Still and Minister for Immigration and Citizenship
[2008] AATA 759
•28 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 759
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1664
GENERAL ADMINISTRATIVE DIVISION )
Re SAMUEL STILL
Applicant
AndMINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date28 August 2008
PlaceSydney
DecisionThe decision under review is affirmed.
……………[sgd]………………...
Ms N Isenberg, Senior Member
CATCHWORDS
IMMIGRATION & CITIZENSHIP – application for Combined Partner (Provisional) (Class UF) visa - character test – breach of migration law – use of false passport – unlawfully resided in country – worked without consent – false and misleading information in application for protection visa – discretionary considerations – protection of the Australian community – expectations of the Australian community – best interests of the child – other relevant considerations – degree of hardship – compassionate considerations - decision under review affirmed.
RELEVANT ACT:
Migration Act 1958: ss 234, 235, 236, 499, 501
CITATIONS
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192; [2000] AATA 87
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Karalis and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 483
East and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1231
Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421
Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156
Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269
Green v Minister for Immigration and Citizenship [2008] FCA 125
Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244
Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89
Al-Kateb v Godwin (2004) 219 CLR 562
Robtelmes v Brenan (1906) 4 CLR 395
Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480
Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474
Aporo v Minister for Immigration and Citizenship [2008] FCA 102
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
OTHER AUTHORITIES
Direction - Visa Refusal and Cancellation under section 501 – No.21
REASONS FOR DECISION
28 August 2008
Ms N Isenberg, Senior Member
1. This is an application by Samuel Still seeking review of a decision by the Respondent's delegate to refuse to grant his wife (the visa applicant, Ms Yaya Farida) a Partner (Provisional) (Class UF) visa. Ms Farida was refused a visa on the grounds that she did not satisfy the character test set out in s 501 of the Migration Act1958 (‘the Act’; ‘the Migration Act’).
Background
2. Ms Farida is in Indonesia. Her visa application was refused by the delegate on 20 March 2008 on the basis that she did not meet the character test.
3. Ms Farida first arrived in Australia on 8 January 1989 as ‘Yaya Farida’. She applied for a protection visa which was refused by the delegate and this refusal was affirmed by the Refugee Review Tribunal on 5 January 1998. Ms Farida departed Australia on 6 May 2000. She then arrived in Australia for a second time on 28 November 2000 using the name ‘Farida Namya’. She departed Australia on 6 August 2002 after making various visa applications. She then arrived in Australia for a third time on 30 May 2003 again using the name ‘Farida Namya’. She again departed Australia on 16 January 2007. She attempted to enter Australia again on 12 March 2007 but was turned around at Sydney Kingsford Smith Airport.
Issue
4. The issues to be decided by the Administrative Appeals Tribunal (‘the Tribunal’) are:
(a)Does Ms Farida pass the character test in s 501(6)(a) of the Act having regard to her past and present general conduct?
(b)If not, should the Tribunal exercise its discretion to set aside the decision made by the delegate of the minister to refuse Mr Still visa application, applying Ministerial Direction No 21?
Relevant law and policy
5. Under s 501(1) of the Act, the Minister may refuse to grant a visa if the visa applicant 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 grounds in the current matter are ss 501(6)(a) and (c), as follows:
…
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
…
(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; …
…
6. ‘Substantial criminal record’ is defined in s 501(7) as:
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;
…
7. Under s 499(1) of the Act, the Minister may give written 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 this 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.
8. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction - Visa Refusal and Cancellation under section 501 – No.21 (Direction No 21). 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 determining whether or not the non-citizen should be permitted to enter or remain in Australia.
Mr Still’s evidence
9. Mr Still said he met his wife in 2004 at a bus stop at Gladesville when he asked her if she had been waiting long for the bus. They had a coffee and then arranged to meet again in a few days. Despite their 20 year age difference they became friends, and later developed a romantic relationship. They talked about books, religion, cooking and international travel. They talked about growing up and that in her family there was no arguing between the parents; unlike his family situation. They had a dream of opening a Bed and Breakfast because he is so good with people.
