Susilo and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 495
•19 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 495
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/245
GENERAL ADMINISTRATIVE DIVISION ) Re MELLY SUSILO Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President J Block Date19 May 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr J Block, Deputy President
CATCHWORDS
IMMIGRATION - application for parent visa –visa refused on the basis that Visa Applicant is not of good character –Visa Applicant arrived in Australia in 1986 on a visitor visa – Visa Applicant’s parents-in-law and child and husband followed – The husband of the Visa Applicant overstayed visitor visa for one year in 1984 and was deported – Visa Applicant not a genuine visitor but intended to remain permanently in Australia – Visa Applicant’s son born in Australia and attained citizenship at age ten –Visa Applicant worked illegally in Australia for entire duration of stay –best interests of child primary consideration – decision affirmed
Migration Act 1958 s234, s235, s500(6G), s500(6H), s501,
Australian Citizenship Act 1948 s23AA
Ministerial Direction 21
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298
Tavita v Minister of Immigration [1994] 2 NZLR 257
cf Simsek v Macphee (1982) 148 CLR 636
Mack v MIMIA [2004] AATA 42
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
Vaitaiki and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 1209
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
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
REASONS FOR DECISION
19 May 2004 Deputy President J Block PART A – INTRODUCTORY AND GENERAL
1. The decision under review is the decision dated 18 February 2004 by a delegate of the Respondent refusing an application for a parent visa made by the Applicant. At the commencement of the hearing, an application was made for the substitution, as Applicant, of Melly Susilo acting on behalf of her son Billy Susilo, aged 14 and a half years (“Billy”). That application was, with the consent of the Respondent, granted. Accordingly all references to the “Applicant” in these reasons should be construed as references to Billy represented by his mother Melly Susilo (on the basis of his sponsorship of her application) while references to the “Visa Applicant” or to “Melly” should be construed as references to Melly Susilo herself. Because Mrs Melly Susilo, her husband Mr Benny Susilo and her son Master Billy Susilo all bear the same surname, it is convenient (and without disrespect) to refer to them respectively as “Melly”, “Benny” and “Billy”. The amendment, and pursuant to which Billy represented by his mother became the Applicant, was applied for and granted in consequence of the fact that as a matter of law an application for a parent visa requires a sponsor; Melly erroneously applied for the parent visa in Jakarta without a sponsor.
2. Mr Lorenzo Boccabella of Counsel instructed by Coelho and Coelho solicitors appeared for the Applicant and Mr Ishan Muthalib of Blake Dawson Waldron, solicitors appeared for the Respondent.
3. The Tribunal had before it the “G-documents” lodged pursuant to section 500(6G) of the Migration Act 1958 (“the Act”), together with exhibits as follows:-
Exhibit A1 is a fax by Coelho and Coelho to Mr Muthalib dated 27 April 2004
Exhibit A2 is Melly’s witness statement dated 22 April 2004
Exhibit A3 is Benny’s witness statement dated 22 April 2004
Exhibit A4 is a witness statement by Father Paul Monkerud dated 7 April 2004.
Exhibit A5 is a report by Gerard Webster, a consulting psychologist dated 7 April 2004.
Exhibit A6 is Billy’s witness statement dated 22 April 2004
Exhibit A7 is the witness statement of Maria Agustine dated 25 March 2004; she is the daughter of Melly and Benny and the older sister of Billy
Exhibit A8 is the witness statement of Ron Emslie dated 8 April 2004
Exhibit A9 is a letter by Jeffrey Glasmacher dated 13 April 2004; in fact the letter by Jeffrey Glasmacher of that date is merely a brief additional letter referrable to his statutory declaration which forms part of the G-documents and which appears at G25.
Exhibit A10 relates to police certificates in respect of Melly Susilo, Benny Susilo and Sie Moy Wong
In the case of Messrs Emslie and Glasmacher the witnesses were not required for cross-examination and accordingly their statements can be accepted; this applies also to Ingrid de Fretes whose statement appears at G36.
4. At the commencement of the hearing Mr Muthalib informed the Tribunal that certain documents referred to at page 10 of the G-documents should have been included. Those documents (referred to in the hearing as the “page 10 documents”) were tendered accordingly.
5. This is an expedited visa matter and in consequence of which the Tribunal must issue its decision within a specified period. Furthermore and pursuant to section 500(6H) of the Act, the Tribunal cannot take account of any evidence on behalf of the Applicant unless it was received two clear business days prior to the hearing.
6. The matter was originally scheduled to be heard on one day. At the request of the Applicant however, two days were subsequently allotted and being 27 and 28 April 2004. At a telephone directions hearing held some weeks prior to those dates, I informed Mr James Coelho (“Coelho”) who represented the Applicant, and more than once, of the vital necessity of having his client’s evidence in within the statutory period prescribed under section 500(6H) of the Act and because the Tribunal is prohibited from hearing any evidence which is not tendered within that time-frame. The section in question does not vest the Tribunal with any discretion in relation to evidence tendered late.
7. The Applicant submitted the relevant evidence on 22 April 2004. It would appear that Coelho may have failed to have due regard to the fact that 26 April 2004 was a public holiday in New South Wales and elsewhere in Australia.
8. On 22 April 2004 Mr Boccabella sent a fax to the Tribunal; the first paragraph of that fax reads as follows:-
“I act on behalf of Mrs Susilo instructed by Coelho and Coelho Solicitors. At the directions hearings both parties appeared to miscalculate that Monday 26 April 2004 was a public holiday. I am instructed that at the directions hearing the parties and the presiding member agreed that the last day for filing material on the part of the applicants was 22 April 2004.”
9. In fact, Mr Boccabella’s instructions were incorrect. At the directions hearing in question, mention was made only of the two business days rule and no mention whatever was made (as alleged) of the last day as being 22 April 2004. Coelho had no right to instruct Mr Boccabella as to any agreement or statement to this effect. When this aspect was raised at the commencement of the hearing there was, but only after some prompting, a (belated) apology by Mr Boccabella on behalf of Coelho.
10. In the result the only solution was to commence the hearing on 28 April 2004, since to do otherwise would have precluded the admission of the bulk of the Applicant’s evidence. The matter could not be completed on that day. At the end of that day, I advised the parties that I would, because the matter is urgent make an additional day available in the following week, and that the only day in the following week on which I would be available for a resumed hearing was 7 May 2004. The term “first hearing day” refers to 28 April 2004 and correspondingly the term “second hearing day” refers to 7 May 2004.
11. After the first hearing day Melly was taken into custody by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”). Coelho contacted my associate to ask for the second date to be brought forward; as had been indicated previously, the only possible day in the following week was 7 May 2004 and that request could not be granted. Coelho later contacted my associate again and this time to ask for an early start on the second hearing day. I indicated that I would agree if the interpreter could be available and if Mr Muthalib agreed. In the result however the request was withdrawn. Coelho as will be noted, features in respect of certain of the evidence before the Tribunal; references to him appear in particular in the evidence of Billy and of Benny.
12. The parent visa in question was applied for, as I have said, by Melly. However she sought a visa for herself and through her, for her husband Benny who was formally Fon Tjauw Jong and also Benny’s mother Sie Moj Wong. (The papers before me indicate that Benny at some point also used another name and being Thomas Lee, but there was no mention of that other name during the hearings). All three of Benny, Melly and Benny’s mother have been in Australia for more than 18 years. It is necessary in respect of their (illegal) presence in Australia to deal in some detail with the evidence of Melly and Benny (both of whom gave evidence with the assistance of an interpreter in the Indonesian language) and, I should note, a most competent interpreter at that. Evidence was given also by Billy, his older sister Maria Agustine (“Maria”) and by telephone by Father Paul Monkerud (“Father Paul”) and Mr Gerard Webster a consulting psychologist (“Webster”). As I have indicated three witness statements were submitted on the basis that Mr Muthalib did not require the witnesses in question for cross-examination.
13. The Respondent’s Statement of Facts and Contentions dated 19 April 2004 contains the usual helpful chronology. I include in respect of that statement, clause 1, clause 6.1 and clauses 18 to 23 as follows:-
“1.The review applicant, Ms Melly SUSILO seeks review of the respondent’s delegate’s decision of 18 February 2004, to refuse to grant her a Parent visa. The decision to refuse to grant the visa was made on character grounds under Section 501 of the Migration Act 1958 (“the Act”).
