Tautuliu and Minister for Immigration and Multicultural Affairs - [2000] AATA 968

DECISION AND REASONS FOR DECISION [2000] AATA 968

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/568

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MELE TAUTULIU
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr B.J. McMahon (Deputy President)

Date06 November 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  BJ McMahon
  Deputy President
CATCHWORDS

IMMIGRATION & CITIZENSHIP – spouse visa – refusal on character grounds – failure to pass the character test – breach of visa requirements not to work – overstaying of visa – misleading statement to the authorities – general deterrence – expectations of the Australian community that non citizens will obey Australian laws while in Australia – hardship to applicant discounted by the fact she knew visa applicant was of character concern – no exercise of discretion in applicant's favour.

Migration Act 1958 – ss 499, 501

REASONS FOR DECISION

06 November 2000 Mr B.J. McMahon (Deputy President)

This is an application to review a decision made on 8 March 2000 refusing an application for a spouse visa by Poulogo Vaimauga Tautuliu, the husband of the above applicant. Mr Tautuliu was born in Samoa on 25 July 1969. He first came to Australia on 13 June 1995 under the authority of what an officer of the respondent called "a religious worker visa". This was valid until 30 June 1996. Mr Tautuliu is a musician. He planned to work as a pianist or organist with a church in Sydney whose congregation consisted principally of Samoan ex-patriates.
Mrs Tautuliu, who gave evidence in these proceedings, said that he had an arrangement with the relevant Minister of religion under which Mr Tautuliu would be obliged to play at services on Sundays, but would be supported by the congregation for the rest of the week. He was not to be paid any salary. According to Mrs Tautuliu, the church did not carry out its part in the alleged agreement. Although asked to give evidence in these proceedings, the Minister declined, saying that he wished to have nothing to do with the matter, according to Mrs Tautuliu.
It is not clear when Mr Tautuliu took up paid employment at the Buttercup bakery. It could have been as early as the first half of 1996, during his first stay in this country.
After his visa expired, he remained here illegally. A bridging visa E was granted on 26 September 1996 in order to allow him to arrange for his departure. This was further extended to 1 December 1996. On 29 November 1996, Mr Tautuliu left Australia and returned to Western Samoa.
Four months later he applied on 12 March 1997 for a temporary residence (non business) visa – subclass 428. The application was lodged in Apia, Western Samoa. The reason for the application was again given that he proposed to work as a pianist for the church. In fact, the visa application did not correctly state his immigration history. When asked to nominate the expiry date of his last visa in Australia, he nominated 1 December 1996, which was the last date of the two bridging visas. A reading of the form would give no indication that he had arrived on a religious worker visa and that he had overstayed the period of that visa. A reading of the form which he signed in Apia shows a much more innocent approach.
Mr Tautuliu had the opportunity to give evidence in these proceedings. The procedure was explained to Mrs Tautuliu on a number of occasions. She speaks English fluently and indicated that she understood these procedures. Nevertheless, Mr Tautuliu did not write or communicate in any way with the Tribunal. I can only assume that he chose not to do so. I can also assume only that the misstatement in the visa application on 12 March 1997 was deliberate and was intended to deceive officers of the Department.
The visa was granted on 28 March 1997. It included a limited work condition. The basis of his application was his proposed work as pianist for the church. It was a condition of the visa that he was not to change his employer or his occupation in Australia without the authority in writing of the secretary of the Department.
If he had not been working at the Buttercup bakery in 1996, he certainly began work there on his second arrival in 1997. Mrs Tautuliu's recollection was that he worked at the bakery for some two years before he was obliged to leave Australia on the second occasion.
He continued to work at the bakery whilst living firstly with his uncle and later with his two sisters, all of whom live in suburbs of Sydney. Mrs Tautuliu's recollection is that they first met at church in 1995. She said that she started going out with him in 1996 or 1997. It was Mr Tautuliu's recollection, given in an interview in Apia, that he first met Mrs Tautuliu at the Samoan and Tongan Club, Cabramatta in June 1997 and that they started to be "boyfriend and girlfriend" around Christmas 1997. Whenever they first met, it was clear that by 1999, when he was in Australia for the second time, they had decided to marry.