10. At first she did not tell him about her migration problems, but he came to think there was something she was not telling him. It was ‘a few years’ before he found out; nothing was discussed in the first year and a half. Mr Still said she told him sometime in the second year they were together that she had overstayed her visa and that she had used a false passport. Mr Still said it was he who persuaded her not to leave the country because of him, although she did return to Indonesia to see her ill mother. They married somewhat unexpectedly in Indonesia, in an Islamic ceremony, at great expense, to please Ms Farida’s mother. He could not remember if he actually proposed.
11. He knows that she was a single mother and came to Australia initially to educate her daughters in a ‘civilised country’ because Indonesia was so corrupt. He said she had ‘sacrificed everything for her children’. He said she had been wealthy herself but her houses had been taken over by other people and it was too difficult to claim them back due to corruption. He also said she had ‘sacrificed her houses’ for the children’s education. Mr Still commented that his wife did not like the corruption in Indonesia, but acknowledged that it was because of the corruption that she had been able to get a passport in another name.
12. He said his wife motivated him and helped him get a job in about August 2006. Prior to that time, he had last worked in about 1997. Mr Still said that she would drive him to interviews and helped to prepare his resume. She ‘smartened [him] up’, by getting him into expensive suits and shoes. She would get him up in time to go to work and would come and visit him at lunchtime. With her support he was promoted. She also motivated him to get back to judo, and, he said, he has the potential to be a champion. He wanted to prove himself to his wife.
13. Mr Still said that since his wife returned to Indonesia he has gone downhill. He has been sacked from his (day) job and since she left, he barely turns up for his night-fill job. He now has little contact with the friends he made at his previous work, with whom he was formerly close.
14. He said he needed someone to love him and it is, in his view, ‘imperative’ to get his wife back. He regards her as his best friend. He has Attention Deficit Hyperactivity Disorder (ADHD) and bipolar disorder and possibly agoraphobia, as well as other ‘issues’. Mr Still said his wife would keep him calm. He has had a difficult family relationship. His mother is unwell and he alleges his father mistreated him when he was younger because of alcohol. He said he has seen six different psychiatrists and has received conflicting advice about his condition and contradictory treatment. He does not currently take any medication because it interferes with his thought processes. Mr Still said that when his wife was here he would take his medication, but then found he did not need it. He said he doesn’t smile anymore and has lost ‘50%’ of his body weight since she has gone.
15. Mr Still said his wife would feed him because he has no cooking skills whatsoever. He also said he has poor domestic skills and relied on his wife.
16. His brother has never met his wife and it appears he and his brother are estranged. Mr Still disapproves of his brother’s associates, who he thinks are criminals. Mr Still thinks his brother’s supports his relationship with Ms Farida because it will stop him harassing their mother. He said he is estranged from his father, but then said that his father had phoned him twice during the course of the hearing to enquire how it was going. His evidence was equivocal as to whether his parents had met his wife. He said he had a Muslim friend at work, who had met his wife and said that he liked her.
17. Mr Still said that he was ‘a nice guy’ when he was with his wife, but otherwise he is prone to angry outbursts and gratuitous violence if he feels provoked. He thought he was perhaps slowly improving before he met her but his improvement accelerated with her assistance. He agreed that there were occasions when she was afraid of him, such as when he was going to cut up her prayer rug, but that she managed to calm him down. He said nobody loves her like he does and he would never hurt her. He said that because she was prepared to sacrifice her life for her children, she would be prepared to care for him. He thought that she could have got someone rich or stable, but she prefers him. Mr Still said his wife would not leave him because she knows she has nothing to fear.
18. Her daughters are well off but they do not like him, probably because he is not Muslim. He in fact converted to Islam before their wedding in Indonesia in March 2007, but regards himself as having ‘Christian values’. He said that because her daughters do not like him they are hard on their mother. Although one of the daughters lives in Australia he does not see her.
