Camakau and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 789 (22 October 1999)

Last Updated: 22 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1781

general administrative division )

Re LUSIANA CAMAKAU

Applicant

And SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis, QC, Deputy President

Date 22 October 1999

Place Sydney

Decision The decision under review is set aside.

(Sgd) Rodney N Purvis

..............................................

Deputy President

CATCHWORDS

IMMIGRATION - deportation order for non-citizen convicted of a criminal offence with sentence in excess of twelve months - non-citizen married to Australian citizen - public interest criterion - whether of good character - whether s 501 discretion should be exercised

Migration Act 1958 - s 501 and s 499

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158

Taupau and Minister for Immigration and Multicultural Affairs [1999] AATA 485

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 45 ALD 136

Tran and Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997)

REASONS FOR DECISION

22 October 1999 The Hon R N J Purvis, QC, Deputy President

THE APPLICATION FOR REVIEW

1. This is an application for review of the decision of a delegate of the Respondent made on 19 November 1998 whereby the grant to Waisea Camakau (hereinafter, for convenience, referred to as the Applicant even be it that Mrs Lusiana Camakau is in fact the applicant, the application having been made in her name) of a Class UF Subclass 309 (Spouse-Provisional) visa was refused. The Applicant was found to be unable to meet the public interest criterion 4001 prescribed in Schedule 4 to the Migration Regulations. The refusal to grant the visa was made pursuant to and under the power conferred by section 501 of the Migration Act 1958 (hereinafter referred to as "the Act").

2. The Applicant was found to be not of good character and the available discretion was not exercised in his favour. In his reasons for the decision the delegate, the Principal Migration Officer, Australian High Commission, Suva, Fiji, inter alia said:

"...

12. When interviewed by a Senior Migration officer the applicant ... acknowledged that he had remained in Australia without a valid visa from December 1988 till April 1991.

13. The applicant worked without permission during that period.

14. The applicant acknowledged at interview that he applied for refugee status as a way of extending his stay in Australia and that he did not think he was a refugee.

15. The sponsor did not declare on sponsorship for migration form that she was living with her brother. At interview applicant said he was aware that she had not mentioned this as the brother was staying in Australia illegally.

16. Having regard to his general conduct I concluded that the applicant came within the scope of Section 501 of the Act and that he was not of good character.

17. Despite this finding, there still exists a discretion under Section 501 to in any event not to refuse the grant of visa. In assessing the applicant's character I had regard to his recent conduct. I considered the following matters;

(i) The relationship between the applicant and the sponsor has been assessed as genuine.

(ii) The applicant's parents and siblings all live in Fiji.

(iii) The sponsor has a child of a previous relationship that lived with the applicant and sponsor prior to the applicant's return to Fiji.

(iv) The applicant said when interviewed that the sponsor was aware of his status in Australia after they had been living together for six months.

19. Having considered these matters I reached a decision that the applicant was currently not of good character because of his general conduct.

22. I therefore decided not to exercise my discretion not to refuse the visa grant."

(T2/11-12)

THE HEARING

3. At the hearing of the application for review before the Tribunal, the Applicant was represented by Mr Churchill, Solicitor, the Respondent by Mr Hurley, a Departmental Advocate.

4. There was admitted into evidence the section 37 documents, marked T1 to T30. The following written material was tendered, admitted and accordingly marked as an exhibit:

Exhibit No R1 Description Copy Transcript of proceedings before the Refugee Review Tribunal dated 25 November 1996.

The Applicant gave evidence and was cross-examined by telephone connection to Fiji. Evidence was also given by Mrs Camakau.

CONTENTIONS OF THE RESPONDENT

5. It is the contention of the Respondent that the Applicant is not of good character and ought to be precluded from a grant of the relevant visa. If the Tribunal should be persuaded otherwise, the Respondent further contends that the residual discretion residing in the Tribunal pursuant to section 501 of the Act should be exercised so as to preclude a grant of the visa.

THE FACTUAL SITUATION

6. Material of a documentary and oral nature tendered before the Tribunal at the hearing enabled the following factual situation to be found and briefly stated.

7. The Applicant was born on 18 December 1968 in Fiji. He has at all relevant times retained his Fijian citizenship. He entered Australia on 4 September 1988 on a visitor visa for stay until 29 November 1988, remained without permission for an extended period and eventually departed on 27 December 1997. Whilst in Australia he worked, being employed in various capacities. On 18 April 1991, the Applicant applied for refugee status which was refused on 24 October 1995, the refusal being affirmed on 19 December 1996. He had been granted a bridging visa on 2 June 1995.

8. In about December 1993 the Applicant met Lusiana Marama Camakau, an Australian citizen, and within one month they began living together in a de facto relationship. Mrs Camakau was at that time still married to her previous husband and was living with a 10 months old child of her marriage, Alexander. Alexander had been born in New Zealand on 4 February 1993. A decree nisi for dissolution of her marriage was pronounced on 3 February 1995, the same becoming absolute on 4 March 1995. The Applicant and Mrs Camakau married one another on 29 July 1995 and remained living together, with Alexander, until the Applicant left Australia.

