Thorpe and Minister for Immigration, Multicultural and Indigenous Affairs - [2002] AATA 157

DECISION AND REASONS FOR DECISION [2002] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1758

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Lawrence Thorpe
  Applicant
           And    Minister for Immigration, Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date11 March 2002
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION – Spouse visa – sponsor – character test – Visa Applicant born in Fiji - where Visa Applicant provided false and misleading information in connection with application for visa – passport fraud – genuineness of marriage - character test not passed
Exercise of the discretion- Protection of the Australian Community – Expectations of the Australian Community – Best Interests of the Child - Other Considerations

Migration Act 1958: ss 499(1), 499(2A), 501(1), 501(6)(c)(ii)
Migration Regulations: Schedule 2, Clause 309.225; Schedule 4, Clause 4001
Ministerial Direction No. 21, Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

11 March 2002 Mr R P Handley

This is an application by Lawrence Thorpe ("the Applicant") for a review of a decision of a delegate of the Minister of Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 31 October 2000 to refuse the grant of a subclass 309 (Spouse Provisional) visa to the Applicant's spouse, Kusum Kala Lata Thorpe ("the Visa Applicant").
At the hearing, the Applicant represented himself and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by telephone by the Visa Applicant and Kusum Lata Jones, and in person by the Applicant and Rosleen Singh.
BACKGROUND
The Applicant, Mr Thorpe was born in England on 29 February 1952 and is aged 50. He migrated to Australia with his parents arriving on 14 October 1969 and became an Australian citizen on 23 April 1986. On 17 March 1986, Mr Thorpe married Tracey with whom he had three children: Shelley, who was born on 5 October 1987 and is aged 15, Samantha who was born on 3 May 1989 and is aged 12, and Natasha who was born on 10 February 1991 and is aged 11. This marriage was dissolved by Decree Absolute of the Family Court on 24 August 1993. Shelley lives with her father and Samantha and Natasha live with their mother.
Mrs Thorpe, the Visa Applicant, was born in Fiji on 11 April 1960 and is aged 41. Mrs Thorpe married Kishore Sharma on 11 May 1979 with whom she had three children: Angeline Maharaj, who was born on 24 May 1980 and is aged 21, Komal Sharma who was born on 11 March 1985 and is aged 16, and Nitin Sharma, who was born on 15 October 1991 and is age 10. Angeline Maharaj is now married and has a child of her own. Mrs Thorpe has the custody of her two younger children.
Mrs Thorpe first entered Australia on 15 March 1998 on a tourist visa valid for three months. She and Mr Thorpe were introduced by Mrs Thorpe's sister, Nirmala Wati and had spoken on the phone over a period of about two months prior to Mrs Thorpe arriving in Australia, when they first met in person. Mr and Mrs Thorpe were subsequently married in Minto on 9 May 1998. On 5 June 1998, Mrs Thorpe lodged both an application to remain permanently in Australia and an application for a bridging visa. On 24 August 1999, Mrs Thorpe's application to remain permanently in Australia was refused on the ground that she was not a genuine partner in the marriage with Mr Thorpe. On 27 September 1999, 27 October 1999 and 3 November 1999, Mrs Thorpe was granted a Bridging Visa E which enabled her to remain lawfully in Australia until the time of her departure, on 6 November 1999. On that date, Mrs Thorpe returned to Fiji.
On 24 November 1999, Mrs Thorpe lodged an application for a subclass 309 (Spouse Provisional) visa at the Australian High Commission in Suva. On 24 February 2000 and 18 September 2000, Mrs Thorpe was interviewed by David Whitehead, Senior Migration Officer at the Australian High Commission in Suva in relation to her application. On 31 October 2000, Mr Whitehead, acting as a delegate of the Respondent, decided to refuse Mrs Thorpe's application for a subclass 309 visa. Mr Whitehead decided that Mrs Thorpe did not pass the character test pursuant to s 501(6)(c) of the MigrationAct 1958 ("the Act") and, with regard to the exercise of the discretion in s 501(1), that there were two primary considerations which weighed heavily against exercising the discretion in Mrs Thorpe's favour. On 24 November 2000, Mr Thorpe lodged an application for a review of this decision with the Tribunal.
RELEVANT LAW
Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii)the person's past and present general conduct;
the person is not of good character;…

Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
Either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".
On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
The issue for the Tribunal to determine in this case is, therefore, whether Mrs Thorpe is not of good character having regard to her past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides she is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Lawrence Thorpe (the Applicant)
Mr Thorpe said that in early to mid January 1998, when he was working at a service station in Minto and living in a house rented from the proprietor, a woman whom he later knew to be Nirmala Wati came into the service station to buy something and overheard his employer jokingly mentioning that Mr Thorpe needed to marry again. Ms Wati said she had a sister, Kusum Kala Lata, who was looking to remarry and one hour later she came back with a photograph of her sister, telling Mr Thorpe that her sister was coming to visit in March 1998. Ms Wati gave Mr Thorpe her sister's telephone number. He phoned Ms. Lata and they spoke on the phone about twice a week for about an hour for the six weeks prior to Ms. Kala Kusum Latacoming to Australia. They discussed their backgrounds and families and got to know about each other.
Ms Lata arrived in Australia on 15 March 1998 and Mr Thorpe went with members of Ms Lata's family to meet her at the airport. At that time, Ms Wati was staying with her and Ms Lata's niece, Roseleen Singh, in her house in Minto, a few minutes walk from the service station where Ms Lata was also to stay. While Ms Lata was staying there Mr Thorpe used to visit her once a day for two to three hours at the niece's house. He also took her on a sightseeing trip around Sydney accompanied by Ms Wati. He and Ms Lata also went out together on other occasions, but always accompanied by someone else, as was required by custom in Ms Lata's culture. Over this period, Mr Thorpe said he got to know Ms Lata better and, after five or six weeks, he asked her to marry him. He emphasised this was not for the purpose of enabling her to stay in Australia but because of his feelings for her. Initially, Ms Lata's response was that she did not come to Australia to get married and she did not therefore accept his proposal immediately. However, about three days later, she accepted his proposal. They were married on 9 May 1998 at Minto Hall in the presence of 30 or 40 guests, including members of both Ms Lata's family such as Ms Wati and her niece, Ms Singh, and some of his family members.
After Mr and Mrs Thorpe were married, she moved in with him and got to meet Mr Thorpe's two younger children who lived with his ex-wife. Her son, Nitin, also came to stay and Mr Thorpe enrolled him in the local primary school. Mr Thorpe said during the eighteen months that he and Mrs Thorpe lived together, they got to know each other well and their relationship grew stronger. While Mrs Thorpe was in Australia, her two older children had been looked after by her sister in Fiji. However, her sister suffered from diabetes and became sick and had to be hospitalised. Mrs Thorpe therefore had to return to Fiji to look after her two older children while her sister was in hospital. Mr Thorpe said his wife flew to Fiji on 1 October 1998 and returned on 16 October 1998.
When she returned, Mr Thorpe went to meet her at the airport with her sister, Ms Wati. Ms Wati asked to borrow Mrs Thorpe's passport so that she could take this to show her solicitor and ask the solicitor to obtain a similar visa for her enabling her to re-enter Australia because she wanted to make a trip to Fiji. Mrs Thorpe agreed to lend her passport to her sister for this purpose. Ms Wati did not tell Mrs Thorpe that she was in fact going to Fiji on 19 October 1998 and Mrs Thorpe did not discover that her sister had gone to Fiji until she contacted her niece, Ms Singh, to ask for her passport back in order to enable her to prove her identity in relation to an application for a credit card. When Mrs Thorpe was unable to find her passport at Ms Singh's house, she phoned Ms Wati in Fiji to ask where it was. Ms Wati then told Mrs Thorpe that she had used her passport to travel to Fiji.
Mr Thorpe said his wife did not tell him of this at the time and so, when he was interviewed by a Department Officer, Greg Stephens on 19 May 1999, Mr Thorpe told Mr Stephens, in answer to a question, that his wife had only been to Fiji once in October 1998. He was not aware that Ms Wati had used his wife's passport. In fact, departmental records showed that she had travelled to Fiji twice in October 1998. His wife told him after the interview that she had told Mr Stephens that she had been to Fiji twice in October 1998 in order to protect her sister who had used her passport. Mr Thorpe said Ms Wati has refused to give evidence about what happened.
Mr Thorpe said Ms Wati is also now using another name, Kusum Lata Jones, having married an Australian citizen, Edward Jones, with whom she is living in Sydney. Ms Jones says she arrived in Australia in early 2000 and, approximately 6 months later, married Edward Jones. Mr. Thorpe said Kusum Lata Jones is the same person as Nirmala Wati who was at his and his wife's wedding in May 1998. He said when he went to visit his wife's other sister, Pria, in December 2001 at Christmas time, she took him to see her mother and introduced him to her sister Kusum Lata Jones, who had previously been known to Mr Thorpe as Nirmala Wati. Mrs Thorpe had also told him on the phone in late 1999 that Ms Wati was returning to Australia shortly, even though she had only returned to Fiji a couple of months before his wife.
Mr Thorpe said after his wife's application for a permanent residence visa was refused, she was granted a series of Bridging Visa Es while her Fijian passport was renewed so that she could return to Fiji. Since Mrs Thorpe returned to Fiji on 6 November 1999, they have kept in contact by telephone. He phones her once a week or more often if he can afford this; he is also speaking regularly to her children. He sends her $200 per month to pay her rent. Employment is difficult to find in Fiji and Mrs Thorpe does washing and cleaning for others to help support herself. Mr Thorpe said he had been to Fiji once, arriving on 24 March 2000 and returning on 10 April 2000. He said he would only ever go to Fiji for a holiday or, for example, if it was necessary for him to "sort things out with his wife". He would not go to Fiji on any other basis because there is no work for him there. Moreover, he could not take his daughter, Shelley, with him and would not even contemplate doing so.