19. Mr Still said it would impossible for him to live in Indonesia. He would find the corruption intolerable; he does not speak the language, would be unable to get a job and would have no money. He would not receive proper treatment for his mental illness. Mr Still said that he and Ms Farida had talked about going to a different country altogether, but he doubted he would be allowed anywhere because of his mental condition and criminal convictions (in evidence, he said that he had had ‘20 years gaol, but they let me off because of my mental condition’ (sic)), and she would not be allowed anywhere because of her previous passport fraud.
20. He said his wife had lived a blame-free life in the years she was in Australia ‘without even a speeding ticket’ and that Australia has ‘nothing to worry about’. He also said she had repaid all her credit card debts. Mr Still said that Ms Fairda would never be in trouble again, because her only offences are immigration offences and, if she is in Australia as his wife, there will be no more immigration issues. He said there was no retrieving the situation after ‘the first lie’ (overstaying the first visa) and she had only done that to help her children. She had been naïve and had ‘already paid the price’ of her mistakes by being compulsorily separated from her husband for a year and a half. She is ‘decent and hardworking’, ‘old lady’ (of 54) and should be treated with compassion.
The visa applicant’s evidence
21. In evidence Ms Farida said she had first come to Australia with her then-husband in 1989 and overstayed her visa because she was looking for place to educate her daughters. Her daughters came to Australia in 1991 and went to school at SCEGGS and Ascham. She knew she was staying here illegally but really could not afford to go back to Indonesia.
22. She said she had applied for a protective visa in 1996 because she had already overstayed her visa and wanted to stay with her grandchildren. She acknowledged that she had claimed she feared persecution in Indonesia because her father was a member of the Communist party, but said that that was a long time ago.
23. As to why she came, on her second visit in November 2000, on a false passport she said her daughter's marriage was in difficulty and she needed to help her daughter who was very distressed. She said that because she had overstayed on her own passport she would not be able to come in her own name. She was readily able to get a false passport in Indonesia and to obtain a tourist visa. Ms Farida knew that her tourist visa did not permit her to work in Australia but she worked anyway – as a cook in a retirement village.
24. When she came again May 2003, again using a false passport, she said her daughter was remarrying and the children did not like their stepfather. Her daughter wanted her in Australia for the wedding and she thought she needed to be here for about a year to help her grandchildren adjust to their new father. Her grandchildren in Australia are now aged 14, 11 and three months. (She had difficulty recalling their ages and only recalled the third grandchild on Mr Still’s prompting.) Ms Farida also acknowledged that on entry into Australia in May 2003 she had a credit card in another name, but said this was her ex-husband’s name.
25. She said she met her husband, Mr Still, in about July 2003 (although he interjected that it was late 2004). Initially they were just friends. She said that when she was with him she did not feel that she was older than him. They fell in love and she moved in with him about six months after they met. He proposed to her and, while she agreed, she wanted her mother’s blessing.
26. She said she gave her husband ‘moral support’ and made him feel confident. Although he was capable of caring for himself he needed comfort and love. She would cook and wash for him.
27. Ms Farida said that sometimes they would argue and he would yell when he got upset, such as if she came home a bit late. Ms Farida thought this was a normal reaction; his anger never lasted long. She said that she did not understand him to have mental problems. She was referred to two letters she had written to Mr Still dated 27 and 28 January 2006 where she wrote of being frightened of him and leaving him. She said that she did not mean it.
28. She said she had met his mother several times and had spoken on the phone with other family members. She confirmed that while her sisters accepted Mr Still, her daughters disapproved. She said one daughter remains in Australia and the other two, and their children, live in Indonesia.
29. Ms Farida presently works as a cook in a restaurant owned by her sister and lives on the premises. She said she sometimes has to borrow money, however she also said she has five diamond rings and a property her mother left her.
