Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1269
•30 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1269
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/600
GENERAL ADMINISTRATIVE DIVISION ) Re
James Sneddon
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date30 November 2004
PlaceSydney
Decision The tribunal affirms the decision under review.
..............................................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – subclass 309 spouse (provisional) visa – character test – visa applicant fails the character test on the grounds of her past and present general conduct – examination of the visa applicant’s immigration misconduct – examination of the visa applicant’s stay in Australia including remaining in Australia as an unlawful non-citizen for approximately five years and working illegally during this time – discretion that the tribunal may exercise where the visa applicant fails the character test – necessity to balance the protection and expectations of the Australian community against any hardship to the applicant and visa applicant – found that the visa applicant did remain in Australia as an unlawful non-citizen and worked illegally during part of that time – found her conduct was serious and she does not pass the character test – primary considerations of the protection and expectations of the Australian community outweigh the other considerations – decision of the respondent is affirmed.
Migration Act 1958 ss499, 501, 501(6)(c)(ii)
Al-Kateb v Godwin and Others (2004) 208 ALR 124
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
REASONS FOR DECISION
30 November 2004 Professor GD Walker, Deputy President Summary
1. The visa applicant, Maria Cristina Da Silva, came to Australia from Brazil on 11 July 1997 on a student visa valid until 31 August 1998. At the end of 1997, Ms Da Silva withdrew from her university studies and commenced work. In November 2001, she entered into a de facto relationship with the applicant, James Sneddon. Ms Da Silva remained in Australia as an unlawful non-citizen until 7 April 2003 when she was granted a bridging visa E to depart Australia, departing on 8 May 2003.
2. The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that Ms Da Silva failed to comply with the provisions of her student visa including that she did not inform the department that she had withdrawn from her studies, she remained in Australia unlawfully for a period of approximately four years 11 months and that she worked illegally during this time. The respondent therefore refused Ms Da Silva’s spouse (provisional) visa application. This is the decision to be reviewed by the tribunal.
Background
3. The applicant, Mr Sneddon, was born in Kurri Kurri, New South Wales, on 15 May 1974 (T p81) and is aged 30. Mr Sneddon is an accountant.
4. The visa applicant, Ms Da Silva, was born in Vitoria-Espirito Santo, Brazil, on 17 May 1968 and is aged 36 (T p47). She is a citizen of Brazil.
5. On 11 July 1997, Ms Da Silva came to Australia on a subclass 560 student visa, valid until 31 August 1998, conditional upon Ms Da Silva satisfactorily completing the course requirements. In December 1997, Ms Da Silva withdrew from her studies at the University of Wollongong, thereafter moving to Sydney and commencing work in breach of her student visa conditions. On 31 August 1998, Ms Da Silva’s student visa expired and she became an unlawful non-citizen in Australia.
6. On 2 February 2001, Mr Sneddon and Ms Da Silva met at a restaurant in Glebe, New South Wales. They commenced their relationship on 3 February 2001. In July 2001, Ms Da Silva ceased working and became financially dependent on Mr Sneddon and in November 2001, they commenced living together in a de facto relationship (T p230).
7. On 7 April 2003, after being an unlawful non-citizen for four years and 11 months, Ms Da Silva applied for a bridging visa E which was granted pending her departure from Australia (T p8). On 8 May 2003, Ms Da Silva departed Australia.
8. On 8 May 2003, the then solicitors/migration agents for Ms Da Silva and Mr Sneddon, PriceWaterhouseCoopers, lodged an application for a subclass 309 spouse (provisional) visa, on the basis of their de facto relationship, with the Australian Embassy in Brazil (T5 p41). On 1 July 2003, the visa office of the embassy acknowledged receipt of Ms Da Silva’s application, informing her that the average waiting time for the processing of spouse visa applications was 32 weeks and requesting further documentation in support of her application (T6 p217). On 5 November 2003, Ms Da Silva was requested to attend an interview at the embassy (T9 p228). At that interview on 15 December 2003, Ms Da Silva stated that she did not apply for permanent residence on-shore because she knew that she and Mr Sneddon had to be in a de facto relationship for two years before she could apply. Ms Da Silva informed the officer they had been living together since November 2001, but she provided no evidence of any joint assets or commitments (T11 p230).