Mr Thorpe was asked about an incident when he called the police having found a Fijian-Indian man on the roof of his house in Minto trying to break in. Mrs Thorpe later persuaded him to drop charges against this man who was her ex-husband's brother, Nirmal Prasad, who had been sent by her husband to find out whether she was married and, if she was, to threaten her that he would take her son back to Fiji. Mrs Thorpe had told him that her ex-husband used to beat her. After the incident with Mr.Prasad on the roof, Mrs Thorpe told him afterwards that she had met Mr Prasad with his mother at Ingleburn Shopping Centre a few weeks earlier.
At this time, Mr Thorpe sometimes worked night shifts. His wife stayed at home with Shelley and Nitin but she would occasionally go and stay with her family. When he was working day shifts, Mr Thorpe would sometimes phone his wife on his mobile phone during the day. His ordinary phone had been disconnected at that time because of a large overdue account arising from telephone calls to Fiji. When he phoned during the day, his daughter confirmed that Mrs Thorpe was with her in the house. One day when Mr Thorpe was at work, Mr Prasad went the house and assaulted Mrs Thorpe. Mr. Thorpe reported this incident to Macquarie Fields Police and, on the day after, gave a statement to Constable Lee. Mrs Thorpe told Mr Thorpe that the "bashing" was to do with her family and her ex-husband threatening to take her son away from her and back to Fiji. As a result of the bashing, his wife had a black eye and some bruising. Mr Thorpe said his wife denied having had a long-term relationship with Mr Prasad and said that Mr Prasad had made this all up. Mr Thorpe later learned that Mr Prasad and his mother had stayed at the flat which Mr and Mrs Thorpe rented in the first 6 months of 1999 and that Mr Prasad had gone to the house at Minto on one other occasion to pay some money towards the rent of the flat. A while later, his wife told him that she had received a telephone call a month or so earlier to say that Mr Prasad had had a heart attack and died. Mr Prasad's family were taking his body back to Fiji for burial.
Mr Thorpe said his rented house in Minto only had two bedrooms. His wife told him they needed larger accommodation to enable her daughters and other family members coming to Australia to visit them. Mr and Mrs Thorpe therefore rented a three bedroom flat in their joint names at a cost of $130 per week from about January/February 1999 for a period of six months. Mr Thorpe said he was also paying $155 per week for the house in Minto. Mr Thorpe said his wife's sister had stayed at the flat for some time and helped pay the rent. His wife had also stayed there occasionally. Even though Mrs Thorpe originally wanted the flat for the use of family members, she had also had tried to run a phone sex business from there. Mr Thorpe said he had noticed something about phone sex in the newspaper and had mentioned it to her. He told her that he did think it was for her. However, she went into Sydney to follow this up and to talk to somebody about it, and he wrote a few things down for her to use in the course of talking to customers. After trying this business for a short time, she told him she could not continue.
Mr Thorpe said that after they were married, in about June 1998, he went to the Department with her for her to apply for permission to work. He also went with her to obtain a tax file number. To his knowledge, it was only after her having obtained a tax file number that she started working. Mr Thorpe said he is not aware whether his wife worked before their marriage. Having obtained a tax file number, his wife registered for casual employment with Integrated Workforce through whom she obtained some casual work. She also undertook some casual work for Corporate Express, with Drovers Boot - a shoe company at Minto and, from early 1999, with Darrell Lea Chocolates. In addition, she was also registered with NTV Studios through whom she obtained some photographic modelling work and work as an extra in an Australian movie.
Mr Thorpe was asked about money which he allegedly owes to Tahmina & Associates for their immigration services in relation to his wife's visa application. He denied that he owed Ms Tahmina any money. Her fee was payable at the completion of the final hearing in connection with his wife's visa application. A friend who owed him money had paid an earlier account from Tahmina & Associates by cheque which bounced. Mr Thorpe said he knew nothing of this at the time. Mr Thorpe was shown a letter from Ms Tahmina Rahim to Mr Allatt dated 17 January 2002 (R1) in which Ms Tahmina gave an account of a meeting at her office with Mrs Thorpe's sister, Mrs Pria Nath, and her husband Mr Joseph. Ms Tahmina alleged that Mr Joseph said to her "Please do not stop Mrs Thorpe's case. I will pay you all they owe as I am in love with her and everybody knows about it". Mr Thorpe said he knew nothing of this meeting. Mr Thorpe said Pria Nath first arrived in Australia in the middle of 1999 and married Mr Joseph, who is an Australian citizen of Lebanese background, about six or seven months later.
However, Mr Thorpe confirmed that Mr Joseph had helped Mrs Thorpe organise her ticket to Fiji on 6 November 1999 because, at the time, Mr Thorpe had a broken leg. Mr Thorpe also said that he had phoned Ms Tahmina to tell her that the cheque with which he had sought to pay her had been provided by a friend. Mr Thorpe said Ms Tahmina also suggested in her letter that he had disconnected his telephone in order to avoid any contact from her. On the contrary, he said his phone was disconnected by Telstra because of non-payment of a very large telephone bill as a result of calls to Fiji.