…
Past and Present General Conduct
6.1 Contempt or disregard for immigration law
The respondent contends, that:
(a)the visa applicant arrived in Australia on 11 January 1986 on a V10 Visitor visa and upon arrival was granted an Entry permit allowing her to lawfully remain in Australia until 10 February 1986;
(b)the visa applicant deliberately overstayed at the expiration of her Entry Permit and has remained an unlawful non-citizen from 11 February 1986, a period in excess of 18 years; and
(c)the visa applicant was not a genuine visitor but intended to remain permanently in Australia
…
.
18In Re Ayaad and MIMA [2000] AATA 935 at paragraph 40, Purvis DP stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that 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.”
19In the circumstances, the respondent contends that it is open to the Tribunal to find that refusal of the visa to the visa applicant will send a clear message that conduct similar to the visa applicant’s is not acceptable to the Australian community and non-citizens can expect to have their applicants refused if they engage in similar conduct (Paragraph 2.11 of the policy). In this regard see Msumba and DIMA (McMahon DP, 8 February 2000, unreported at paragraph 39).
Expectations of the Australian community
20.The visa applicant has engaged in activities that the respondent contends to be of a nature such that the Australian community would expect the applicant not to be allowed to remain in Australia.
21.The policy states that 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.
22.To grant the visa to the visa applicant would be tantamount to rewarding her for her unlawful conduct, and would, in addition, confirm to others contemplating engaging in similar conduct, that such conduct is advantageous and will ultimately lead to the grant of a visa.
Best Interests of the Child
23.The visa applicant has a 14 year-old son, who is an Australian citizen. The respondent accepts that it is likely that the visa applicant’s son will be affected if the application is refused. However, the visa applicant’s son is a young boy who could more easily adapt to new circumstances such as his parent’s homeland, if he was to relocate with his immediate family. The respondent contends that the visa applicant’s family, which includes her parents and five sibling and her husband’s family all reside in Indonesia and therefore it open to the Tribunal to be satisfied that the visa applicant’s son will have social and familial support in his integration into Indonesian society.”
14. The Applicant did not file a Statement of Facts and Contentions. However Mr Boccabella did at the commencement of the hearings hand up written submissions (not final at that stage) but later replaced by final submissions. As a matter of balance, parts of his final submissions and being clauses 3 to 18 are included in these reasons as follows:-
“3. The Direction is consistent with the High Court decision of Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 where Mason CJ and Deane J concluded in relation to the United Nations Convention on the Rights of the Child.
The fact that the provisions of the Convention do not form part of our law is 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 45 (See Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 AT 343; 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 46 (cf Simsek v Macphee (1982) 148 CLR 636 at 644.) and treat the best interests of the children as “a primary consideration”.
4.Mason CJ & Deane J identified the relevant terms of the Convention as follows:
Articles 3 and 9 of the Convention provide as follows (at 286):
“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 States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
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 States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
4 Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.”
5Their Honours had earlier identified the ratification of the Convention (at 285)
The Convention was ratified by the Commonwealth Executive on 17 December 1990 and it entered into force for Australia on 16 January 1991. These events occurred before the rejection of the respondent’s application for reconsideration of the decision refusing resident status and before the Minister’s delegate made the decision to deport him. On 22 December 1992, after those decisions had been made, the Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms. This declaration was made pursuant to s47(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
6Article 9(1) of the convention is particularly apposite as it states that a child should only be separated from his or her parents where “such separation is necessary for the best interests of the child”.
7The parents indicate that they have no alternative but to leave their son in Australia if they are not granted a visa. (The child is an Australian citizen and is entitled to have the benefits of living in Australia.)
8There is no material which suggests that the separation of Billy from his parents is in his best interests.
9The Ministerial Direction is consistent with the Convention in that it says:
2.15In general terms, the child’s best interest will be served if the child remains with its parents.
10Very serious countervailing factors would need to apply to abrogate the best interests of a child where the parents and child are living together in the usual family environment.
11The following test has been applied on many occasions by the AAT where children are affected by a decision (see Mack v MIMIA [2004] AATA 42 (21.1.04) Per DP Handley:
74.The third primary consideration is the Best Interests of the Child. The Tribunal notes the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.
The Countervailing factors
12.No breach of the law can be condoned but in the scale of offences, overstaying is at the lower end. It is submitted that the moral turpitude involved in overstaying would not come near to being a countervailing factor to the best interests of a child. There can be no finding of making false statements to DIMIA. The conclusion from the material before the Tribunal is that after having spent some time in Australia, the Susilo family was seduced by unfounded rumours of an amnesty and then continued to overstay when the ‘amnesty’ didn’t materialise.
13.The expectations of the Australian community are reflected in s10 of the Australian Citizenship Act, which acknowledges that a person becomes an Australian citizen ten years after being born in Australia even if the parents arrived illegally and remained in Australia illegally.
14.Australia sees such children as part of the Australian family. Consistent with the terms of the Convention, Australia does not regard it as right that such Australian citizen children should be separated from their parents.
15.The deterrent factor is diminishing. With the advent of Tax Files Numbers being linked to getting a job, the GST system requiring invoices marked with an ABN, the closer monitoring of issuing Medicare cards, photo ID attached to drivers licences and the computer linkages between the state and federal arms of government, it becomes much rarer for people to arrive in Australia today and survive illegally for well over a decade.
16.Mrs Susilo’s case is a rare case as it is not that often that an unlawful non-citizen can remain in Australia long enough to have a child born in Australia who becomes an Australian citizen after 10 years.
17.The respondent has presented no evidence of a floodgate effect. If there was evidence of a floodgate effect, there is no doubt that such evidence would have been presented. There is no evidence of a long queue of unlawful non-citizens applying for parent visas.
18.It is submitted therefore that the countervailing factors do not outweigh the bests (sic) interests of the child.”
15. In the afternoon of the hearing on the first hearing day, Mr Boccabella filed a document entitled “Concession” signed by himself as Counsel and pursuant to which Melly acknowledged that she did not pass the character test. I should note that in the light of Melly’s evidence thus far, it had become perfectly clear (without any concession on her part) that this was so.
16. Because this is an urgent matter and bearing in mind that it did not finish on the date scheduled, I have not ordered transcripts of the hearings and intend to rely, in dealing with the evidence, on my detailed notes (and which are, I believe, accurate) taken during the course of the two hearing days.
17. It is perhaps desirable by way of overview to note that Benny came to Australia, but under his original Chinese birth name, in 1984, on a tourist visa. He overstayed and began working illegally. About a year later he was apprehended by DIMIA and deported from Australia. In January 1986 Melly arrived in Australia on her own on a tourist visa and even though Maria her daughter was then very young and in fact about 18 months old. In August 1986, Maria arrived with Benny’s parents on tourist visas. Benny’s father died in Australia some years later but his mother remains here. Maria, after turning 18 acquired permanent residence rights for herself. In 1987 Benny who had changed his name returned to Australia on yet another tourist visa, and has been here ever since. Melly and Benny have both worked illegally for all of the intervening years. Billy was born in 1989 in Australia; Melly in her witness statement said that his birth was not planned. Ten years after his birth, Billy qualified for Australian citizenship and obtained it without delay. Within a month of his obtaining citizenship his mother had applied for the parent visa to which I have referred.
18. As the evidence unfolded it became ever-increasingly clear that from and after Benny’s original arrival in 1984, the Susilo family intended to settle in Australia. Although each of them came on a tourist visa (excluding of course Billy who was born in Australia) not one of them had any intention whatever of returning to Indonesia; (as to whether Billy’s birth was part of the grand strategy cannot be known with certainty but it is certainly a possibility, and given the unreliability of the evidence of Melly and Benny, may even have been a probability). In the light of the evidence before me, I would make the finding set out in the first sentence of this clause 18 not merely on the balance of probabilities but beyond any possibility of doubt. Moreover and most regrettably, the evidence of both Melly and Benny was entirely to the contrary.