9. On 16 December 2003, a senior migration officer at the embassy in Buenos Aires advised Ms Da Silva that she was considering refusing Ms Da Silva’s spouse visa application on the grounds of her past and present conduct including her immigration history and breaches of immigration laws and inviting her to comment (T12 p232). On 27 January 2004, Ms Da Silva’s then migration agents, Fragomen Australia, made submissions on her behalf, stating that she acknowledged and deeply regretted her breaches of Australia’s immigration laws, and that she sought to legitimise her status in Australia because “the perpetual worry of her illegal status and the implications of being caught and deported became too much”. They also submitted that she poses no risk to the Australian community, the nature of her conduct was not regarded as being very serious, there was no prospect of recidivism and that Mr Sneddon’s health has suffered because of Ms Da Silva’s extended absence from Australia (T pp235-239). They also submitted a number of statutory declarations in support of the visa applicant.
10. On 21 April 2004, a delegate of the respondent decided to refuse Ms Da Silva’s spouse visa application on the grounds that she did not pass the character test and having decided to exercise her discretion under s 501(1) of the MigrationAct 1958 (“the Act”) to refuse the grant of a visa. On 20 May 2004, Mr Sneddon lodged an application for a review of this decision by the tribunal.
11. At the hearing of this matter, the applicant was represented by Ron Kessels, solicitor, of Kessels Goodard & Ajuria, solicitors, and the respondent was represented by Jodie Maurer, solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence tendered by the parties at the hearing. Mr Sneddon gave oral evidence in person. Ms Da Silva gave oral evidence by telephone from Brazil.
Relevant Law and Policy
12. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraph (c), as follows:
For the purposes of this section, a person does not pass the character test if:
…
((c) having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
13. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes the tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
14. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Issue
15. The issue for the Tribunal to determine in this case is, therefore, whether Ms Da Silva is not of good character having regard to her past and present general conduct so as to be precluded from the grant of subclass 309 spouse (provisional) visa. If the tribunal decides she is not of good character, it must decide whether, nevertheless, to exercise the discretion under s 501(1) not to refuse the grant of a visa.
Evidence
16. Ms Da Silva gave evidence by telephone from Brazil. She speaks very good English and no interpreter was needed. Mr Sneddon gave oral evidence in person.
17. The respondent contends that the visa applicant has shown contempt or disregard for immigration law in the following ways:
(a) By not abiding by the conditions of her student visa, by withdrawing from her studies and not satisfying course requirements,
(b) By working without permission from early 1998 until July 2001, and
(c) By remaining in Australia as an unlawful non-citizen for a substantial period of almost five years.
18. Before coming to Australia, Ms Da Silva was employed full-time teaching English as a second language at a college near her home in Espirito Santo. She formed the intention of undertaking a Master’s degree in English studies, believing, no doubt rightly, that it would qualify her for higher quality employment in the sphere of Anglo-Portuguese language studies. She could have undertaken such a course in Brazil, but in her field it was better to undertake it in an English-speaking country. She decided to come to Australia, because having read about it she had concluded that it was “more like Brazil”. Her mother, Mrs Zenith Da Silva stated in her statutory declaration (Exhibit A2), that, “For many years Cristina spoke to my husband and I about going to Australia to study and live for a year. It was a dream of hers. She was very excited when she was accepted by Wollongong University and she was looking forward to the experience very much”. Her cousin Mr Luiz da Gracas Silva provided the necessary financial support: “In about 1997, Cristina told me that she wanted to go to study in Australia and that she needed help with her forms because her immediate family did not have enough money to support her application. At that time I was working [as a machinist] and had some savings and I agreed to support her application for a student visa. Cristina has wanted to study in Australia for many years and I was very happy to help her in any way that I could with the application” (Exhibit A1). At the time she applied for her student visa, she stated, her intention was to remain in Australia only for a year. Her mother and her cousin both support her in that assertion and there is no evidence that she had an ulterior motive of remaining unlawfully at that stage.