Mr Thorpe said his daughter Shelley still asks about Mrs Thorpe but not so much now as when she first left in November 1999. In December 2000, he and his daughter moved to Kandos, near Mudgee, in order to be nearer his ex-wife and limit the amount of travelling they each have to do when collecting and returning the children living with the other. Shelley goes to visit her mother every on alternate weekends and her two younger sisters spend alternate weekends with Mr Thorpe. In the school holidays, the children spend their time equally between their two parents.
Mr Thorpe agreed that the events which have emerged in relation to his wife's case do seem strange and it might look as if he has been used. However, he emphasised that he still loves his wife.
Kusum Kala Lata Thorpe (the Visa Applicant)
Mrs Thorpe described how she had been living alone with her three children in Fiji when her sister, Nirmala Wati, met Mr Thorpe. She got the impression from Ms Wati that she had known Mr Thorpe for some time and Ms Wati told her that he was a nice person who wanted to get married. Ms Wati asked Mrs Thorpe whether she was interested and, if she was, to send Ms Wati a photograph of herself. She did this and Ms Wati swapped Mrs Thorpe's photograph for one of Mr Thorpe and then Mr Thorpe phoned her. While he phoned her a lot, she never phoned him because she could not afford to do so. Mrs Thorpe said that after two or three months, she decided to travel to Australia to meet Mr Thorpe. She was met at Sydney Airport by her family members and Mr Thorpe who took her back to Minto where she stayed at her niece, Roseleen Singh's house, where Mrs Thorpe's sister, Ms Wati, was also staying. Mrs Thorpe said when, at first, she and Mr Thorpe went out together, her son, Nitin went with them. However, when she and Mr Thorpe went dancing and to the movies, they went alone. About five or six weeks after she met Mr Thorpe, he proposed to her.
Mrs Thorpe said she was surprised by his asking her to marry him. At first, Mrs Thorpe jokingly said "No" to his proposal. But she knew he was a good person and was good with her son who really liked him, and about five minutes later she said "Yes" [After they got married, Mrs Thorpe moved into Mr Thorpe's rented house in Minto with Shelley and Nitin, who shared the second bedroom. Mrs Thorpe continued to visit members of her family at her niece, Ms Singh's house, which was about two minutes walk away. Mrs Thorpe's mother would stay with Ms Singh from time to time and Mrs Thorpe would see her there. During the day when her husband was at work or, if he was working nights, she would sometimes go to Ms Singh's house and Shelley and Nitin would go with her.
Mrs Thorpe said she has three sisters in Australia: Pria who is married to Mr Joseph, Nirmala Wati, and Kala Wati who is married to Amil. Mrs Thorpe first met Mr Joseph at his wedding to her sister about one month before Mrs Thorpe returned to Fiji. She has tried to contact her sister Nirmala Wati, but does not know where she is currently.
Mrs Thorpe thinks she is in Sydney but her family have not told her where. She sometimes speaks to her family on the phone. Pria phones her about once a month. They use the phone rather than writing letters. Mrs Thorpe said she went to Fiji in October 1998 to see her two older children, who were being looked after by another of her sisters. Her sister suffered from diabetes and had to go into hospital where she had a toe amputated. Mrs Thorpe looked after the children while her sister was in hospital. After she came out of hospital, Mrs Thorpe was able to return to Australia. On returning to in Australia, her sister, Ms Wati, said she and their mother were going to Fiji, and asked to borrow Mrs Thorpe's passport so that Ms Wati could take this to show her solicitor the sort of visa she wanted allowing her to re-enter Australia. Mrs Thorpe said her mother had already been granted a category B visa allowing re entry, but Ms Wati's visa did not permit re-entry. The solicitor they consulted was Christopher Mutu, whom her mother and Ms Wati used to consult about these matters. Mrs Thorpe said Ms Wati and her mother did not tell her when they were going to Fiji. She found out the day after they had gone. The reason for Ms Wati's going to Fiji was that her ex-husband had beaten their son who was still in Fiji and Ms Wati wanted to see her son.
Mrs Thorpe said a few days after lending her passport to Ms Wati, she needed her passport in order to establish her identity for the purpose of applying for a credit card. She went to Ms Singh's house in Minto to look for her passport thinking it would be there. When she could not find it, she phoned Ms Wati in Fiji who told her that she had the passport with her. However, Ms Wati did not tell Mrs Thorpe she had said she actually used the passport until after her return to Australia. Mrs Thorpe did not tell the Immigration Officer, Mr Stephens, who interviewed her on 19 May 1999 about her sister having used her passport because Mrs Thorpe was afraid that her sister would end up in jail. Mrs Thorpe therefore told Mr Stephens that she had been to Fiji twice in October 1998.
Mrs Thorpe said the man her husband found on the roof of their house in Minto was her ex-husband, Kishore Sharma's brother, Nirmal Prasad. Mr Prasad said he was there because Mrs. Thorpe's ex-husband wanted to find out if she had really remarried. Mrs Thorpe said when a Fijian woman remarries, her ex-husband is entitled to take the children away. Mr Prasad later tried to blackmail her on the basis that her ex-husband was threatening to take her children away if she did not pay him not to do so. With regard to the charges laid against Mr Prasad in relation to his being on the roof, Mrs. Thorpe said her ex sister-in-law promised to pay $2000 if they dropped the charges against him. Mrs Thorpe persuaded her husband to drop the charges but the money was never paid. She had previously met Mr Prasad's mother at a shopping centre, but Mr Prasad had not been present. Mrs. Thorpe said Mr Prasad had nothing to do with the phone sex business, which she tried to run. He had come to the house at Minto with another man on two occasions, after her husband had gone to work, and had stayed for five minutes or so before leaving. On one occasion, he started hitting her when she refused to pay him money. Mr Thorpe reported this assault to the police and charges were laid but not pursued because Mr Prasad later died.
Mrs Thorpe said her husband suggested a phone sex business to her and so they rented a flat in their joint names for this purpose. They wanted separate premises so that their children were not present. Mr Thorpe thought they might be able to earn a lot of money in this business. Mrs Thorpe said she had a phone connected and arranged with a company in the City to enable her to conduct the business from 6:00 p.m. to 6:00 a.m. Her husband wrote down things for her to say in conducting the business because she could not talk like that. However, she found she still could not do it because it was too hard. She did not last for even a week. When she found she could not do this, Mrs Thorpe advertised for people to work for her, but they only wanted to work during the day time and not at night. So she abandoned the idea. After this, her mother stayed in the flat some of the time. Mrs Thorpe said she only started to work in Australia having obtained permission and had her passport stamped, and after she and Mr Thorpe had gone to obtain a tax file number for her. This was probably around May/June 1998. She did casual work for Integrated Workforce whom she had to call everyday to see if work was available. She also did some modelling for NTV, some casual work for Drover's Boot and, in September 1999, for Darrell Lea Chocolates. She had not included all the names of the employers she had worked for in her application for a spouse visa, because she could not remember all the names. She acknowledged that she had also not included details of her family members in the original application to remain permanently in Australia lodged on 4 March 1998.
Mrs Thorpe emphasised that her marriage is a genuine one and that she did not marry for the purpose of obtaining entry to Australia. Mr Thorpe has promised that if her application is refused, he will travel to Fiji to live with her. Mrs Thorpe thought that perhaps he could run a restaurant. She said he visited her in Fiji for two weeks in May/June 2001.
Mrs. Thorpe denied that she had continually lied to Constable Lee when he was investigating the alleged assault on her by Mr Prasad (S18). However, she agreed that she had lied in order to protect her sister, Ms Wati, and to try and prevent the Department finding out that Ms Wati had used Mrs Thorpe's passport to go to Fiji in October 1998. Mrs Thorpe agreed that she had later asked Mr Thorpe to write to the Department to say that she was in Queensland at the time her passport was used on the second occasion for travel to Fiji in October 1998. However, Mrs Thorpe denied that all her personal papers had been kept at the house where Ms Wati resided. She said she had always kept her personal papers with her.
Kusum Lata Jones
Mrs Jones said she had only been in Australia for about two years, having first arrived in early 2000. She and her husband, Mr Jones, married about a year ago. Mrs Jones said she has five sisters: Kusum Kala Lata (Mrs Thorpe), Bimla Devi, Kala Wati, Pria Rami, and Nirmala Wati. Mrs Jones said Nirmala Wati was now in Fiji, although she had been in Australia, perhaps in about 1998. Mrs Jones said her mother is currently living in Australia. She agreed that her mother had visited Fiji in about October 1998 with Nirmala Wati. Mrs Jones said she had seen them in Fiji at that time.
Mrs Jones denied ever using her sister's, Mrs Thorpe's passport. She said she was not at Mr and Mrs Thorpe's wedding in May 1998 because she was in Fiji at the time. Mrs Jones agreed that she had visited her daughter Roseleen Singh at her house in Minto. She also knew that there had been some trouble between Nirmal Prasad and Mrs Thorpe, but she was not aware of the details. She also did not know what work Mrs Thorpe did in Australia.