9. Whilst Mr and Mrs Camakau were so living together, the Applicant was as a father to Alexander, indeed the only father that he has known.

10. The Applicant lodged his migration application with the Australian High Commission, Suva, on 5 January 1998.

11. Mrs Camakau was born on 31 July 1968, entered Australia on 27 May 1988, was granted permanent residence on 8 November 1990 and obtained Australian citizenship on 26 January 1996. She is employed as a process worker/leading hand and has been so since September 1993.

LEGISLATIVE FRAMEWORK - PRINCIPLES AND POLICY DIRECTIVES TO BE CONSIDERED

The Act and Regulations

12. The Act, so far as here relevant, provided:

"501. (1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:

(a) subsection (2) applies to the person; or

....

(2) This subsection applies to a person if the Minister:

(a) having regard to:

the person's past criminal conduct; or

the person's general conduct;

is satisfied that the person is not of good character; or

..."

13. Schedule 2 of the Migration Regulations to the Act describes the criteria relevant for the grant of a Class UF Subclass 309 visa, clause 309.225 requiring that, at the time of the decision, the Applicant satisfied public interest criteria 4001, that is, satisfied the criteria set out in clause 4001 of Schedule 4 to the Regulations.

14. Clause 4001 provided:

"(1) The applicant meets the requirements of subclause (2), (3) or (4).

(2) An applicant meets the requirements of this subclause if, after appropriate enquiries, the Minister has decided that there is no evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa.

(3) An applicant meets the requirements of this subclause if, after appropriate enquiries and consideration of all available evidence of anything that might justify refusal, under section 501 of the Act, to grant the visa, the Minister has decided that that evidence is insufficient to satisfy the Minister of any of the matters referred to in paragraph (1)(b) and subsection (2) of that section.

(4) An applicant meets the requirements of this subclause if, despite being satisfied that refusal, under section 501 of the Act, to grant the visa is justified, the Minister has decided not to exercise the power under that section to refuse to grant the visa."

15. Whilst section 501 of the Act was repealed by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, which commenced on 1 June 1999, section 32 of the amendment Act provides that section 501, as it existed prior to 1 June 1999, remains applicable to the Tribunal's consideration of the present matter. Clause 4001 as it then existed is also relevant to this application.

General Direction of the Minister under section 499 of the Act

16. Section 499 of the Act empowers the Minister to give binding directions consistent with the Act and Regulations to persons or bodies exercising powers under the Act. Two directions, pursuant to section 499 covering decisions under Section 501, have been issued by the Minister; one a General Direction - Visa Refusal under section 501 effective from 25 November 1997, and the other a Direction - Visa Refusal and Cancellation under section 501 effective from 17 June 1999. The "General Direction" is applicable to the Tribunal's review of the Applicant's case, even though the "Direction" became effective from 17 June 1999. The 17 June 1999 direction does not incorporate a transitional provision specifically saving the operation of the November 1997 direction, however, the content and structure of the June 1999 direction shows that it applies to section 501 as that section is on and after 1 June 1999, and not to the section 501 as it existed prior to that date.

17. It is noted that the Migration Series Instruction policy document entitled "The Character Requirement: Visa Refusal and Cancellation Under Section 501" (MSI-245) states:

"11.1.2 Any primary decisions made prior to 1 June 1999 that are the subject of review at the AAT will be based on the law as it existed prior to 1 June 1999; however

* any non adverse decision made by a primary decision maker or by the AAT that is made prior to 1 June 1999 is subject to the Minister's new intervention powers to personally substitute or set aside the decision. This is because these latter decisions will be made after 1 June 1999;

* any adverse decision made by the primary decision maker prior to 1 June 1999 that is the subject of a application for review at the AAT will also be able to be set aside by the Minister and substituted by a further adverse decision (the Minister's personal decisions are not AAT reviewable); and

* on 1 June 1999 those Ministerial Directions (ie section 499 Directions) to delegates and other decision making bodies that were given under old section 499 (ie pre 1 June 1999 Directions) will apply as if they were given under the section 499 that commenced on 1 June 1999.

18. The relevant General Direction of the Minister, pursuant to section 499 of the Act, so far as here relevant provides:

"1. ...

2. When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.

3. The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:

. where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;

. where a non-citizen has been convicted of offences, or the non citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

. ...;

. where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.

...

6. If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:

. where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:

* whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non-citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);

* if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non-citizen had not been granted a visa for Australia; and

* in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.

..."

Migration Series Instruction - Policy

19. The Migration Series Instruction is intended to outline the legal, procedural and policy requirements to be met when considering the circumstances of visa applicants against the character provisions of section 501 of the Act. In relation to the exercise of the powers under section 501 the policy is specified in two Migration Series Instructions, MSI-164 - The Character Requirement issued on 22 April 1997, and MSI-245 - The Character Requirement: Visa Refusal and Cancellation issued on 2 July 1999. MSI-245 applies to decisions made on or after 1 June 1999 and replaces MSI-164 in that respect. MSI-164, however, continues to operate in relation to the application of section 501 as it existed prior to 1 June 1999.