PART B – THE EVIDENCE OF MELLY
19. Melly’s witness statement exhibit A2 reads as follows:-
“STATUTORY DECLARATION
I, Melly Susilo (dob 31/08/1954) of West Ryde, in the State of New South Wales, say on oath:
1. I am Billy William Lee Susilo’s mother. Billy is 14 years old.
2. I have looked after Billy since the day he was born.
3.I have looked after his day to day needs, taken him to school and picked him up since pre-school.
4. I ensure that he does his home work and eats well.
5. I ensure he showers and washes and is on time for classes and sports.
6.My husband and I have ensured that he attends church with us on Sundays and receives a Catholic Education.
7.When I came to Australia in 1986, it was for a short holiday, however, as an Indonesian Chinese I have experienced difficulty in Indonesia. Australia impressed me greatly as a safe country for my family. I did not feel like going back.
8.During this time, I enrolled Maria, our daughter, in a day care centre when she was 2 years old and then one thing led to another I continued to overstay my visa.
9.My husband Benny came to Australia in February 1987 and when he arrived, I told him words to the effect, “better stay here, it is a better life for the future”. After a couple of days, he agreed with me that Australia was better for our daughter to grow up.
10.I did not know many people in Australia at the time, but in speaking with various people in the Indonesian community, there was a rumour that there would be an amnesty in 1988 during the Bicentenary Celebrations.
11.We remained in Australia initially because of our daughter’s welfare and schooling and then in 1989, Billy was born.
12. Billy’s birth was not planed.
13.Then in 1990 we heard about a humanitarian amnesty which lasted for 2 years but we did not apply as we could not obtain advice with certainty that we could qualify. We were scared to try.
14.I am so sorry for breaking Australia’s immigration law and also worked unlawfully. Actually, I don’t like to do bad things.
15.I have had casual work from time to time to help put food on the table, to pay for rental accommodation and living expenses. I had very young children to provide for.
16.The work I have been able to acquire was mainly casual or temporary work as a seamstress for various small dressmaking businesses.
17.On more than one occasion I narrowly escaped being found out when someone informed the employer about my immigration status. Then I would be without work until someone offers me a casual position again.
18.In relation to Question 29 of the Form 47PA, I put in the figure of AUD$20,000 to indicate that we would have funds to settle into Australia and therefore would not be a burden to the Australian government. My husband’s and my intention was to borrow most of the money if necessary from relatives in Indonesia.
19. We do not have those funds in savings.
20.We have survived with minor casual, temporary and contract work which my husband and I have been lucky to acquire. All our earnings and our efforts have been for our two children to have a good life in Australia and not for ourselves.
21.Our daughter Maria visits home every week and often has dinner at home with us. We are a close family and both our children still attend Sunday Church with us.
22.If we are finally rejected in this application and have to return to Indonesia, we will leave Billy in Australia as he was born in Australia and is an Australian citizen. I want him to enjoy the opportunities and privileges available to him living in Australia.”
20. Melly’s evidence in chief was comparatively brief. She attested to the truth of exhibit A2. She was asked whether if she had to leave Australia and go back to Indonesia she would take Billy back as well. Her answer was that Billy disliked Indonesia and that she would leave him in Australia and if necessary would seek the assistance of Father Paul.
21. Melly said that she had completed high school in Indonesia. She then went on to study accounting at an academy but did not complete her studies.
22. She said that she had always worked in Australia. She said also that her wages were always taxed. This evidence was subsequently amended; tax was deducted when she worked for an employer; she has not paid tax however on her “cash in hand” earnings derived from her work as a seamstress and from assisting with disabled children. Melly said furthermore that she and Benny have an accountant (Oliver Pang) and they both have tax file numbers.
23. On the second hearing day Mr Boccabella informed me from the Bar table that although, because of the provisions of section 500(6H) of the Act, I could not accept them into evidence, he could assure me that both Benny and Melly have filed tax returns throughout; however and when I noted that there had been evidence of very small “cash in hand” earnings in respect of each of them and for a number of years, Mr Boccabella replied that they had not been obliged to pay tax during those periods by reason of the fact that they were both below the tax free threshold. I indicated at the hearing that I would accept his assurance and bearing in mind that he is a member of the bar; at the same time it is difficult to imagine how on earnings below the taxable threshold, both children could be sent to private schools; moreover there was evidence before me at a later time by Maria that Melly paid for Billy’s trip to Indonesia in 2003.
24. Melly said also that she earned by way of cash in hand wages about $200 to $250 dollars per week. She said moreover that Benny since 1995 had also worked on a casual and “cash in hand” basis, and as a handyman, earning between $300 and $350 per week. (That evidence was in conflict with exhibit A8 and being the statement by Mr Emslie who said in categoric terms that Benny worked under his supervision at Starch Australasia in Lane Cove from 1995 to 2000).
25. Melly said that she came to Australia in 1986 for a short holiday of one month. She thought Australia was a good country and decided to stay here. She said that she had heard that there was a possibility of an “amnesty” to be granted in 1988 and being an important anniversary for Australia. (It will be recollected that Melly came on her own and at a time when Maria was very young indeed).
26. Melly insisted that she came for a holiday and that she only formed the opinion of staying in Australia about a month after her arrival here. Even on the basis of an amnesty in 1988, and she never claimed that there was a possibility of an amnesty at an earlier time, this required her to stay and work illegally in Australia for a considerable period. Benny when he came to give evidence also spoke of an amnesty but always on the basis that it was to occur soon after his arrival, and thus originally in 1984.
27. When Melly was asked why she made the application for the parent visa and why her husband did not do so she said that “I am more grateful”. She also said that she was better educated.
28. Melly spoke repeatedly of “when we came”. For example, Maria was two when “we came”. (Maria is called Agustine because they gave her the name of the attending doctor or perhaps midwife).
29. Melly spoke of the fact that Indonesia is difficult for Indonesians of Chinese background. (Melly has a very large and extended family still in Indonesia). She said that although she had never been back to Indonesia Billy and Maria visited Indonesia in 2003 for two weeks. She said that Billy was sick throughout and hated Indonesia. (Maria when she came to give evidence said that Billy loved Indonesia and especially the cheap shopping and that he became ill shortly before his return to Australia, and so much so that he did not even see a doctor).
30. Melly said that her father in Indonesia paid for the trip for both children. (Maria whose evidence was credible throughout said that she paid for her own trip and that her mother paid Billy’s expenses).
31. The remainder of this part B deals almost entirely with Melly’s evidence in cross-examination. She again said that she came to Australia in January 1986 for a holiday of one month. She came from Bandung which is three hours drive from Jakarta and where she worked as an optometrist testing eyes and although she had no formal training in that field. She had worked in Bandung for some five years.
32. Melly said that her three brothers and two sisters still live in Indonesia. She said at first that she had friends here but then amended that evidence so as to refer to one friend only. She said that she had $2,000 with her on arrival.
33. Melly then said that her friend told her about the possibility of an amnesty on Australia’s bicentennial year and which would occur in 1988. Accordingly she decided to stay in Australia and at the beginning of 1986.
34. Melly said that her husband and Maria followed after a few months. This was amended to refer to Maria coming in August 1986 with her parents in law. When asked why her husband did not come at the time, she said that “he was working at the time”.
35. Melly then agreed that Benny had come to Australia previously but that he had been deported. She said that he changed his name to Benny Susilo and returned to Australia in 1987. She said also that Benny had told her how good Australia was and that after a few weeks here (on his first trip) he had told her that he had decided to stay here and asked her to join him in Australia. However he was deported back to Indonesia, and she therefore came to Australia on her own.
36. Melly again denied that she came to Australia with the intention of staying in January 1986. She said that she decided to stay after a few weeks. And she said again that Benny joined her in 1987 after his parents and Maria had joined her in August 1986.
37. When asked why her husband changed his name to Benny Susilo, she answered that he did so because he knew that he would never get a visa in his original name. (Benny when he came to give evidence said that he changed his name at that time because a Chinese name was “nasty”).
38. It was suggested to Melly that Maria was called Agustine and not Susilo, to facilitate the grant of a visa to her. (The Interpreter stepped in at this point to say that surnames are not required in Indonesia).
39. Melly spoke of yet another amnesty (referred to by her as a humanitarian amnesty) which became available in 1990. She and her family did not apply because they “did not have enough information”. A migration agent (not named) consulted by them said that he was not sure of the position.
