Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87 (8 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 87

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1871

GENERAL ADMINISTRATIVE DIVISION )

Re MATHIASI MSUMBA

Applicant

And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr BJ McMahon (Deputy President)

Date 8 February 2000

Place Sydney

Decision The decision under review is affirmed.

(Sgd) BJ McMahon

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

Deputy President

CATCHWORDS

IMMIGRATION - application for Spouse Visa refused - not of good character - Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 section 500(6H) - whether oral evidence could be given without a written statement - whether the Tribunal's discretion is fettered by section 500(6) - whether the applicant was not of bad character - application of the objective character test - primary consideration of community protection and expectation - false spousal relationship - fraudulent exploitation of the system - whether refusal should apply when not of good character - mitigating factors - whether there was recent good behaviour - whether there is any hardship - primary considerations out weighed any hardship or good behaviour - refusal upheld

WORDS AND PHRASES - "enduring moral qualities"

Migration Act 1958 s 499(1), 499(2A), 500(6), 500(6H), 500(6L), 501(6)(c)(ii)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998

Migrations Regulations subclass 801 and 820 Spouse visa; subclass 457 Longstay Business visa

Migrations Act Ministerial Direction "Protection of the Australian Community para. 2.6(c)

Administrative Appeals Tribunal Act 1975 s 33(1)

Safety, Rehabilitation and Compensation Act 1988 s 66

Therapeutic Goods Act 1989 s 60A

Corporations Law s 600

Freedom of Information Act 1982

Statutory Declarations Act 1959

Re Eli Lilly Australia Pty Limited and Minister for Health and Family Services

(1999) 28 AAR 514

Rokobatini v Minister for Immigration and Multicultural Affairs (1991) 30 AAR 74

Irving v Minister for Immigration and Multicultural Affairs (1996) 68 FCR 422

Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277

Re Narayanasamy v Minister for Immigration and Multicultural Affairs

(1999) 30 AAR 1

REASONS FOR DECISION

Mr B.J. McMahon (Deputy President)

1. This is an application to review a decision of a delegate given on 19 November 1999 refusing an application for subclass 820 and 801 visas. The decision was based upon paragraph 501(6)(c)(ii) of the Migration Act 1958. The delegate decided that, having regard to the applicant's past and present general conduct, he was not a person of good character.

2. The decision was based in part upon an application made on 29 December 1994 for an extended eligibility visa and a general residence visa. This application is now conceded to have been falsely based and to have contained many misstatements. It was prepared with the assistance of the applicant's brother, Lucas Mathew, and possibly on his advice. Mr Mathew declined to give a written statement of his evidence to solicitors acting for the applicant. In response to a summons issued by the Tribunal at the applicant's request, he attended at the hearing. I held, however, that it was inappropriate for him to give evidence to which I could not have regard. I considered that I was bound by the terms of subsection 500(6H) which provides that the Tribunal must not have regard to any information presented orally in support of the [applicant's] case unless the information was set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing. I indicated that I would include in my reasons for decision my reasons for declining to hear Mr Mathew's evidence or to have regard to it.

3. Paragraph (6)(H) is one of a number of amendments contained in a legislative scheme introduced by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998. The additions to section 500 prescribe strict limitations on rights of review by fixing times within which applications to this Tribunal may be made, defining procedures to be observed, amending relevant provisions of the Administrative Appeals Tribunal Act 1975 and by prescribing (in subsection (6L)) that the decision under review is taken to be affirmed if the decision of this Tribunal is not given within the time specified in that subsection. This last provision effectively precluded an adjournment to obtain a written statement from Mr Mathew, even assuming that he would be prepared to give such a statement at a later date.

4. Subsection (6H) contains its own inherent quandary. It was clearly not designed to deal with situations where evidence was to be given, the substance of which was unknown to both the applicant and the respondent. From its place in the legislative scheme, it appears to be designed to ensure that the Department's representative is given at least two days notice of the evidence to be presented in support of the applicant's case. In the present situation, I do not know whether Mr Mathew's evidence would have been in support of his brother's case, or whether Mr Mathew would have declined to give evidence on the ground that he might incriminate himself, or whether, like his brother, he would have given evidence to incriminate not only himself but also other people involved or whether indeed he would have given evidence to the effect that the fraudulent scheme was initiated and progressed solely on the responsibility of the applicant. Unless that evidence was heard, it was not possible to say whether it was "in support" of the applicant's case. In order to decide this, it must be necessary to hear what Mr Mathew has to say but the subsection prohibits me from having regard to any such information. The subsection does not appear to have any scope available for a flexible approach. I took the view that, as it was the applicant's counsel that sought to tender the evidence of Mr Mathew, the applicant, at any rate, believed that any likely evidence would be in support of his case. That being so, I am constrained from having regard to any such evidence.