20. So far as her relevant the instruction provides:

"2.1 The Character Requirement

2.1.1 The term 'character requirement' is used to cover a range of matters which the Minister or a delegate of the Minister may have regard to in deciding whether to grant a visa allowing a person to travel to, or remain in, Australia on a temporary or permanent basis, as set out in s 501 of the Act.

...

2.1.3 The overall objective of the character requirement is to exclude from Australia persons whose conduct or association with individuals or organisations is such that the presence of such persons in Australia would not be in the interests of the Australian community or a segment of that community.

...

9.6 Past criminal conduct : sub-paragraph 501(2)(a)(i)

9.6.1 In deciding the question of character in relation to past criminal conduct, the onus of proof is on the Minister to show whether, at the time the application is being considered, the person is not of good character.

9.6.1.1 The starting point for such an inquiry is to ascertain what evidence exists at that particular time which could lead to a finding that, on the balance of probabilities, the person is not of good character.

9.6.1.2 Past criminal conduct does not only refer to conduct which was the subject of criminal conviction; reprehensible conduct for which there was no criminal conviction should also be taken into account as this will help to throw light on the person's character. Criminal conduct means conduct which is punishable by law, but which may not actually have been punished. It therefore includes conduct which has been punished by a conviction or convictions, and includes conduct for which there has been no conviction, but which is capable of conviction.

9.6.1.3 Consideration should also be given to recent good conduct (eg good works in the community) when deciding whether a person is not of good character. 'Recent good conduct' includes conduct occurring after the criminal conduct.

...

9.7. General conduct: paragraph 501(2)(a)(ii)

9.7.1 General conduct in this context means any past or current conduct which may establish that the person is currently not of good character and includes criminal conduct. Criminal conduct is a subset of general conduct, but is set out in s 501(2)(a) separately from general conduct as it is convenient for the purposes of categorisation and analysis when determining whether a person is not of good character.

...

9.7.1.3 General conduct could, for example, be a course of conduct which shows a blatant disregard of others/authority and a failure to undertake legal obligations as a responsible member of the community. The conduct would not be criminal in nature, but would serve to exemplify the character of the applicant ...

9.7.1.4 General conduct also includes good, recent conduct. Good acts performed by the applicant after reprehensible conduct are indications that the applicant's character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the applicant's character.

...

9.7.2 When making a decision in relation to character based on a person's general conduct, irrespective of whether that person has any criminal convictions, it must be stressed that the onus is on the Minister to be satisfied, on the balance of probabilities, that the person is currently not of good character because of that general conduct.

9.7.2.1 When considering an application on the basis of an applicant's general conduct, regard may be had, but should not be limited to, the following matters (but see paragraph 9.6.2):

whether the person 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:

involvement in activities such as ... serious anti-social behaviour, ... immigration malpractice; or

...

9.9 Exercising the discretion to refuse/not refuse the grant after a negative character finding

9.9.1 When an officer is satisfied that a person is not of good character after having regard to the person's past criminal conduct, general conduct or by association with a person, group or organisation which is involved in criminal conduct, the discretion to refuse or not refuse a visa under section 501 is enlivened.

...

9.9.2 In considering whether or not to grant the visa following an adverse character finding, consider all relevant factors including :

* the circumstances of the person at the time of the application. These include but are not limited to:

* genuine marriage to, or genuine de facto relationship with, an Australian citizen/permanent resident;

* the bests interests of any child associated with the visa applicant/s;

* the strength of family, social, business and other ties to the Australian community;

* periods of previous lawful residence;

* the degree of hardship which would be caused to immediate family members lawfully resident in Australia (especially Australian citizens);

* family disposition, both in Australia and overseas; ...

* whether the application is for a temporary visa or a permanent visa and the purpose of entry to or stay in Australia; and

* whether undue harm would be likely to result to the Australian community if the visa was granted. This would include an assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is a primary consideration, equal in weight to any other primary consideration.

The above list of matters is not exhaustive.

9.9.3 Unless the officer is satisfied that there is sufficient credible evidence available to overcome the discretion to refuse on character grounds, based on the above factors, and that undue harm would be unlikely to result to the Australian community, a decision should usually be made to refuse to grant the visa."

21. The Tribunal is required to objectively review the facts and to come to a decision which is the right or preferable one in the circumstances of the particular case (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 83). The role of the Tribunal is not, however, merely a supervisory role to see whether the decision under review was arrived at by a justifiable application of ministerial policy (Drake supra page 78). As was said by Brennan J (as he then was) in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161-162, where a number of issues that may arise in the course of a review were identified:

"... First ... Second, if the Minister has a policy which governs or affects his exercise of the power, is that policy consistent with the Act? Third, if the Minister has such a policy, is any cause shown why the Tribunal ought not to apply that policy, either generally or in the particular case? And finally, on the facts of the case and having regard to any policy considerations which ought to be applied, is the Minister's decision the right or preferable decision?

