Farid and Minister for Immigration and Multicultural Affairs [2000] AATA 75 (7 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1312

GENERAL ADMINISTRATIVE DIVISION )

Re Mohammed Farid

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date 7 February 2000

Place Melbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

..........(Sgd. B.M. Forrest)...........

Deputy President

CITIZENSHIP - Spouse visa application - whether visa applicant not of good character - whether visa applicant passes the character test - criminal conduct - criminal convictions in Fiji - general conduct - extensive history of immigration malpractice in Australia and other countries - whether general discretion to grant visa should be exercised - interests of child who is an Australian citizen - decision set aside.

Migration Act 1958 ss. 499 and 501

Australian Citizenship Act 1948 ss. 10(1) and (2)

Citizenship Act 1977 (NZ) s. 7

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

REASONS FOR DECISION

7 February 2000 Deputy President B.M. Forrest

1. The decision under review in these proceedings is the refusal of an application by the applicant, Mohammed Farid, for a combined subclass TK820/AS801 spouse visa. The decision to refuse the visa was made on the basis that the applicant does not satisfy the character test pursuant to s. 501(6)(c) of the Migration Act 1958 ("the Act").

2. The Tribunal had before it documents filed by the respondent which had been prepared for the purposes of s. 501G of the Act ("the G documents") and exhibits tendered during the hearing.

3. Section 501 of the Act relevantly provides:

"501 (1) 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.

...

(6) For the purposes of this section, a person does not pass the character test if:

...

(c) having regard to either or both of the following:

(i) the person's past and present criminal conduct;

(ii) the person's past and present general conduct;

the person is not of good character; ...

Otherwise, the person passes the character test."

4. Section 501 in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, No. 114, with effect from 1 June 1999. In determining whether a person satisfies the concept of good character set out in sub-s. 501(6) of the Act regard is to be had to either or both criminal and general conduct both past and present. If as a result of an examination of that conduct, a finding is made that the applicant is not of good character then he fails the character test. It is then necessary to decide whether to exercise the discretion in s. 501(1) of the Act in favour of the applicant notwithstanding the adverse finding as to character. The concept of "good character" which was discussed in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 refers to the enduring moral qualities of a person and not to reputation or repute: Davies J at 87-88; Lee J at 94.

5. For the purpose of the exercise of the discretion under s. 501 of the Act to refuse, or cancel a visa, the Minister has issued Direction No. 17(2) with effect from 17 June 1999 which has the force of s. 499 of the Act ("the Direction"). The Direction provides guidance to decision makers in making a decision to refuse or cancel a visa under s. 501 of the Act.

6. The following broad background emerged from the evidence and material before the Tribunal.

7. The applicant was born in Fiji on 7 February 1952. At birth he was named Mohammed Fareed. He was educated to year 10 then began work in the family businesses, a motel and a taxi business in Nadi.

8. The applicant married Aimual Nisha in 1976. There are three children of the marriage. The marriage ended acrimoniously in 1985 after Aimual discovered that the applicant was involved with another woman, Pushpar Chandra. Aimual and the children left the matrimonial home in Nadi and went to live in Lautoka. In December 1985 the applicant made a brief visit to Australia.

9. In 1986 Aimual obtained orders against the applicant for custody of the children and maintenance. About this time the applicant sold the taxi business. The motel and taxi businesses had been left in the applicant's hands after his parents migrated to the United States in 1980. After the sale of the taxis the applicant left a manager in charge of the motel and made arrangements to travel overseas. Aimual obtained an injunction to prevent the applicant leaving Fiji to safeguard maintenance entitlements.

10. In late 1986 the applicant changed his name by Deed Poll from Mohammed Fareed to Mohammed Rafik and obtained a passport in that name. In late 1986, he travelled to Canada with Pushpar Chandra and her daughter. From there they obtained visas to Australia and arrived in Sydney on 1 December 1986, the applicant travelling under the name Mohammed Rafik. They were granted entry permits for three months.

