Tjan and Minister for Immigration and Multicultural Affairs - [2001] AATA 1025

DECISION AND REASONS FOR DECISION [2001] AATA 1025

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/646

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Sandy Tjan
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date19 December 2001
PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – visa applicant does not pass character test – whether to exercise the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to the visa applicant – protection of the Australian community – expectations of the Australian community – best interests of the child – other considerations

Migration Act 1958: ss 499(1), 499(2), 499(2A), 501(1), 501(6)
Migration Regulations 1994: Schedule 2, clause 309.225; Schedule 4, clause 4001
Ministerial Direction No. 21 – Visa Refusal and Cancellation under s 501

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

REASONS FOR DECISION

19 December 2001 R P Handley, Deputy President

This is an application by Sandy Tjan ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 30 April 2001 to refuse the grant of a Sub-class 309 – Spouse (Provisional) Visa to the Applicant's spouse, Giantoro Pandi ("the Visa Applicant").
At the hearing, the Applicant was represented by Nicholas Poynder, of Counsel, and the Respondent was represented by Elizabeth Warner, 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 in person by the Applicant and her mother, Lisa Isabel Tjoeng.

BACKGROUND

The Visa Applicant, Mr Pandi, was born in Indonesia on 29 May 1969 and is aged 32. He first arrived in Australia on 6 April 1990 with a student visa valid for three months. He did not return to Indonesia on the expiry of his visa, but stayed in Australia and worked unlawfully until he was located and detained on 30 May 1995. He was then granted a bridging visa and departed voluntarily for Indonesia on 15 June 1995.
After his return to Indonesia, Mr Pandi obtained a false passport in the name of Steven Giant, with a visitor visa, and returned to Australia on 22 September 1995. He obtained an extension of his visitor visa to enable him to remain in Australia until 15 January 1996. He did not, however, depart Australia by that date and remained unlawfully until being granted a bridging visa on 15 November 1996, having lodged an application for a protection visa in the name of Steven Giant on 24 June 1996. The bridging visa granted on 15 November 1996 was subject to a "no work condition". On 27 February 1997, Mr Pandi's application for a protection visa was refused and his bridging visa expired on 2 April 1997. Nevertheless, Mr Pandi remained in Australia, supporting himself by working, until he was located at Sydney Airport on 22 March 2000 when farewelling the Applicant's brother. He was told to report to the office of the Department of Immigration and Multicultural Affairs ("the Department") at Rockdale, where he was granted a Bridging Visa E. He departed Australia on 20 April 2000.
The Applicant, Ms Tjan, was born in Indonesia on 30 May 1974 and is aged 27. She migrated to Australia with her mother and brother arriving on 21 August 1991, and became an Australian citizen on 25 February 1999. Ms Tjan married Hendrik Halim on 3 November 1992. They separated in 1996 and were divorced on 18 March 1998. Ms Tjan has worked as a bank clerk/operations officer for the Commonwealth Bank since 22 February 1995. Ms Tjan and Mr Pandi met at Mr Pandi's brother's house on 7 March 1998 and were married in Sydney on 3 April 1999. Mr Pandi and Ms Tjan lived with her mother and brother in Kensington. When Mr Pandi returned to Indonesia on 20 April 2000, Ms Tjan decided to accompany him and obtained leave without pay from the Commonwealth Bank.
On 9 May 2000, Mr Pandi lodged his application for a Sub-class 309 (Provisional) Visa at the Australian Embassy in Jakarta. He was interviewed by an officer at the Embassy on 21 February 2001 and, on 30 April 2001, a delegate of the Respondent decided to refuse the grant of a visa to Mr Pandi because of his past and present general conduct. On 18 May 2001, Ms Tjan lodged an application for a review of this decision with the Tribunal. On 27 June 2001, Ms Tjan gave birth to a daughter, Calista, in Jakarta, who was registered as an Australian citizen by descent on 9 August 2001.
RELEVANT LAW

Under s 501(1) of the Migration Act 1958 ("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 sub-class 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 the 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.
In this case, the Applicant concedes that the Visa Applicant does not pass the character test set out in s 501(6). The issue for the Tribunal to determine, therefore, is whether to exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Giantoro Pandi (the Visa Applicant)