19. Ms Da Silva arrived at the University of Wollongong in July 1997 in time to enrol and commence second semester studies in a Master’s program in post-colonial literature. She was living at International House on the university campus. After a short time, however, she said, “I found that I was having difficulties with my studies and that I was not enjoying my course [which was] not at all what I expected before I came”. When asked in what way it did not meet her expectations, she replied that it was because there was no thesis component in the program, just courses of lectures and assessments consisting of essays. She did not, however, make any enquiries about changing subjects or switching to another program, nor did she seek assistance from the student advisory services. She passed her first semester subjects but did not re-enrol for second semester. Instead, she moved to Sydney to “learn more about Australia” and because she had made no friends in Wollongong. She began paid employment in December 1997 at a shopping centre because she knew that her student visa allowed her to work up to 20 hours per week. She made no attempt to inform the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) that she had withdrawn from her studies.
20. Her stated reasons for leaving the university and not informing the department are not entirely convincing. Studying in Australia was, after all, “a dream” she had entertained for years and one which would in all probability open up a brighter future for her. Having successfully completed one semester, she had only one semester remaining. One might expect that she would speak to the University counselling service or the overseas students’ advisory office about her concerns. Added to that, she was under at least some form of moral obligation to her cousin Luiz, who had financially supported her application out of his savings which, on his wages as a machinist, could not have been copious. These circumstances suggest that there may have been some other reason for her ill-advised decision. A copy of her academic transcript, which she could readily obtain even if she had lost all her other papers over the years, might cast some light into that corner, but no such copy was tendered in evidence, nor was any other correspondence from the university. In the absence of any other evidence, however, such matters remain in the realm of speculation and I therefore proceed on the assumption that her stated reasons are the true ones. Even on that basis, her conduct suggests a tendency towards irresponsibility that is not contradicted by evidence of subsequent events.
21. Her explanation that she failed to inform DIMIA of her changed status because she “just didn’t think of it” is also implausible. She was sufficiently aware of her visa conditions to know that she was permitted to work for up to 20 hours per week. With that knowledge she judged it safe to work at a shopping centre where tax would be deducted from her wages, because until her visa expired the existence of those salary records would not necessarily signal a visa violation. Subsequently, when she became unlawful, she worked only for cash and paid no tax. A much more likely explanation for her failure to inform DIMIA is that by this time she had formed the intention of remaining unlawfully and disappearing into the population of Sydney.
22. As regards the second ground, the visa applicant does not deny that she worked without permission from early 1998 until July 2001. In her oral evidence she said she knew at the time that she had no permission to work. She did not tell her employers that she had no right to work, but apart from the first position she held she worked for cash and paid no tax. She was employed in a Brazilian dance troupe, and also did tutoring and waitressing. She continued to work after she had told the review applicant about her unlawful status. He asked her to stop working partly in order to avoid the risk of detection.
23. The visa applicant also admits the third ground, that she remained in Australia for almost five years. In her statutory declaration of 7 May 2003 (T pp84-85), she stated that: “Being in Australia with better chances of work and far better wages was crucial to my decision to overstay my visa” (T p84). The economic situation in Brazil was difficult and the job market was depressed. “There are many more work opportunities and the wages are higher in Australia”. She also wanted to send money home to help her family, including her mother and her two nephews, who had recently lost their mother, and began to do so in about 1999 (Exhibit A5 para 9). She enjoyed living in Sydney where she was very happy and had made many friends: “I found it difficult to make the decision to leave” (id para 6), she said, although that decision was not hers to make.
24. Ms Da Silva met the review applicant on 2 February 2001 and their relationship commenced on the following day. “At first I did not tell James about my visa situation as I was scared about his reaction and the relationship was still very new,” she said in her statement of 16 September 2004 (Exhibit A5). One day in July 2001 when Mr Sneddon was visiting her apartment, she told him that she did not have a visa. He said, “How can we continue the relationship?” She replied that she had a friend who was a director of a construction company and she hoped he or she would sponsor her for a working visa. Ms Da Silva has never named the friend or the company, but Mr Sneddon confirms that he did meet the friend. She telephoned the friend from time to time to enquire about progress, but for one reason or another the prospect eventually faded from view. The sponsorship project seems to have been rather nebulous at best and may have involved a proportion of wishful thinking.