11. The applicant overstayed by a month and on 1 April 1987 he was detained by immigration officers in Melbourne. When interviewed that day he stated that he had not previously visited Australia; was a single man; was not divorced or separated; did not have any children and had no criminal record overseas.

12. On 10 April 1987 the applicant left Australia voluntarily under supervision. Pushpar remained in Australia. Her relationship with the applicant ended shortly afterwards.

13. In May 1987 the applicant purchased a false Fijian passport using the identity Rajendra Kumar and in that name he obtained a visa, re-entered Australia and worked here.

14. On 2 February 1988, the marriage to Aimual Nisha was dissolved. In October 1988, the applicant met Dianne Higgins in Australia. She was pregnant at the time. They married on 2 December 1988 but the marriage lasted only a few weeks. In a statement made to the immigration department on 15 August 1990 Dianne said she had not lived with the applicant since January 1989 when she returned to her home town to give birth to her child. In April 1989 she returned to Melbourne but did not resume the marriage because of her stated belief that she was being used by the applicant to enable him to remain in Australia.

15. The applicant disputed this, claiming the marriage to Dianne was genuine. In any event their marriage was dissolved on 7 December 1994. On 15 August 1989 the applicant was arrested for being an illegal entrant. When interviewed that day, he admitted entering Australia in 1987 on a false passport issued in the name of Rajendra Kumar and having worked since arrival as a car detailer and bus cleaner with Ventura Bus Lines. He claimed that he had no children, was living with his spouse Dianne in Footscray and that he intended to apply for permanent residence on spouse grounds. He also claimed he had no criminal convictions overseas.

16. Fiji Police records revealed that the applicant has the following convictions in Fiji:

Date of Sentence Offence Sentence

12 June 1972 Official Corruption Fined $45 or 3 months imprisonment. (Fine paid.)

14 January 1986 Act intent to cause Grievous Harm Fined $60 or 2 months imprisonment. $50 out of fine to (A-1) as compensation. Also bound over in the sum of $100 for 12 months.

14 January 1986 Act intent to cause Grievous Harm Fined $50 or 2 months imprisonment. $40 to (A-2) as compensation. Also bound over in the sum of $100 for 12 months.

14 January 1986 Act intent to cause Grievous Harm Fined $50 or 2 months imprisonment. $40 to (A-2) as compensation. Also bound over in the sum of $100 for 12 months.

14 January 1986 Damaging Property Fined $450 or 3 months imprisonment. $400 to (A-2) as compensation. Also sentenced to 3 months imprisonment suspended for 12 months.

17. In evidence to the Tribunal the applicant said that he pleaded guilty to all of the offences. The offence of official corruption was said to have arisen out of an incident in which the applicant acted as courier in delivering a bottle of alcohol to a police officer. The 1986 offences, three counts of act intent to cause grievous harm and one count of damaging property were said to have arisen out of a fight at the applicant's motel premises. The fight involved the applicant and two of his employees against three brothers of his then spouse Aimual. During the fight the brothers were injured and a motor vehicle belonging to one of them was damaged.

18. On 4 September 1990, a delegate of the Minister signed a deportation order and on 26 September 1990 the applicant was deported from Australia. Prior to departure he was given notice of an amount of $4,797 owing to the Commonwealth for custody and detention costs. Back in Fiji the applicant ran the family motel until it was sold in early 1991. He said that he attempted to revert from the name Rafik to his original surname Fareed, by which he was known in Fiji, but authorities would not allow it. He changed the spelling to "Farid" which was acceptable and adopted that surname by Deed Poll on 8 December 1990.