Mr Pandi was referred to his statutory declaration dated 31 March 2000 (T8 p82) and, in particular, to paragraph 4 where he stated that he completed "nearly two years of law study at the University Tarumamegara". Mr Pandi said this part of his declaration is incorrect. He had not undertaken any tertiary study in Indonesia but had included this in his statutory declaration because he thought it would sound better. Notwithstanding this, he said the remainder of the statutory declaration is true and correct, as is a further statutory declaration dated 14 November 2001 (A2).
Mr Pandi said he lived and worked in Australia for two periods, each of approximately five years. During the first period of five years from 6 April 1990 to 15 June 1995, he worked initially as a distributor of fliers, then assisted in an Italian restaurant at Bondi Junction, and finally worked as a cleaner, cleaning banks and other offices. During the second period from 22 September 1995 until 20 April 2000, Mr Pandi worked initially doing deliveries for a catering business, then he worked in a Chinese restaurant on Oxford Street, and finally, from September 1997 to April 2000, he worked as a printer for Summit Technology at Waterloo. In this last position, he was trained for three to four months when he first started the job. Certain skills were required for setting the equipment correctly and mixing the inks. He was paid between $300 and $400 per week net, although this varied because he was working shifts. During this period, he paid tax, using the tax file number obtained when he first arrived in Australia in 1990. He acknowledged that he had not paid tax when working for the catering business or for the Chinese restaurant. Mr Pandi said he sent money home to his family in Jakarta when he could afford it. This was approximately every one to two months and comprised approximately 30% of his income after the deduction of expenses. His family in Indonesia were dependent on the money sent by him and his elder sister who also lives in Australia.
Mr Pandi acknowledged that he had made an application for a protection visa in the name of Steven Giant on 24 June 1996 through his then solicitor, Adrian Joel of Crown Street, Darlinghurst. Mr Pandi admitted that his main objective in lodging this application was to obtain a tax file number in the name of Steven Giant because the tax file number he obtained when he originally came to Australia in 1990 was in his real name. Mr Pandi said he did not stay in touch with Mr Joel when Mr Pandi was unable to obtain a tax file number during the processing of his application. He never received a copy of the Department's decision on his application and is not aware of whether or not the case was reviewed by the Refugee Review Tribunal. He first learned that his application had been refused when he was detained at Sydney Airport when farewelling a friend on 22 March 2000.
Mr Pandi said he had not had any great expectation of a protection visa application being granted and he did not make any enquiry as to the outcome because he did not give it much thought. At the time of making the application, Mr Pandi was living in Redfern with a relative who was the mother of his older brother's wife. She continued to live at the same property for two to three years after Mr Pandi left and would have forwarded to him any post addressed to him there. However, he never received notification of the refusal of his application from the Department. Mr Pandi said he was probably living in Kensington at the time the actual decision was made on 27 February 1997 (T12).
Mr Pandi acknowledged that he was aware his protection visa application contained false visa information, for example that he had been employed as a finance manager. This was suggested by the travel agent in Jakarta who assisted in obtaining a passport and visa for him in the false name of Steven Giant. However, it was true that he had suffered discrimination as an ethnic Chinese person in Indonesia. He said his experience of living for 20 years in Indonesia is that the Chinese are always blamed if there is trouble and are used as scapegoats.
Mr Pandi said he met Ms Tjan in March 1998 at a time when he was living in Baulkham Hills. He started living with Ms Tjan, her mother and brother, in Kensington in July 1998. Meeting Ms Tjan changed his life. Previously, he had only thought about himself and his family responsibilities. After meeting Ms Tjan, he started thinking about their future. He truly loves her and she supports him in everything she does and is full of understanding. She also manages their financial affairs. She made him see the error of his ways in relation to his previous dealings with the Department for which he truly apologises.
Mr Pandi said at the time he married Ms Tjan, he was aware that he was in Australia illegally on the basis of a false passport. He had not previously given any thought to whether he had a valid visa because he had not heard the result of his application for a protection visa. After he and Ms Tjan were married, they went to see a solicitor, Janice Vu, about his situation. She advised that because they had only recently been married, Mr Pandi's chances of obtaining a spouse visa were not strong. Ms Vu advised they should wait one to two years in order to establish that theirs was a genuine marriage. Ms Vu also advised that Mr Pandi had to change and be honest in his dealings with the Department. She told him that he would have to return to Indonesia and apply for a visa from there. Mr Pandi said he was arrested at Sydney Airport between six and twelve months after seeing Ms Vu. He had intended to wait one to two years from the time of their marriage, and then submit an application in Sydney. He acknowledged that he was prepared to remain in Australia unlawfully in the meanwhile. Whilst he recognised that this was a breach of Australia's immigration laws, he did not know what else to do.
Mr Pandi was asked about the Notification of Incorrect Answer(s) form that he signed on 8 April 2000. He said the form was completed on his behalf by Ms Vu on the basis of information which he supplied. He acknowledged that while he revealed that he had entered Australia on a false passport in the name of Steven Giant and had made an application for a protection visa in that name, he did not reveal that he had lied about completing two years of a law degree, nor did he reveal that his protection visa had contained false information. He said he did not want things to look too bad and wanted to increase his chances of not being separated from his wife.
Mr Pandi said he was present during the birth of their daughter in Jakarta on 27 June 2001, having pleaded with the doctor that he be allowed to be present because his wife had been haemorrhaging and had to undergo a caesarean. He helped look after their daughter in the first few months and developed a strong relationship with her. He said he misses his wife and daughter very much and wants them to be together again as a family. His daughter needs love and care from both parents. Currently, they keep in touch by telephone every evening.
Mr Pandi said in Indonesia everything is very bad and it is not a good place for a child to grow up. His wife has said that if he is unsuccessful in obtaining a visa, she wishes to remain in Australia and not return to Indonesia. She is thinking of the future of their child because everything is much better in Australia. He is currently supporting himself by buying and selling cars. He lives with his parents in their home with his married younger brother. Mr Pandi said he is only able to make enough money to support himself and would be unable to support his wife and daughter on his current earnings. While his wife lived in Indonesia until the age of 17, she has lived in Australia for the past ten years and, having taken Australian citizenship, she no longer has Indonesian citizenship. Mr Pandi said that their being separated is very hard on his wife. However, she has said no matter what happens, she does not want to live in Indonesia again.
Mr Pandi acknowledged his previous misconduct, for which he said he is now very sorry. He said he was desperate at the time of his coming to Australia on the second occasion after his father had had a stroke, and needed to earn money to help support the family. Mr Pandi asked that his wife and daughter not be punished for the foolish things he has done in the past.