25. She admitted knowing from the start that it was unlawful for her to remain after her visa expired and she knew that she could be apprehended by the department and detained. She would have liked to have regularised her status, partly because so long as she was unlawful she could not undertake the kind of work for which she was trained and had to be content with casual or unskilled service tasks. Nevertheless she did nothing. In the second half of 2000 a friend suggested she should see a migration agent about a bridging visa. She did not do so, however, and states that she lacked the money to pay for the application, although by that time she was regularly remitting funds to her family in Brazil.
26. Mr Sneddon repeatedly raised the subject of her unlawful status while they were living together, but she reassured him that she could sort it out, relying on the prospect of sponsorship by the construction company. He accepted that assurance and felt under no pressure to take the matter further, and “the relationship just meandered along”. It was not until mid-2002, when they had been living together for approximately a year, that they sought the services of a migration agent. The agent advised them that the only solution was an application based on their de facto relationship. Mr Sneddon does not recall the agent mentioning a requirement of two years cohabitation, but Ms Da Silva does seem to, explaining that she decided to remain unlawfully for a little longer in order to meet the qualifying period. In March 2003 they sought the advice of a different migration agent who arranged for the visa applicant to apply for a bridging visa E. Using that visa Ms Da Silva left the country on 8 May 2003 and returned to Brazil.
27. A large part of the evidence relevant to the possible exercise of the discretion related to the de facto relationship between the applicant and the visa applicant. The senior migration officer at the embassy in Brasilia who interviewed Ms Da Silva in connection with the spouse visa application on 16 December 2003 expressed “serious reservations about the genuine nature of this relationship”. Those doubts were based on a number of factors, including the fact that the visa applicant “is a long term overstayer who clearly demonstrated a desire to remain in Australia” and on the lack of joint assets or commitments (T p230). The delegate who made the decision to refuse the spouse visa accepted the genuineness of the relationship, however (T p14), and the respondent maintained that position at the hearing. The nature of the relationship is, however, relevant to the question of hardship. There is no doubt that during their time living together in the Cremorne apartment then owned by Mr Sneddon’s mother that they were functioning as a couple. She was fully financially dependent on him, and while they did not have any joint property or commitments, that can be explained by the fact that her unlawful status made it impossible for her to open a bank account. Besides, Mr Sneddon is an accountant by profession and could well be expected to take charge of the financial side of the relationship. Their social life was conducted jointly and Ms Da Silva became well acquainted with Mr Sneddon’s parents and other close relatives. Relations seem to have been harmonious all round.
28. If a spouse visa is not granted, Mr Sneddon thinks it would be impracticable to move to Brazil to be with Ms Da Silva. All his family live in Australia and he does not wish to be separated from them. He does not speak Portuguese and is a manager at Australia’s largest insurance company, Insurance Australia Group. His current role as the finance and planning manager of the workers’ compensation business entails interpreting monthly results and reporting on them, running the budget process, and providing monthly reports to management. His specialist skills lie in areas that require an intimate knowledge of historical events, legislative changes and the markets in which the company operates. Many of those skills would not be transferable and would be of little use in Brazil. The specialised nature of his work would make it impossible for him to secure a similar position in Brazil, partly because of his inability to speak Portuguese. The employment prospects for someone in his situation would be poor, particularly in view of the Brazilian economy’s recent listless performance and high unemployment levels.
29. “If Cristina is refused a visa”, he writes in his statutory declaration, “I intend to go to Brazil to visit her, but I do not see any way that I could remain in Brazil permanently. Unless she is able to come to Australia to live I am not sure how the relationship could continue as I would find it impossible to live in Brazil permanently or for any extended length of time” (Exhibit A4). At the hearing he said they are trying as hard as they can to maintain the relationship, speaking once a week by telephone and emailing each other in between times. He said he still regards the relationship as his main support: “If I have to I will maintain it [the relationship], depending on the outcome”. Brazil’s high crime rate has created a problem as the laptop computer and mobile phone that he purchased for Ms Da Silva have been stolen. But the relationship continues: “It’s harder to keep in contact now, but it’s [ie the relationship] still quite strong, I think”, he concludes. I note that he did not say in evidence that he is still suffering ill-health as a result of their separation, as was submitted to DIMIA in February 2004 (T p238).
Application of the Law and Findings of Fact
30. As stated above, the first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), Ms Da Silva passes the “character test” having regard to her past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
31. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that Ms Da Silva does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to refuse the grant of a visa, notwithstanding that the visa applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
32. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case is paragraph 1.9(a) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law.
33. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
34. Before making a decision on whether Ms Da Silva passes the character test, it is appropriate to set out my findings of fact on that issue. I find that the visa applicant committed a number of breaches of the immigration legislation, namely remaining in Australia as an unlawful non-citizen for a period of four years and 11 months, being a substantial amount of time, and working illegally during that period. She also breached the conditions of her student visa by withdrawing from her course of studies and not satisfying the course requirements.
35. Mr Kessels pointed out that it is not an offence to remain in Australia without permission. The closest the Migration Act comes to criminalizing conduct of that kind is to provide (in s 197A) that it is offence to escape from immigration detention (Al-Kateb v Godwin and Others (2004) 208 ALR 124 at 176-177). Consequently, the applicant’s statement of facts and contentions states, “While the decision to remain unlawfully in Australia might reflect on a person’s character, the extent to which it shows that a person is not of good character depends upon the circumstances of the breach” (Exhibit A6 para 12). The visa applicant did not come to Australia with the intention of remaining unlawfully or at all, it was argued. It was only after she decided to withdraw from her Master’s program and moved to Sydney that she took that step. “This decision was made in part because she wanted to spend more time in Australia, in part because of her fear that she might not find full-time work in Brazil and that her family would be unable to support her, and in part because of her wish to be able to send some money to her family” (id para 13).
36. Nevertheless, on the scale of migration misconduct, remaining unlawfully in Australia for almost five years must count as very serious. It was not inadvertent; Ms Da Silva knew at all times that it was unlawful to overstay her visa. What began as an act of irresponsibility evolved into a calculated design to evade the Commonwealth’s migration law. She moved to Sydney where she would be less likely to be noticed; she worked for cash and paid no income tax so that there would be no record of her presence and employment. She ceased working after she met Mr Sneddon, partly in order to avoid detection. She remained unlawfully in Australia for an additional period of time in order to meet the threshold requirement for de facto spouse status.
37. At her interview the visa applicant said she decided to leave Australia after she was advised by a migration agent that it was necessary for her to leave in order to lodge a spouse visa application (T p230). If she had not received that advice, she might well have never departed or come forward with a view to correcting her unlawful status. In her statutory declaration of 7 May 2003 she made it plain that her decision to stay was based on the difficult economic situation in Brazil, and the better wages and work opportunities available in Australia, seemingly taking the view that those considerations justified her remaining unlawfully. She appeared to regard migration law as an inconvenience to be circumvented rather than as a set of rules with which she was bound to comply. She claims that she was naïve and did not know what she was doing (Exhibit A5), but she was a grown woman of 30 when she made the decision to remain and work unlawfully, in full knowledge of the illegality involved. Her conduct reveals a pattern of calculation and her expressions of regret and contrition are of recent date.
38. She worked without permission for approximately two years, thereby committing a criminal offence, and ceased doing so only as a result of concerns expressed by Mr Sneddon, which were based in part on the risk of detection. She entertained hopes of regularising her status, but took little action on her own to bring them to fruition. She consulted a migration agent in mid-2002 only following repeated promptings by the applicant.
39. Although the visa applicant may not have come to Australia with the intention of remaining unlawfully, her breaches of migration law were serious, deliberate and indicated a contempt or disregard for the law. I therefore conclude that the visa applicant does not pass the character test in s 501(1).
40. Having decided that Ms Da Silva does not pass the character test by reason of her misconduct and abuse of Australia’s migration system, I must then decide whether to exercise my discretion under s 501(1) to decide, nevertheless, whether not to refuse the grant of a visa to Ms Da Silva. In exercising this discretion, the tribunal must have regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
41. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Paragraph 2.4 explains:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.
42. Examples of what the Government views as serious offences are set out in paragraph 2.6. These include, in subparagraph (c), serious crimes against the Act, which in turn includes “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
43. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or similar offence”.
Protection of the Australian Community
44. The first factor to be considered under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act, and in particular, paragraph 2.6(c) dealing with serious crimes against the Migration Act. Although the visa applicant’s conduct is not of a kind specifically mentioned in paragraph 2.6(c), when taken as a whole, an unlawful stay of almost five years and a willingness to ignore the laws of the Commonwealth in a substantial way must be regarded as a very serious contravention of the Migration Act.