5. It may well be that strictly the subsection makes ineffective any oral hearing. Read literally, the subsection would restrict a witness simply to reading the statement which had been previously furnished. It would preclude any information elicited by the Department's advocate by way of cross examination, unless it could be said that such information was not in support of the applicant's case. I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination. In doing so, I have relied on subsection 33(1) of the Administrative Appeals Tribunal Act 1975 which prescribes the nature of the procedures which this Tribunal should adopt. The freedom and flexibility of that subsection, however, may well have been limited by the provisions of subsection (6H).

6. This is a subsection which, so far as I know, has not received the attention of an appellate Court. It is cast in inflexible terms. It could be productive not only of inconvenience to both applicant and respondent but also of manifest injustices. Obviously, an unrepresented applicant, particularly one with a non-English speaking background, is adversely effected by the terms of this subsection. If he or she is unable to prepare the required written statement, this Tribunal would be restricted in its considerations to the same material that was before the decision-maker. This could lead to an unjust situation. The inconvenience to the applicant lies in the fact that the section requires a hearing to be held much earlier than one would normally expect in this Tribunal, thus placing a burden on the applicant to assemble quickly any evidence which he or she may wish to put forward. The section limiting the overall length of the proceedings has no scope for extension having regard to illness or other intervening cause. The requirement that only two business days are necessarily allowed to the respondent is productive of inconvenience to the respondent's advocates in that they have a very limited time in which to analyse that evidence and to produce a detailed response and detailed submissions. Certainly, they would not have time to call evidence in reply. If there was an issue, for example, relating to the best interests of the children of an applicant, it would be impossible to match any professional evidence put forward by an applicant only two days prior to a hearing.

7. I must take the subsection as I find it. However, I am heartened by what the advocate for the respondent said, namely that this legislative scheme is currently being explored through experience. It may possibly be necessary to amend it in parts in due course. I would commend the attention of the Department to section 66 of the Safety, Rehabilitation and Compensation Act 1988 which also seeks to control the late presentation of evidence, but allows a certain flexibility by empowering the Tribunal to give leave to receive such evidence.

8. Another approach to the production of new information is to require the matter to be remitted to the original decision-maker for reconsideration if this occurs. That approach has been enacted in section 60A of the Therapeutic Goods Act 1989. The unsatisfactory nature of the results was discussed in Re Eli Lilly Australia Pty Limited and Minister for Health and Family Services 28 AAR 514.

9. It might be thought that if flexibility were introduced, hearings before the Tribunal could be manipulated by applicants to obtain delays. Applications for this purpose are not uncommon in other areas. The recipient of social security may not be anxious to see the conclusion of proceedings in which the Department seeks to recover an overpayment. A disbarred director under section 600 of the Corporations Law, who has obtained an order staying the operation of that decision, may have little concern as to whether the ultimate review, which he instigated, takes place in a timely manner. The Tribunal has considerable experience with such adjournment applications. When the lettered subsections of 500(6) are again considered, it may appear more practical to the Department to vest individual management of individual applications in the Tribunal, acting perhaps within certain criteria to be laid down in the statute governing any flexible approach to time limitations.

10. I have, therefore, proceeded on the basis of the evidence put before me. This consisted of the Departmental documents and statements by the applicant, his partner, Heather Campbell, and her mother, Rochelle Campbell, supplemented by evidence in chief given orally within the terms of those written statements and their cross examination, and two reports from psychologists.

11. Mr Msumba was born in Tanzania on 26 February 1974. On 25 March 1994 he was granted a visitor visa enabling him to visit Australia for up to three months. He had come to see his brother who then lived with Belinda Butler and their two children in a unit in Victoria Street, Potts Point. Mr Msumba arrived here on 1 April 1994 and went to live with them.

12. On 27 June 1994, he applied for, and was granted, an extension to his visitor visa, enabling him to remain in Australia until 27 December 1994. The conditions of this visa prohibited him from undertaking employment in Australia.