Sandy Tjan (the Applicant)

Ms Tjan said the contents of her statutory declaration dated 31 March 2000 (T8 p86) and 24 September 2001 (Exhibit A3) are true and correct. Ms Tjan said she arrived in Australia with her mother and brother in August 1991 and initially went to language school before attending Maroubra High School for three or four months of Year 12. She then attended TAFE and completed a twelve month course in office administration before enrolling in an Associate Diploma course in accounting. She quit this course after nine months, in February 1995, when she was offered a position with the Commonwealth Bank. At first, she was employed at the level of General Classification 1 but has now progressed to the position of General Classification 4, the top level of that classification, and now works as an operations officer undertaking balancing and processing work. The next classification level open to her would be that of an Assistant Manager A position for which she can apply if a vacancy occurs. This is a similar job to her present one, although carrying greater authority. Ms Tjan said she is currently on maternity leave which expires on 31 December 2001, although she can extend this up to April 2002. She is not permitted to apply for a higher level position while she is on leave. She would like to remain working with the Commonwealth Bank and considers it unlikely that if she resigned, she could later resume employment with the Bank. This is because of the merger of the Commonwealth with the Colonial Bank and because the Commonwealth's merged operation is now cutting back on staff.
Ms Tjan said she and her daughter are presently living with her mother and brother in a rented house in Kensington. Ms Tjan is currently receiving Social Security benefits of approximately $320 per fortnight and is struggling financially. She tries to give her mother something towards the rent when she can afford this, which is not often. When she was working, she used to give her mother $600 per month towards the rent. She now has additional expenses as a result of having her daughter. Her brother is also dependent upon Social Security benefits. He has a serious long-term drug problem which predates her husband living with them and which Ms Tjan thinks involves some form of cocaine. Her brother has been in trouble with the police, but has not been to prison. Her husband worked for Summit Technology at Waterloo as a machine operator printing CD covers. Presently, her mother is the only working person in their household.
Ms Tjan said there is "no way" she will live in Indonesia again. She will stay in Australia for the sake of her daughter. She tried to live in Indonesia with her husband when he had to leave Australia in April 2000. They had to live with Mr Pandi's parents but, even so, could not live within the income earned by Mr Pandi. Ms Tjan said the life in Indonesia is not the kind of life she wants. It is not safe and Chinese people are often discriminated against and made political scapegoats. There are few jobs she could get in Indonesia, education is expensive, she has no friends or connections there after living in Australia for ten years, and she and her husband would be unable to maintain a decent standard of living.
Ms Tjan acknowledged that she speaks Indonesian having lived there for the first 17 years of her life. Her father is still in Indonesia as are other relatives, although when she was in Indonesia she did not see them often and tried to avoid her father. When she was working at the Commonwealth Bank, Ms Tjan was supporting her father financially for some four years. She said life in Indonesia is very stressful. While her husband is presently buying and selling cars, this is not a secure job. If her husband is refused a visa, Ms Tjan said she will remain in Australia and cope on her own, perhaps visiting her husband occasionally when she is able to do so. She acknowledged she has made a number of visits to Indonesia since Mr Pandi departed Australia on 20 April 2000, and agreed it was during her visit in September 2000 that she became pregnant. She denied she had used her pregnancy and the birth of her daughter to attempt to influence the outcome of the current proceedings. She and her husband had been trying to have a baby previously, and decided to take the risk of her becoming pregnant, even though Mr Pandi is currently in Indonesia.