19. In February 1991, the applicant left Fiji. For a few months he travelled extensively overseas before entering New Zealand in mid 1991 on a visitor permit for three months which was extended for a further three months. He overstayed. In 1992 he commenced a friendship with Rajeshna Regan, an acquaintance from Fiji. She had travelled to New Zealand in 1991 where she married Raymond Regan a New Zealand citizen and obtained permanent residence there. Her marriage to Mr Regan disintegrated in 1992 and the applicant and Rajeshna began living together in 1993. They established a car detailing business in New Zealand in her name and in 1995 they purchased a residential property near Auckland and later they purchased an adjoining block of land. The properties were purchased in both names. They still own these properties (Ex. A2). On 17 April 1996 the applicant and Rajeshna were married in New Zealand.

20. On 12 May 1994 immigration authorities in New Zealand served the applicant with a Removal Order on the grounds that when he entered New Zealand he had not disclosed his previous removal from Australia. The applicant appealed against the Removal Order and also applied for permanent residence in New Zealand. Both were finally rejected in February 1997. Shortly afterwards the applicant returned to Fiji, Rajeshna followed a week later. The car detailing business ceased and their house was rented (Ex. A1).

21. In his evidence the applicant said that he had approached the New Zealand immigration office in Suva seeking confirmation of the period of expulsion and was informed he faced a five year exclusion from returning to New Zealand.

22. On 24 March 1997 the applicant phoned the immigration section of the Australian Consulate in Suva and inquired generally about his right of entry to Australia. The departmental officer's note of the conversation records the applicant inquiring as to whether an exclusion period applied to his return to Australia following his deportation in 1990 saying that his spouse, a New Zealand citizen was moving to Australia and he wanted to know if he also may travel to Australia. He was informed to put his request in writing. It was the applicant's evidence that he wrote to the Suva office in March/April inquiring about the costs owing for his detention and also the exclusion period but did not receive a reply. Shortly after he wrote, he attended the office and was informed orally by a staff member that there was nothing on file, and that if five years have elapsed since deportation and if he did not have a debt to the Commonwealth there was no need to declare the previous deportation now (Ex. A1).

23. On 16 April 1997 Rajeshna arrived in Australia. On that day the applicant arrived in Hong Kong having left Fiji the day before. On 21 April 1997 he applied, in Hong Kong, for a visitor visa (short stay) to Australia. His visitor visa application indicated that he had never been convicted of an offence, been deported or asked to leave a country. On 23 April 1997, a visitor visa was issued allowing multiple travel for twelve months and permitting the holder to remain in Australia for three months. The applicant arrived in Melbourne on 27 April 1997 and was met by Rajeshna on arrival. They have since lived together in Melbourne. A departmental note records that when the applicant applied for the visa in Hong Kong he stated that he wanted to visit Australia for a couple of days before returning to Fiji, that his wife was in Fiji, that he had no contacts or friends in Australia and that he had not visited Australia before. In evidence the applicant asserted that he assumed that he did not need to disclose his earlier deportation from Australia because of the oral advice (referred to in the previous paragraph) he received from the Consulate in Suva.

24. Although he did not have permission to work in Australia, on 20 May 1997 the applicant negotiated a twelve month agreement with US Bus Lines Belgrave, with Rajeshna named as the contractor, to clean buses on a Friday and Saturday each week. It was the applicant's evidence that Rajeshna did this work including throughout her pregnancy until he gained permission to work in August 1998.

25. On 24 July 1997 the applicant was granted a three month visitor extension and then subsequently a six month extension to 27 April 1998. Again in the declarations relating to extensions the applicant did not disclose his previous deportation, his convictions in Fiji, or his migration history in Australia.

26. On 16 April 1998 the applicant through his solicitors lodged an application for a spouse visa to remain permanently in Australia on the basis of his marriage to Rajeshna. On 24 June 1998 a child, Sam Mohammed, was born to the applicant and Rajeshna. On 19 August the applicant was granted a bridging visa which permitted him to work. The $5,213 debt to the Commonwealth relating to detention and removal in 1990, was paid in July 1999. On 19 November 1999 the applicant was served with the decision to reject his visa application and he was placed in immigration detention.

