"WBO" and Minister for Immigration and Multicultural Affairs
[2006] AATA 69
•30 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 69
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/111
GENERAL ADMINISTRATIVE DIVISION ) Re "WBO" Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date30 January 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the application for a Subclass 309 Spouse (Provisional) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).
..........(sgd S D Hotop)............
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Spouse (Provisional) visa – visa applicant a citizen of Pakistan – false statements made and false documents provided in connection with visa application – application for visa refused on character grounds – visa applicant’s past and present general conduct – Tribunal not satisfied that visa applicant not of good character – visa applicant passes “character test” – decision under review set aside
Migration Act 1958 (Cth) s 501(1) and s501(6)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
REASONS FOR DECISION
30 January 2006 Deputy President S D Hotop Introduction
1. The applicant, who was born in Pakistan in April 1967, arrived in Australia on 14 May 1999 as the holder of a Subclass 126 Independent visa and was subsequently granted a Certificate of Australian Citizenship on 22 October 2002. Although the applicant has continued to reside in Australia since May 1999, his wife and children have remained in Pakistan. They are citizens of Pakistan.
2. The applicant has, over the years, sought to sponsor the migration of his wife and children to Australia, most recently in June 2004 when he lodged with the Australian High Commission Migration Office in Islamabad, Pakistan an “Application for migration to Australia by a partner” form (Form 47SP) signed by his wife, and a “Sponsorship for a partner to migrate to Australia” form (Form 40SP) signed by him.
3. On 9 March 2005, however, a delegate of the respondent decided to refuse to grant a visa – specifically, a Subclass 309 Spouse (Provisional) visa – to the applicant’s wife under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) on the ground that she does not pass the “character test”.
4. The applicant has applied to the Tribunal for a review of that decision.
The issue and the Tribunal’s Determination
5. The fundamental issue for the Tribunal’s determination is whether it is satisfied that the applicant’s wife (“the visa applicant”) passes the “character test” (as defined in s 501(6) of the Act). If the Tribunal is so satisfied, there will be no basis for refusing to grant a visa to her under s 501(1) of the Act. If, however, the Tribunal is not so satisfied, it will then be required to determine whether, in its discretion, her application for a visa should, or should not, be refused under s 501(1) of the Act.
6. For the reasons which follow, the Tribunal has determined that it is satisfied that the visa applicant passes the “character test” and that, accordingly, her application for a visa cannot be refused under s 501(1) of the Act.
The Law
The Act
7. Section 501(1) of the Act provides:
“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 defined in s 501(6) of the Act. Paragraphs (a)–(d) of s 501(6) exhaustively specify the circumstances in which a person does not pass the “character test” for the purposes of that section. In the present case the relevant circumstance is that specified in subparagraph (c)(ii) of s 501(6), namely:
“having regard to… the person's past and present general conduct …
the person is not of good character”.
Section 501(6) goes on to provide that, in the event that the person does not fall within any of paragraphs (a), (b), (c) or (d) of s 501(6), “the person passes the character test”.
The Direction
8. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction as presently in force, namely, “Direction – Visa Refusal and Cancellation under s 501 – No 21” (“the Direction”), was given by the respondent on 23 August 2001 with effect from that date. The Direction comprises two parts. Part 1 deals with the application of the “character test” set out in s 501(6) of the Act. Part 2 deals with the exercise of the discretionary power to refuse, or to cancel, a visa under, respectively, subsection (1) or subsection (2) of s 501 of the Act, in the event that the relevant person does not pass the “character test”. The Direction will be referred to more fully later in these reasons.
The Factual Background
9. The relevant background facts, as found by the Tribunal on the basis of the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), are as follows.
10. On 18 April 1995 the applicant lodged with the Australian High Commission Migration Office in Islamabad, Pakistan an “Application for migration to Australia” form (Form 47) completed and signed by him, together with supporting documentation. In that form the applicant indicated that, inter alia, he had never been married.
11. In May 1998, while his migration application was still pending, the applicant wrote to the Australian High Commission, Islamabad informing them that, inter alia, he “got married during the month of December 1995” (a copy of his marriage certificate was enclosed) and that he had a daughter who was born “during the month of November, 1997”.
12. An officer of the Australian High Commission, Islamabad then wrote to the applicant requesting him to provide further information and documentation, including photographs of his spouse and daughter. On 29 May 1998 the applicant lodged with the Australian High Commission various documents, including a photograph of a woman who he described as his “spouse”. He stated the name of his spouse (the same name, the Tribunal notes, as that of the visa applicant) and that they were married in December 1995, and he also stated his daughter’s name and date of birth (“22.11.97”).
13. On 23 June 1998 the applicant notified the Australian High Commission, Islamabad by letter that his daughter had died on 18 June 1998 “due to typhoid fever” and that his wife had died later the same day because she “could not bear the grievous death of her daughter”. On 24 June 1998 an officer of the Australian High Commission wrote to the applicant offering “condolences on [his] recent bereavement” and requesting him to provide death certificates for his daughter and spouse. By letter dated 21 July 1998 to the Australian High Commission, the applicant enclosed documents which he described as “death certificates of my wife and daughter” and he stated that he wished to continue with his application for migration to Australia.
14. By letter dated 7 October 1998 an officer of the Australian High Commission, Islamabad notified the applicant that a decision to grant him a visa had been made on that day, and that the visa required that he first enter Australia before 27 May 1999.
15. On 6 July 2001 the applicant (who had been residing in Australia since 14 May 1999) lodged with the Australian High Commission Migration Office in Islamabad an “Application for migration to Australia by a partner” form (Form 47SP), a “Sponsorship for partner migration to Australia” form (Form 40SP) and supporting documentation. In the Form 40SP (which was signed by the applicant) it was stated that the applicant’s partner’s name was “Shahnaz” (a different name from that of the visa applicant in this proceeding) and that they were married on 28 April 2001. In the Form 47SP (which was purportedly signed by “Shahnaz”) it was stated that “Shahnaz” had married the applicant on 28 April 2001 and that she had 3 children (born in 1995, 1996, and 1997) from a previous marriage (which had ended with the death of her former husband in 1997). The supporting documentation included a marriage certificate and birth certificates for “Shahnaz’s” 3 children.