Ms Tjan said when she found out about her husband's immigration status in late 1998, she told him they should find out what could be done and they went to see a solicitor, Ms Vu. Ms Vu recommended that Mr Pandi should lodge an application for a spouse visa after they had established the genuineness of their relationship by living together for a period of approximately two years. Ms Tjan and Mr Pandi were, therefore, planning for him to lodge a spouse visa application about twelve months after their marriage. Ms Tjan said she was aware that her husband would have to return to Indonesia in order to lodge his application.
Ms Tjan said that at the time Mr Pandi moved in with her and her family in Kensington, their relationship had become permanent. They began to save money in order to buy a house and a car, but all these savings have now been spent. Mr Pandi has a very close relationship with their daughter and is a dedicated father. He misses Calista greatly, and when he phones Ms Tjan every day, he always wants to hear Calista's voice, even if she is crying. When Ms Tjan was with him in Indonesia, Mr Pandi assisted her greatly with caring for Calista.
Ms Tjan said Calista is not an Indonesian citizen because she is unable to have dual citizenship under Indonesian law. If she were to take on Indonesian citizenship, she would have to give up her Australian citizenship. Ms Tjan said if she wants to visit her husband in Indonesia, she has to obtain a temporary stay visa which requires that her husband sponsors her visit from Indonesia. Such a visa can be granted for up to one year and can then be extended for up to five years.
Lisa Isabel Tjoeng

Ms Tjoeng said she works as a self-employed hairdresser operating a business from her home. Sometimes she works one day per week, sometimes seven days, according to the demand from her clients. She has regular clients that come to her home by appointment, usually a maximum of two or three a day, whom she sees in the lounge room of the three bedroom house she rents in Kensington. Ms Tjoeng said she has worked as a hairdresser since 1968. The income from her business in the last financial year was between $8,000 and $10,000 gross. Ms Tjoeng said she was advised by the Taxation Office that her income was below the threshold necessary for her to lodge returns.
Ms Tjoeng said she was divorced from Ms Tjan's father in 1990 before coming to Australia. Since that time, she has remarried and been divorced twice. She does not receive any income from her former husbands. She shares the house she rents with her son, Siau Lung, who is aged 25, and her daughter, Ms Tjan, and her grand- daughter, Calista. Ms Tjoeng said her son is a drug user and is not working.
Ms Tjoeng said she moved into her current house at 5 Villiers Street, Kensington in about September 2000. Previously, she rented a house at 18 Addison Street, Kensington where Mr Pandi also lived before he returned to Indonesia. Ms Tjan said she is finding it difficult to cope financially. At present, her daughter does not help her much with the housework because she has Calista to care for. Indeed, Ms Tjoeng helps her daughter with the baby who is a difficult child.
SUBMISSIONS
Applicant