27. Considering firstly the applicant's criminal history, I do not regard this to be of sufficient seriousness as to warrant an adverse character assessment. The first offence, that of official corruption in 1972 is, apart from the insignificant degree of seriousness, too outdated to be of relevance when considering his criminal conduct as a whole. The 1986 offences involve an element of violent behaviour and, although evidence of their circumstances is confined to the applicant's account of events, they arose out of one episode against a background of a family dispute. Viewed objectively this incident is insufficient to demonstrate a propensity to violence. Additionally, the applicant has no other convictions.

28. Turning to the applicant's general conduct, the criticism levelled at the applicant relates to immigration malpractice. He has a history of disregard for immigration laws both in Australia and in New Zealand. He has breached the terms of entry to Australia, adopted a false identity and used forged documents to gain entry to Australia when he was not permitted to do so and knowingly provided false or misleading information to gain further entry in 1997 and to extend his stay.

29. I reject the applicant's evidence in relation to the events surrounding the Hong Kong visa application in April 1997. The applicant's evidence that he was on a bona fide business trip to Hong Kong, at the time Rajeshna travelled from Fiji to Australia; that he made a spur of the moment decision to visit Australia only after he was informed by his sister that Rajeshna was in Australia and that the information he provided when seeking the visa was guided by advice given by an immigration officer in Suva defied credulity. I do not accept the applicant's evidence that he had written to Suva office explaining his circumstances or that he received the advice he claimed or that he had not beforehand discussed with Rajeshna their separate travel to Australia in April 1997. If in fact and in truth he was given the advice he claimed at the Consulate in Suva, it does not explain why his application for a visa was made in Hong Kong or provide a credible reason for giving false information about his prior history in Australia and about his family circumstances. Nor do I accept his evidence that he was unaware that Rajeshna had travelled to Australia at the time he travelled to Hong Kong.

30. The combined weight of the facts and circumstances support the inference as a matter of probability that the entry of the applicant to Australia in April 1997 was the fulfilment of a preconceived plan designed to hoodwink immigration officials as to his status in Australia by providing false and misleading information to obtain an entry visa, information which was repeated for the purpose of obtaining extensions of his visa. His actions on these occasions and earlier in entering Australia with a false passport, working illegally in Australia, and the making of false or misleading statements to immigration officials and in relevant documents to gain entry display a deviousness in his character which reflects poorly on his enduring moral qualities and provides an adequate basis for a finding that he is not of good character and that therefore he fails the character test.

31. The question remains whether despite failing the character test, the discretion should be exercised to permit the applicant to remain in Australia. In deciding this question the Tribunal is required to undertake a balancing exercise having regard to three primary considerations and other relevant considerations. The primary considerations are stated in the Direction to be:

"(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children."

32. The seriousness of the applicant's conduct is as stated in relation to his deliberate disregard of Australian migration laws. Although he has not been charged with any offences under the Act there is abundant evidence that he has breached Australian migration laws which the Direction requires to be regarded as "very serious" breaches.

33. In assessing the risk of recidivism I take into account that the applicant has been deceitful in gaining entry to Australia on more than one occasion. Against that I also take into account that he has not been convicted or charged with any offences in Australia and that business acquaintances and neighbours speak well of him. He has demonstrated that he has business skills, he worked in and ran family businesses in Fiji and quickly established businesses in New Zealand and Australia, to the extent that he may reasonably be expected to make a contribution to Australia. If the applicant gains permanent residence in Australia, I do not regard him as a risk to the Australian community as a person likely to engage in further immigration malpractice.

34. As a matter of public policy the Australian community has the right to examine the background of persons wishing to live here permanently and to be protected against fraudulent entry into Australia. In this regard decision makers are required to consider the question of general deterrence to others contemplating similar entry. It is I think reasonable to conclude that the grant of a visa to the applicant would be viewed as an encouragement to others contemplating similar behaviour.