30. She agreed that the tourist visa she had applied for in 2007 was inaccurate because she wanted to come and live in Australia permanently with her husband. She said she and her husband had received conflicting advice from the Department about getting a spouse visa. She just filled out the forms her husband gave her.
31. Ms Fairda said that the only option available if this application is refused is for he husband to live in Indonesia with her. She said they would have to find their own accommodation. She could not think of an alternative.
Other evidence
32. In evidence before me, were the ‘T-documents’ lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the statement of facts and contentions filed by the respondent. I also had a number of documents tendered by Mr Still relating to his medical condition, financial circumstances and employment.
33. In support of his contention about his health Mr Still tendered a treating doctor’s report dated 1 July 2008 by his General Practitioner (GP), Dr Buat. Dr Buat wrote that Mr Still has suspected bipolar affective disorder and that Mr Still has not being diagnosed because he ‘moved addresses’ before specialists could confirm his condition. He said Mr Still had been on a number of different medications without sustained benefit. Mr Still’s Centrelink disability support pension cards show that Mr Still’s address from 2003 to 2005 was at Cattai, and that he had been at Tennyson Point (Gladesville) since the time he first met his wife.
34. Dr Buat wrote that Mr Still's present symptoms are extreme anxiety including agoraphobia and that he is ‘not taking any regular medication’. He was said to be unable to use public transport and that ‘legal’ proceedings are adding to his anxiety and insomnia. He was said to have ‘much’ difficulty with ‘personal survival skills’ and that he was unable to relate to others. The treating doctor’s report also stated that Mr Still’s difficulties are permanent.
35. Mr Still tendered a discharge summary from Hornsby Hospital (Northern Sydney Central Coast Area Health Service) in respect of his admission between 30 August and 8 September 2000 for an acute psychotic episode with mood disturbance following apprehension by police for fraudulently using his father’s credit card. The report would suggest that the charges were dismissed because of his psychiatric condition. The discharge summary stated that he expressed ‘grandiose ideas’ and was delusional, having auditory hallucinations. He was discharged with medication and was to attend a psychiatrist.
36. He tendered a referral by a GP, Dr Tran to Dr Hampshire, psychiatrist dated 23 January 2008. Mr Still was described as having a ‘long psychiatric and forensic history’ and it was noted that he had had ‘multiple mental health workers in the past’. He was said to be ‘upset and frustrated’ by his wife’s deportation. There was no evidence that he had attended an appointment with Dr Hampshire.
37. Mr Still tendered a letter from a social worker from the Ryde Community Mental Health Centre, dated 30 July 2008, inviting him to see a Psychiatric Register again. There was no evidence that he had done so.
38. Mr Still also tendered two reports of counselling at his work, dated 11 February and 13 February 2008. The first referred to performance review in January 2008 where his performance was said to be poor and he was formally warned. There was no improvement. He complained to his supervisor that, for example, he was not invited on the staff night out and that his birthday was only recognised by balloons. He was provided with more training and there was a work plan. He did not improve and he was terminated.
39. A notice of assessment for year ending 30 June 2007 which showed a taxable income of $54,302, which he said, demonstrated his ability to work when he was with his wife.
40. He tendered some financial counselling advice he had received from Christian Community Aid in relation to his Centrelink debt, which he said was about $16,000.
Consideration
Does Ms Farida pass the ‘character test’?
41. The first issue for me to decide is whether, pursuant to s 501(6)(c)(ii), the visa applicant passes the ‘character test’ having regard to her past and present general conduct. The concept of good character was outlined by the Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277, at [8] as:
… 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…
42. This requires an objective consideration of the visa applicant’s ‘enduring moral qualities’ (per Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431) but does not require the visa applicant to meet the highest standards of integrity: ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192; [2000] AATA 87. 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: Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780 at 781.