Mr Poynder, for the Applicant, confirmed that the Applicant concedes that Mr Pandi does not pass the "character test". However, the Applicant contends that the discretion in s 501(1) of the Act should be exercised in his favour. Mr Poynder acknowledged that this requires a balancing of the primary and other considerations set out in Part 2 of Direction No. 21. Addressing the first of the primary considerations, the Protection of the Australian Community, Mr Poynder acknowledged that Mr Pandi had committed serious breaches of Australia's immigration law, in particular, re-entering Australia using a false identity in September 1995 and lodging an application for a protection visa in that false name. Mr Poynder submitted, however, that there are ameliorating circumstances: Mr Pandi worked in Australia and was a productive member of the community, supporting his family in Indonesia by remitting one third of his income; in the latter part of his second stay, there is evidence of a change in Mr Pandi's situation in so far as he had stable employment for a period of three years and was paying tax; finally, the most serious breach occurred over five years ago before the commencement of his relationship with Ms Tjan.
Mr Poynder said Mr Pandi made a clean breast of his misconduct when he completed the Notification of Incorrect Answer(s) form (T8 p60), revealing his having entered Australia in September 1995 using a false passport in the name of Steven Giant, the name which was used in his application for a protection visa. Mr Poynder said it was unrealistic to expect every detail of Mr Pandi's misconduct to be itemised in this form. In general terms, he acknowledges his misconduct and was not deliberately deceitful.
With regard to the false statement made by Mr Pandi in his statutory declaration dated 31 March 2000 (T8 p82), that he had completed "nearly two years of law study at the University Taraumanegara", Mr Poynder said while not excusing this, the false statement needs to be seen in context. It was not relevant to Mr Pandi's application for a spouse visa, being mere embellishment, and not calculated to deceive in a major way. The deceit would probably not have come to light but for Mr Pandi revealing this.
With regard to Mr Pandi remaining in Australia, having consulted Ms Vu, Mr Poynder contended this was a passive act of deceit. He had married an Australian citizen and had been advised that he and his wife should live together for a period of approximately two years in order to establish the genuiness of their marriage. Mr Poynder contended that this, and Mr Pandi's other misconduct, was not morally reprehensible and did not create victims in the same way as most of the offences identified in paragraph 2.6 of Direction No. 21.
Mr Poynder submitted there was little likelihood of repetition. If Mr Pandi is granted a visa, he will have no reason to breach Australia's immigration laws. There is also no suggestion that he is likely to breach other laws. Nevertheless, Mr Poynder acknowledged the deterrent effect of refusing visas in these sort of cases.
With regard to the second of the primary considerations, the Expectations of the Australian Community, Mr Poynder submitted the correct test to apply is that of the informed reasonable member of the Australian community. Mr Poynder suggested that such members of the community would have regard to the context in which Mr Pandi's misconduct had occurred, including his family situation in Indonesia, which required that he rely on his own resourcefulness to support both himself and members of his family.
With regard to the third primary consideration, the Best Interests of the Child, Mr Poynder contended that this is a major factor in this case. Here, there is no option for the Australian spouse to go to Indonesia to live. Ms Tjan strongly holds the view that it is in the best interests of her child for her to remain in Australia. This means that if Mr Pandi's application for a visa is refused, their daughter Calista will grow up without the presence of her father in Australia, even though he has formed a close and loving relationship with her. A consequence of such a separation will be that Ms Tjan will have to bring up her child as a single mother, as well as providing the main financial support for her family in Sydney.
With regard to the Other Considerations to which decision-makers are directed by paragraph 2.17 of Direction No. 21, Mr Poynder identified the following matters as being relevant:

Refusal of a visa will result in disruption to Mr Pandi's ties with the Australian Community.
There is no dispute that there is a genuine marital relationship between Mr Pandi and Ms Tjan, evidence of the closeness of which has emerged in the course of the hearing. Mr Poynder noted Ms Tjan was committed to the relationship before she became aware of Mr Pandi's illegal status.
The refusal of a visa to Mr Pandi will cause significant hardship to Australian citizens, namely Ms Tjan and their daughter, Calista, who will be deprived of Mr Pandi's support, both financial and emotional.
The principal members of Mr Pandi's family, his wife and child, are both in Australia.
With regard to rehabilitation, Mr Pandi gave evidence that his meeting and marrying Ms Tjan brought about a significant change in his life. He has not been guilty of any misconduct since Aprill 2000 and his only misconduct is in relation to immigration matters.