..."

22. In Taupau and Minister for Immigration and Multicultural Affairs [1999] AATA 485, the Tribunal stated:

"...

14. ... The Tribunal is to endeavour to reach a decision which is right or preferable in the circumstances of the matter, and consistent with the observations in Re Becker (supra). Consideration may well need to be given, in a particular set of circumstances, to whether a stated policy is consistent with the Act, or as to whether cause be shown why the Tribunal ought not to apply a stipulated policy generally, or in a particular case. It might be that guidelines do go beyond the scope of a relevant Statute, and it might be that even be they within such scope, that they do not provide measurable assistance in a particular case. Policies that purport to guide the manner in which a discretionary power is to be exercised are not to be applied inflexibly, and circumstances of an individual case must receive full and proper consideration (Re Strangio and Minister for Immigration and Ethnic Affairs (1994) 20 AAR 177 at 183). The Tribunal is enabled to assess whether Directions are inconsistent with the Act or the Regulations. If an unfair or unjust decision would result from the application of guidelines by impinging unduly on a proper balance of the many factors to be considered, in the exercise of a discretion the Tribunal is not bound to follow policy (James Evans Palmer and Department of Immigration and Multicultural Affairs (AAT 130220, 29 June 1998)).

15. In order for the Tribunal to disregard or set aside Policy Directions given pursuant to a statutory power, it is, inter alia, necessary for it to be satisfied that the Directions are inconsistent with the Act and Regulations, or that an unfair or unjust decision would result from an application of the guidelines, or that to apply the Policies regardless of the circumstances of the individual case would be unjust, and not result in a right or preferable decision. ... The Minister's delegate, and the Tribunal has a discretion which is required to be exercised consequent upon a finding that an applicant is not of good character. The guidelines set forth matters said to be relevant to an exercise of that discretion. One of the matters detailed is the harm that might be caused to a spouse or partner of an applicant, in the event of a visa not being granted. It is relevant to a consideration of harm and hardship to have in mind the circumstances in which the relationship was established, as to whether it is a genuine relationship and not one entered into in aid of a visa being obtained. When assessing such possible harm and hardship it is relevant to take into account the knowledge had by the spousal partner of any impediments to the prospects of a visa being granted, possessed by a prospective applicant at that time. Entering into a relationship with the requisite knowledge may itself create a situation different to that of a person who undertakes a spousal relationship in the belief that it will not have an adverse effect on other domestic and geographic attachments.

16. The Tribunal does not discern any circumstances in the present matter as to why it should not make a decision after taking into account all relevant matters consistent with the Migration Series Instruction and the General Directions of the Minister. This does not preclude circumstances other than those referred to in the Instruction and Direction being taken into consideration, if they are seen to be relevant."

ASSESSMENT OF CHARACTER

23. The question of the character of the Applicant as stipulated in section 501 of the Act is pivotal to this application. The matters germane to an appropriate assessment of character have been considered in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425, 432-33 and Minister for Immigration, Local Government and Ethnic Affairs v Baker (1997) 45 ALD 136 at 141-144. They may be conveniently summarised as:

* Whether a person is of good character is a question of fact for the Tribunal to determine.

* The matters which are relevant to character may vary according to the purpose of the visa class in question.

* Good character in the immigration context is not concerned with weaknesses or blemishes in a person's character but with the exercise of the sovereign power to refuse entry to Australia of a person whose character makes refusal of their entry in the public interest.

* Good character in the immigration context means a person's enduring and mental and moral qualities, not their reputation. A person's conduct is a good guide to their character. Evidence of character is likely to be found in criminal convictions or lack of them, and character references.

* A person may be judged to be not of good character on the basis of their criminal conduct or their general conduct, or a combination.

* Criminal conduct includes not just conduct for which a conviction has been reported but, in the absence of a conviction, there must be rationally probative evidence of a finding of criminal conduct.

* General conduct does not mean only prevalent or usual conduct. A person's conduct on only one occasion may be a very good guide to their character.

RELEVANT CHARACTER ASSESSMENT SITUATIONS

24. The situations relied upon by the Respondent as being relevant to an assessment of the character of the Applicant are his overstay of the visa, his working in Australia without authorisation, the application made by him for refugee status and the circumstances surrounding a disclosure of the living arrangements of the brother of Mrs Camakau. It is also relevant to note the regret expressed by the Applicant referable to this conduct.

Overstay of Visa

25. As earlier indicated in these reasons, the Applicant's entry permit expired on 29 November 1988, he being granted a bridging visa on 2 June 1995 and leaving Australia on 27 December 1997.

26. The Respondent contends that the Applicant thus breached Australian law when not complying with the time frame of his entry permit. The conduct of the Applicant in this regard indicates "a blemish in his character" and, applying the principle in Baker (supra), it is, according to the Respondent, reasonable to infer from this overstay that he is not a person of good character.