43. 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 are paragraphs 1.9(a), (b) (c) and (d) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law, whether the non-citizen has in connection with the application for a grant of a visa provided a bogus document or made false or misleading statements and whether the non-citizen has made a false or misleading declaration on an approved form about the non-citizen’s character. Further, whether the non-citizen has been removed/deported from Australia.
44. There did not appear to be any dispute that Ms Farida had committed several breaches of migration law over a number of years, namely, being the subject of a deportation order, remaining unlawfully in Australia and providing false and misleading statements and documents.
45. Ms Farida remained in Australia unlawfully on three occasions. On the first occasion she was the holder of a tourist visa in 1989, and remained unlawfully in Australia after her visa expired on 8 April 1989. Secondly, following a deportation order made on 23 September 1991, she unlawfully remained in Australia until 23 April 1996 when she applied for a protection visa. She again remained unlawfully in Australia after her tourist visa expired on 30 August 2003 until her voluntary departure on 16 January 2007.
46. Ms Farida provided misleading statements and false documents to Australian immigration officials in order to obtain a visa to enter and remain in Australia. She provided false information and documents with her visa applications in relation to her name and date of birth. She also provided false passports, identity cards and documents in relation to her employment history.
47. I find that because of these breaches of immigration law, Ms Farida does not pass the character test in ss 501(6)(c)(ii) of the Act. She was prepared to obtain bogus documents and made statements which were false or misleading in multiple particulars. I was asked to accept that once she had overstayed her first visa she had no option but to obtain false documents in order to be able to come here again in support of her daughter. I do not accept this as a countervailing factor.
48. 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. Therefore I must take account her recent good conduct. There was no evidence one way or the other about Ms Farida’s conduct since her return to Indonesia last year. She appears to be living quietly, working in her sister’s restaurant. I was asked to accept that she was law-abiding while she lived here. I accept that she may not have come to attention, but it is inescapable that she was here illegally and was working her illegally. It is understandable in those circumstances that one would keep a low profile. I can only assume too, that she made no taxation contributions in the time she worked here.
49. I conclude that her activities indicate disregard for the law of this country. In my view she fails the character test.
Should I exercise my discretion under s 501(1)?
50. Having decided that Ms Farida 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. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion. Paragraph 2.2 provides that a decision-maker should have regard to the three primary considerations but should also adopt a balancing process which takes into account all relevant considerations.
51. Paragraph 2.3 sets out the primary considerations as:
i.The protection of the Australian community, and members of the community.
ii.The expectations of the Australian community.
iii.The best interests of any child or children.
Protection of the Australian community
52. 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.
53. I am to take into account the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence: paragraph 2.7. 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.
54. Paragraph 2.5 of the Direction provides that the factors relevant when considering the level of risk to the community includes the seriousness and nature of the conduct, the likelihood that the conduct may be repeated and general deterrence.
The seriousness and nature of the conduct
55. 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 ‘presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia’.
56. Ms Farida has made false and misleading statements in connection with proposed entry or stay in Australia. Although she was not prosecuted, this conduct which was not denied, prima facie amounts to an offence under s 234 of the Act, which carries a penalty 10 years imprisonment or a fine of $110,000, or both.
57. Ms Farida did not deny that she had worked while illegally in Australia, without permission to do so. Again, she was not prosecuted but this conduct, prima facie amounts to an offence under s 235(3) of the Act, which carries a penalty of a fine not exceeding $10,000.
58. Ms Farida did not deny that she had used a false identity to gain a visa in order to obtain entry into Australia. This conduct prima facie amounts to an offence under s 236 of the Act and carries the penalty 10 years imprisonment or a fine of $110,000, or both.
59. The Tribunal has in the past considered conduct such as those engaged in by Ms Farida to be very serious (see for example: Karalis and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 483; East and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1231; Issa and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 421; Dos Santos v Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 1156; and Sneddon and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1269).
60. The Tribunal is also to take into account any relevant factors provided by the applicant as mitigating factors (paragraph 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).
