|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 26 November 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1340
GENERAL ADMINISTRATIVE DIVISION )
Re TEVITA VAITAIKI
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Tribunal Mr J Block, Deputy President
Date 22 November 2002
Place Sydney
Decision The decision under review is affirmed.
.................................
Mr J Block
Deputy President
CATCHWORDS
Immigration - Medical treatment (temporary) short stay visa - character test - past criminal record - best interests of the children - discretion to be applied if Applicant found not to be a good character - best interests of the children - other primary considerations - hardship considerations- where best interests of children and hardship considerations outweighed by other primary considerations
Migration Act 1958 sections 499, 500(6J), 501
Migration Regulations 1994 Schedule 2
Vaitaiki and Minister for Immigration and Multicultural Affairs [1999] AATA 174; (1999) 29 AAR 49
Vaitaiki and Minister for Immigration and Multicultural Affairs [1999] FCA 1149
Wan v Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 217
22 November 2002 Mr J Block, Deputy President
1. The decision under review in this matter is the decision dated 4 September 2002 by a delegate of the Respondent refusing an application by the Applicant for a medical treatment (temporary) short stay (Class UB) Subclass 675 Visa (referred to in brief as a "medical visa").
2. (a) The Applicant was self-represented while Mr Andras Markus of the Australian Government Solicitor appeared for the Respondent.
(b) The Tribunal had before it the G Documents and also Supplementary G Documents lodged under section 501G of the Migration Act 1958 ("the Act") together with exhibits as follows:
Exhibit No. Description Date
A1 Fax by the Applicant to the Tribunal enclosing a batch of statements and other documents 1 November 2002
A2 Fax by the Applicant enclosing a further batch of statements and other documents 4 November 2002
A3 Fax by the Applicant enclosing further statements and other documents 4 November 2002
R1 Fax tendered by the Respondent in order to establish that it was received at 9.30 am on 5 November 2002 and that accordingly, the Tribunal is unable to consider its content because it was out of time having regard to the provisions of section 500(6J) of the Act. 5 November 2002
I note that Mr Markus agreed to my acceptance of Exhibits A1, A2 and A3 subject only to relevance; some documents tendered under cover of those faxes were not referred to during the hearing.
The fax which is Exhibit R1 was dated 5 November 2002, was sent to the Tribunal in such manner that it was received at 9.30 am on that date. Leaving aside the fact that it was sent to the Tribunal rather than the Respondent (and having regard to the requirements of section 500(6J) of the Act), it was clearly out of time in accordance with that section, but in any event contained nothing of probative value or which could have had a bearing on the decision.
Because the Supplementary G documents are not numbered sequentially after the G documents, page or document numbers preceded by "G" referred to the G documents whereas page or document numbers preceded by "S" referred to the Supplementary G documents.
3. I record as a preliminary matter that at a telephone directions hearing held on 9 October 2002, the Applicant was warned that, pursuant to section 500(6J) of the Act he would not be able at the hearing to rely on any evidence in respect of which the Respondent had not received a written statement at least two business days prior to the hearing. This matter was scheduled to be heard on the 6 and 7 November 2002; however and on Friday 1 November 2002, the Applicant requested that the hearing be re-scheduled so as to commence on 7 November 2002. The Respondent acceded to the Applicant's request, being of the view (as was the Applicant) that the hearing could be completed in one day. The effect of re-scheduling the hearing in this manner, in accordance with the Applicant's request, was that the Applicant had an extra day within which to submit evidence; Exhibits A2 and A3 were thus within time, although they would not have been within time had the matter commenced on 6 November 2002.
4. I intend to include the whole of the Respondent's helpful and well-drawn Statement of Facts and Contentions dated 22 October 2002 ("the Statement") for a number of reasons:
(a) In the first instance it contains a useful extract from the decision of Mathews J (as the then President of this Tribunal) on 22 March 1999 affirming a deportation order made against the Applicant in 1994. That decision by the then President (referred to in brief in these reasons as the "President"), Vaitaiki and Minister for Immigration and Multicultural Affairs [1999] AATA 174 was reported as Vaitaiki and Minister for Immigration and Multicultural Affairs (1999) 29 AAR 49. An appeal to the Full Federal Court (Hill, Whitlam and Katz JJ) Vaitaiki and Minister for Immigration and Multicultural Affairs [1999] FCA 1149, was dismissed on 11 August 1999. Leave to appeal to the High Court was sought and refused, and the Applicant was deported from Australia. (It may be noted that the Applicant had been deported from Australia on a previous occasion.) The gap in time of approximately five years between the date of the deportation order and the date of the President's decision is explained by the fact that the deportation decision was twice affirmed by a Deputy President of this Tribunal, and on appeal by the Applicant remitted back to this Tribunal by the Federal Court.