13. Mr Msumba was unable to remember the day, but it must have been some time in July 1994 when they both decided to see what could be done to enable Mr Msumba to stay in Australia. Mr Mathew took him to the Department to see whether he, Mr Mathew, could sponsor his brother but was told that this was not possible. It was then decided to work up an application for a spouse visa showing as his partner Cassandra Anderson, a friend of Belinda Butler, whom he had met casually at his brother's flat and who had agreed to assist in this enterprise. Although the application for spouse visa was not to be made until the end of the year, by 2 August 1994 when Lucas, Belinda and the applicant moved out of Victoria Street into a flat in Elizabeth Bay Road, the lease was prepared in the name of the applicant and Cassandra, both of whom signed it. Cassandra never lived at this address. The lease was clearly signed as a foundation for later false assertions of a relationship between the applicant and Cassandra.

14. In December 1994, the applicant moved out of his brother's flat and commenced sharing another flat in Springfield Avenue with his friend, Mr Sudi Said. Lucas and Belinda continued to live in Elizabeth Bay Road. The applicant has not since lived with his brother, although he continued to use the Elizabeth Bay Road as his given address in dealings with the Department and in commercial transactions where evidence was being gathered for the Department, so as to maintain the fiction that he lived there with Cassandra.

15. In order to continue the record of fabrications, the applicant purchased a refrigerator at Bing Lee Electrics Pty Ltd on 23 December 1994. Although the receipt was made out in the name of the applicant and Cassandra, the appliance was delivered to the Springfield Avenue flat. In a statutory declaration made before his then migration agent on 30 August 1999, the applicant admitted that this was the case. His vague evidence before me which swung between an inability to remember the event, an allegation that the receipt was falsely made out and a denial of the events, is clearly wrong and I reject it. It is quite inconsistent with contemporary documentation and with the declaration professionally prepared on instructions.

16. By 28 December 1994, the applicant had become an unlawful non-citizen as his visitor visa had expired. Within days after this occurrence, he applied for a visa to remain in Australia as the de facto spouse of Cassandra. Although the applicant was vague about it, it is clear from other contemporary documentary evidence that he attended the Rocks office of the Department on 29 December 1994 in the company of Cassandra. When they were asked to explain why the application had not been lodged prior to the expiry of the visitor's visa, Cassandra wrote out a letter falsely stating that the applicant's passport had been lost and wasn't found until a few days previously. This letter was signed by the applicant and contains a number of false statements concerning his then alleged relationship with Cassandra.

17. In fact, as he now says in his evidence, they never lived together or had any relationship other than as friends. The applicant knew her as a friend of Belinda who used to visit Belinda's flat when the applicant lived there. He would play with their children. Any statement that he had been in a bona fide marriage-like relationship with Cassandra was quite false, as he now admits. Cassandra was not called to give evidence.

18. The joint application signed by the applicant and Cassandra contains a large number of false statements. It shows their address as Elizabeth Bay Road (where Cassandra had never lived) although at the time the applicant was living with his friend Mr Sudi Said in Springfield Avenue. False statements were made as to the duration of their relationship and as to their intentions for the future. The misleading residential tenancy agreement was attached.

19. Mr Msumba said that he did not speak a great deal of English at the time, although he had learned some at school in Tanzania. I accept that he was probably not then fluent in this language. However, he agreed that he conversed in Swahili with his brother and had no trouble in understanding him. Having regard to the elaborate and artificial character of this charade, I have no doubt that he learned from his brother exactly what was going on. There could have been no other explanation for the involvement of Cassandra, whom he otherwise hardly knew. The psychologist described the applicant as a "shy, simple, naive man". He may have these qualities but he is certainly not a simpleton. I formed the impression listening to his evidence that he was a person of sharp intelligence. His present command of English was certainly sufficient to enable him to grasp abstract concepts and to respond appropriately to cross-examination from a person whom he had not previously met. Whether or not his English language skills were of such an order late in 1994, he was, in my view, sufficiently aware to take full responsibility for his actions at the time. Certainly if he did not know the extent of the falsehoods contained in the December 1994 application, he became aware of them by April 1995.