Mr Poynder noted Australia's international obligations with respect to the maintenance of the family and the rights of the child. Whilst he acknowledged Mr Pandi had committed serious immigration misconduct, he said that this was outweighed by the best interests of the child and other considerations.
Respondent

Ms Warner, for the Respondent, responding to the Applicant's submissions, noted that in lodging a bogus protection visa application, Mr Pandi had presented a totally false background. This did not reveal that he had already spent five years in Australia between 6 April 1990 and 15 June 1995. Ms Warner noted that in claiming discrimination in Indonesia, Mr Pandi did not give any examples of how he had been discriminated against. Moreover, he had acknowledged that his main motivation in seeking a protection visa was to obtain a tax file number.
Ms Warner said the Tribunal should take note of the fact that Mr Pandi had worked in Australia illegally and, during some periods of employment, had not paid tax. His evidence with regard to sending money home to Indonesia was that he had sent home one third of his income after deduction of expenses. Ms Warner said the fact of Mr Pandi being in Australia unlawfully and working unlawfully, up to the time that he departed Australia on 20 April 2000, does not support the notion of his being a reformed person. Rather this paints a picture of a self-serving person whose motivation in returning to Australia using a false passport in September 1995 was self-interest rather than any need to send money to Indonesia for the support of his family.
Ms Warner noted that despite Mr Pandi's alleged rehabilitation, he was still willing to make a false statement in his statutory declaration dated 31 March 2000 (T8 p82) about his having attended university to study law for two years. Whilst this was described by Mr Poynder as an embellishment, it indicates that Mr Pandi is still willing to make false statements if he thinks it will assist him in his purpose. Ms Warner drew attention to the Notification of Incorrect Answer(s) form completed on Mr Pandi's behalf and signed by him on 8 April 2000 (T8 p59), in which he glossed over the fact that he was not a person with a well-founded fear of persecution which was the basis of his application for a protection visa. The form fails to disclose that Mr Pandi's motivation in applying for a protection visa was to obtain a tax file number. Ms Warner contended that Mr Pandi must have known his application for a protection visa was likely to be refused and, therefore, would have realised he was in Australia illegally at the time of his marriage. Mr Poynder suggested that his remaining in Australia after consulting Ms Vu was a passive act. Nevertheless, it was clear that Mr Pandi was aware of his being in Australia unlawfully and working unlawfully.
Ms Warner noted that Ms Tjan has said she will not return to Indonesia if Mr Pandi's application for a spouse visa is refused. She suggested that the strength of Ms Tjan's relationship with Mr Pandi may subsequently change her mind about living in Indonesia given the importance which she obviously attaches to relationships. Ms Warner said Ms Tjan had knowingly entered into marriage with a man who was in Australia unlawfully, and was willing to become pregnant after her husband had returned to Indonesia, without any assurance that he would be granted a visa to enable him to live in Australia. Ms Warner contended there was no cultural difficulty for Ms Tjan in returning to Indonesia: she was born and lived there until the age of 17, she speaks the language and has relatives there. She would adapt to life in Indonesia.
With regard to the guidance provided by Part 2 of Direction No. 21 and the first primary consideration, the Protection of the Australian Community, Ms Warner emphasised the seriousness with which the government views such breaches of Australia's immigration law. She said Mr Pandi had not demonstrated any countervailing conduct that would now entitle him to the grant of a visa. There is a real likelihood that Mr Pandi would engage in similar misconduct if it were advantageous to him. The refusal of a visa in such circumstances would deter others from breaching Australia's immigration law.
With regard to the second primary consideration, the Expectations of the Australian Community, Ms Warner submitted that the community expects non-citizens to obey Australian laws while in Australia, and that those who have breached the trust of the Australian community by making bogus protection visa claims, who have worked without permission and remained unlawfully in Australia for a number of years, should not now be permitted to obtain the benefit of a visa leading to permanent residency.
With regard to the third primary consideration, the Best Interests of the Child, Ms Warner contended that Ms Tjan would still be able to provide for and care for her child, even in the absence of Mr Pandi. Moreover, there is no reason why Ms Tjan and Ms Pandi could not make an acceptable life for their daughter in Indonesia.
With regard to Other Considerations to which the Tribunal is directed by paragraph 2.17, Ms Warner noted, in particular, that Ms Tjan knew of Mr Pandi's illegal status before their marriage and went along with his remaining in Australia unlawfully in the immediate period afterwards. Moreover, she was prepared to become pregnant while she was in Indonesia, knowing the risks associated with her husband living there and having no right of residence in Australia. Ms Warner also contended that there is no evidence before the Tribunal of rehabilitation or recent good conduct in relation to Mr Pandi. Whilst acknowledging that denial of a visa would cause some hardship to Ms Tjan and Mr Pandi, Ms Warner submitted that the protection of the Australian community should outweigh other considerations.
APPLICATION OF THE LAW AND FINDINGS