16. An officer of the Australian High Commission, Islamabad subsequently wrote to “Shahnaz” requesting her to attend for an interview on 31 January 2002 and to provide various documents including birth certificates, marriage certificates and identification documents. Various documents including certified photocopies of marriage certificates, death certificates and birth certificates were subsequently sent, under cover of letters purportedly signed by “Shahnaz”, to the Australian High Commission. These documents included a certified photocopy of a birth certificate in respect of a child referred to in a covering letter purportedly signed by “Shahnaz” as her “new born child” who was born on 15 November 2001.
17. According to a handwritten record of an interview conducted by an officer of the Australian High Commission with “Shahnaz” on 31 January 2002, “Shahnaz” stated that:
·she and the applicant were married in April 2001;
·she was then a widow with 3 children;
·she could not remember the date of her first marriage, but her first husband died after being sick for a few days;
·her present husband (the applicant) had also been married before, but his first wife had died;
·he (the applicant) had 1 child from his first marriage but that child also died when aged 2-3 years;
·she has 3 children (aged 6, 5 and 2 ½ years) from her first husband, and no children from her second husband (the applicant);
·she was a widow for 1 ½ years.
The record of interview then records the following interchange between the interviewer and “Shahnaz”:
Q“According to documents you were a widow for 4 years and your youngest child is 4 years old.
A No. He died 1 ½ years ago and youngest child is 2 ½ years old.
Q Did you have a baby last year?
A No.”
Then followed a brief handwritten record of an interview with the applicant (who was then in Pakistan and who had accompanied “Shahnaz” to the Australian High Commission). The interviewing officer finally recorded the following conclusion:
“Both widowed around the same time, 97/98. She had 3 children allegedly 6, 5, 4 but she insists youngest child is 2 ½ and husband died 1 ½ years ago.
4th child added to application last month, they deny any knowledge of this and say the child is in fact their nephew.
Need to check death certificates of previous spouses and children’s birth certificates as they don’t tally with given statements.”
18. The applicant and “Shahnaz” provided to the Australian High Commission a written statement, signed by them, witnessed and dated 31 January 2002, as follows:
“We both confirm that the child…, date of birth 15.11.2001, who has been added to Shahnaz’s migration application, is not our child.
All the documents relating to this child are forged.
The child was added to the application without our knowledge or consent and we do not support it.”
19. A letter – which is undated but which is said by the respondent to have been received by the Australian High Commission on 22 October 2002 – purportedly signed by “Shahnaz”, stated as follows:
“It is submitted for your consideration that I cannot shift to Australia due to my domestic problems and now I have no interest in migration to Australia. The process may be going on at your end, hence, to avoid the wastage of time, it is requested that the processing on my application may kindly be stopped with immediate effect.”
20. On 27 May 2003 the applicant sent an e-mail to the respondent as follows:
“My wife applied for migration to Australia under the spouse category in the office of the Australian High Commission – Islamabad (Pakistan). A murder case is associated with her application which is continuously causing a great deal of problems, since my wife lodged her application. The application is not progressing due to the problems associated with the case and the facts cannot be disclosed openly due to the security reasons. I very humbly request you, Sir, that an officer from the Immigration Department (Perth Office), may kindly be directed to arrange a confidential interview with me in which I can disclose the facts which may lead to facilitate the decision on the application of my wife.”
21. In June 2004 the applicant lodged with the Australian High Commission Migration Office in Islamabad, Pakistan an “Application for migration to Australia by a partner” form (Form 47SP) signed by the visa applicant in her true name, a “Sponsorship for a partner to migrate to Australia” form (Form 40SP) signed by him, and supporting documentation which included:
· a certified copy of a marriage certificate indicating that the applicant and the visa applicant were married on 10 December 1994;
· certified copies of birth certificates for the 3 children of the applicant and the visa applicant indicating the dates of birth as 20 October 1996, 29 March 1998 and 24 October 2002.
22. By letter dated 20 February 2005 to the visa applicant, an officer of the Australian High Commission Islamabad, Migration Section gave notice of intention to refuse a visa under s 501(1) of the Act. That letter stated, inter alia, as follows:
“The following factors have been taken into consideration in determining that your current visa application may be liable for refusal by reason of your past and present general conduct are as follows (sic):
1.On 18 April 1995 your sponsor lodged in Independent 126 application stating that he had never been married.
2.On 11 May 1998 a letter was received from your sponsor stating he had married … and that they had one daughter … who had been born on 22/11/1997. It is noted that the photo received at that time is not of the applicant before this office presently.
3.On 23 June 1998 your sponsor notified this office that his wife and child had died on 18/6/1998. Death certificates were subsequently provided on or around 21/7/1998.
4.On 7/10/1998 your sponsor was granted a 126 visa.
5.On 6/7/2001 you lodged a provisional spouse application (sic) using the name of Shahnaz including 3 children … (DOB 2/10/1995 … (DOB 10/11/1996) and … (DOB 7/11/1997). You claimed to be the widow of … DOB 28/1/1971) and that you had been married from 9/11/1993 – 13/12/1997). This application was sponsored by your current sponsor.
6.On 13/12/2001 a letter was received from you (still using the name Shahnaz) stating that you had given birth to another child, … on 15/11/2001).
7.On 31/1/02 you declared that this child was not your child and that the birth certificate had been forged.
8.On 17/10/02 investigating officers determined with the relevant officials that varying documents lodged with that application had been forged and changed. On this same day it was also determined that your correct name was …
9.On 22/10/02 a letter was received from you at this office withdrawing that application.
10.On 23 June 2004 you lodged this application for a provisional spouse visa including 3 children … (DOB 20/10/1996), … (DOB 29/3/1998) and … (DOB 24/10/2002), and stating that you had married the sponsor on 10/12/1994, ie prior to his application for migration in which he stated he had never been married. It is also noted that one of your claimed children on the earlier application has not been included on this application.”
23. The applicant, by (undated) letter on behalf of the visa applicant, responded as follows:
“…
I am replying your letter in question on behalf of my wife because I am fully authorized by my wife to do so as stated in her application …
It is submitted that:-
·Factor Points 1 – 4 as stated in your letter are not related to her current application for migration to Australia under ‘Spouse Category’ because she did not know anything about the seriousness of the circumstances around me at the time when I applied for migration to Australia under ‘Skill Migration’ in 1995. I myself disclosed those circumstances in my confidential statement to your department … The information provided in the statement are very sensitive and can not be communicated to your office in Islamabad (Pakistan) due to security reasons. However, I am ready to be interrogated in Australia for the purpose. It should be noted that the security of the lives of my family members is naturally more important to me than any other thing.