Roseleen Singh

Ms Singh said she was born on 18 September 1974 and her birth certificate shows her mother as Kusum Lata and her father as Suresh Chand (T202). Ms Singh said she first came to Australia at the age of nineteen in 1994 for an arranged marriage organised by her father. (She became a permanent resident and an Australian citizen on 13 March 1997 (T203)). Ms Singh said her first husband's mother abused her and this marriage only lasted four months before they separated. Ms Singh subsequently married Jack Singh, but she separated from him in October 2000 because of marital problems including his abusing her.
Ms Singh said her mother is Kusum Lata Jones. She said her mother has five sisters: "Baby Aunty" who lived in Fiji and is now dead, Nirmala Wati who lives in Fiji and is not married, Pria Rami who is married and lives in Australia, Kala Wati Sharma who is married to Khalil and lives in Australia, and Mrs Thorpe.
Ms Singh said she used to live in Minto where she and her husband bought a house in 1998. She lived there until about a year ago when she and her husband separated and she moved to Kasula. Ms Singh said she came to know Mr Thorpe because he lived in Minto and worked at the service station there. She said he and her ex-husband, Jack Singh, were good friends and it was she who put Mr Thorpe in touch with Mrs Thorpe in Fiji before she came to Australia. Ms Singh said she met Mrs Thorpe at the airport and she stayed with her in Minto until she was married. Ms Singh said Nirmala Wati was also staying with her at the time. Ms Singh had asked Ms Wati to come to Australia in about 1996 to look after her when she was pregnant. Ms Wati arrived when Ms Singh was about 7 months pregnant – Ms Singh's daughter was born on 11 January 1997 – and stayed until her daughter was about 2 or 3 years old. Ms Singh said she asked Ms Wati to come to Australia to help her because, at that time, her parents in Fiji were having marital problems and her father would not allow her mother to come to Australia. She therefore invited Ms Wati to come instead.
Ms Singh said her mother first came to Australia nearly two years ago and had not been at Mr and Mrs Thorpe's wedding because she was in Fiji. Her mother married Mr Jones in March 2001. Ms Singh had previously worked for Mr Jones and he was a family friend whom she had introduced to her mother. Ms Singh said her mother had told her that she was engaged to Mr Jones a few weeks before the wedding.
Ms Singh said her grandmother and Nirmala Wati had visited Fiji in 1998. Her grandmother had to return to Fiji because her visitor visa had expired. Ms Wati went to see a migration agent to obtain a further visa to enable her to re-enter Australia after her visit to Fiji. Ms Singh denied that Mrs Thorpe would have lent Ms Wati her passport to enable Ms Wati to travel to Fiji on it. Ms Singh said Mr and Mrs Thorpe were happy together and Mrs Thorpe got on well with Mr Thorpe's children. She said both Mr and Mrs Thorpe are suffering as a result of their prolonged separation.
SUBMISSIONS
The Respondent
Mr Allatt, for the Respondent, submitted that Mrs Thorpe does not pass the character test pursuant to s 501(6)(c)(ii) of the Act because of her past and present general conduct. He said the Tribunal should consider the following matters:

