing when the nature of the application that he has brought must have made him realise that he should perhaps review his conduct and the standards by which he assesses it, Mr Singh stated in quite a matter of fact manner that he had changed his name as he had been refused access when he had applied in his own name. He took no responsibility for his having adopted a false name even though he had paid for the false documents and blamed the agent who had “misguided” him. His later conduct is compounded by his previous disregard of the expiration of his visa for some twenty one months. Taken either individually or together, they indicate in Mr Singh’s case that he has disregarded laws that do not permit him to advance his own interests. As he has given no indication that he understands the gravity of his behaviour and in view of the pattern of that behaviour, I find that it is likely that he would disregard any such laws in the future.
As to whether refusing Mr Singh a visa would deter others from following the same course of action is a difficult question. There is no evidence of how widely he is known in India or whether the circumstances of his return would become known in his community and, if there are others who might be minded to follow his example, would deter them. Certainly, Mr Singh’s family is dispersed between India and Australia. In view of that, I find that there is some likelihood that the circumstances of the refusal would become known and may deter some from attempting to ignore Australia’s immigration laws.
That brings me to the expectations of the Australian community. As a general rule, members of the Australian community are sympathetic to people who have had a difficult life in difficult circumstances. For those people, it can be forgiving of the transgressions made by people who are in those circumstances and who strive to better themselves and to make a new start. Members of the Australian community are also sympathetic to those who want to join their families and can also be forgiving of their transgressions. On the evidence that I have, I find that Mr Singh is a person to whom the Australian community is likely to have little sympathy. Certainly, he has family in Australia whom he wants to join but, equally, he has family in India. His father, who is one of those whom he wants to join in Australia, lives half of the year in India. Although he claims to be estranged from his wife Gurwinder Kaur, she is also in India as are his two small sons.
Although not specifically addressed during evidence or submissions, I have had regard to Mr Singh’s sons. They live in India in circumstances that are unknown to me apart from the fact that they live with their mother and, for approximately half of each year, with their paternal grandfather. Mr Singh has said that he rarely telephones them now although he did so regularly in the first year after his most recent arrival in Australia. Whether he talks to them on the telephone or not, it is generally better for children to have the ability to communicate with both their parents. Whether he is estranged from their mother or not, the children’s interests would be best served were Mr Singh to live in closer proximity to them than he does so in Australia.
On the basis of his evidence, I find that Mr Singh considers that his life will be spoiled if he is not permitted to remain in Australia. Apart from his not complying with the conditions of an earlier visa to leave Australia and any offences he may have committed under the Act, I am satisfied on the evidence that I have that he has not committed any other offences in Australia. He has worked almost constantly since he arrived. If he is not permitted to remain in Australia, he will be separated from those of his sisters who live in Australia as well as from his mother. He will not see Bonnie Chand but, in view of the findings that I have made regarding their relationship, I give that little weight. He will be closer to his sons if he were to return to India. Mr Singh has been working in Australia. I have no evidence of his work or employment opportunities in India but I have found that he has undertaken a motor mechanic course in that country. As to his health, I find that he has been receiving physiotherapy for a back injury. I do not have any evidence that appropriate treatment is not available in India.
Finally, I have considered Mr Hughan’s submission that I should have regard to the fact that the decision concerns the refusal of a temporary, and not a permanent, visa. A Bridging E (Class WE) visa is certainly a temporary visa and that is certainly a relevant consideration in these matters. There are, however, a variety of temporary visas. Some, such as a visitor’s visa, permit a person to be in Australia for a defined period of time. Others, such as the bridging visa Mr Singh seeks, is a visa that enables a person to be in Australia while his or her application for a permanent visa is considered. While both are temporary in their nature, different considerations may apply to each. Regard must be had not only to their temporary nature but also to the time and purpose for which they permit entry. In Mr Singh’s circumstances, the Bridging E (Class WE) visa is a stepping stone to a permanent visa in the form of a Provisional Spouse visa. It is for an indefinite period. Although it is for the Migration Review Tribunal to review any decision to refuse him a Provisional Spouse Visa on grounds other than those in s. 501, issues of good character will be as relevant to the delegate’s consideration of whether he is entitled to a Provisional Spouse Visa as to whether he is entitle to a Bridging E (Class WE) visa. In those circumstances, any consideration that issues under s. 501 should be considered in relation to the Provisional Spouse Visa and not in relation to the Bridging E (Class WE) visa have little weight.
Taking all of these matters into account, I have decided that the factors relating to the protection of the Australian community outweigh those relating to the interests of Mr Singh. On balance, I have concluded that the discretion under s. 501 should be exercised to refuse Mr Singh’s visa.
For the reasons I have given, I affirm the decision of the respondent dated 23 February, 2004.
I certify that the sixty-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ........................................................
R. Crook Associate
Date of Hearing 29 March, 2004
Date of Decision 8 April, 2004
Counsel for the Applicant Mr G. Hughan
For the Applicant Ms A. Falcon, Migration AgentSolicitor for the Respondent Mr T. Fell,
Australian Government Solicitor
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