·I myself take all the responsibility of the Factor Point 5 in your letter. I request your office to give me an opportunity to speak out on the factor through an interview in Australia.
·My wife did not write any letter to your office in Islamabad on 13.12.2001 and she did not give birth to the child in question.
·… is not our child. It was probably Mr … (one of my friends in Pakistan) who sent the letter about the birth of his child. Mr … was included in the application of my wife for migration to take care of the letters from your office. He might have mis-used his responsibility.
·I take all the responsibility of the Factor Point 8 in your letter and will explain the circumstances under which I was forced to do so, if I am given an opportunity to speak out.
·My wife does not know anything about the letter of 22/10/02. She did not request your office to withdraw her application. We were ready to speak out on the issues but she was informed by your office that her file has been closed down during Oct/Nov 2002.
·The information contained in her current application are true and correct to the best of our knowledge and are based on the solid facts that can be confirmed from any reliable source.
·Since my wife is not good in English language, she can not understand and reply your letters. It would be appreciated if you kindly contact me in Australia for any reason concerning her application. I fear that some one may try again to spoil her case of migration.
My wife does not possess any criminal conduct by herself. She is of good character. She is caring for my 3 children included in her current application. The circumstances around me forced me to do many wrong things to your office. I myself is responsible for most of the factors indicated in your letter. But my wife did not know exactly about the circumstances around us. Whatever she did, she was asked to do so because we both want to re-unite in Australia. She did not harm any one anywhere and in any way. The circumstances around us forced us to do many wrong things and there is no likelihood to repeat the conduct because I have informed your department in Australia about the true reasons behind my application and I am feeling absolutely relaxed thereafter at least concerning my migration case.
…” (sic)
24. A letter signed by the visa applicant, dated 7 March 2005, to the Australian High Commission, Islamabad states as follows:
“In response to your letter of 20 February 2005, it is submitted that:
1.I did not know that my husband applied for migration to Australia on 18 April, 1995.
2.I did not know anything about the processing of his application during the period from 18 April, 1995 to 7 October, 1998.
3.I do not know why my husband lodged my application with a different name. I am not familiar with English language. I was used to sign the papers whenever I was asked to do so by my husband or his friend (so called) Mr …
4. Mr … also was used to sign in my name. He also signed my name in which he requested to close my file without decision (22-10-02).
5.I never tried to forge any document that was sent to your office.
6.The application lodged to your office on 23 June, 2004 for migration to Australia under ‘spouse category’ is true and correct to the best of my knowledge.
I did not do anything wrong in my application and I do not know under what conditions/circumstances, my husband was forced to do all this as stated in your letter of 20 February, 2005. I’m not accountable for the statements given by my husband to your office. It will be better if you kindly ask my husband to explain the circumstances which forced him to do so.
My application for migration to Australia under ‘spouse category’ is based on the facts that are true to the best of my knowledge. All the information given in my application of 23 June, 2004 can be confirmed by any means as your office thinks appropriate. I am living with the children of my husband – Mr … We both are responsible for the care of the children.
I, very humbly, request your office to consider my application on compassionate grounds and allow me and my children to live with my husband in Australia.
…” (sic)
25. On 9 March 2005 a delegate of the respondent decided, under s 501(1) of the Act, to refuse to grant a visa to the visa applicant.
The Applicant’s Evidence
26. The applicant tendered in evidence a document headed ‘Confidential Statement’ which was signed by him and dated 29 August 2005 (Exhibit A1), and he affirmed that its contents are true and correct “to the best of [his] knowledge”. Because that statement provides the applicant’s account of the context in which the background facts set out in paragraphs 10-21 (above) occurred it is appropriate to set out its contents (with names and specific locations deleted in order to preserve the confidentiality requested by the applicant) at length. Those contents are as follows:
“...
BEFORE MIGRATION
...
Before my admission in the University of Agriculture – Faisalabad in 1987, we (my brothers and sisters) were living as a joint family in ... I started living in ... in the University after my admission in the B Sc Honours, Agriculture degree programme. I was used to visit my cousin – Mr ..., who was living with his family in Faisalabad. He had two sons, ... and four daughters, ... I was used to play with his children during my visits. I fell in love with one of his daughters – Miss ... [the visa applicant], who is now my wife. We love each other too much.
In June 1993, I joined the Horticultural Research Institute – Faisalabad as an Assistant Research Officer (Grade 17), after completing my Bachelor degree in Horticulture discipline. My major duties were to initiate and conduct research studies on production technology of horticultural crops. I was also managing the Experimental Fruit and Progeny Gardens of the Institute at Faisalabad. I worked there till my migration to Australia in May 1999 in the positions of Research Officer and Farm Manager.
In 1994, my proposal to marry with Miss ... [the visa applicant] was very badly opposed by my mother and siblings mainly due to racial, educational and environmental differences between the two families. However, I got married with Miss ... in December 1994. I did not invite my siblings to participate in the wedding ceremony. They came to know about our marriage after about two months. My siblings, particularly my elder brother, started opposing my marriage. They were demanding me to divorce my wife but I am in love with her from head to toe. It was not possible for me to divorce my wife without any reason. So I refused their demand.
I received many calls from unidentified persons who were putting pressure on me to divorce my wife. They were also threatening me that if I did not divorce my wife, they would kill us. I ignored their threats and continued living together with my wife in … Faisalabad. But when my father-in-law came to know about the calls, he got worried about the safety of her daughter’s life. Finally, he took away my wife in my absence to his house in ... Faisalabad. Then I also got worried about the situation around us. My father-in-law also demanded me to divorce his daughter to avoid any mishap. I could not imagine that the situation might be getting so worse. My wife was forced to live away from me. Under such circumstances, when I was much disappointed, I decided to leave Pakistan permanently and applied for migration to Australia during the third week of April 1995 as a single applicant because I was not sure that we could join again. Probably in Oct 1995, my wife was successful to access a public phone booth to give me a call in my office. She was prepared to join me at every cost. Her call provided me a moral support. I organised a rented house in ... Faisalabad where we started living together. A few weeks later, we moved to the government residence at ... Faisalabad. Within a few weeks, we were successful to restore our terms with my in-laws and got their moral support as well.
Miss [X] was a real younger sister of my wife. She was very nice and polite to every one. She was verbally engaged with her first cousin – Mr ... who was living with his family in ... He is the third nephew of my father-in-law.