Passport Fraud. The Tribunal should make finding as to whether Mrs Thorpe had knowledge of the use of her passport by Nirmala Wati. The Respondent contends that it is more likely than not that Mrs Thorpe knew of this use. Mr Allatt noted that following the interview with the Migration Officer, Greg Stephens, on 19 May 1999, Mr Thorpe wrote to Mr Stephens saying that his wife had told him that she was going to Queensland on 19 October 1998 (S13, p231). Mrs Thorpe had admitted in evidence that she had never been to Queensland and that this was a lie. Mr Allatt said the oral evidence of the four witnesses raised questions about the identity of Nirmala Wati and whether she is the same person as Mrs Jones. Ms Singh may have a motive to be untruthful in relation to distinguishing between Ms Wati and her mother in that she may be attempting to protect her mother from allegations of passport fraud.
Nirmal Prasad. Mrs Thorpe's evidence was that Mr Prasad was the brother of her ex-husband and that Mr Prasad's assault on her was in relation to a threat over the custody of her son. Mr Allatt said the Tribunal should make a finding about whether Mrs Thorpe had a relationship with Mr Prasad. Although Mrs Thorpe denied this, the file note of Mr Stephens' phone conversation with Constable Lee suggests that Constable Lee's investigation indicated that they had had a long term relationship, including previously in Fiji (S18). There is also evidence that Mrs Thorpe spent at least one night at the flat when Mr Prasad was present. The evidence suggests that Mr Prasad is now deceased.
Phone Sex Business. Mr Allatt said the contradictions in the evidence of Mr and Mrs Thorpe over the phone sex business should be taken into consideration in relation to the genuineness of their relationship.
Mrs Thorpe's application to remain in Australia, lodged on 5 June 1998. Mr Allatt noted that a number of questions in the form asking for details about her children and family had not been completed. The Respondent submitted that this should be taken into account in relation to whether Mrs Thorpe acted truthfully and honestly.
Mrs Thorpe's Work in Australia. Her application for a spouse visa lodged on 24 November 1999 states that she commenced working for Corporate Express in April 1998 (T18, p79). Mr Allatt noted that at this time, she did not have permission to work.

Genuineness of Marriage. Mr Allatt said the original decision-maker formed the view that Mr Thorpe was a genuine party to the marriage but Mrs Thorpe was not. The Respondent submits that the Tribunal should form the same view. Mr Allatt noted the contradictions between Mr and Mrs Thorpe's oral evidence and noted that Mrs Thorpe had not initially been truthful with her husband about her passport and its use by Nirmala Wati. Mr Allatt drew the Tribunal's attention to the "matters of concern" raised by the decision-maker (T11, p49), in particular, Mr Thorpe's statement to the officer that his wife was spending a lot of time with her relatives rather than with him and the incidents involving Mr Prasad and his relationship with Mrs Thorpe. Mr Allatt noted the short period between the time that Mr and Mrs Thorpe met and their marriage. He also noted Roseleen Singh's evidence that she had introduced Mr and Mrs Thorpe contradicted the other oral evidence that it was Ms Wati. Generally, Mr Allatt suggested there was a question about the genuineness of a number of marriages involving members of Mrs Thorpe's family and Australian citizens. Mr Allatt contended that it was more likely than not that Mrs Thorpe had entered into this marriage in order to remain in Australia. He noted Mr Thorpe's evidence that he would not contemplate going to live in Fiji if his wife's application for a spouse visa was unsuccessful.