35. Furthermore, the Australian community, in particular, the families in Australia of persons who through proper channels are waiting their turn to migrate are entitled to view with dismay a process which could be said to reward the efforts of persons who circumvent the law to gain entry. While community expectation would be that persons who have engaged in immigration malpractice not be rewarded, in the present case where he is not regarded as being at risk of repeating this behaviour and may be expected to make some positive contribution this expectation is lessened.

36. I turn now to a consideration of the best interests of the applicant's son Sam Mohammed who was born on 24 June 1998. The best interests of a child are a primary consideration. The applicant also has three children from his first marriage, two adult and the youngest 15 years of age but has had no contact with any of the children of his first marriage since about 1986. Sam was born in Australia. He is an Australian citizen by birth as his mother, Rajeshna has permanent residence: ss. 10(1) and (2) Australian Citizenship Act 1948. Sam at only 19 months is too young to have acquired an Australian culture and lifestyle therefore, relocation to Fiji would not cause the disruption which might reasonably be expected in the case of an older child. That is assuming that Rajeshna would also relocate to Fiji in the event of the applicant leaving Australia. Despite her evidence that she would not leave Australia in that event, Rajeshna did return to Fiji, albeit only briefly, after the applicant was required to leave New Zealand. Her family ties are in Fiji. It is true that her circumstances now, with Sam's birth, are not the same as when she left New Zealand. Whether the removal of the applicant from Australia would mean the break up of his family, a consequence which I accept is not in Sam's best interest's is not altogether clear because of some reservations I have about her expressed intent. A number of options are available to her. She may live in Australia or Fiji. Also as a New Zealand citizen she has the right to live there and for Sam to acquire New Zealand citizenship by descent: s. 7 Citizenship Act 1977 (NZ). The flexibility of residence available to Rajeshna and to Sam is of course not available to the applicant who for the time being is also precluded from re-entry to New Zealand. If however these reservations about Rajeshna's evidence are wrong and she intends to remain in Australia irrespective of the applicant's presence here, then for the immediate future at least the family unit would be broken up.

37. While there was material and evidence indicating that the applicant was disinclined to make satisfactory arrangements for the maintenance of the children from his first marriage, evidence of the change of name for the purpose of leaving Fiji, not continuing to contribute to their maintenance (Tr. 52), and making no apparent effort to re-establish contact with his children since he left Fiji in 1986, it was not in issue that his present marriage is genuine. It is reasonable to expect in the circumstances that he will discharge his parental obligations to Sam. As an Australian citizen Sam is entitled to expect to be able to be brought up in Australia as part of a family unit in the stable environment currently enjoyed by the family and with the opportunities this country can provide. In the medium term at least, the New Zealand option would mean the separation of the family, the applicant being precluded from applying for re-entry until 2002, while relocation to Fiji in the event of the applicant's removal would deprive Sam of the better prospects, generally acknowledged to be available in Australia.

38. I am also satisfied that the applicant's removal from Australia would cause hardship to Rajeshna at a vulnerable time for her. The evidence revealed that the period prior to her marriage to the applicant was one of considerable turmoil in her life and she has persisting health problems. Although the weight to be given to the personal hardship she would suffer by his removal from Australia is to be diminished by the facts that when she and the applicant entered Australia in April 1997 she was well aware that the applicant was precluded from entry and that she was likely to have been aware of his scheme to enter Australia from Hong Kong, hardship would be caused to her nonetheless.

39. In my opinion, upon balancing the factors required by the Direction to be taken into account and having considered all the evidence and submissions I am satisfied that this is a matter where the discretion should be exercised in favour of the grant of a visa primarily because the quality of the character of the applicant found wanting and having regard to the community expectation in regard to his behaviour is on balance insufficient to outweigh the best interests of his son Sam.

40. For these reasons the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Date/s of Hearing 10 and 11 January 2000

Date of Decision 7 February 2000

Counsel for the Applicant Mr P. Gray

Solicitor for the Applicant Law Partners

For the Respondent Ms M. Adamson, departmental advocate