40. Melly was told (but she did not say by whom) that Billy would be able to sponsor her when he turned 10 and after he obtained Australian citizenship which would be granted immediately after his tenth birthday. The relevant application was made within a month of his tenth birthday. She was assisted by Coelho who was the adviser to the Susilo family at that time and thereafter.
41. I do not think I need to go into precise detail as to Melly’s illegal work activity. It can be summarised on the basis that she started working within a few weeks of arrival; (she knew that she did not have permission to do so). She moved from one factory to another working as a seamstress (and paying taxes). She moved jobs on occasions when the factory closed down and on other occasions to avoid detection. In 2000, a friend (a ‘bad’ friend) told her boss that she was illegal and ever since then she has worked from home earning ‘cash in hand’, and without taxation. She said that it was safer for her to work on this basis.
42. Her husband’s experience was similar except that he stopped regular work with an employer in 1995; (the statement by Mr Emslie would suggest that he did so in 2000).
43. Melly said that she earns $200 to $250 per week from seamstress work and another $100 per week looking after disabled children; it transpired that the work with disabled children involves seeing them safely to and from school.
44. Melly said that she was caught out working illegally only once. However on being referred to clause 17 of her witness statement exhibit A2, she said that clause 17 is true and that it occurred more than once.
45. Over the years Melly has stayed in a number of homes. She mentioned five places and then ten places and then fixed on a lesser number. She has lived at 592 Victoria Road Ryde since 1999. Prior to that she lived at other addresses in Ryde.
46. In her parent visa application Melly said in answer to question 29 that she had $20,000. She then said that she was told that she needed $20,000 by Coelho. However she did not have that amount; she said that if she needed it she would borrow it. She then (reluctantly and after some pressing) said that $20,000 was an exaggeration. She said that if she needed it “I will try”.
47. It was at this point that Melly said that if the case went against her she would not leave Billy in Australia. “I can’t leave Billy by himself”. When it was put to her that this meant that she would have to take him to Indonesia, her answer was that she didn’t want to go back to Indonesia. She was again asked whether she would leave Billy in Australia. Her answer was “I will ask Father Paul and a friend. I am not sure”.
48. After the luncheon adjournment on the first hearing day Melly said that “if necessary I leave Billy in Australia”.
49. Melly was asked about schooling for Billy in Indonesia. She said that it is expensive for foreigners and Billy is a citizen of Australia. It was at this point that Mr Boccabella informed the Tribunal that he had been told that Indonesia does not recognise dual citizenship; on the second hearing day, he informed the Tribunal that Billy would not be able to obtain Indonesian citizenship unless he relinquished his Australian citizenship.
50. Melly denied that she or her husband had ever had an involvement with social security. It was put to her that Mr Emslie (exhibit A8) spoke of a Centrelink situation. She said that she knew nothing of Centrelink.
51. Melly again confirmed that Benny has not been involved in an employer job since 1995 and when he left his employment with Australian Starch.
52. Melly said that there is a large Chinese population in Indonesia; her large and extended family lives there. When asked about hardship for Chinese people she spoke of a shop being burned down many years ago. She agreed that her extended family still lives in Bandung.
53. Melly said that as regards communication with Billy she speaks to him in Indonesian and he replies in English. She cooks Indonesian food. However she said that she did not mix with Indonesian people because they did not want to be caught by the immigration authorities. She said that Billy disliked Indonesia both because he got ill in Indonesia and also because he had communication difficulties. It was put to her that she wanted Billy to obtain citizenship on the basis that by this means she could remain in Australia. She agreed that this was correct. She also agreed that they would have stayed in any event because life in Australia is better than it is in Indonesia. She agreed that even after applying for the visa, this was the only application made for legal status. She again confirmed that she was the main applicant because she is more grateful and better educated; however after being pressed she agreed also that this was so because her husband’s record was so bad.
54. Melly again denied that her own arrival in 1986 was part of the overall plan to bring the whole family to Australia. She was referred to clause 9 of exhibit A2 in which she stated that Benny agreed to stay in Australia only after his arrival on the second occasion. She then said that she had told him that he should stay but before he arrived on the second occasion.
55. Melly was asked in re-examination what she would do if she returned to Indonesia; her answer was that she had no job offer. As to schooling for Billy in Indonesia she repeated that it was expensive. She did say however that if the family went back to Indonesia they would stay in Bandung with her family.
PART C – THE EVIDENCE OF BENNY
56. Benny’s statement is exhibit A3 which reads as follows:-
“STATUTORY DECLARATION
I, Benny Susilo (dob 27/09/1956) (aka Thomas Lee) of West Ryde, in the State of New South Wales, say on oath:
1. I am Billy William Lee Susilo’s father. Billy is 14 years old.
2. Billy has lived with me, Melly and his grandmother Sie Moj since birth.
3. My wife Melly came to Australia in 1986, about 17 years ago and she did not want to return to Indonesia. This was before Billy was born.
4. I came to Australia in February 1987, on a short visitor’s visa.
5. When I arrived in Australia, I found that my wife still did not want to come back to Indonesia and our 2 year old daughter, Maria, was in a day care centre where she looked to me to be very happy, safe and well in that environment.
6. I felt myself agreeing with my wife that this was a safer and better place for Maria. As an ethnic Chinese girl growing up in Indonesia, we felt that we could never be sure of her safety and well being because of the political situation in Indonesia.
7. I sought advice and I was wrongly advised that there would be an amnesty in 1988 for people who overstay their visas in the Bicentenary year. Then one thing led to another, I over stayed my visa as well to look after my family. We met other people who had received the same advice and overstayed their visas too and everything took on a momentum of its own.
8. I am sorry for breaking the immigration law by overstaying my visa.
9. We remained in Australia initially because of our daughter and then in 1989, Billy was born.
10. Billy’s birth was not planed.
11. I am sorry that I broke Australia’s law by working illegally. To look after my family, I got a casual job in a grocery store and later I got a job in a factory at Australia Starch Pty Ltd. No one knew I did not have a visa. I did not receive high wages in these jobs, however, these were unpopular labouring jobs that I could get.
12. I took these jobs as I had to put food on the table and pay for our living expenses. I lost each of these jobs as I was eventually found out and had to move on.
13. This kind of life is very difficult and unstable. We cannot go on forever living like this and I hope to resolve our status.
14. Our first real opportunity to have our status resolved was when Billy turned 10 years of age and acquired Australian citizenship. Our church kindly agreed to assist with Billy’s sponsorship of us under the parent visa category and we immediately applied.
15. The application was lodged in 1999 and we are now before the Tribunal in relation to this application.
16. In relation to Question 29 of the Form 47PA, we put in the figure of AUD$20,000 as we did not want to be a burden to anyone and believed that we had access to at least that amount. Both our children were minors at the time and our church was also sponsoring us with Billy as co-sponsor.
17. As my wife has indicated, our intention was to borrow most of the money if it were necessary from relatives in Indonesia. In reality, we would not require such a large amount to settle into Australia and we would be grateful to legally work in any job initially.
18. We do not have those funds in savings. We spend almost everything we earn on living expenses and school fees for the children, and save very little.
19. I have survived by taking any sort of work I could get. While unemployed, I have been lucky to acquire odd jobs and the assistance of friends.
20. My daughter Maria is 19 years old and is still close to us. She comes to Church on Sundays with us and visits us regularly.
21. If we are finally rejected in this application and have to return to Indonesia, we have decided to leave Billy in Australia. Australia is a great country and we do not want to deprive him. Australia is the only country in which he has lived since birth.”
57. It may be noted from the outset that exhibit A3 while dealing fairly fully in some respects with the history of Benny’s dealings within Australia is entirely silent as to his first trip to Australia which terminated with his deportation. Attempts to investigate how this omission arose were met by objections by Mr Boccabella on the basis that there were references to his first arrival and deportation in the page 10 documents. It remains relevant as to why Benny should have omitted that important feature from his witness statement. No answer to this question was ever furnished..
58. Benny said that Billy would stay in Australia if he and Melly had to go back to Indonesia. He said “I would ask someone to help”. He said also he asked the priest and “he didn’t say yes or no”.