As stated above, the issue for the Tribunal to determine is whether to exercise the residual discretion under s 501(1) of the Act not to refuse the grant of a visa. In doing so, the Tribunal must have regard to Part 2 of Direction No. 21.
Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

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 which are considered by the government to be serious include serious crimes against the Migration Act 1958 which in turn include "presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia". Paragraph 2.8(a) also 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 makes the following findings:
(a)Mr Pandi first arrived in Australia on 6 April 1990, worked unlawfully in breach of the conditions of his visitor visa, and remained in Australia unlawfully after the expiry of his visitor visa until he was located and detained and subsequently departed on 15 June 1995.
(b)Mr Pandi re-entered Australia on 22 September 1995 using a false passport with a false identity, Steven Giant. Once again, he worked unlawfully and remained in Australia unlawfully until his departure on 20 April 2000. On 24 June 1996, Mr Pandi lodged an application for a protection visa in the name of Steven Giant. This application contained further false information about his background in Indonesia. Mr Pandi acknowledged, in giving evidence, that his main motivation in applying for this visa was to obtain a tax file number in the name of Steven Giant. The Tribunal infers from Mr Pandi's lack of interest in following up the result of his protection visa application, that he did not have any great expectation that a protection visa would be granted.
(c)At the time Mr Pandi and Ms Tjan consulted a solicitor, Ms Vu, for advice on Mr Pandi's situation, in late 1999 or early 2000, it was apparent, not only to Mr Pandi but also to Ms Tjan, that Mr Pandi was in Australia unlawfully and that he would need to return to Indonesia in order to lodge a spouse visa application. However, Mr Pandi chose to remain in Australia unlawfully, until being detained at Sydney Airport when farewelling a friend on 22 March 2000. The Tribunal accepts that Mr Pandi and Ms Tjan had been advised that they must provide evidence of their having lived together for one to two years in order to establish the genuiness of their relationship for the purposes of Mr Pandi applying for a spouse visa. Nevertheless, they could have achieved this by Ms Tjan returning to Indonesia with Mr Pandi, as she subsequently did, and living with him there for the necessary period.
(d)In a statutory declaration dated 31 March 2000 (T8 p82), Mr Pandi again claimed that he had completed "nearly two years of law study at the University Tarumanegara" (sic). In a further statutory declaration dated 14 November 2001 (Exhibit A2), Mr Pandi retracted this claim which he said was not correct.

The Tribunal finds that Mr Pandi committed serious breaches of Australia's immigration law. With regard to the mitigating factors provided by the non-citizen, to which the Tribunal is required to have regard by paragraph 2.8 of Direction No. 21, the Tribunal notes Mr Pandi's evidence concerning his difficult family situation in Indonesia, and the need for him to rely on his own resources to assist in the support of family members there. The Tribunal also acknowledges that Mr Pandi wished to remain in Australia with his wife and did not wish to return to Indonesia without her. He therefore sought to do everything that he perceived might assist with his application for a spouse visa and delayed returning to Indonesia.