61. There are multiple offences, occurring over many years. The most recent offence was at the time of her attempted return to Australia on 12 March 2007. I have taken into account that she procured the false passport in order to visit her daughter who was upset and, in respect of the most recent application, that she was guided by her husband.
62. I find that Ms Farida’s repeated breaches outlined above, including working in breach of her visa conditions and providing false information on her visa applications, are very serious. Further, there could hardly be a more blatant breach of migration law than procuring a fraudulent passport.
The likelihood that the conduct may be repeated
63. The next issue for the Tribunal to consider is the risk of recidivism. As President Mathews J said, ‘once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending’: Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]. The direction states that the person’s total criminal history, including the existence of several previous convictions in Australia, is highly relevant to assessing the likelihood of a new offence and the risk of recidivism.
64. The Respondent submitted that there is a likelihood of recidivism given her conduct of engaging in immigration fraud on at least two occasions. The Applicant, however, submitted that if the visa is granted then it is unlikely that his wife would have the reason or opportunity to contravene the Migration Act again.
65. The substance of this submission was addressed in Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at [33], that:
In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person's past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.
66. Ms Farida has shown a pattern of disregard for Australian immigration laws over a long period of time. She arrived on a false passport and provided a false name and date of birth to enter and remain in Australia on various occasions. Further, she had in her possession a credit card in a false name.
67. Such conduct, which she knew to be wrong, would seem at odds with her professed strong religious beliefs. That the Applicant encouraged her to illegally remain in Australia is also at odds with his professed ‘Christian values’ and disapproval of corrupt and illegal conduct.
68. That Ms Farida has demonstrated willingness to engage in such conduct indicates that there is a risk that she may continue to do so in order to gain a benefit for herself both in an immigration context and in relation to other Australian laws.
General deterrence
69. I am also required to consider the question of general deterrence which is described as ‘the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons’: paragraph 2.11. The Direction plainly contemplates that the prospect of visa refusal will operate to deter similar conduct. Whilst not a conclusive factor in itself, general deterrence in an important factor in determining whether to refuse or cancel a visa.
70. The deterrent effect of a particular decision is impossible to measure in advance, but in the absence of exceptional circumstances I consider that exercising the discretion not to grant the visa in a case involving such a serious offence as multiple passport fraud would send an undesirable message to non-citizens contemplating, or currently engaging in, such criminal activity. The Tribunal in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, at [47], said:
Refusing an application which might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.
71. Refusing a visa application will send a clear message to others that conduct of the type engaged in by Ms Farida will not be rewarded. Further, non-citizens can expect to be refused entry or to have their visas refused if they engage in similar conduct: paragraph 2.11 of the Direction. See also: Msumba v Department of Immigration and Multicultural Affairs (2000) 31 AAR 192; [2000] AATA 87 at [39]; Tremlett v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1244 at [57]; Gorges v Minister for Immigration and Multicultural Affairs [2002] AATA 89 at [477]; Dos Santos and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1156 at [46].
72. In my view the combined effect of the three community protection factors is that this consideration weighs against the grant of a visa in this instance.
Expectations of the Australian Community
73. 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 ….
74. The Respondent submitted that the Australian community would expect that non-citizens who have engaged in similar conduct should not be allowed to remain in Australia.
75. In Al-Kateb v Godwin (2004) 219 CLR 562, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that ‘it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community’ (p 632). Callinan J added that entering aliens are taken to know and accept ‘as a term of admission … that restraint to the extent necessary to enable deportation can be imposed on them’ (p 658).
76. As Deputy President Chappell said in Re May and Minister for Immigration and Multicultural Affairs [2000] AATA 480 at [84]:
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.
In Haines v Minister for Immigration and Multicultural Affairs [2000] AATA 575 at [26] Deputy President McMahon considered community expectation as:
… an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.
77. I would think that the community would take the view that a person who procures a false passport and visas by fraudulent means and works for several years without permission to do so has forfeited any right to an Australian visa.
78. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). The Australian community, for the most part, would consider that husband and wife in a genuine relationship, should be able to be together.
79. On Mr Still’s evidence, his wife played a role in his rehabilitation. She motivated him to get a job and he said he was more stable when she cared for him. The community might consider that Mr Still may be less of a burden to the community if she were present. On the other hand, the community may have an expectation that the public as a whole, that is, taxpayers, should provide for those in need and not rely on the goodwill of others.
80. It has long been accepted, however, that any estimate of community expectations in a particular instance is premised on the assumption that the community is aware of the facts of the case at hand: Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474.
81. Ms Farida did not think Mr Still had any ‘mental problems’, although on his evidence, and the medical evidence tendered it appears his problems are long-standing. On his demeanour before me, it is unlikely she could have failed to notice that something was amiss. In that, I can only conclude, there was some naiveté. She agreed that he was prone to anger and, the letters of January 2006 would suggest that she may have considered leaving him. In the letters she referred to a possible threat of him turning her into the immigration authorities.
82. I consider that on balance the community might marginally favour not exercising the discretion in Ms Farida’s favour.
The Best Interests of the Child
83. Paragraph 2.3 of the Direction provides for the best interests of the child or children to be taken into account as a primary consideration ‘in all cases involving a parental or other close relationship between a child or children and the person under consideration’. This is not limited to a child of the visa applicant: Aporo v Minister for Immigration and Citizenship [2008] FCA 102.
84. The Respondent submitted that the best interests of the Ms Farida’s grandchildren will not be affected by the refusal of her visa as the grandchildren are in her daughter's ex-husband's custody. She had difficulty recalling the ages of her grandchildren and only recalled the existence of the third grandchild on Mr Still’s prompting.
85. I therefore find that the best interests of the children do not weigh against visa refusal in this case.
Other considerations
86. 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 that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.
These other considerations 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; and any evidence of rehabilitation and any recent good conduct.
The extent of disruption to the non-citizen's family, business and other ties to the Australian community, and family composition of the non-citizen's family, both in Australia and overseas
87. Ms Farida has three sisters and a brother in Indonesia. She has two daughters there also and a number of grandchildren. Other than her husband, she has only one daughter in Australia. Ms Farida has three grandchildren in Australia, although only one (whose birth she forgot in her evidence) resides with her daughter. The daughter has apparently met Mr Still only twice.
Genuine marriage to an Australian citizen
88. It may be that Ms Farida, aware of her illegal status, found Mr Still’s vulnerability an attraction. At the same time, he made her feel young. Each professed love for the other in their evidence.
89. I accept that Mr Still and Ms Farida may be in a genuine marriage notwithstanding their 20 year age difference. Mr Still’s evidence was that he did not know for some time that the woman he was courting was here illegally, but did think there was something she was hiding from him. By the time they married in Indonesia in March 2007 he was well aware of her status.
The degree of hardship
90. There was some evidence that Ms Farida’s daughter in Australia had been somewhat dependent on her mother through her marriage breakdown, but there was no evidence that this remains the case. Indeed, she has remarried and has another child. She wrote in her statutory declaration dated 23 March 2007 that (when her mother was here) she would see her mother ‘almost every day’. This is at odds with Ms Farida’s information that, since her return to Indonesia, she is rarely in contact with her daughter and that her daughter disapproves of Mr Still. I do not consider there to be hardship to her daughter because of her absence. It is also doubtful that her grandchildren, two of which live with their father, will suffer hardship. She has not met the third grandchild, so hardship to the child is unlikely.
91. There is no doubt though that Mr Still will suffer hardship if his wife’s visa is not granted.
92. Mr Faheem, Mr Still’s ‘great friend’, said Mr Still had been unsettled and unhappy since his wife had ‘been deported’. Mr Still’s brother provided a statutory declaration dated 23 March 2007, in which he stated that his brother had been sad and depressed since his being separated from his new wife. He and his brother only contact each other every one to three months. It is doubtful the extent to which either Mr Faheem or Mr Still’s brother could make these observations within a fortnight of the visa refusal, but I accept, on the basis of Mr Still’s evidence that he was, and remains despondent at his wife’s absence.