27. There is no issue raised by the Applicant as to his overstaying the visitor's visa. There is, however, evidence before the Tribunal of the application being made by him for refugee status and his obtaining permission to work at a later date in this country. The overstay of the visa may well have constituted an offence against the Act and could have subjected the Applicant to a sanction.

Working Record

28. The Applicant obtained employment with various employers in Australia, working as a machine operator in Perth, Adelaide and Kingsgrove, New South Wales. His most recent place of employment was at the Anglican Retirement Villages at Gordon, Sydney, where he worked as a general services officer for over five years in a full-time capacity. The Manager/Director of Nursing at the villages provided a reference indicating that, at least in 1997, employment would be available to the Applicant should he return to Australia.

29. According to Mrs Camakau, the Applicant when working in Australia was providing for her and her son, Alexander. The Applicant said that, during the period of his residence in Australia, he never received social security and, in respect of the years when he was so working, he paid income tax and lodged appropriate income tax returns.

30. The Respondent maintains that the Applicant illegally worked from October 1988 until 1994, throughout which period he did not have a proper authority to be employed. His "extended period of unlawful employment" indicates, according to the Respondent, a general disregard and "indeed contempt" for Australian laws, specifically Australia's migration laws. This, it is submitted, illustrates that the Applicant is not of good character. Section 235 of the Act makes provision for the imposition of a fine of up to $10,000 for working without permission. Conduct of this nature, having in mind the magnitude of the possible monetary sanction, is to be viewed seriously and, in the event of a prosecution being brought, may result in a criminal conviction (see Tran and Department of Immigration and Multicultural Affairs (AAT 12357, 30 October 1997)).

31. The Applicant was indeed engaged in gainful employment during the period of his unlawful residence in Australia. He worked in various states and in various occupations. Most recently, his employment extended over a number of years and attracted a favourable reference. He did not rely on social security. He paid income tax. The money that he earned was in aid of his own support but also that of Mrs Camakau and her son, Alexander. There is not any evidence of Mrs Camakau receiving support for Alexander from the child's natural father.

Refugee Application

32. The Applicant applied for refugee status. On 25 November 1996 the application was heard before a member of the Refugee Review Tribunal and, in due course, refused. The transcript of the proceedings before Refugee Review Tribunal was tendered in evidence and clearly shows the grounds of concern then felt by the Applicant:

"...

[Question] ... what it is that you are worried about may happen if you return to Fiji?

[Applicant] Yes, it is worries on the ground of my religion. Because of the religion. They did not like my - they do not like my religion.

...

[Applicant] It appears that the government seemed to favour the Indians who are leading the government.

...

[Question] What I am trying to clarifying (sic) is what it is that you think will happen on return to Fiji which will be persecution of you?

[Applicant] Mostly on the account of the church on which I belong because and because most of my relatives they against me in joining that present denomination I belong to - or the church rather.

[Question] What is it that you think will happen?

[Applicant] At the present moment my relatives are wanting me to go back and join them in the church where they belonged to before, the first - in the church where they belong and I am sure that will cause trouble.

...

[Question] ... You stated at the interview with the department that you had been a member of the Assembly of God Church since childhood.

...

[Question] ... What do you mean the church you used to belong to before?

[Applicant] The Wesley Methodist Church.

[Question] When did you belong to that? I thought you said you belonged to the Assembly since you were a child.

[Applicant] We went into - we joined the Assembly since I was seven or eight.

[Question] Okay. So, your immediate family, your parents and so on and your uncle in Suva, they are all members of the Assembly of God like yourself?

[Applicant] Yes, sir.

...

[Question] ... Can you tell me why it was that you waited until three years after you arrived in Australia before you lodged a refugee application?

[Applicant] Because I was at Adelaide, sir, and I did not - I was not aware of anything happening such as filling out the part ...

[Question] Such as?

[Applicant] Of filling out the forms - refugee.

[Question] So, you did not think of yourself as a refugee at that stage?

[Applicant] No, sir.

[Question] And your concern was simply - was the reason why you left Fiji was about employment?

[Applicant] Yes, sir.

..."

In the course of an interview with a migration officer in Suva, the Applicant was asked whether he applied for refugee status because he wanted to stay in Australia and not because he thought that he was a refugee. He replied in the affirmative to each question.

33. In the course of his evidence before this Tribunal, the Applicant denied that his application to the Refugee Review Tribunal was a false application and said that his application was refused because "my category was not good enough to be a refugee". He said that he had consulted a migration agent and had been told that he could fall within the refugee category. It is trite to say that an applicant would derive little support from seeking to put blame upon a migration agent in the event of an application being false.