Mr Allatt said Mrs Thorpe had made false and misleading statements in interviews with departmental officers and in making the statutory declaration at the end of her June 1998 application to remain permanently in Australia. He said this and the matters raised above support a conclusion that Mrs Thorpe fails the character test pursuant to s 501(6)(c)(ii). If the Tribunal so decides, it must then consider the exercise of the discretion under s 501(1) and the guidance provided to decision-makers by Direction No. 21.
With regard to the first of the three primary considerations to which decision-makers are directed, the Protection of the Australian Community, Mr Allatt submitted that the evidence as to Mrs Thorpe's misconduct supports the conclusion that the Australian community does require protection. Mr Allatt noted Mrs Thorpe's pattern of lying and the doubts over the genuineness of her marriage which, he contended, she entered into in order to obtain Australian permanent residence. Refusal of a visa would act as a deterrent to others and would also be in accord with the second primary consideration, the Expectations of the Australian Community.
With regard to the third primary consideration, the Best Interests of the Children, Mr Allatt said that both Mr and Mrs Thorpe have children from their previous marriages. Mr Thorpe's elder daughter, Shelley, lives with him. Her statement on file is dated 5 November 1999 (T18, p98). Mr Thorpe's oral evidence suggested that Shelley is no longer concerned about the absence of Mrs Thorpe and now takes less interest. Shelley sees her own mother on a regular basis. With regard to Mrs Thorpe's children, Mr Allatt noted her young son, Nitin, had been in Australia and living with Mr and Mrs Thorpe for a short period. Now in Fiji, he is living with his mother and could have access to his father. Nitin's older sister, Angeline, is married and has a child of her own. His other sister, Koman, is 16 and lives with Nitin and his mother.
With regard to Other Considerations, and the matters referred to in paragraph 2.17 of Direction No. 21, Mr Allatt contended that the marriage is not genuine on the part of Mrs Thorpe. He said Mr and Mrs Thorpe's relationship was formed over the telephone and they had only known each other in person for five or six weeks before Mr Thorpe proposed marriage. He would not have been aware of the questions subsequently raised as to her character at the time of their marriage.

With regard to hardship, Mr Allatt submitted that although Mrs Thorpe does have relations in Australia, there is no evidence that there would be any significant hardship to her should her application for a visa be refused. Her family are still principally in Fiji. Finally, Mr Allatt drew attention to the seriousness of Mrs Thorpe's misconduct, to the indications that she was still lying to the Tribunal about certain matters, and to the lack of any evidence as to rehabilitation or recent good conduct. He submitted, therefore, that the discretion in s 501(1) should not be exercised in Mrs Thorpe's case.
The Applicant
Mr Thorpe said the use of his wife's passport by Nirmala Wati was unknown to him at the time and that it appeared that his wife had lied to protect her. Mr Thorpe thought that Mrs Jones and Nirmala Wati are the same person. He recalled that Roseleen Singh had referred to Ms Wati as "Ama" which he said means mother. He said he was introduced to Ms Wati as Ms Singh's mother. Mr Thorpe said he has video evidence of his wedding at which Ms Wati was present. He said at Christmas 2001, he met Mrs Jones who was the same person as Ms Wati. His wife had also told him, not long after she returned to Fiji that Ms Wati was returning to Australia.
Mr Thorpe said he first met Ms Singh in December 1997, contrary to Ms Singh's statutory declaration dated 31 May 1998 (S1, p200) in which she said she had known Mr Thorpe for five years. He also denied that he was a close friend of Ms Singh's ex-husband, Jack Singh, as she had stated. He said he believed Nirmal Prasad had gone to see his wife at the request of her ex-husband in order to attempt to "spoil" his wife's application to stay in Australia. Mr. Thorpe said his wife's family had different customs about marriage. He believes his wife has feelings for him but to what extent he is not sure. He could not explain why his wife did not tell him that her sister had used her passport.
Mr Thorpe said he was not aware of his wife having worked in Australia before their marriage. He recalled their having applied for permission for her to work about June/July 1998 and his going with her to obtain a tax file number. He thought her first casual job was with Integrated Workforce. With regard to the matters referred to in Direction No. 21, Mr Thorpe said he is aware of community concern in Australia that people are being "conned" into marrying non-residents to enable them to migrate to Australia. However, he did not see this as being the case in respect of his wife. Mr Thorpe acknowledged that his daughter, Shelley, does not ask about Mrs Thorpe so much now as she used to. Since he and Shelley moved to near Mudgee in December 2000, his ex-wife now lives only about 30 minutes drive away. They alternate in seeing their children at weekends, and the children spend half their holidays with each parent.
Finally, Mr Thorpe asked the Tribunal to bear in mind that he has found the refusal of his wife's application for a spouse visa to be very difficult and he has suffered as a result.
APPLICATION OF THE LAW AND FINDINGS
As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mrs Thorpe passes the "character test" having regard to her past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mrs Thorpe does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement (paragraph 1.9)(b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9)(c)).
The Tribunal finds that Mrs Thorpe was not aware, when she lent her passport to her sister Nimala Wati in October 1998, that Ms Wati might use the passport to travel to and from Fiji. However, the Tribunal notes that Mrs Thorpe became aware of this a few days after her sister left for Fiji Mrs Thorpe subsequently lied in an interview with a Migration Officer, Greg Stephens, on 19 May 1999 when she told him that she had been to Fiji twice in October 1998, although she later admitted that she had, in fact, only been to Fiji once in October 1998, and that on the second occasion her sister had used her passport. Mrs Thorpe lied in order to protect her sister. In the Tribunal's view, such a false statement must be treated as a serious matter.
The oral evidence at the hearing also raises questions as to the identity of Nirmala Wati and Kusum Lata Jones. Mr Thorpe is convinced that they are the same person and his evidence and that of Mrs Thorpe tend to support such a conclusion. However, the evidence of Mrs Jones and her daughter Roseleen Singh suggests otherwise. The Tribunal has insufficient evidence to enable it to make a definitive finding on this matter, but nevertheless, the evidence raises questions about the moral qualities of a number of members of Mrs Thorpe's family and their motives in entering into relationships with Australian citizens. Mr Thorpe's evidence suggests that his wife did not always give him a full account of her knowledge of various matters and it is clear from what he said at the hearing and from what he has previously said to departmental officers, that despite his declared love for his wife, he has significant doubts about her conduct and truthfulness in relation to a number of matters, including her relationship with Nirmal Prasad.
The Tribunal notes the oral evidence in relation to how Mr Thorpe was first introduced to his wife and the short period during which Mrs Thorpe was in Australia prior to Mr Thorpe proposing marriage. Mr Thorpe struck the Tribunal as a straightforward honest man who has been caught up in a matter that he has found very distressing and which has caused him considerable hardship. He appears to have found it difficult to know what to believe when considered in the context of his love for his wife. The Tribunal has no doubt that Mr Thorpe was a genuine party to the marriage. However, the Tribunal is less certain about Mrs Thorpe's part in the relationship and is not satisfied on the evidence before it that, on her part, this was a genuine marriage, rather than one whose prime objective was to enable her to become a permanent resident of Australia. The Tribunal accepts that her situation in Fiji may be difficult, but this is not a justification for using a relationship with an Australian citizen to obtain entry to Australia.
The overall view formed by the Tribunal drawing on the oral evidence of the hearing and the records of interview of the migration officers who have interviewed Mrs Thorpe, is that there are doubts raised as to Mrs Thorpe's motives and therefore as to her character. In the light of this, and her false statement to a departmental officer with respect to her passport, the Tribunal finds that she does not pass the character test pursuant to s 501(6)(c)(ii) because of her past and present general conduct. Having so decided, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether, notwithstanding, not to refuse the grant of a visa to Mrs Thorpe.
In exercising this discretion, the Tribunal had regard to Part 2 of Direction No. 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