20. On 26 April 1995, he attended at the Rocks office of the Department and lodged a number of further documents in support of his application. These were rent receipts for the Elizabeth Bay Road flat (in which, by that time, neither he nor Cassandra was living although the receipts were made out in their name), documents from Sydney Electricity for the same flat in both names, a receipt for furniture in both names, including one for a double bed to be delivered to the Elizabeth Bay Road flat. In fact, as the applicant later admitted, the bed went to the Springfield Avenue flat. Other documentary evidence in the joint names of himself and Cassandra were clearly bogus and must have been known by the applicant to be bogus. He nevertheless presented them in support of the December 1994 application. He had an opportunity at that stage to withdraw it but persisted with the pretence.

21. As a consequence of his application for residence, the applicant was automatically granted a bridging visa class C (subclass 030) to give him lawful status during the processing of the application. The visa was subject to condition 8101 which prohibited him from undertaking any employment in Australia. This was a condition which he continually ignored over varying periods in the next two years. During 1995, without the knowledge of the Department, the applicant was employed as a car detailer by John Guest Detailing Pty Limited, a company which had the contract for City Ford in William Street, Sydney. The applicant knew that this employment was illegal. In paragraph 38 of his written statement he refers to the fact that on occasions, officers from the Department would come to the premises to look for "illegal people". The applicant was required by his supervisor to "hide in the back room".

22. It is not clear how the next application was initiated but on 25 September 1996, the applicant applied for permission to work. In that application he continued to make false statements, clearly to establish a pattern of consistency with the earlier statements he had made in the earlier application which had not then been finally dealt with. For example, he continued to give his address as Elizabeth Bay Road when, by that time, he was living with Sudi Said in a flat in Frenchmans Road, Randwick. He also said in answer to one of the questions that he had not worked and had been supported by his de facto (meaning Cassandra). In fact, he had been working illegally in Australia for some time and at the time of lodging the application, was employed illegally as a car detailer. He was paying rent at the Frenchmans Road flat and had been spending money with and on Heather Campbell. On the basis of these untrue statements he was granted permission to work on 6 December 1996.

23. On 23 December 1995 he met Heather Campbell (then aged 21) at a nightclub. Almost immediately, they commenced a relationship. She was a continual visitor to the Springfield Avenue flat where the applicant lived with Sudi. Notwithstanding the closeness of their relationship, the applicant did not tell her of his previous application based upon his alleged relationship with Cassandra. In July 1996, it became necessary to move from Springfield Avenue because that building was to be renovated. The applicant and Sudi moved to a flat in Frenchmans Road Randwick. However, the lease was signed in the name of the applicant and Heather. It was not clear to me why Sudi did not sign the lease. It is problematical whether it could be accurately said that Heather ever lived at Frenchmans Road, although she clearly spent a good deal of time there, as well as at her mother's flat where she had previously spent all her time except for her visits to Springfield Avenue.

24. By the end of 1996, the Cassandra application was close to finalisation. On 18 December 1996, the applicant visited the Parramatta office of the Department and discussed the status of his application. He did not, of course, discuss its fraudulent nature. As part of the normal investigation process, both the applicant and Cassandra were invited by letter sent on 5 December 1996 to attend for a final interview. This letter prompted a telephone call from Cassandra stating that the relationship had ceased. On 13 December 1996 she faxed a letter to the Department which advised untruthfully that:

"the reason for our separation was because of the fact that he was not able to work and the stress of taking care of Marty, myself and my son was more than I could handle".

25. Of course there was not a separation because there had never been a coming together. The letter conveyed a false impression. As Cassandra was not called to give evidence, it is not possible to say whether the applicant was involved in this deception. In any event, Cassandra withdrew her nomination and four days later, the applicant withdrew his application for residence on the basis that the non-existent relationship with Cassandra had ceased. In withdrawing his application he stated that his intention was to "depart Australia as soon as I am able". Clearly, he had no such intention. When he became an unlawful non-citizen on 26 February 1997, he failed to depart Australia.

26. He broke the news to Heather for the first time, after being informed that he would have to leave Australia and return to Tanzania.

27. She became very upset and confused. Ultimately, however, she decided to approach a migration agent to seek assistance.

28. Ms Hotimsky agreed to help and obtained a copy of the applicant's file under the Freedom of Information Act. According to Heather, Ms Hotimsky was told the full story of the false application. She advised both of them that they were unable to put in a fresh spouse visa application, as they had not been together for two years. According to Heather's written statement of evidence:

"We therefore had to buy time until the end of the year came. She told us that we could apply for a business visa which would give us the time we needed."'