34. It is the contention of the Respondent that the Applicant made a false claim for refugee status. The delay between his arrival in Australia in September 1988 and his lodgment of the application for refugee status in April 1991 illustrates, so it is said, that the Applicant did not genuinely believe he was a refugee and that he was prepared to lodge a "bogus application" for refugee status "simply as a tactic to remain in Australia". Under section 234 of the Act, if the commission of an offence is proven, an Applicant might be imprisoned for making false statements about refugee status. It is submitted that the conduct of the Applicant in this regard is "another example of his disregard for Australia's migration laws and the proper administration of those laws" illustrating that he is not of good character.

35. Whilst the Tribunal accepts that the Applicant made his application for refugee status in order that he might remain in Australia, it does not accept that such a claim was bogus. The Tribunal has had the opportunity of reading the transcript of the evidence taken before the Refugee Review Tribunal and is of the opinion that the Applicant then answered questions put to him in a straight forward and honest manner. He might not have believed that he was a refugee during the early period of his stay in this country but, having been informed so by a migration agent, he made his application. There was no attempt by the Applicant to not disclose the basis upon which his claim was made, that is his religious persuasion. It was not such as to ground a valid claim for refugee status. The Applicant was entitled to make his claim and to pursue it. The Tribunal does not consider That the Applicant acted improperly in this regard.

Brother of the Sponsor in Australia Illegally

36. One of the grounds considered by the delegate was a contention made by the Respondent that a brother of Mrs Camakau, the Applicant's sponsor, was living with her at the time she completed her Sponsorship for Migration Form but was not declared as such by her. It was said that the Applicant was aware of this omission, the reason being that the brother was resident in Australia, illegally. In the recounting of an interview, conducted by a migration officer in Suva, with the Applicant in October 1998 and, after recording that the Applicant said that his wife's brother had lived with her, as had occasionally her mother for two years, the officer noted:

"No mention of brother [in Sponsorship for Migration Form]. She probably didn't want to mention brother because he's staying illegally in Australia. He was in Villawood and is now on a reporting basis." (T26/160)

37. Mrs Camakau, in her evidence, said that at the time she filled in the sponsorship form, she believed her brother had a bridging visa and that her brother lived with her "off and on" and not on a permanent basis.

38. At the hearing of the application for review and at the conclusion of the evidence, the advocate appearing on behalf of the Respondent conceded that there was "nothing adverse to the Applicant in relation to Mrs Camakau's brother".

Regret

39. In the course of an interview with a migration officer in Suva, the Applicant is recorded as saying:

"Nj: Not of Character

Sorry that I broke the law, was overstaying in Australia because I have no life in Fiji that's the only reason. I am very very sorry." (T26/165)

40. In his evidence before the Tribunal the Applicant stated that, if he was enabled to reside in Australia, he would "go straight to work", even though he does not at the present time "have a job lined up".

41. The matters thus before the Tribunal referrable to character comprise the overstay on the visitor's visa, the refugee application and the involvement in gainful employment. The Tribunal does not see anything adverse to the Applicant with reference to the refugee application and the allegations so far as Mrs Camakau's brother is concerned are not maintained.

42. Persons who endeavour to avoid the strictures of the migration legislation, by acting in breach of it, are not those who would be readily accepted by the Australian community. Non compliance with the law is not to be countenanced or condoned by the Respondent, its delegate or, indeed, the Tribunal. In this matter, the Applicant was well aware that he had overstayed his visa, that he was in the country without authority and was aware of his acting contrary to the migration legislation and the Regulations by engaging in gainful employment. On the other hand he did, be it after a number of years, seek to rectify his migration status and sought permission to work, which permission was granted. Whilst the initial conduct of the Applicant is such as to attract adverse comment and attention, his more recent behaviour in obtaining permission to work and making application firstly, for refugee status and later, for permission to reside in the country, are acts favourable to him. He left the country of his accord and made his application from Fiji.

43. In all the circumstances of this matter, the Tribunal is of the view that the Applicant should not be regarded as a person not of good character.

RELEVANT DISCRETIONARY CIRCUMSTANCES

44. The Tribunal has found the Applicant to be a person in respect of whom it cannot be said that he is not of good character. However, as matters relevant to the exercise of the statutory discretion were the subject of evidence and submissions, it is desirable that they be considered. These matters relate to the Applicant's marriage relationship, the knowledge by Mrs Camakau of the Applicant's immigration status, the relationship existing between the Applicant and Alexander, and the Applicant's connection with the Australian community and his family in Fiji.

Marriage Relationship

45. There is no issue now as to the relationship between the Applicant and his wife being genuine. Prior to his departure from Australia, they had planned to purchase a house, they were then living with Alexander and Mrs Camakau's mother in a rented townhouse. Both the Applicant and his wife were employed, their earnings being used to maintain the family unit. Since the departure of the Applicant, Mrs Camakau has experienced difficulty in meeting the expenses of the home. The Applicant has been unemployed in Fiji. In January 1998, in a letter to the Australian High Commission in Suva in support of her application to sponsor her husband's migration to Australia, Mrs Camakau wrote:

"I hope it is appreciated that the above applies a lot of pressure on me and has serious effects and consequences. The stress, emotional trauma and mental pressure apart from the physical toll can cause irreparable damage if not addressed quickly. Hopefully, as expressed by your office, I can condition myself to have the family back together in a few months time as in paragraph one." (T15/141)

46. In her evidence before the Tribunal, Mrs Camakau stated that she and her husband have now been parted for nearly two years and it has been hard for her to cope with her employment and responsibility for the home. Her mother lives with her and minds Alexander, while she is at work, taking him to and from school. She said that during the period they were living together the Applicant showed "that he cared for us". Since the time the Applicant left Australia, she has talked with him by telephone at least once a week, and sometimes more often. She has travelled with Alexander to Fiji on three occasions, in March and December 1998 and August 1999, staying for periods of two and three weeks.