Miss [X] was used to help my wife in her household jobs, like cooking food, washing clothes and dishes, cleaning the house etc. I came to know through her impressions that she was not happy with her fiancé’s behaviour. When I asked her about the reason, she replied that he was always ambiguous about her character. She also told me that he was harassing her to kill down due to his suspicions. When I asked her to tell everything to her parents, she said she had already told them but they were taking it very lightly. I promised her that I would speak to Mr ... and everything would be fine after that. When I visited ... to see my sister who is living there with his husband, I spoke to Mr ... and asked about the reason behind his behaviour with his fiancé. First, he got angry with me, but after a few arguments, he replied that he did not like her because she had a hidden relationship with her maternal cousin – Mr ... I tried to convince him that I had been visiting them since long but I had never seen anything like that, though she was smiley to everyone due to her polite nature. He refused to accept my arguments and asked me not to involve in the matter. He also threatened me that if I had any sort of support for her, I would also be in a trouble. Anyhow, my efforts could not be fruitful. He got more angry and continued to threat her.
Contrary to the situation, Miss [X] was forced to marry with Mr ... by the elders of the family. The parents of Miss [X] were provided with a verbal guarantee for the safety of her life by the bridegroom’s family and Miss [X] was married to him in ... in March 1997. Just a few days after the marriage, Mr ... started misbehaving his wife. He again started threatening her as he was used to do in the past. Miss [X] could not tolerate misbehaviour and came back to her parent’s home in Faisalabad. Her husband continued threatening her over the phone at her parent’s home too. In November 1997, she was blessed with a daughter but the behaviour of Mr ... did not change while his threats to his wife were becoming worse. When the situation became too difficult to tackle, Miss [X] started crying in front of me to save her life. As a human being, I could not refuse her request and promised her that I would leave no stone unturned to save her life. I spoke to her parents and other relatives about the situation but no one took it seriously. Consequently, I had to consider different ways to save the life of Miss [X]. When I could not find any secure means to save her life, I decided to include her in my application for migration to Australia in the name of my wife. She promised me that after getting secure arrival in Australia, she would tell the truths to the concerned department(s) and would apply for an asylum. My intention was to remove her away from the danger. I wrote a letter to the Australian High Commission – Islamabad to include her along with her daughter in my application for migration to Australia probably in May 1998.
While my application for migration to Australia was under process in Islamabad, Mr ... came to her parent’s home in Faisalabad in June 1998 and forced her to go with him to his house. Her parents also asked her to go with him under his pressure. Helplessly, she had to go with him to his house but she could not compromise with his misbehaviour and threats. As I came to know later through my relatives, exchange of arguments between them were normal routine during the next few days which resulted in her murder by her husband in front of her father and many other relatives on 18th June 1998. Mr ... shot her at her chest with his revolver/ gun and ran away. She was taken to the ... Hospital ... but she could not survive and died there.
It was so horrible incident that I lost my senses for many hours when I was informed about the incident. Our relatives gathered in her parent’s home to participate in her funeral rites. My uncle – Mr ... passed the threats to me, the murderer gave before running away from the scene. He threatened that Mr ... and I would be his next target. A few days later, he was arrested by the police and was put in the prison.
I was so scared from the murderer that I wanted to leave the country as early as possible. My application for migration to Australia was the only hope to survive that was at the final stage of processing and I could not afford any delay in the decision on my application. So I wrote to the Australian High Commission – Islamabad that my wife and daughter have expired and requested to exclude their names from my application. In Oct 1998, an Australian visa was issued in my favour while the murderer was behind the bars.
AFTER MIGRATION
I arrived Sydney International Airport, for the first time on 14th May 1999 as an approved Australian Permanent Resident... I was worried about the safety of my family in Pakistan. I was considering the ways to bring them to Australia safely. I was in touch with my wife through telephonic services and was used to keep myself informed about the murder case against Mr ... I came to know through my wife that my parents-in-law were under a huge pressure of their relatives to withdraw the murder case against Mr ... They were thinking that if Mr ... was released from the prison, he would make troubles for them too and their lives would be in danger. But they couldn’t handle the social pressure of their relatives who were forcing them to withdraw the murder case against Mr ... as soon as possible. Finally, the social pressure worked and they withdrew the murder case while seeking some guarantee of security for their lives from the opposite party that was provided to them in writing.
On the other side, the release of Mr … from the prison made me more upset. My worries about the safety of my family in Pakistan got strengthened. I just wanted to get my family migrated to Australia before any mishap.
To apply for migration to Australia, my wife and kids need their Identification Documents. Since Miss [X] (the real younger sister of my wife) had already used the name of my wife with her Identification Documents to be included in my application for migration to Australia in an attempt to save her life, it was not possible for me to organise the true documents for my wife and kids without going into a big trouble in Pakistan. Such attempt might have resulted in alerting the murderer about my activities in the country that could be very dangerous for me as well as for my family members.
The only solution that I concluded under such circumstances was to organise the Identification Documents for my family members through some trustworthy person. After a long consideration, I took the confidence of Mr [Y] - one of my long time friends in Pakistan. He was willing to help me organising Identification Documents for my family members.
In Feb 2001, my elder brother – Mr ... died in a roadside accident while he was going to his official duties in ... I went back to Pakistan in March 2001 to participate in his funeral rites. I stayed there for about 4 months during which Mr [Y] organised the Identification Documents for my wife with a different name and for my daughters with different dates of birth. He also organised Identification Documents for his son – Mr ... and forced me to include his name in the application of my wife for migration to Australia. I did not have any other option under those circumstances except that I include the name of his son in the application of my wife. So an application with such Documents was lodged to the Australian High Commission – Islamabad, though I was not satisfied with lodging an application that did not contain true information about my family. I was so helpless and frustrated that I could not take any positive and courageous step in the right direction because the lives of my family members including myself were under immediate threat of the murderer whose criminal nature was obvious by his activities.
Anyhow, during processing on the application of my wife, Mr [Y] was blessed with another son ... Mr [Y] again insisted me to include the name of his new-born-son in the application of my wife for migration and offered me a sum of Pak Rs. 100000/- (About AU $3000/- at that time) for the job. I firmly rejected his offer and informed him that I was going to tell every truth to the Australian High Commission – Islamabad about the application of my wife. He warned me that if I did like that, my family would have to suffer a lot as a consequence. It was really a very tough time for me. I was totally locked in the circumstances.