93. Mr Still’s evidence was that he was dependent upon his wife and that she was responsible for his temporary rehabilitation and return to the workforce. He was certainly reliant upon her to cook and wash.
94. There is some evidence as to Mr Still’s psychiatric condition currently and his evidence was that during their relationship his condition was temporarily improved. Although there was evidence of ‘longstanding psychiatric and forensic issues’ (referral from Dr Tran, dated 23 January 2008) there was, however, little evidence as to his day-to-day condition before he met his wife, from which to gauge the effect she had on his well-being.
95. It is not that Mr Still is without options in respect of his health. He has been offered psychiatric assistance but there was no evidence that he has accepted this. In evidence he said that he chooses not to take his medication because it ‘interferes with his thought processes’.
96. I do not accept that her return to Australia is ‘imperative’ as he submitted. The hardship in this case does not warrant overlooking years of deceit.
Any evidence of rehabilitation or recent good conduct
97. As I observed at paragraph 47 above, there is no evidence one way or the other about Ms Farida’s conduct since her return to Indonesia last year.
Whether the application is for a temporary or permanent visa, and, the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances
98. As a spouse Ms Farida’s visa would be permanent.
99. In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court adopted the following definition of compassion:
The feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour (p 205).
100. Compassion must, however, be distinguished from sentimentality, and it is compassion, not sentimentality, that the legislature and the executive government have directed the Tribunal to apply when exercising its discretionary power: Howard and Minister for Immigration and Multicultural Affairs [2006] AATA 474.
101. I accept that if in a genuine loving marriage, a husband and wife should be together. Their dream, of operating a bed and breakfast, whether or not realistic, is thwarted. To overemphasise this, though, is to err on the side of sentimentality.
102. While Ms Farida said that she did not notice that her husband had mental problems and she accepted his anger toward her as ‘normal’, it may be that Ms Farida did play a role in stabilising Mr Still, and that her return would be of assistance to him. His seeking proper medical attention may also have a beneficial effect, but he chooses not to do so.
103. I do not accept the submission that Ms Farida being an ‘old lady’ of 54, as a basis for special consideration. Further, Mr Still suggested that his wife was in some financial hardship, living effectively, on the welfare of her sister. I note that in her application she wrote of being able to bring $30,000 to Australia and she told me that she had five diamond rings. I note too that she told the Department that she has a maid.
104. Ms Farida is not without family support in Indonesia: she has sisters and a brother, as well as two daughters and their children. Her relationship with her daughter in Australia appears to be somewhat strained since her marriage to Mr Still and, she said, they are in contact ‘rarely’.
105. Mr Still too has family support, although the extent of this was hard to assess in view of the contradictory evidence. As far as I could tell he has no relationship with his wife’s daughter in Australia, although in his evidence he persistently referred to her children as ‘my grandchildren’.
106. Mr Still was aware before they married of his wife’s immigration misconduct including immigration fraud.
Conclusion
107. I have found that Ms Farida does not pass the character test as a result of her past and present general conduct. The primary considerations of protection and expectations of the Australian community outweigh any hardship to the visa applicant such that the discretion in s 501 should be exercised to refuse the grant of the visa.
108. I accept that the refusal of the visa will cause disappointment and hardship for Mr Still and Ms Farida and that Mr Still’s relocation to Indonesia or elsewhere may be problematic. However, those considerations are outweighed by the primary considerations of the need to protect the Australian community and the expectations of the Australian community.
109. The decision under review is affirmed.
I certify that the 109 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: …………[sgd]……………………………..
Associate
Date of Hearing: 5 August 2008
Date of Decision: 28 August 2008
Representative for the Applicant: Self-represented
Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox
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