47. The Applicant spoke also of the affection that existed between himself, his wife and Alexander and the interchange that takes place between them.

48. The Respondent still contends that the Applicant "is using his marriage to gain entry into Australia", although not now contending that their marriage is other than genuine.

49. The Tribunal, as has been earlier mentioned, has no doubt that the marriage is sincerely based, that the relationship between Mr and Mrs Camakau, which commenced in about December 1993 or January 1994, has continued and that the marriage that took place in 1994 was consequent upon a close bonding between them. Even be it that they have lived apart for two years, the relationship continues on an intimate basis. Mrs Camakau indicated to the Tribunal that in the event of her husband not being allowed to reside in Australia, that she would:

"Have to go to Fiji. Not yet as I have bills of his and mine to meet and I have my work but eventually I would go with Alex."

Knowledge of Applicant's Immigration Status

50. In the course of the interview with a migration officer in Suva, the Applicant is recorded as saying that he "started relationship with sponsor at end of 1993. She knew about my immigration status after we lived together for six months [and I] was worried she might leave me". (T26/165)

51. In her evidence, Mrs Camakau confirmed that the parties met in December 1993 and that it was in June 1994 that the Applicant told her that he was illegally in Australia. She said that we "loved each other" and that she then contacted the Immigration Department, receiving advice from them to the effect that it would be preferable for the Applicant to return to Fiji and lodge there an application which should take three or four months to be processed. Information as to his staying in Australia illegally was conveyed by the Applicant to his new wife whilst the two of them were having dinner. Mrs Camakau stated in her evidence that she believed she had not been told earlier of this fact because of the effect it might have had on their relationship. Mrs Camakau said she was "stunned" when first told. She says that she "rang around" and that they both agreed to do the "right thing thereafter" even to the extent of the Applicant temporarily, so they then believed, leaving Australia. Mrs Camakau said that she had thereafter done what was required and followed the advice of the Immigration Department.

52. The Applicant confirmed telling Mrs Camakau of his status about six months after they met and that he had not told her earlier as he felt that "she might reject me". It was after he revealed the situation to her that Mrs Camakau went to the Respondent's office at Parramatta. There is no question now that Mrs Camakau was prepared to continue the relationship even though she became aware of the fact that the Applicant did not have a valid visa.

53. It is the contention of the Respondent that paragraph 6 of the section 499 Direction, as set forth earlier in these reasons, is here relevant. The Respondent contends that Mrs Camakau, when entering into and establishing her relationship with the Applicant, knew of his disregard for the law and that she entered into and/or established the relationship notwithstanding that she knew that the Applicant had not been granted a visa enabling him to lawfully reside in Australia. Consequently, it is said, any hardship imposed upon her by the Applicant not being able to live in Australia is "something she risked". The acceptance of the risk undermines, it is submitted, in accordance with the section 499 Direction, the exercise of the discretion in her and the Applicant's favour.

54. The Tribunal accepts that Mrs Camakau was not aware of the migration status of the Applicant until some six months after they commenced living in a de facto relationship. When informed, she forthwith took steps in an endeavour to regularise the status. A consultation was had with, and advice received from, migration officials and, in due course, the Applicant left Australia of his own accord and made a migration application from Fiji. The Tribunal does not accept that Mrs Camakau knew of the Applicant's disregard for the law at the time the relationship commenced, that is at the time it was entered into or established. Whilst she did know of the situation at the time of marriage the parties had been residing in the circumstances set forth earlier in these reasons, in a de facto relationship for some time prior to that event.

Relationship Between Applicant and Alexander

55. Alexander, the child of a previous marriage of Mrs Camakau, lived with the Applicant, his mother and, more recently, his maternal grandmother from December 1993 till the Applicant's departure from Australia in 1997.

56. According to Mrs Camakau, Alexander only knows the Applicant as his father and the Applicant regards the boy as his son. Indeed, according to her, Alexander, who is now six years of age, finds it hard to understand why he does not at the present have a father like other boys, why the Applicant cannot come and live with him, and why it is that he can only meet "his father" when he visits him in Fiji. Mrs Camakau finds it hard to tell her son "what the position is", he knowing no other father than the Applicant. The Applicant, according to Mrs Camakau, loves her son as if Alexander was his own.