As revenge, Mr [Y] wrote a letter to the Australian High Commission – Islamabad, requesting to include the name of [his new-born son] in the application of my wife, using her bogus signature without our consent and information. During the interview process, we (my wife and myself) were surprised to see that [Mr Y’s new-born son] was included in the application as our son. We both denied the relationship ... and declared that he is not our son. However, under the influence of the terrible circumstances, we could not disclose other facts over there in Pakistan. It was and is practically not possible for me to disclose them in Pakistan until my family is there. Their lives are naturally most important to me.
I wrote a number of emails and letters to the Australian High Commission – Islamabad, requesting to organise a confidential interview with me in Australia to reach a fair decision on the application of my wife for migration to Australia where I was ready to disclose the relative information regarding my own application of 1995 under ‘Skill Migration’ as well as the application of my wife under ‘Spouse Category’ but my requests were never responded.
Probably in Oct 2002, the file of my wife was closed down without any decision while my wife was waiting for an advice from the office of the Australian High Commission – Islamabad. I inquired from the office of the Australian High Commission about the progress on the application of my wife and received a response indicating that her file had been closed on her request. When I asked my wife about her request over the phone, she replied that how she could make such senseless request while she was anxiously waiting for an advice from the Australian High Commission. However, she told me that Mr [Y] once came to her and asked her to sign a piece of paper with something written on it in English language. I concluded that it was the letter that contained the request to withdraw her application. The Australian High Commission decided to close down the application of my wife on so called request without informing me and without going into further investigation.
It was another shock to me. I was too much frustrated with the decision of the Australian High Commission. I decided to go to the Immigration Department in Perth and dropped a message to the office. I am very thankful to Mr ... of the Immigration Department in Perth Office who extended his cooperation to me for organising a confidential interview for me in his office on 17th April 2003. I disclosed almost all the information relevant to my own application of 1995 as well as the application of my wife of 2001... it gave me a lot of relief and relaxation particularly concerning my application that was serving as a base for the application of my wife. I also decided to lodge another application for my wife because the Australian High Commission – Islamabad was not responding to my requests for investigation on the application of my wife. To lodge another application, I needed true Identification Documents for all of my family members in Pakistan. My wife is just a homely lady. Traditionally, she doesn’t go out of the home for shopping or other jobs. My in-laws (her parents and brothers) organise groceries and other stuff for her on request and many times her requests are refused because her parents and brothers are also busy in their own routine jobs. She was unable to organise the true Identification Documents for herself and our children at her own. So, I requested one of my close friends in Faisalabad – Mr ... to help my wife to organise the true documents. Mr ... is also responsible to deliver homely expenses to my family on my behalf and I transfer money from Australia to his account in Pakistan because my wife doesn’t have any account there. With his help and long time efforts, my wife was finally successful to organise true Identification Documents for herself and our kids. She sent her documents and signed application form for migration to Australia to my address here.
Due to security reasons, I did not want to send her application to the Australian High Commission – Islamabad. So, I first sent it to the office of the Immigration Department in Perth. But her application was returned to me with an advice from the office to send it to the Australian High Commission – Islamabad as ‘offshore applications are lodged, processed, and decided offshore’. Helplessly, I sent the application of my wife to the Australian High Commission – Islamabad with a request to deal it with due confidence.
After acknowledging the application of my wife, the next letter, my wife received from the Australian High Commission – Islamabad, was the notice of intention to refuse visa under subsection 501(1) of the migration act 1958 with relevant ground of subparagraph 501(6)(c)(ii) – pas and present general conduct. A formal opportunity was also offered to my wife to comment on the notice. My wife as well as myself made comments on the notice of the Australian High Commission – Islamabad that were supposed to be ‘implausible and lacking in substance’ by the Australian High Commission, without going into any inquiry or investigation while I was expecting an appropriate and confidential investigation from the Australian High Commission – Islamabad, that could never happen probably due to high volume of applications in the office. The delegate of the Minister of Immigration and Multicultural and Indigenous Affairs has refused to grant Australian visas to my family members pursuant to Section 501(1) of the Migration Act 1958.
I accept that I am responsible for providing incorrect information about my family to the Immigration Department under highly stressful circumstances around us in the past. But I did not have any other option to save the lives of my family at that time. However, It is also a point of noteworthy that I applied for migration to Australia as an independent skill worker. I met all the requirements under that category. If I didn’t have any family problems and provided the correct information regarding my family, I still would have qualified for the Australia visa. My family factor did not provide me any support for the grant of an Australian Visa under the ‘Skill Worker’ category. However, due to my family problems and the past circumstances, I could not go brave with the Australian High Commission – Islamabad.
I also accept that I was going on the wrong way due to my internal coward-ness and worries for the safety of my family in Pakistan while making efforts for Australian visas for them. I am still afraid of the attack of Mr ... (the murderer of his wife – [Y]) that can happen anytime on my family in Pakistan (He has already attempted to make troubles for them in the recent past). The safety of the lives of my family is still most important to me and I am striving hard for this purpose since long. Whatever I did in the past, were for the same purpose without making any trouble for any one. If the Department of Immigration and Multicultural and Indigenous Affairs considers my attempts to save the lives of my family members including myself as ‘criminal offences’ and whatever I did in t
he past, is liable to charges against me, I am immediately available to surrender myself before the Australian law.
I believe that my characters in the past and at present show that I am not a trouble making person at all. I obeyed the Australia laws after migration and do not have any single spot on my character, nor committed even a minor traffic offence. I am loyal to the country and contributing towards its economy through my professional skills. The people working around me, including the farmers and the colleagues, all are happy with my performance as I am doing my best for their benefits (references can be organised on request), even under so stressful circumstances and worries about my family.
On this side, as a Ph D Research Student at the Curtin University of Technology, I am unable to concentrate on my studies due to my family problems. My health is suffering very badly due to my worries (I am on regular use of anti-hypertensive medication….) I also could not sleep peacefully since my migration to Australia. On the other side, all of my family members including my innocent kids are suffering a lot due to my long physical absence in Pakistan.
[The statement then describes the nature of the applicant’s research activities and concludes as follows:]
It is again a point of noteworthy that I could easily migrate along with my family to a third country of our choice like the UK or Canada without going into any trouble, on the basis of my research skills in my professional field that are most welcomed in these countries. But I believe in my moral duties and obligations to serve a country that is spending a lot of money on improving my professional skills through training at the Curtin University of Technology, on the behalf of its taxpayers. I also believe that I must serve the Australian community that is encouraging me through its funding for my research projects. Therefore, I have decided to go further in the matter of my family migration, even if I am expecting some troubles regarding our cases in the Immigration Department.