Mrs Tautuliu knew that her proposed husband was working illegally. She knew that, if detected, he was liable to be deported. It was her evidence that they both decided to try to legalise the situation. For that reason, an application was made on 19 March 1999 for a fourth visa. The visa of 28 March 1997 was shortly to expire. This was another reason why it was necessary to apply for a new visa.
He applied for a visitor's visa valid to 24 March 1999, without disclosing the fact that he was then working illegally at Buttercup bakery and had been working there for at least one year. The visitor's visa included a "no work" condition. The visa was issued because the true situation had been concealed from the Department. In the light of this visa, they married on 26 March 1999.
A little over two months later, on 2 June 1999, Mr Tautuliu was found working illegally at the bakery. He was taken into custody and placed in immigration detention for five days. The fourth visa which had been issued was cancelled after an interview with Mr Tautuliu in which he admitted knowingly breaching the no work condition for, as he put it, about one year at the Buttercup bakery. Mr Tautuliu was obliged to leave this country as he no longer had any legal right to remain. A fifth visa, being a further bridging visa E, was granted on 8 June 1999 to enable him to leave Australia. He departed on 25 June 1999 and returned to Samoa. On 21 September 1999 he applied for his sixth visa, which was now to be a spouse visa. His application was refused on the ground that he did not pass the character test prescribed by section 501 of the Migration Act 1958. This is the decision which is the subject of the present review.
Pursuant to section 499, the Minister has issued Direction Number 17 to which I must have regard in determining whether the applicant satisfies the character test. In considering his general conduct under subparagraph 501(6)(c)(ii), I am to have regard to a number of matters. The relevant considerations in the present case are whether the non citizen has been involved in activities indicating contempt or disregard for the law and whether the non citizen has, in connection with any application for the grant of a visa, made a false or misleading statement.
The statement made concerning the expiry date of the previous visa was, as I have indicated, a misleading statement. More importantly, the failure to observe the time limitations of the original visa and the work prohibitions in that and in subsequent visas on a regular and habitual basis can only indicate contempt or disregard for Australia's migration laws.
These were not innocent breaches. What evidence has been put before me from interviews with Mr Tautuliu and from oral evidence from his wife indicates that he knew he was breaching these requirements. He had told Mrs Tautuliu he knew he was not allowed to work. He did not seek a variation of the visa conditions. The Minister of the church, for whatever reason, who had arranged the original immigration, did not approach the Government on his behalf. I have no real evidence as to why that was so. Knowing he was in breach, the applicant made no attempt to legalise his situation until he was apprehended and placed in custody.
Failure to pass the character test is a statutory concept. It was Mrs Tautuliu's evidence that apart from these immigration breaches, her husband was of good character. She produced references from various people to that effect. The communications project leader of the Public Service Commission in Samoa and a legal secretary working in a law office in Apia both certified that they knew him from church activities and that he was of good character. This evidence was supported by his own Minister for religion and (as one would expect) by his parents. Mr Tautuliu himself arranged for a letter to be written on his behalf. The evidence was that he spoke little English. Whoever wrote the letter said on his behalf:
"I was informed by my wife who resides in Australia that my papers and all relevant documents pertaining to my living there have been considered by your Office.
With all due respect I humbly apologise for all that I have caused while residing in Australia. I apologise for seeking employment as a kitchen hand as the approval for my been there was only to play the piano and arrange and organise church choirs in the Granville Congregational Christian Church of Samoa in Sydney. The main reason why I opted to seek further employment was only a way of helping my family financially and I never thought of the repercussions it has all caused. This I am truly sorry and can assure your Goodself that if given the opportunity I will never do it again. I have learnt a great lesson.
I admit that the year I was away from my wife and family in Australia and the time spent with my parents, sisters and brothers in Samoa have changed me completely. To be separated from loved ones is something I do not want to go through again. This I have no one to blame but myself.
I hope you will consider my apologies and wish you all the best in the future. May God bless you and your family.
Poulogo Tautuliu"

It may be noted that the reason given for working was not to support himself, but his family – presumably his wife in Australia and his parents in Samoa.