57. The Applicant confirmed his affection for Alexander, said that he had brought him up since he was eight or nine months of age and was like a father to him. He displayed an intimate knowledge of the boy's present activities, the school he attends, the sport he plays, the position he occupies in the sport, the name of his teacher and other like details. He referred to Alexander as being "just like flesh and blood to me". He referred to Alexander as being a good boy, very intelligent - "I miss him all the time and speak to him on the telephone sometimes twice a week".

58. It was the Respondent's contention that "there is little probative evidence to support a conclusion that the best interests of Alexander would be served by" the Applicant living in Australia. Indeed the Respondent went so far as to contend that the best interests of Alexander would not be served by the Applicant living in Australia. Further, that the only relevant family members are Mrs Camakau and Alexander, that the Applicant has lived away from them since the end of 1997 and, "on the evidence", the particulars of the Applicant's relationship with his wife and Alexander "is uncertain".

59. The Tribunal has no hesitation in accepting the evidence of Mrs Camakau and the Applicant as to the relationship existing between the Applicant and Alexander. The Applicant clearly regards the boy as his own son and Alexander looks upon the Applicant as his father. The relationship existing between the two of them is real and significant, and measurable hardship would be caused to Alexander if the Applicant is not able to reside with him and resume the role of the child's father.

60. The Applicant, whilst in Australia and since December 1993, lived with his wife and her son Alexander. The wife's mother, two sisters and three brothers live in Australia. A sister and a brother live in Fiji. Of those living in Australia, the mother, a sister and a brother are permanent residents, the others temporary.

61. The Fijian-Australian Resource Centre endorses the application of the Applicant. In January 1998, the Deputy Chairman of the centre wrote:

"...

These Fiji nationals [referring to Mr and Mrs Camakau] are devout Christians and are dedicated to Christian lifestyle that will impact the community for the better. I also serve as their family Pastor and can vouch for their dedication, sincerity as husband and wife, and as a family. It is evident from my 'house calls' to the family home in Auburn that they do miss their father greatly, but hopefully, with the assistance of your office, this will not be for too long.

..." (T19/150)

62. The Applicant has two uncles living in Australia.

Applicant's Family in Fiji

63. The parents, two brothers and two sisters of the Applicant live in Fiji.

DECISION

64. The Tribunal has already indicated that it does not find the Applicant to be not of good character. Whilst it is true that the Applicant did overstay his visa and did engage in employment, these are the only transgressions, serious as they well were, that impacted upon the Applicant's character. He has of recent time sought to regularise his status and has acted responsibly in this regard. He obtained and maintained full-time employment with the Anglican Retirement Villages where he worked for a number of years. He returned to Fiji of his own accord and made his application.

65. As already indicated, the Tribunal does not accept that the application for refugee status was falsely made and the allegation as to Mrs Camakau's brother has not been maintained. The Respondent contended that the Applicant had not "necessarily overcome the bad conduct/character factor" and that his conduct could be seen as self-interested and not as good conduct. The Applicant, no doubt with the advice and assistance of Mrs Camakau and immigration officials, did seek to do the right thing. He should not be criticised in this regard. The Respondent contended that Mrs Camakau had strengthened her relationship after she became aware of the Applicant's migration status. There was not any evidence to this effect. The Respondent further contended that the Tribunal should look to the overall implications on the migration system of a decision which was not adverse to the Applicant. This has been done.

66. As earlier indicated in these reasons, the Tribunal has taken into consideration all of these factors. It is satisfied that the Applicant has of recent time conducted himself in a responsible manner and has sought to regularise his status in an appropriate way. His earlier transgressions, serious as they were, have been sufficiently modified by subsequent events.

67. It was submitted on behalf of the Applicant that the knowledge had by Mrs Camakau of his status should not weigh against her and the genuine relationship existing between the parties should be acknowledged and the consequent hardship recognised. The Tribunal does so. The Respondent contended that the relationship between Mr and Mrs Camakau was not really established until the time of their wedding. The Tribunal does not accept that this was so but finds that the relationship commenced early in 1994.

68. The Tribunal is satisfied that there is sufficient credible evidence available to it to exercise the discretion in favour of the Applicant, even if an adverse finding had been made as to character, and is satisfied that undue harm would be unlikely to result to the Australian community in the event of the Applicant being granted a visa.

69. The Tribunal has given consideration to the discretionary factors. Thus, if it had concluded that the Applicant was not of good character, it is satisfied that the discretionary factors are such that they would have been exercised in his favour.

70. Accordingly, the decision under review is set aside. The application is remitted to the Respondent for reconsideration with a direction that the section 501 discretion should be exercised in the Applicant's favour.

I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of

The Hon R N J Purvis, QC, Deputy President

Signed: .....................................................................................

Associate

Date/s of Hearing 20 August 1999

Date of Decision 22 October 1999

Solicitor for Applicant Mr Martin Churchill

Advocate for the Respondent Mr D Hurley, Departmental Advocate,

Department of Immigration and Multicultural Affairs