...” (sic)
27. In his oral evidence the applicant said that the false marriage certificate which he provided to the Australian High Commission in May 1998 for the purpose of including his sister-in-law [X] in his migration application as his wife (see paragraph 11 above) was organised by [X]. He said that he organised the false identification documents and death certificates referred to in paragraphs 12-13 (above). He added that his wife (the visa applicant) knew nothing about these arrangements at that time.
28. As regards the migration application of his wife (the visa applicant) in the false name of “Shahnaz”, which he lodged with the Australian High Commission on behalf of his wife in July 2001 (see paragraph 15 above), the applicant acknowledged that the visa applicant was aware of that and questioned him about it. He said that he could not explain to her why he had done that but that he told her that, whatever he was doing, he was doing his best to take her to Australia safely and that he asked her to “be quiet for the time being”. He added that she accepted that. He confirmed that all the false supporting documentation was organised by his (then) friend, Mr [Y].
29. The applicant was referred to the interview which he and the visa applicant attended at the Australian High Commission, Islamabad on 31 January 2002 (see paragraphs 16-17 above). The applicant acknowledged that the visa applicant made false statements in the course of her interview, and he said that he had asked her to give that false information to the interviewing officer. He said that she had asked him why she had to say these things and he had replied that he could not tell her at the moment.
30. As regards the 10 factors listed in the notice of intention to refuse a visa, which was sent to the visa applicant on 20 February 2005 (see paragraph 22 above), the applicant acknowledged that factors 1-5, 7-8 and 10 were correct. He said, however, that factors 6 and 9 were incorrect because neither of the letters referred to in those factors was written or sent by the visa applicant – instead, he claimed that the letter referred to in factor 6 had been written, signed and sent by Mr [Y], and that the letter referred to in factor 9 either had been written, signed and sent by Mr [Y] or had been signed by the visa applicant, without knowledge of its contents, at Mr [Y]’s request but had been written and sent by Mr [Y].
31. As regards the visa applicant’s letter dated 7 March 2005 to the Australian High Commission, Islamabad in reply to the abovementioned notice (see paragraph 24 above), the applicant acknowledged that he had composed and written that letter, that he had explained its contents to the visa applicant, and that she had agreed that:
“whatever you write is correct”.
32. The applicant said that he now has 4 children (the youngest having been born on 14 August 2005) who are presently living with their mother (the visa applicant) in Pakistan. He said that he misses them “a lot”, that he speaks to them often on the telephone, and that they tell him that they “need” him. He said that he had been back to Pakistan “many times” and that he now visits once per year and stays with his family. He said, however, that it is “very hard” for him to stay there permanently because the person who killed his sister-in-law [X] is free and has made threats against him, so he has to return to Australia where he wishes to live “safe and sound with [his] family”.
33. In relation to the death of his sister-in-law [X], the applicant tendered in evidence a document headed “First Information Report” dated 18 June 1998, and a document headed “Deed of Compromise” dated 2 July 1999 (Exhibit A3). The “First Information Report” purports to be a report by the applicant’s father-in-law to the police alleging that his daughter [X] was shot in the chest by her husband and died later the same day (18 June 1998) in hospital. The “Deed of Compromise” purports to be an agreement whereby the father of the accused murderer agreed to pay a sum of money to the father of the victim [X] if the latter agreed not to take any action against the accused murderer, and also to pay a sum of money to the latter if the accused murderer enters the neighbourhood of his house. The applicant said that, because of that agreement, the accused murderer had not been seen in Faisalabad or nearby. He said that he did not know his exact whereabouts but he was aware that he is living and working in a “remote area” in Pakistan. He also said that his wife (the visa applicant) had not seen that person since the murder of her sister.
The Evidence of the Visa Applicant
34. The visa applicant gave evidence, through an interpreter accredited in the Urdu language, by telephone from Pakistan. She confirmed that she had made a statutory declaration dated 10 September 2005 and that its contents are true and correct. A translation of that statutory declaration from Urdu into English was tendered in evidence (Exhibit A4). The contents of that statutory declaration (with names and specific locations deleted) are as follows:
“...
My younger sister [X] was unjustly murdered by her husband, ..., about six years ago. We are now only two brothers and three sisters alive.
I was married to my father’s maternal cousin [the applicant] about eleven years ago. From which four children, ... were born to me.
My husband married me despite strong opposition from his brothers, sisters and other relatives. Because of this his relatives didn’t accepted our marriage. Immediately after the marriage they created a lot of problems for us, which made our domestic circumstances miserable. And I was forced to live with my parents away from my husband, but I was not happy being away from him. Once I was successful in talking to my husband on the telephone. My husband was also not happy at being separated from me. Therefore, we decided to re-establish our house, and started living in ... After a while my husband was given an official residence at ..., Faisalabad, where we started living together.
My husband love to have an education. One day my husband told me that he is going to Australia for higher education. After a while he got his Australian Visa, and went to Australia, leaving me at ... He used to ring me at least twice a week from Australia. By this way we used to talk about each others circumstances. After going to Australia he came back to Pakistan in less than a year. He told me that he works for the police department in Australia and has come here on leave. He returned to Australia after spending three/ four months in Pakistan. I used to be very sad in the house without him. He used to tell me on the phone that he was trying to obtain an Australian visa for me, hoping that he would be successful.
About four years ago his elder brother, ... died in an accident. Because of which he had to come back to Pakistan...
During our stay in ..., my husband, with the help of his friend, [Y], prepared my and my children’s documents [for immigration]. [Y] through his contacts got my and my children’s birth certificates and travel documents prepared. And put my name as Shahnaz instead of ... He got my signatures as Shahnaz on the various documents, which were sent to the Australian Embassy in Islamabad. Later on my husband told me that [Y] had included one of his sons, ...’s name in my application. My husband advised me to keep quite for the time being, and said that at any appropriate time we would tell the truth to the Australian embassy. Then my husband returned to Australia. He made Mr [Y] responsible to do the correspondence with the Australian embassy. In the absence of my husband Mr [Y] many times had my signatures on some papers, written in English. One day Mr [Y] telephoned me from ... to inform me that I was called for an interview from the Australian Embassy, and also that there would be a medical check up of all of us.