59. Benny, after arriving in Australia in February 1987 for the second time worked for a grocery store for five or six years. He had to leave because someone made a report. He then went to Australian Starch but left them when again there was a report. He has had no contact with Centrelink and has received no social security benefits. Tax was deducted while he worked in ‘employer’ jobs. He is currently doing odd jobs and cannot get a proper job because employers ask for visas.
60. He agreed that he came to Australia originally as Fon Tjauw Jong and was caught in illegal employment when someone reported him.
61. Benny was then referred to clause 6 of exhibit A3 and the words “I felt myself agreeing …”. It was suggested to him that he came to Australia to stay permanently. His answer was “when I first arrived I didn’t think that I wanted to stay but there was news that there would be amnesty and there hadn’t been an amnesty for a long time. I came in order to have a look”.
62. He was then asked why he changed his name; his answer was that because “using a Chinese name is nasty”.
63. Benny said that he would not find it easy to earn a living in Indonesia because of his age.
64. Most of the remainder of this part C relates to Benny’s cross-examination.
65. He again said that he first arrived in 1986. It was put to him that his wife arrived in 1986 and he said “maybe 1987”.
66. It was then put to him that this was not his first arrival and he was asked about the time of his first arrival. He said it occurred in 1985. And then as to when he went back to Indonesia, his answer was “maybe September 1986”.
67. It was then put to him that this could not be correct because by September 1986 his wife was already in Australia. This met with a long silence and there was no answer at all.
68. Benny then said that he married in 1983 and Maria was born on 16 August 1984. He was asked if that helped him to remember the date of his arrival. The answer was “maybe October 1984 or perhaps November 1984 – soon after daughter’s birth”.
69. He was then asked why he left Indonesia and his family so soon after his daughter’s birth. His answer was “this is a private matter. I had another girl and I wanted to run away from my girlfriend and I didn’t want my family to know about it”.
70. He agreed that he came to Australia on a tourist visa. He had intended to stay for two weeks only. However he decided to stay “because of my problem with that woman; I didn’t want to continue that relationship”. He was asked whether this was the reason why he decided to stay after two weeks in Australia. His answer was “at that time I heard there was to be an amnesty at the end of 1984 because there hadn’t been an amnesty for a long time”.
71. He said that he started working after a few months. However when queried about this he said “probably I got the job after a month”.
72. Benny then said that his only job in Australia on that first trip was in Botany Bay. That evidence was then amended so as to refer to his working first at a restaurant in Pitt Street before going to a job in Botany Bay and where he was caught by the immigration authorities.
73. Benny said that during his first trip he seldom phoned Melly and very seldom sent her any money. He didn’t think it necessary to send her any money because his father was able to provide for Maria.
74. It was put to him that if he claimed that he was running away from a girlfriend and also that he came only for two weeks holiday this was an expensive method of running away from the girlfriend. He said that the air ticket was “not too expensive” and that he had a good job in the courier business in Bandung. Melly was, he said, working making clothing with other women in a business of which an aunt was the proprietor. (Melly had said that she was working as an optometrist).
75. Benny then said that when he arrived in 1984 he didn’t want to stay but friends persuaded him to do so because there would be an amnesty.
76. Mr Muthalib then said, “you wanted the amnesty in order to stay in Australia?” After a long silence Benny said “if I get the amnesty I would stay”.
77. Mr Muthalib then put it to Benny that he stayed because he wanted to live here permanently. The following exchanges between Mr Muthalib and Benny are taken from my notes:
“Because there were lots of problems – it was not that I wanted to live here but we Chinese face lots of problems.
You left your wife and daughter behind?
Yes.
And I’m putting it to you that you came to live here and that you didn’t come here for two weeks holiday; is that not the truth?
I arrived for a two weeks holiday because then a friend said, perhaps there will be an amnesty and I had fears of racism and I waited, waited and waited until today.
The truth is that you wanted to stay here and that you didn’t want to go back to Indonesia?
To tell it from the first, I arrived here for two weeks and I thought about racism and I am here till now. It could be said that I wanted to stay permanently – its hard to say.
You knew you were unlawful?
Yes.
You came on a tourist visa and you must have known how long it was for?
It was for two weeks or a month.
And then you stayed beyond that permission?
Yes I didn’t go back.
You knew you did not have permission?
Yes the visa expired.
You also knew that you didn’t have permission to work?
Well I didn’t know the regulations. And a friend asked me to work and I only knew that I couldn’t work when I was arrested. This was when I found out I needed a visa to work.”
78. The cross-examination of Benny resumed on the second hearing day and with a brief recapitulation of previous evidence. Benny again said that he didn’t change his name in order to gain entry to Australia. He was then asked why when Melly came to Australia in 1986 he didn’t come with her. His answer was “because we did not plan to come to Australia to settle. If I had wanted to settle here, I would have brought the whole family”.
79. Mr Muthalib then asked why if Melly came on holiday he did not accompany her. His answer was that “I had a problem with another woman”.
80. When it was put to him that the other woman had first been spoken about as having been a problem in 1984 but that he had run away from her, he answered “but the matter didn’t finish in a day or two days”.
81. I again quote from my notes as to the exchanges which then ensued:-
“Were you involved with this woman in 1986?
No, the matter just wasn’t finished just like that.
What do you mean just not finish?
Its hard to explain this is a private matter.
Why did your daughter come with your parents in 1986 to Australia?
Because the custom in Indonesia is that it is the wife who looks after the children.
Why then did your wife come alone?
Because the matter with that other woman had got so big that my wife was asking for a divorce.
Are you telling us that your wife came to get away from you?
I can’t really know whether another person has certain thoughts.
Isn’t it the truth that you came to Australia illegally but failed and was sent back?
No, because when I first came to Australia a friend said, “don’t go because there would be an amnesty.”
Isn’t it true that when you went back your wife did the same thing?
I can’t say what a person’s thoughts are, but I don’t think she came to stay.
Didn’t you come individually so as to avoid the authorities discovering that you were all migrating to Australia?
I don’t think so. If she wanted to go she wouldn’t have gone alone and she wouldn’t have left the child alone.
But she did leave the child with you, and then your parents and your daughter came seven months later?
My parents came after eight months because they could not look after the child.
But you are the father, and you could have looked after the child?
Well at the time I was busy with work and I gave her to my mother and father.
Isn’t it true that you and your family planned to migrate to Australia?
No.
Isn’t it true that you came separately so that the authorities would not realise you were all migrating to Australia?
No.”
82. Benny was next examined as to his witness statement. It was put to him that he obtained legal representation (Coelho) when the parent visa was applied for. He answered that he did get some advice, but his English is not good and that Coelho does not speak Indonesian, and then (somewhat inconsequentially) his wife was arrested.
83. He was then asked how his witness statement came to be prepared. He said that he prepared it because there had to be paperwork, “and then I met a friend who wanted to support me and then there was six friends who wanted to support me”.
84. Benny confirmed that his signature does indeed appear on the witness statement. He said that he wrote the witness statement in Indonesian and that Coelho then translated it into English. It was put to him that he would have consulted Coelho originally in 1999 and he agreed. He said that there was never an interpreter present when he consulted Coelho and he didn’t ask for one. He nevertheless said “yes, but my English is not that good”. He was then referred to clause 4 and pursuant to which he came to Australia in 1987 and asked why there was no mention of his having coming originally in 1984. (Mr Boccabella again objected to this line of questioning; his objection was expressed to be based on grounds of relevance. However Mr Boccabella also said that there are not many solicitors with the resources of Blake Dawson Waldron and legal services are very costly. Mr Boccabella’s objection was, and this is putting it kindly, not even remotely tenable. His witness statement clearly went directly to credibility. The resources of Blake Dawson Waldron are hardly relevant. It seems possible that this objection and the manner in which it was framed was designed either wholly or partially to protect Coelho, who furnished the witness statement in question). I was informed by Mr Boccabella from the bar table that Coelho does not speak Indonesian.
85. There was further cross-examination along the same lines in which Benny persisted that he had never come to Australia in order to settle. I do not think it necessary to detail all of the relevant cross-examination.
86. Benny said that he was educated in Bandung, Indonesia at a private school. He said that such a school is cheap for Indonesians but expensive for foreigners. He said that his family are middle class in Indonesia. When it was put to him that Billy could be educated at a private school in Indonesia, he said that the expense would be high.