Heather filled out part of the form appointing Ms Hotimsky as agent representing the applicant. In doing so, she showed the Elizabeth Bay Road address as his true address whereas he had not lived there for over two years. In her evidence she said that she continued to maintain this fiction because she was "scared". Although she prepared that part of the document, the applicant of course signed it and, in my view, understood what it was that he was signing.

29. On 7 March 1997, the applicant applied for a subclass 457 longstay business visa with a sponsorship by his employer John Guest Detailing Pty Limited. Although it was a valid application and was received by the Department as such, and although counsel for the applicant submitted that I should not discount it, the fact is that it never had a chance of success and both the applicant and Heather were advised of this by Ms Hotimsky. The occupation of car detailing is not so rare or highly skilled that a longstay business visa can be expected in order to encourage non-citizens to come to Australia to take up this occupation.

30. Even in this application however, there were false statements made which were designed to preserve the tangled web woven when the first deceitful application was concocted. In answer to question 11, the applicant indicated that he was "separated" inferring that there had been a relationship with Cassandra. At question 13 he indicated that his proposed period of stay in Australia was 12 months, whereas the evidence shows that he was even then planning to apply for residence on the basis of his relationship with Heather.

31. In her evidence Heather maintained that this was a valid application and that both of them hoped that it would succeed. I do not accept that evidence. They were clearly looking for a permanent legitimation of the applicant's presence in Australia. On her own evidence, the application was made as a time-buying stratagem so that a full application for residence could be made on the basis of their then relationship.

32. This took place on 23 December 1997, two years to the day after the applicant met Heather. Once again, the application and its supporting material contained false statements. There is some doubt as to where Heather could be said to have lived during the relevant time. I will therefore not deal with those statements which unequivocally assert that she "lived continually" with the applicant. There are, however, some statements that are clearly false. Ms Hotimsky was not called to give evidence. It must therefore be assumed that she was acting on instructions from the applicant and Heather when she lodged this application. She said in a covering letter, for example, that the applicant:

"had a previous relationship with an Australian citizen. This application continued for some time, even though it is apparent that Mr Msumba and his previous partner were incompatible from early on in the piece."

33. The applicant again gave false statements as to his address, attempting to preserve the earlier fiction of the Cassandra application. Similarly he stated falsely at question 18 that he had had a previous de facto relationship from 20 July 1994 to September 1995 which had ended in separation. He falsely stated at question 20 that he had been unemployed, whereas he had been employed, for the most part illegally, as a car detailer between 1995 and 1997. In the accompanying bridging visa application seeking permission to work, he falsely stated that he had supported himself by relying on his de facto, whereas in fact, as I have said, he was working illegally for at least two years. Supporting documents relating to the residential tenancy were also intentionally misleading.

34. Once again, the applicant said that "Lana did all the forms for us and I signed them". His evidence before me was characterised by a tendency to blame everybody except himself. If it was not his brother or the migration agent, it was Heather who was responsible for preparing false documents which he simply signed. I reject that evidence. His inability to remember when faced with facts is quite implausible. His was not a single act of falsehood, but a continuing pattern lasting from August 1994, when the Elizabeth Bay Road lease falsely showed the lessees as the applicant and Cassandra, until now.

35. The application for residence was not progressed to any extent during 1998. In July of that year, the applicant and Heather moved from her mother's house (to which they had gone when the prospect of his leaving Australia was first raised) to a flat at Bondi where they continue to reside. They were both called for interviews in August 1999. It was only then that the applicant confessed the false nature of the earlier documents. Heather's answers to questions about Cassandra were not as frank as they might have been suggesting, according to the notes of the interviewer, that the Cassandra relationship had ended because "she got back together with husband".

36. The applicant was advised that consideration was being given to refusing his application on character grounds and he was invited to respond. A long letter was written by his agent on his behalf, which is principally addressed to discretionary matters. The visa application was refused on 19 November 1999 and this application is brought to review that decision. The applicant presently does not hold a visa and has no permission to work in Australia.

37. Pursuant to section 499(1) the Minister has given a direction which, in its own terms, "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501". Section 499(2A) requires this Tribunal to comply with that direction (Rokobatini v Minister for Immigration and Multicultural Affairs 30 AAR 74). The first issue to determine is whether the applicant is not of good character having regard to his past conduct. While section 501 is now in a different form from that involved in previous Federal Court decisions, the essential test is the same as that enunciated in those judgements, except where inconsistent with the Minister's direction. The character test, therefore, requires an objective consideration of the applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).