With regard to the protection of the Australian Community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).

Examples of offences considered by the Government to be serious include serious crimes against the Migration Act 1958 which in turn include "making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".
With regard to this first primary consideration, the Tribunal has found that Mrs Thorpe made a false statement in connection with her application to remain in Australia and a passport fraud, a matter which is regarded as serious by the Australian community. The Tribunal notes Mrs Thorpe's evidence that she was motivated in lying to departmental officers by her wish to protect her sister. With regard to the genuineness of Mrs Thorpe's part in her marriage, the Tribunal has been unable to make any definitive finding. However, the evidence before the Tribunal, both in relation to Mrs Thorpe's conduct while in Australia, and that of other members of her family, raises doubts as to their motivation in establishing relationships with Australian citizens. It is important that a clear message should be sent to others contemplating establishing relationships primarily for the purpose of obtaining permanent entry into Australia that such conduct will not be tolerated. Thus, refusal of a visa in such circumstances is likely to have a general deterrent effect.
The second primary consideration is the expectations of the Australian community. Paragraph 2.12 states there is an expectation that non-citizens should obey Australian laws while in Australia. In the Tribunal's view, passport fraud is viewed as a serious matter. Furthermore, where significant doubts are raised as to the genuineness of a marriage, it is appropriate to refuse a visa application.
The third primary consideration is the best interests of any children. While Mr Thorpe's daughter, Shelley, obviously felt a loss at her step-mother having to return to Fiji in November 1999, Mr Thorpe's evidence is that that loss has grown less acute with time and, given Shelley's relationship with her siblings and her mother, the Tribunal has formed a view that the denial of a visa to Mrs Thorpe would not have any serious adverse effect on Shelley. With regard to Mrs Thorpe's children, only her son, Nitin, who is now aged 10, has spent any time in Australia. Given that the other members of his immediate family are in Fiji, including his parents and his sisters, in the Tribunal's view, he would not be adversely affected by the refusal of a visa to his mother.
Finally, with regard to the other considerations to which a decision-maker is directed by Direction No. 21, paragraph 2.17 states that, where relevant, "it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; the non-citizen's business and other ties to the Australian community; genuine marriage to an Australian citizen: the degree of hardship caused to immediate family members in Australia the family composition of the non-citizen's family both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
The Tribunal has already expressed its doubts about the genuineness of Mrs Thorpe's part in the marital relationship. Mrs Thorpe is a Fijian citizen who has spent most of her life in Fiji where most members of her immediate family are located. However, Mrs Thorpe has at least two sisters who are married and living in Australia and her mother is currently in Australia. In this context, the Tribunal once again notes the questions raised by the evidence concerning the identity and truthfulness of Mrs Jones.
With regard to Mr Thorpe, the Tribunal has no doubt that he has suffered hardship as a result of the course of events which saw his wife's application for a visa being refused and as a result of her returning to Fiji. However, it is clear that despite his expressed love for his wife, he also has doubts about some of the events which have occurred. Mr Thorpe has three children in Australia, one of whom, Shelley, lives with him, and to whom he has ongoing obligations. He clearly stated his intention not to relocate to Fiji should his wife's visa application be refused.
In conclusion, a weighing up of the primary and other considerations persuades the Tribunal that the discretion in s 501(1) should not be exercised in Mrs Thorpe's favour. The paramount considerations in making this decision are the need to protect the Australian community and that the outcome should be in line with its expectations. The Tribunal therefore affirms the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
  Associate
Date/s of Hearing  21 & 22 January 2002
Date of Decision  11 March 2002
Representative for the Applicant   Self-represented
Solicitor for the Respondent    Mr M Allatt, Australian Government Solicitor