87. Benny categorically denied that he knew any other Indonesians who are unlawfully in Australia. When clause 7 of exhibit A3 was put to him, he said that he did know others in the same position and that he had met them when he first arrived.
88. Benny was then asked about clause 11 of exhibit A3 in which he talked about having to do unpopular jobs. He answered that “this kind of life is very unstable”. Then when asked whether he had in fact created this life, he answered after a very long pause indeed, “I could answer yes or I could answer no”.
PART D – THE EVIDENCE OF FATHER PAUL MONKERUD
89. Father Paul’s witness statement is exhibit A4; I do not think I need to set it out in these reasons. Father Paul gave evidence by telephone.
90. It transpired during examination that Father Paul is a parish priest and not directly involved in Billy’s education. He said that he thought it could be detrimental for him not to have his parents with him. When he was asked to be more expansive he said “every person is different and the way in which they respond differs. Only time will tell. Having your parents around is important especially where they are part of a large family”.
91. It transpired that Father Paul does not know Billy very well. So far as he is concerned Billy appears to be doing well at school, where he is well respected and well liked. Although he was approached about a possible guardianship in 1999, he was not then told that the Susilo’s were unlawfully in Australia. He learned that this is so very recently.
92. Father Paul said that he did not think he could undertake to look after Billy.
93. Further cross-examination of Father Paul indicated that he knew very little of what work Melly has been doing. Clause 8 of his witness statement exhibit A4 is in conflict with Melly’s evidence. He confirmed that he knew Benny and Melly as voluntary workers in the church of which he is the parish priest.
94. Father Paul was clearly an honest witness but his evidence was of little assistance and more particularly because he seemed to know so little of the real circumstances.
PART E – THE EVIDENCE OF MR GERARD WEBSTER
95. Mr Webster’s report is exhibit A5. It was prepared in April 2004 after he had met with Billy and Maria but not their parents.
96. Mr Webster’s conclusions appear in the last page of exhibit A5 as follows:-
“It is my opinion that Billy’s mental health would be severely compromised and his educational prospects would be significantly damaged by either a move to Indonesia or by remaining in Australia without his parents. It does not seem likely that his sister would provide him with adequate care if he were to remain in Australia and there are no alternative placement options with family or friends. This would most likely mean that the NSW Department of Community Services would have to take Billy into their care. The accommodation for Billy would most likely be in either a group home or youth refuge. Either of these options would place him at further risk as he would be residing with delinquent or psychologically disturbed youths.
Billy has grown up in Australia and only knows the Australian lifestyle and culture. His brief visit to Indonesia was “disastrous” in his terms, and he would prefer never to go there again. It may be that he could adjust to life in Indonesia, but this proposition would mean that he would have to overcome the immense feelings of rejection and abandonment by the Australian community who made him the person he is.
It is my opinion that Billy’s best interests would only be served if his parents were permitted to reside in Australia.”
97. Mr Webster said at first that Billy might be adversely affected by either a move with his parents to Indonesia or by his remaining in Australia without them. He said that it would be hard to predict the result. Much would turn in his view, on the ability of Billy not to drift into some form of anti-social behaviour.
98. In cross-examination Mr Webster was asked whether he knew the family had been illegally in Australia for some years. His answer was that “the solicitor told me that this was the allegation”.
99. When asked which course would be less harmful he answered that this was a “tough question”. He said that Billy did not like Indonesia and that he had been ill on his visit to Indonesia,. He said that Billy identifies as Australian but not as Indonesian.
100. While very definite on paper Mr Webster was (perhaps understandably) much less certain in the course of cross-examination. He thought that much would depend on the manner in which Billy’s parents communicated their decision to him. He also said that his conclusions were speculative and that he did not have a “crystal ball”.
101. Mr Webster said that he had no experience of boarding schools. He also said that Maria is mature for her age and he thought that she would be a great support to Billy. I consider that Mr. Webster came to the conclusion that either course would be harmful on insufficient research and consultation. As will be seen, for Billy to return to Indonesia with his parents, even if this should prove not to be the course adopted, appears to be feasible. It may be that some facts were not fully revealed to Mr Webster.. He might not have known that Billy does have some Indonesian; he may have accepted at face value a statement by Billy that he hated Indonesia on his visit there; he might not have known of the fact that educational opportunities are available in Indonesia. I do not believe that his broad statement as set out in his report that either course would be bad for Billy can be accepted
.PART F – THE EVIDENCE OF BILLY
102. Billy’s brief witness statement is exhibit A6; it reads as follows:-
“STATUTORY DECLARATION
I, Billy William Lee Susilo of West Ryde, in the State of New South Wales, say on oath:
1.I am 14 years old and in Grade 9.
2.I enjoy chess and basketball.
3.It concerns me to think that my mother and father may have to leave Australia.
4.They have not told me what I should do if that happens.
5.Anyway, I do not want to live in Indonesia as Australia is my home. I don’t have a social life there and I don’t speak Bahasa Indonesia. I can only understand what my Mum says to me.
6.I don’t know what will happen to me or what I will do in Australia by myself.
7.I am told that I may have to live in a foster home. I don’t like this either because I don’t know anyone there and won’t have anyone I can talk to.
8.I don’t think anyone I know wants me to live with them, I don’t know.
9.I would like my Mum and Dad to remain in Australia because this is my family. I can talk to tem (sic) and stuff.
10.I love them and I want us to stay together in Australia.
11.It is distressing for me and my sister to hear that the immigration department has rejected my parents and grandmother.
12.If everyone I know finds out that my parents have been deported, I don’t know what they will think of me, if it is a good or bad thing.
103. Since his mother’s detention Billy has moved in with a friend of the family; that friend is Ingrid de Fretes whose supporting statement appears at G36. Mrs de Fretes is married with two teenage children. He gets on very well with all of them. His father and his grandmother have since his mother’s arrest moved in with other Indonesian friends. As to why they did not all stay on in the Victoria Road home was never explained despite questions as to why this was so. Certainly Billy did not know.
104. Billy’s attitudes and desires are quite simple. He wants to stay in Australia and with his parents in Australia. He said that he did not like Indonesia where he had very bad diarrhoea and which caused him to be sick throughout his stay there and causing him to be unable to sleep. (Maria in her evidence , and as I have noted, said that he liked Indonesia very much for most of his stay and that he much enjoyed the shopping; he got ill only at the end and did not see a doctor in consequence).
105. Billy spoke of a very close bond between him and Maria. They spend much time together and she has taken him out far more than is common or usual for a 19 year old girl in relation to a younger brother where the age gap is five years.
106. Billy confirmed that his mother speaks to him in Indonesian and that he replies in English.
107. Billy said that he had been told by Coelho that he might have to be fostered if his parents went back to Indonesia. He was asked what he understood by this term and he explained that he thought it might result in his adoption by strangers.
PART G – THE EVIDENCE OF MARIA AGUSTINE
108. Maria’s witness statement is exhibit A7. It reads as follows:-
“STATUTORY DECLARATION
I, Maria Agustine (dob 16/08/1984) of 547 Victoria Road, Ermington, in the State of New South Wales, university student, say on oath:
1.Billy William Lee Susilo is my brother. He is 14 years old.
2.I am 19 years of age.
3.I am a full time student at Macquarie University enrolled in second year commerce.
4.I cannot assume a parenting role for my brother.
5.It is too much responsibility to care for my brother and I believe I am not ready or capable of such a role.
6.I study full time and work part time at Hoyts Cinema on George Street, Sydney about 2 to 3 nights a week.
7.Apart from my parents and grandmother with whom Billy presently lives, I am not aware of any other relatives in Australia.
8.Billy is very close to Mum and I believe it is in his best interest for him to continue to live with Mum in Sydney while he is young.
109. Maria is a commerce student at Macquarie University in her second year of study. She started her university education in Arts but switched to commerce. She received social security for a period but that stopped when she obtained part-time employment at Hoyts Cinemas where she sells tickets and sometimes operates the candy bar.
110. Maria was of all of the Susilo family, by far the most impressive and indeed the only impressive witness. She answered clearly and firmly and frankly; when she did not know the answer she simply said just that. I believe her evidence implicitly, and in particular where it conflicted with that of the other members of her family.