In cases of this kind, general references as to character are of little assistance. There is no evidence, for example, that any of the referees were aware of the details of Mr Tautuliu's conduct in Australia and its continued and systematic illegality. There is no evidence that they are aware of the consequences of this conduct. None of them, of course, was available for cross examination.
The question to be determined, however, is not the general moral character of Mr Tautuliu but whether he has passed the character test by observing the criteria which the present Minister has determined must be met. On my examination of the evidence it is clear that he has not passed this test and the only issue, therefore, is whether the residual discretion of the Minister should be exercised in his favour. The exercise of the discretion is also to be carried out in accordance with the prescriptions in the Ministerial Direction. I am to consider the protection of the Australian community, the expectations of the Australian community and the interests of any relevant children. There are no children whose interests are to be considered.
In connection with the protection of the community, the most important factor in the present case is that of general deterrence. There is some evidence from a Departmental officer that overstaying visas and working contrary to prohibitions contained in visas is particularly relevant in Samoa. The officer's opinion was that the citizens of that country continue to record one of the highest proportional rates of overstay in Australia. In considering the question of deterrence as a factor in whether to exercise the Minister's discretion in favour of the visa applicant, this is an important matter to be taken into consideration.
I am also to have regard to the expectations of the Australian community. These include expectations that non citizens will obey Australian laws while they are in Australia. Mr Tautuliu consistently failed to do this. No doubt he would have continued to breach the terms of his visa had he not been apprehended. It is the expectation of the Australian community that in such cases, the visa applicant should not be rewarded.
Under the heading "Other considerations" I am to have regard to any compassionate claims of his Australian partner. Mrs Tautuliu told me that although born in Samoa, she had both New Zealand and Australian citizenship. No objection was brought to bringing this application and I conclude, therefore, that her status was conceded. In assessing her claims for compassion, however, I must consider the circumstances under which the relationship with Mr Tautuliu was established and whether his wife knew that Mr Tautuliu was of character concern at the time of entering into or establishing the relationship.
She may not have known that he was "of character concern" at the time she first met him, or even at the time that they became "boyfriend and girlfriend", whenever that may have been. There is no doubt, however, that Mrs Tautuliu knew that her husband was employed illegally and that he was liable to be sent out of the country and that he would have difficulties in re-entering the country at the time she married him. When I asked her why she went ahead with the marriage knowing all this, she had nothing to say except that she loved him and hoped that things would turn out for the best. The degree of hardship which she will undoubtedly suffer through their separation must be heavily discounted by the fact of this knowledge.
There is no evidence of any other hardship. Although the applicant's own hardship is not a matter to be taken into account, it may be noted that he lives in a village about one and a half hours from Apia with his mother, father, one brother and one sister. He occupies his time by helping his father, who inspects water pipes for the local water supply authority. There is no evidence of any hardship that might be suffered by any of these members of his family. He has two sisters and an uncle in Australia. There is no evidence that they will be affected in any way by the outcome of these proceedings.
The failure to pass the character test does not arise out of one isolated incident. There are a number of continuing and repeated breaches of migration requirements that led to the refusal of the spouse visa application. There is no evidence of any recent good conduct. The fact that the purpose of the visa application is a spouse visa and that the intended duration of the stay in Australia is indefinite means that applications must receive greater scrutiny than those having a short term or temporary effect. Having regard to these considerations, there is nothing put before me that could justify the exercise of the Minister's discretion in Mr Tautuliu's favour.
Accordingly, the decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed:         .....................................................................................
  Dominika Rajewski, Associate
Date of Hearing  30 October 2000
Date of Decision  06 November 2000
Representative for the Applicant              Self-represented
Representative for the Respondent        Elizabeth Warner
  (Australian Government Solicitor)