45. Mr Kessels argued on behalf of the applicant that there is no evidence to suggest a risk of recidivism. The respondent replied that the visa applicant has demonstrated a readiness to act in breach of the law to facilitate her own objectives. Her unlawful conduct originated in economic motives which for some time she seemed to regard as justifying her behaviour.
46. The respondent submitted that deterrence was a significant factor in this case, pointing out that there have been a number of cases before the tribunal recently involving individuals committing similar breaches of migration law. The number of cases of this kind that have come before the AAT demonstrates, it was argued, the prevalence of such actions and therefore the need to deter them. Mr Kessels contended on the other hand that while there might be some deterrent effect if a visa were refused, it was hard to imagine how that could be measured for the purpose of weighing this consideration. Further, he urged the tribunal to consider the effect of granting a visa would have on others living illegally in Australia at present. A favourable decision by the tribunal could lead others to come forward as the visa applicant did in this case (but only after the applicant pressured her to) and voluntarily leave Australia, resulting in a decrease in the number of people living unlawfully and undetected in Australia. It is true that the deterrent effect of a particular decision is difficult to measure in advance. It is perhaps more helpful to express the proposition in positive form by saying that if bad conduct is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. And while more favourable decisions in cases of this kind might induce more people living in Australia to come forward and depart voluntarily, that inducement would operate by negating the deterrent against entering or remaining unlawfully in the first place.
Expectations of the Australian Community
47. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:
Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.
48. Thousands of people who have applied lawfully to enter or stay in Australia are currently waiting for permission to do so. The number of available places in the program is necessarily limited, and fairness towards lawful applicants requires that they should not be displaced by persons such as this visa applicant who have committed major breaches of the Migration Act. In my view the community expects that the migration program will be administered in such a manner as to favour those who obey the law rather than those who set out to subvert it. That expectation weighs against the grant of a visa in this case.
The Best Interests of the Child
49. The third primary consideration, the best interest of the child, is not relevant to this matter.
Other Considerations
50. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
51. There is a genuine de facto relationship to be taken into account in this case. Mr Sneddon was aware from early on in the relationship (July 2001) that the visa applicant was living and working unlawfully in Australia and his immediate reaction was, “How can we continue the relationship?” That indicated a full awareness of the risk that the visa applicant might not be able to remain in Australia, and of the possible consequences for the burgeoning relationship. Indeed, he was more than aware, he was complicit in her conduct, to the extent of urging her to stop work in order to avoid detection. He repeatedly raised with her the problem of her unlawful status, but she assured him that she could sort it out through the hoped-for sponsorship by the construction company, and he was content to let the relationship “meander along”, as he put it.
52. Mr Sneddon has a contingency plan ready for the possibility that a visa will not be granted. He said at the hearing that he would visit her in Brazil; he would continue to support her for a time, until she found better employment, “but not long-term”. He considered it impracticable to move to Brazil because of the specialised nature of his professional qualifications and because of his lack of knowledge of the Portuguese language. He wishes the relationship to continue, but his at times cautious language concerning its condition and prospects suggests that time and distance may have frayed the bond slightly.
53. The principal migration officer at the Brasilia embassy wrote in relation in exercise of the discretion, “It is accepted that if the application were to be refused that Mr Sneddon would be adversely affected in the short term” (T p14). The use of the phrase “in the short term” may be her delicate way of suggesting that Mr Sneddon is unlikely to face a lifetime of enforced solitude. Be that as it may, the applicant has a clear idea of how he would cope with the refusal of a spouse visa, though he would greatly prefer not to be in the position of having to give effect to it.
54. Mr Sneddon’s family, with the exception of the visa applicant, all reside in Australia and will not be adversely affected if the visa is not granted. Ms Da Silva’s family, with the exception of the applicant, all live in Brazil and will not be adversely affected if the visa is refused.
55. I therefore find that the secondary considerations in this matter do not outweigh the primary considerations of the protection of the Australian community and community expectations. In my view the decision under review should be affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 15 and 16 November 2004
Date of Decision 30 November 2004
Solicitor for the Applicant Mr R KesselsSolicitor for the Respondent Ms J Maurer
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