111. Maria lives with friends of the family and has done so for some time. She very much likes the freedom which it gives her. That family is yet another Indonesian family. It consists of a mother and three children, with a father who appears at intervals but appears to be resident more in Indonesia than he is in Australia. She said that unfortunately there would not be room in the house for Billy as well.
112. One thing which emerged very clearly from her evidence is that she would if her parents returned to Indonesia be a very positive support for Billy. Evidence by her parents (as contained in their witness statements) which suggested that she would not be willing to bear the burden of responsibility thereby entailed is untrue
PART H – THE CHARACTER EVIDENCE
113. I refer in this part H to the evidence of the three witnesses who were not required for cross-examination and being Messrs Emslie and Glasmacher and Mrs De Fretes.
114. Emslie’s statement was by far the most helpful since he at least knew of the conduct or at least most of the conduct which gave rise to this hearing. He knew that the Susilo’s have been in Australia illegally and working illegally for some considerable time. However he did not know, according to his statement, that their stay together in Australia was preceded by an earlier visit to Australia by Benny which culminated in his deportation. As I have indicated also his evidence conflicts with that of both Benny and Melly in that he refers to Centrelink and also to Benny having been employed at Australian Starch until 2000.
115. Neither of the other two statements are of much assistance simply because they either do not address or simply gloss over the fact that the Susilo family has been illegally in Australia for so long
PART I – SUMMARY OF THE EVIDENCE
116. The evidence before me demonstrated beyond any possible doubt that this family came to Australia as part of a concerted plan of action. Of the two protagonists Benny was probably the leader even if Melly assumed a more prominent role in these proceedings. That this is so is indicated by his first arrival in Australia (followed by his deportation) and return, but only after other members of his family had come to Australia and on the second occasion, under a different name.
117. The evidence of each of Melly and Benny as to their intentions was totally untruthful. Of the two, Melly did, I believe, give truthful evidence about some aspects. Benny’s evidence was, as I have demonstrated almost ludicrously untruthful. I do not for one moment believe his references to another woman whose existence as a girlfriend lasted for so long after he had sought to run away from her. His statements about not knowing Australia’s law and regulations were clearly incredible. Nor do I believe his statements that at one stage his wife was threatening divorce. His evidence as to an ever-present amnesty was also plainly invented.
118. The evidence of Melly and Benny treated in aggregate and together (and as it should be treated and bearing in mind that this whole course of action was one adopted by the family as a whole), was nothing more than an untruthful attempt to justify unlawful behaviour over many years.
119. As to whether Billy’s birth was not planned is open to some doubt. Within a month of his tenth birthday the parent visa was applied for. That application was made by Melly without a sponsor even though a sponsor was required.
120. Their untruthful evidence before the Tribunal was disappointing in the extreme; without that untruthful evidence, their breaches of the Act would have fallen for the most part, albeit not entirely, under section 235 of the Act and where the penalties prescribed are light at least in comparison with those prescribed by section 234 of the Act. Of course their untruthful evidence was in breach of section 234 of the Act. So for that matter was Melly’s statement in the parent visa application and as to means of $20,000. It is likely also that Benny’s change of name although legal in Indonesia was, taking it in context and having regard to its purpose, a breach of section 234 of the Act.
121 Mr Boccabella in closing submissions reminded me that this case turns on the character of Melly. That contention was wrong for two reasons; in the first place he had previously conceded that she failed the character test; and in the second place, it is clear enough that the Susilo’s pursued their unlawful plans from the outset as a family unit. I do not believe Benny’s evidence as to trouble between them. Melly was truthful about one important aspect. Of course Benny changed his name to obtain a visa because he would not have obtained a visa in his original name. As I have said, that name change may have been in breach of section 234 of the Act. See in this context Vaitaiki and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 1209.
PART J – THE BEST INTERESTS OF BILLY
122. The best interests of Billy are of course a primary consideration even apart from the convention referred to in the Applicant’s final submissions and the statements on Australia’s obligations as regards that convention contained in Teoh’s case, referred to in the Applicant’s final submissions quoted in clause 13
123. I commence by noting that Billy’s best interests would in all probability be served by his staying in Australia and with his parents in Australia. This assumes of course that life in Australia is preferable to life in Indonesia. Mr Boccabella contended that this is so and that because it outweighed the other primary considerations the matter should be decided to accord with this view. The question is not nearly so simple.
124. Billy wants to stay in Australia. He does not want to go to Indonesia and he sees himself as Australian. I do not think that, despite some evidence to the contrary the Susilo family intends even to consider any other possibility. Melly spoke of their taking him to Indonesia but more often of his staying in Australia. And so did Benny in rather more concrete terms.
125. But that there are very real choices can hardly be denied. Billy does have some knowledge of Indonesian and almost certainly more than he is prepared to admit.
126. The Susilo’s said that they could not afford private school education in Indonesia and that it is expensive for persons who are not Indonesian citizens. In the first place I doubt whether their evidence as to financial matters is any more trustworthy than it was about their residential intentions. They were both educated in Indonesia; the family in Indonesia is middle class Chinese. Melly said that if she needed $20,000 she could obtain it from her family. Their evidence as to what they really earned is difficult to assess in the context of the fact that both children were educated privately and that Melly paid for Billy’s trip to Indonesia (although Melly said that her own father paid for that trip). I accepted Mr. Boccabella’s assurance that tax returns were filed. It does not follow that I accept that those returns were accurate or complete.
127. From the Bar table Mr Boccabella said that Billy would not be able to obtain Indonesian citizenship without giving up his Australian citizenship. That may be so but there would be no need to do so. He could go to Indonesia and if the cost would be higher than it would be for an Indonesian citizen that is only a matter of money and for a very few years only. Assuming money is so important a factor in respect of the few remaining years of his education, it is relevant to consider whether if he relinquished his Australian citizenship in order to adopt Indonesian citizenship he could thereafter regain his Australian citizenship. This aspect was not canvassed at the hearing; in particular there were no submissions before me as to the applicable law. Research after the hearing indicates that the Australian Citizenship Act1948 (“ACA”) was amended in 2002 and in such manner that Australian citizens aged 18 years or over do not lose their Australian citizenship where they adopt the citizenship of another country. Billy acquired his Australian citizenship in 2000 and so that the 2002 amendments do not apply to him. However his position would appear to be covered by section 23AA of ACA and pursuant to which Australian citizenship relinquished can be resumed in certain circumstances; I do not think it necessary for me to detail its provisions but (relevantly) one of the conditions of relief appears to be that if the citizenship of the other country had not been obtained there would have been significant hardship or detriment. It may be that the financial cost factor is sufficient for this purpose. It would seem that if Billy accompanied his parents to Indonesia and for good reasons (and financial reasons may be sufficient) that to take Indonesian citizenship, there is at least a reasonable likelihood that he could regain his Australian citizenship at a later stage on his return to Australia and after a period here.
128. There is then a very real and viable choice. However Benny’s Australian citizenship which was the cornerstone of their patient planning over so many years is plainly a prize of great magnitude. It may be that however feasible a return to Indonesia would be for Billy (and it is a feasible alternative) it will not be adopted. .
129. Billy’s evidence about being fostered with a view to adoption was of course misconceived.
130. The reality of this situation is that contrary to their evidence before me the Susilo’s have a network of Indonesian friends who have been prepared to assist and will continue to do so. Billy is 14 and a half and his school career will last for only a few more years. And Maria is an able and honest and decent young woman who will look after her brother in the few remaining years of his school life assuming, as I suspect, that this will be their decision. Evidence which would suggest otherwise in relation to Maria in order to bolster their case was to my mind unfortunate.
131. Mr Boccabella as I have said conceded failure of the character test as a concession in the afternoon of the first hearing day. By that time and in the light of her evidence as to Benny’s first trip and deportation and by which time the whole grand plan had become obvious enough that concession, was illusory.