38. I have no doubt having regard to the tests laid down in the relevant cases and to the guidance in the Ministerial direction that the applicant must fail the character test. The applicant's actions, if proved beyond reasonable doubt in a court of law, could bring convictions for crimes under the Migration Act 1958 and other legislation such as the Statutory Declarations Act. Under the heading "Protection of the Australian Community", the Ministerial direction in paragraph 2.6(c) includes serious crimes under the Migration Act including arranging a contrived de facto relationship in order to obtain permanent residence, or providing certain false or misleading information about a marital, de facto or interdependency relationship as an example of offences which are considered by the Government to be very serious. It is a primary consideration that the Government will seek to take reasonable steps to protect the Australian community from the actions leading to such serious offences. It is true that it is not the function of this Tribunal to punish applicants (Narayanasamy 30 AAR 1), nevertheless it is the duty of the Tribunal to consider such matters in the application of the direction.

39. It is also the duty of the Tribunal to consider general deterrence so that the likelihood of a visa refusal would prevent or inhibit the commission of like offences by other persons. Mr Msumba has been in this country for almost six years, after arriving on a three-month visa. The series of applications in which he has been concerned, and the series of false statements which he has made on his own admission, point to a pattern of fraudulently exploiting the system. He should not be rewarded for this conduct. The expectations of the Australian community are also said to be a primary consideration. These expectations would include a refusal of a visa application where a non-citizen has breached Australian laws while in Australia.

40. The second issue is whether, in the Tribunal's discretion, the applicant should be refused a visa, notwithstanding the fact that he is not of good character. According to the direction, the seriousness of any past conduct must be balanced against mitigating factors (paragraph 2.8(a)) and evidence of recent good behaviour (paragraphs 1.11 and 2.17(h)). In my view, the evidence does not permit me to support a submission of recent good behaviour within the context of relations with the Department. The evidence of Heather's mother as to the applicant's general character is no doubt accurate and certainly represents her subjective assessment of the applicant's general character. What is required to be identified, however, is his conduct in an immigration sense. It has been characterised over period of years, up to and including the present application, by falsehood, deceit and concealment. There has never been a full disclosure of the applicant's own personal involvement in this conduct. There have been denunciations of others for actions for which the applicant should take full responsibility. His failure to do this must be considered a failure to exhibit any counterbalancing good conduct.

41. It is relevant to consider the hardship which may arise from the refusal of the visa application. In my view, there is no real hardship to the applicant in returning to Tanzania. His mother and father continue to live on the family farm, together with his sister. There are other relatives in Dar Es Salaam. The hardship he would suffer would be the loss of his association with Heather. I accept that by now, there is an ongoing and close relationship between them and that both would be emotionally distressed by parting.

42. Nevertheless, such distress cannot be accepted as a compelling consideration outweighing the primary considerations. Heather must accept that she knew, or should have known, that there was a cloud over the legitimacy of the applicant's presence in Australia much earlier than January or February 1997. It is hard to accept that a relationship said to be as close as both of them affirm, would not have led to a greater degree of frankness than either of them is prepared to accept took place. That being so one has to discount, to some extent, the distress which she will undoubtedly feel if the applicant returns to Tanzania. She must bear some responsibility for her own fate. She has a promising career in television in Australia and has made it clear that she will not follow the applicant to Tanzania if he has to return.

43. It would be speculation to suggest that the applicant could make a successful application from Tanzania to re-enter Australia on the basis of his relationship with Heather. Such an application would be valid and would be theoretically possible (as was the longstay temporary business visa application). Whether it would have any prospects of success would depend upon when it is made, how it is made, how the relationship fares during the absence and the state of the law and administrative policy at the relevant time. Such a prospect is not sufficiently substantial to diminish the emotional hardship which both of them would suffer. Nevertheless, that hardship, in my view, is considerably outweighed by the primary considerations in favour of refusing the visa application.

44. For these reasons, the decision under review is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

Signed: J. Healy .....................................................................................

Jacqueline Healy, Associate

Date/s of Hearing 31 January 2000

Date of Decision 8 February 2000

Counsel for the Applicant Mr T Reilly

Solicitor for Applicant C Levingston and Associates

Solicitor for the Respondent Mr R Greg, Legal Branch