With regard to the likelihood that the conduct may be repeated, the greater part of the evidence indicates that Mr Pandi will act in such a way as to promote his self-interest, including, where necessary, by unlawful means. The Tribunal is not convinced that there is sufficient evidence of rehabilitation and recent good conduct to establish that he would not commit other misconduct if he perceived this was in his best interests. With regard to general deterrence, the Applicant acknowledges that the refusal of a visa after breaches of Australia's immigration law does act as a deterrent to others who might commit similar breaches.
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, an informed reasonable member of the Australian community would, in the circumstances of this case, think it appropriate to refuse the grant of a visa.
The third primary consideration is the Best Interests of the Child. Paragraph 2.15 states that in "general terms, the child's best interest will be served if the child remains with its parents". The Tribunal finds that Mr Pandi has a strong relationship with his daughter, Calista, having been present at her birth and in the first months of her life while his wife was with him in Jakarta. The Tribunal recognises that the child's best interest would be served by her living in a loving relationship with both parents. The Tribunal notes that Calista is registered as an Australian citizen and is being cared for in Australia by her mother, living in a house with her grandmother and her mother's brother. The Tribunal also notes that Ms Tjan, whilst not wishing to live in Indonesia, is able visit her husband there and has done so on a number of occasions since April 2000.
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 generally they will be given less individual weight than that given to the primary considerations". These Other Considerations include the extent of disruption that the visa refusal would cause to the non-citizen's family, the fact of a genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established, and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into or establishing the relationship, the degree of hardship which would be caused to immediate family members lawfully resident 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 finds that Ms Tjan and Mr Pandi have a genuine and caring marriage relationship that is significantly disrupted by their separation and Mr Pandi's being in Indonesia. Nevertheless, while Ms Tjan may not have been aware of Mr Pandi's illegal status in Australia at the time that their relationship became of a more permanent nature when Mr Pandi commenced a de facto relationship with her, she was aware of his illegal status at the time they were married. Moreover, Ms Tjan acknowledged that she was prepared to take the risk of becoming pregnant by Mr Pandi when his status had still not been resolved and, indeed, did so during her visit to Indonesia in September 2000.
Ms Tjan and Calista live with Ms Tjan's mother and her brother in Kensington. The Tribunal accepts that their financial position is currently straitened, in part because Ms Tjan is on maternity leave until the end of this year and in part because her brother is a drug addict and also dependent upon Social Security benefits. However, Ms Tjan has a secure job with the Commonwealth Bank and, when she returns to work, their financial position will presumably improve. Ms Tjan migrated to Australia in August 1991 at the age of 17. She is of Indonesian Chinese background with family members still in Indonesia. While the Tribunal accepts that people of Chinese background in Indonesia have been used as scapegoats at times of political unrest, and may have been discriminated against, nevertheless, this is a community with which Ms Tjan is familiar and in which she and Mr Pandi could live a reasonable life with their daughter. Ms Tjan gave evidence that, on being sponsored by her husband, she would be able to obtain a temporary stay visa valid for up to a year which could be extended for a five year period. While the Tribunal accepts that Ms Tjan may prefer to remain in Australia, it would be open to her to join her husband in Indonesia.
With regard to any evidence of rehabilitation and any recent good conduct on the part of Mr Pandi, the Tribunal notes that he corrected the false information about his education in the most recent statutory declaration dated 14 November 2001 (A2). The Tribunal also notes Ms Tjan's and Ms Tjoeng's evidence of Mr Pandi's good conduct as a member of their family. Mr Pandi has also stated that meeting his wife changed his life and that he has reformed his ways. Nevertheless, in the Tribunal's view, there is insufficient evidence for the Tribunal to make a finding as to Mr Pandi's rehabilitation, and, at this time, the Tribunal is not reasonably satisfied that he might not engage in other misconduct if he perceived this was to his benefit.
On balance, and weighing up both the primary and Other Considerations, in the Tribunal's view, the discretion in s 501(1) should not be exercised so as not to refuse the grant of a visa to Mr Pandi. The Tribunal is aware that in so deciding, there may be adverse effects on Ms Tjan and Mr Pandi's child, Calista. However, while regrettable, as in the Tribunal's decision in Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935, in the Tribunal's view, Calista will not be left without an appropriate level of financial and emotional support. At this time, the Tribunal considers that the primary considerations, the Protection of the Australian Community and the Expectations of the Australian Community, outweigh the Best Interests of the Child and the Other Considerations, in particular, the hardship that will be caused to Ms Tjan and Mr Pandi. The Tribunal notes that, at a later time, Mr Pandi may be able to adduce further evidence of his rehabilitation and good conduct which will give another view of this matter. This might also lead to a reassessment of Mr Pandi's character and, in particular, whether his "enduring moral qualities" are sufficient to establish that he passes the "character test".
The Tribunal therefore affirms the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  19 and 20 November 2001
Date of Decision  19 December 2001
Counsel for the Applicant        N Poynder
Solicitor for the Applicant         Janice Vu & Associates
Solicitor for the Respondent    E Warner