132. Mr. Boccabella put the matter on the basis that the best interests of Billy would be served by his remaining in Australia and with his parents in Australia. As I have said, his basis submission was that that primary consideration was more important and significant than the other primary considerations, thus requiring a decision in favour of the Visa Applicant. Leaving aside the fact that I do not agree with his contentions as to the weighting of the primary considerations, the issue as to Billy’s best interests cannot properly be put in such simple and stark or in other words black and white terms. There are in essence two choices assuming that Melly and Benny must return to Indonesia. The first alternative (which may not be their preferred alternative) is that he accompanies them to Indonesia in order to complete his schooling there. I do not think I need to be too specific about the cost factor; education was affordable here, even when earnings were low, and should be affordable in Indonesia where the family will, having regard to Melly’s evidence about the amount of $20000 referred to in the visa application, be in a position to help. Billy does have some Indonesian and would certainly fit in with his contemporaries in an Indonesian school. The evidence before me to the effect that he has done well in his studies here should ensure that he does not have ground to make up except in relation to the Indonesian language. And even that is not altogether a necessity. Indonesia has a significant expatriate population whose children are educated in another medium and including English. Having completed his high school education Billy could return to Australia for tertiary education. He is after all a citizen of Australia who can come and go as he pleases. Although Indonesian immigration law was not canvassed in detail before me I think it safe to assume that the child of an Indonesian couple will not be denied at the very least residency rights.
133. The citizenship question is not, as I have indicated insuperable. It could be retained, or if because of cost it has to be relinquished it would seem to be regainable. The other alternative involves Billy staying in Australia and with the de Fretes family or other Indonesian friends of whom there appears to be no shortage. Billy is not a baby and the period involved is not all that long. Nor would he be without family support. Maria impressed me as someone who will ensure that he is properly looked after. The Webster evidence at least from his written report is (as I have indicated) that either alternative would be undesirable. He did not make it clear why the first alternative is so undesirable. As to the second he said in writing that Maria could not provide the necessary level of support but in oral evidence said that she is a very responsible person. I agree with the last view. Each of the two alternatives confers advantages and in relation to the first alternative it does not seem to me that there are clearly discernible disadvantages. If it is better for Billy to be with his parents that alternative is available. And Billy’s evidence as to his dislike of Indonesia is contradicted by the evidence of Maria whose evidence is to be preferred. At his age he would soon become accustomed to life in Indonesia. The manner in which this case was conducted leads me to infer that the second alternative will be chosen but that after all is a matter of choice. Viewed in this light the primary consideration in respect of Billy’s best interests is not even remotely as stark as was represented and moreover must be weighted accordingly in the balancing exercise required by Direction 21.
PART K – DIRECTION 21 (VISA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE MIGRATION ACT 1958); DIRECTION NO 21 (“DIRECTION 21”)
134. In this part references to numbered clauses should be construed as references to clauses in Direction 21.
135. Clause 2.3 provides that the primary considerations are as follows:-
“2.3In 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.”
136. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:-
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
137. Although I do not think that recidivism is a major problem, it cannot be dismissed. The Susilo’s have been prepared over a period of over 18 years to breach Australian law. The position would have been bad if the first trip by Benny had not taken place, but against the background of that first trip and his deportation, their determination to proceed with the plan knowing from the outset that it was so flagrantly in breach of Australian immigration law made the position much worse. And it was made yet worse if that is possible by their untruthful evidence (and particularly that of Benny) before this Tribunal.
138. (Mr Boccabella assured me that he had recommended to his clients that they give truthful evidence and I should accept that assurance). I am however concerned by the fact that Benny’s witness statement omitted all mention of the first trip. That omission pointed in stark terms to the length to which they were prepared to go in order to achieve their aims. People who have so little regard for the laws of this country cannot be risk-free in so far as recidivism is concerned.
139. In this immigration jurisdiction experience has taught me that truth is often the first casualty. Warnings that untruthful evidence will be regarded in a serious light and might moreover be counter-productive are all too often unheeded. Practitioners in this jurisdiction should of course have due regard to the fact that untruthful evidence breaches section 234 of the Act and in respect of which the penalties are severe.
140. I have expressed some reservations as to the manner in which Coelho has dealt with this case. I express no view as to whether he should have had an interpreter present when he took instructions from Benny. Benny has been here for more than 18 years and it is entirely conceivable that his English is far better than he is prepared to admit. He has after all worked among English-speaking people and it would be surprising if he had not gained some degree of fluency. I am however disturbed by the fact that Coelho submitted a witness statement for Benny which omitted all mention of the first abortive (by reason of deportation) attempt to become resident here. It is not conceivable that Coelho was unaware of the aspect and as Mr. Boccabella said there is mention of it in the page 10 documents. This omission was in any event and for obvious reasons counter-productive. I said at the hearing that I would overlook his conduct on this occasion on the basis that it does not occur again and thus do not propose any action or to say anything more in this regard.
141. In Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted, at paragraph 35, that:
“16.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 …Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”
142. In Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 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.”
143. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 47, Purvis DP stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that 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. He person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
144. In relation to the expectations of the Australian community, I accept that there may be a minority sympathetic view that the Susilo parents should after all this time be allowed to stay here. That view would necessarily be based on the proposition (at least in part) that the law can be overlooked if only one can evade the authorities for long enough. Expressed thus it is easy to see how fallacious it is. In my view the majority of the Australian community knowing the facts and in particular the manner in which Benny returned to this country after being deported it would expect that the visa be refused.
145. That the conduct was extremely serious within clause 2.6(c) cannot be doubted.
146. Mr Boccabella referred me to a number of cases which are in my view entirely distinguishable. Not one of them involved so elaborate a scheme of deception over so long a period coupled with (and this is particularly important) a deportation.
147. Mr Boccabella drew my attention to the fact that the decision-maker in his reasons rejected deterrence as being a matter of major importance. I disagree with the decision maker and my task after all is to form the correct and preferable decision. Mr Boccabella said that there was no evidence of the number of illegal residents in Australia increasing and moreover and by contrast, that it is being cut down through the effects of the law as regards GST and tax file numbers. I do not see how GST in particular can have any such effect. This applies also to the law as regards tax file numbers. It is a matter of common knowledge that cash economy businesses such as restaurants are not over-scrupulous in this regard. Shortly after the hearings ended some 12 illegal employees of Doyles, the well-know seafood restaurant, were detained.. As to whether an Australian employer incurs any penalty where he employs someone illegally in Australia is unclear but the probabilities are that he does not, unless it can be said that he knowingly did so; the absence of prosecutions in this area would tend to indicate that the onus is too difficult to discharge. Nor did Mr. Boccabella explain the manner in which this area of the law has the effect for which he contends. There is no evidence before me because there are no statistics, and it is hardly likely that there would be statistics of the number of persons who are illegally in Australia. But my experience in this jurisdiction indicates that most cases before this Tribunal start off with tourist visas which are overstayed. Certainly there was no basis upon which Mr. Boccabella was entitled to contend that the number is decreasing.
148. The deterrence factor in this case is of great importance. Persons who behave as the Susilo’s have behaved must be given a firm and unmistakable message and that is that conduct such as this will not and cannot be rewarded with a grant of a visa. The fact that Benny was deported (and see again Vaitaiki’ supra) must have this effect. The decisions of this Tribunal referred to earlier in these reasons in the context of recidivism are of at least equal relevance in the context of deterrence
149. In his written submissions Mr Boccabella suggested that Benny’s Australian citizenship produced certain beneficial results for his parents as regards residence; see in this regard clause 13 of the Applicant’s final submissions quoted earlier in these reasons. That contention was entirely untenable and no legal basis for it was advanced..
150. I agree that Billy’s interests are primary but having regard to all of the relevant circumstances they are greatly outweighed by the other primary considerations. The departure of the Susilo’s will also no doubt be something of a hardship to Maria but she is 19 and well able to look after herself and for that matter Billy as well.
151. This is quintessentially a case where the discretion cannot be exercised in favour of the Applicant and accordingly the objection decision under review must be affirmed.
I certify that the 151 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block
Signed: A. Krilis
AssociateDate/s of Hearing 27 & 28 April 2004; 7 May 2004
Date of Decision 19 May 2004
Counsel for the Applicant Mr Lorenzo Boccabella
Solicitor for the Applicant Coelho & Coelho (Mr James Coelho)
Solicitor for the Respondent Mr Ishan Muthalib, Blake Dawson & Waldron
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