After about two days when my husband phoned me from Australia, I told him of the interview and medical. He said that he himself would come from Australia and get my interview and medical done. After a while he came to Pakistan and took me and my children along with ... to Islamabad Where myself, my children’s and ...’s medical check took place. Then we went to the Australian Embassy for the interview. During the interview we came to know that one more child’s name, .. was also included in my application, about which I or nor my husband had any knowledge. We told the interviewing officer that we have no connection with ... The interviewing officer became suspicious of our application.
After a long period of the interview, some officials from the Australian Embassy came to our house in Faisalabad. They asked many questions to me and the people in my house. They also showed me a file. There were photos of my younger sister [X] and her daughter ... I immediately recognised them. After this the Embassy officials left. Mr [Y] came a day after their departure, and asked me to sign a paper. On my questioning he told that it is very important to sign this paper otherwise it would be a big problem for all of us. I was actually scared and signed that paper, which was written in English. [Y] went with that paper to deposit it. After a long a wait I received a letter from the Australian Embassy. Fortunately my husband was in Pakistan. He read the letter and told me that it is from the Australian Embassy to inform me about the rejection of my application. It also leveled some accusations on me with reference to my character which I have nothing do with. My husband wrote a reply on my behalf and explained to me and sent it to the Australian Embassy in Islamabad after getting my signature on it. And he went back to Australia.
After a while I received a letter from the Australian Embassy in which I was informed that my application for the Australian visa had been rejected. This is totally excessive and unjust.
The accusations leveled in the letter against me are totally wrong and baseless. By refusing an Australian visa to me, I am separated from my husband and the children from their father. I am right in saying that the decision of the Australian Embassy is contrary to basic human rights. Perhaps the officials of the Australian Embassy have no idea that a woman cannot live without her husband. A woman living in Pakistan without her husband is not free from dangers. Myself, my husband and my children have been living under severe hardship for the last six years. Is it justice or an act of humanity to keep a wife away from her husband without any reason, and to keep the children separated from their father? Therefore, I strongly demand from the authorities in Australia to review the decision of the Australian Embassy, Islamabad, and allow me to live with my husband and my children with their father, Thanks.” (sic)
35. The visa applicant’s oral evidence was largely unhelpful. It may be summarised as follows:
·she recalled her application for a visa in 2001 but, when asked why her name was stated as “Shahnaz” in that application, she responded:
“That, I don’t know”;
·she recalled providing documents attached to that 2001 visa application but, when asked whether she was aware that those documents were false documents, she responded:
“I don’t know that”;
·later she was asked whether she remembered her visa application in the name “Shahnaz”, and she responded:
“I don’t remember it”;
·when asked whether she knew anything about a migration application made by her husband in which he included her younger sister [X] as his wife, she said that she did not remember;
·she recalled attending the Australian High Commission in Islamabad for an interview in connection with her visa application, and when asked whether she remembered that her application had been made in the name of “Shahnaz”, she said that she had “heard” that her name had been changed but that she did not know why there was a different name in her application;
·she confirmed that she had asked her husband why her name had been changed and that he said that he would tell her later – and she added that he had not yet told her;
·when asked what she knew about [Y], she responded:
“I don’t know much about him. I just know he came and there was some paperwork and he had gone away”;
·when asked whether she knew if [Y] had helped with her visa application, she responded:
“I don’t know anything about this”.
Additional Evidence
36. The applicant tendered in evidence 13 letters (Exhibits A6 and A7) written by friends and neighbours of the visa applicant in Pakistan referring to her good nature and character and to the difficulties she and her 4 young children are experiencing living alone in Pakistan without her husband and their father.
Analysis and Findings
Is the Tribunal satisfied that the visa applicant passes the “character test” for the purposes of s 501(1) of the Act?
37. Part 1 of the Direction relevantly states:
“PART 1- APPLICATION OF THE CHARACTER TEST
The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test
1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If there is reasonable suspicion that a non-citizen does not pass the Character Test, the non-citizen must also provide evidence to satisfy the decision-maker that the non-citizen passes the Character Test.
1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa and subsection 501(2) provides the authority to cancel a visa that has already been granted.
1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).
...
Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct
1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is ‘not of good character’ on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.
...
· Subparagraph 501(6)(c)(ii) – past and present general conduct
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
·engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
·continual evasion or non-payment of debt;
·continual disregard as to payments of family maintenance;
·involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, ‘white collar’ crime, fraud, breaches of immigration law; or
·involvement in war crimes or crimes against humanity.
(b)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;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e)whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.
...
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character. However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).
...”
38. The respondent submitted that the visa applicant, having regard to her “past immigration conduct” – specifically, the providing of forged and bogus documents and the making of false or misleading statements in connection with her application for a visa in July 2001 (see paragraph 1.9(b) of the Direction) – is not of good character, within the meaning of s 501(6)(c) of the Act, and, accordingly, she does not pass the “character test” for the purposes of s 501 of the Act.
39. The applicant’s submission in support of the proposition that the visa applicant passes the “character test” was set out in a written statement dated 1 December 2005, which he tendered at the hearing, as follows:
“I disagree with the contention of the Respondent that my wife does not pass the character test... The Respondent relied on her past immigration conduct, specifically the provision of false and misleading information including providing forged and bogus documents. My wife does not have any ability in English language. She did not prepare her applications for migration to Australia. She even did not know what documents were required and had been included in her applications. She just signed the applications or statements whenever Mr [Y] or I myself asked her. I have taken the responsibility and offered myself to surrender before the Australian law against such conducts, in my confidential statement submitted to your office on 29 August 2005. I would like to mention here a very simple example of the character of my wife. Just a few days ago, while making a telephonic conversation with my wife, I asked her to organise a Passport for our newborn baby girl ..., she replied that how it was possible for her (as a woman) to go to the offices where most of the staff comprise males and to organise necessary documents to be accompanied with the application for the Passport. Very simply, she asked me to come back and apply for the Passport. What does the tribunal expect from such a simple lady?”
40. In Irvingv Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Federal Court of Australia (Full Court) considered the meaning of the expression “good character” for the purposes of the Act. Davies J (with whose reasons R D Nicholson J agreed) said (at 425):
“… the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.”
Lee J said (at 431-432):
“Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.” (citations of authorities omitted).
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court said (at 197):
“The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.”
In Goldiev Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 the Full Federal Court said (at 324):
[8]“ Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 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 s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”
In Baker the Full Court also considered the meaning of the phrase “general conduct”, in a former provision of the Act corresponding to the present s 501(6)(c), as follows (at 195):
“That leaves for consideration just what is meant by ‘general conduct’ when, in the same context, this expression is used to distinguish conduct that is not ‘criminal conduct’. In a comprehensive division of conduct into two categories that represent fundamental considerations in the making of a determination about character, the category that most naturally forms a dichotomy with criminal conduct, under the heading of ‘general conduct’, is conduct in general. The root meaning conveyed by the adjective ‘general’, as is made clear by The New Shorter Oxford English Dictionary (1993), is the idea of universality. In s501(2), it expresses a contrast with the particularity inherent in the reference to ‘criminal conduct’. We do not think there is any warrant for extracting, from the broad word ‘general’, a meaning that would eliminate conduct other than conduct so frequently indulged in as to be described as prevalent or usual. Just as a person's criminal conduct on a few occasions may be very revealing of character, so also some instances of general conduct, as we understand the term, displayed but once or twice, may lay character bare very tellingly.”
41. In the present case there is no dispute, and the Tribunal finds, that:
· in 2001 the visa applicant falsely signed an “Application for migration to Australia by a partner” form (Form 47SP) in the name of “Shahnaz”, and that that form contained false information regarding the visa applicant’s marriage and children and was accompanied by false marriage and birth certificates (all of which documentation was lodged with the Australian High Commission Migration Office, Islamabad by the applicant on 6 July 2001)(see paragraph 15 above);
· the visa applicant subsequently falsely signed, in the name of “Shahnaz”, letters which were sent to the Australian High Commission Migration Office and with which were enclosed false documents including false marriage certificates, death certificates and birth certificates (see paragraph 16 above);
· in an interview conducted by an officer of the Australian High Commission on 31 January 2002 in relation to her 2001 migration application, the visa applicant falsely pretended to be “Shahnaz” and made false statements regarding the date of her marriage to the applicant, her previous marital status, and her children (see paragraph 17 above);
· the visa applicant falsely co-signed (with the applicant) in the name of “Shahnaz” a statement to the Australian High Commission dated 31 January 2002 (see paragraph 18 above); and
· the visa applicant falsely signed in the name of “Shahnaz” a letter to the Australian High Commission which was received on 22 October 2002 (see paragraph 19 above).
42. Conduct involving the making of false statements, and the providing of false documents, to Australian immigration officials in connection with an application for the grant of a visa to enter Australia must generally be regarded as reprehensible and as a very serious matter. In the present case, however, although the visa applicant engaged in such conduct in connection with her 2001 migration application (as summarised in paragraph 41 above), there are, in the Tribunal’s opinion, circumstances which diminish the degree of culpability that would otherwise attach to such conduct. The Tribunal accepts that the visa applicant does not understand English and that she did not herself prepare, or understand the contents of, the documents containing false information which she signed, and that she did not organise the false accompanying documentation. On the other hand, the visa applicant deliberately signed those documents in the false name of “Shahnaz” and falsely pretended to be “Shahnaz” in the interview conducted by the officer of the Australian High Commission on 31 January 2002. The Tribunal accepts, however, that she engaged in this deceptive conduct at the direction of her husband (the applicant) who, by his own admission (which the Tribunal also accepts), is responsible for the numerous false statements made, and the large body of false documentation provided, to the Australian High Commission Migration Office, Islamabad during the period from 1995 to 2002, in connection with both his migration application in 1995 and the visa applicant’s migration application in 2001.
43. It is, however, not the applicant’s conduct and character which are at issue in this case, but, rather, the conduct and character of the visa applicant. As regards the character of the visa applicant, the Tribunal notes the 13 character references which are in evidence (Exhibits A6 and A7) (including one from an Assistant Professor in Horticulture at the University of Agriculture, Faisalabad) all of which speak very well of the visa applicant as a person and as a mother raising young children on her own in difficult circumstances.
44. The Tribunal did not, of course, have the benefit of observing the visa applicant in person, but it did receive oral evidence from her by telephone from Pakistan. As previously mentioned, however, her evidence was generally unhelpful and, the Tribunal would add, apparently lacking in candour.
45. There is no suggestion that the visa applicant has ever been charged with, let alone convicted of, a criminal offence, nor is there any evidence before the Tribunal to suggest that, apart from her abovementioned conduct in connection with her 2001 migration application, her past and present general conduct has been other than good.
46. Having regard to the visa applicant’s past and present general conduct, the Tribunal accepts that her preparedness to participate in the abovementioned deceptive conduct orchestrated by the applicant in connection with her 2001 migration application calls her character into question. The Tribunal however, on the basis of the whole of the evidence before it, is not satisfied that the visa applicant’s character, in the sense of her enduring moral qualities, is so deficient that it can reasonably be said that she is not of good character, within the meaning of s 501(6)(c) of the Act. In reaching that conclusion the Tribunal has also had regard to the relevant statutory context including the fact that the visa applicant has applied for a permanent, rather than a temporary, visa, and whether it would not be for the public good to grant such a visa to her: Goldie (above) at 324, 327. As regards the latter issue the Tribunal, having regard to the visa applicant’s past and present general conduct (including her “past immigration conduct”), is not satisfied that it would not be for the public good to grant a Subclass 309 Spouse (Provisional) visa to the visa applicant.
47. Accordingly, the Tribunal is not satisfied that the visa applicant is not of good character, within the meaning, and for the purposes, of s 501(6)(c) of the Act.
Finding
48. There being no other basis in s 501(6) of the Act on which it was submitted by the respondent that the visa applicant does not pass the “character test”, it follows, in accordance with s 501(6) of the Act, that the visa applicant passes the “character test”, and the Tribunal so finds.
Conclusion
49. Because the Tribunal is satisfied that the visa applicant passes the “character test”, it follows that the power to refuse to grant a visa to the visa applicant under s 501(1) of the Act is not enlivened. Her application for a visa cannot, therefore, be refused under s 501(1) of the Act.
Decision
50. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the visa applicant’s application for a Subclass 309 Spouse (Provisional) visa not be refused under s 501(1) of the Act.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...........(sgd E M Jordan)......................
AssociateDate/s of Hearing 1, 2 December 2005
Date of Decision 30 January 2006
Representative of the Applicant In person
Solicitor for the Applicant -
Representative of the Respondent Ms L McPhersonSolicitor for the Respondent Australian Government Solicitor
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