(b) The Statement contains relevant statutory provisions, and also an extract from a report dated 6 August 2002 by Dr Day (a Consultant Physician and Cardiologist) and to which I will refer later in this decision.
(c) The Statement contains the Respondent's contentions and on which Mr Markus relied during his closing submissions. There is one aspect of those contentions to which I might usefully refer at this stage. Clause 6 sets out that the Applicant travelled to Australia in October 2001 under an assumed name and having been granted a transit visa (Subclass TX771) under that assumed name. The word "assumed" in this context is perhaps not totally accurate. Exhibit A2 includes a certificate by the Registrar of the Supreme Court of the Kingdom of Tonga dated 9 April 2001 to the effect that the court had granted on 28 February 2001 an application by the Applicant for the correction of his family name so as to omit Vaitaiki from it. It was in that amended name that the Applicant applied for and obtained a passport, and it is in that name that he applied for a transit visa. It follows then that the new name was not assumed in the sense that it was in terms false. On the other hand, the term "assumed" is in my view not inapposite when one has regard to the evidence as a whole. The Applicant in cross-examination admitted (with some reluctance) that he knew at least from 1997 onwards that having been deported from Australia he was under the Act and the Migration Regulations 1994 prohibited from applying for a visa of any kind. (There is a statutory exception in respect of a criminal justice visa but that is not a visa for which the Applicant could apply.) Mr Markus contended that the Applicant applied for a change in his name in order to enable him to apply for a transit visa in that new name and thus not attract the attention of the embassy in respect of that transit visa application. I agree with Mr Markus' contention, for the reasons set out later in this decision, that the name change application was made as the first step in a scheme designed to get the Applicant back into Australia. In that sense the new name was assumed, and I use the term "assumed" in that limited sense hereafter in this decision. (It is perhaps relevant to note that as appears from G page 59 and while in Australia and before his deportation, the Applicant used a variety of different names; some of those names are similar to his present name but there are two which are completely different; he also as appears from G page 59 used different dates of birth.) The Applicant said in cross-examination and in answer to questions as to whether when applying for a transit visa he disclosed his criminal history and the fact that he had been deported from Australia, that he could not remember. That statement was untruthful; had the Applicant disclosed that information he would not have been granted (and he knew that he would not have been granted) a transit visa.
(d) The Statement reads as follows:
"Facts
1. The applicant has an extensive immigration history. Matthews J, the then President of the Administrative Appeals Tribunal ("the Tribunal") summarised this history in her decision of 22 March 1999 [G19], by which she upheld a deportation order made in respect of the applicant, as follows.
25. The applicant first entered Australia in December 1976 on a one-month temporary entry permit, which he proceeded to outstay. On 1 April 1978 he was deported to Tonga. In June 1978 he returned to Australia, through New Zealand, using an assumed name. Thereafter he made various applications to regularise his immigration status. In doing so he initially denied that he had been deported from Australia, but was later forced to admit it. He gained residence status in October 1984. During this period he was frequently travelling overseas as part of his travel business. Each time he did so he was required to apply for a resident return visa. He neglected to do so on three occasions (December 1984, January 1985 and February 1985) and was warned that this would no longer be acceptable. In June 1986, he arrived at Sydney airport without a return visa and told airport staff that he was in transit, and would be leaving for the United States two days later. He was given a two-day entry permit but failed to depart as promised. He thus lost his resident status and again became an illegal resident. In September 1987 he came to the notice of the Department after being charged with a criminal offence. He then sought resident status on the grounds of his marriage to an Australian resident, Pauline Langi. On 23 March 1988 he was again granted resident status.
2. On 11 January 1994, a second deportation order was signed against Mr Vaitaiki his conviction on a charge of serious sexual assault of a female [G2, p.24]. As mentioned above, this decision was ultimately affirmed by Matthews J on 22 March 1999. The delay between the making of the original deportation order and the decision of the then President of the Tribunal can be largely explained by reference to the fact that two earlier decisions of the Tribunal, both also affirming the delegate's decision, were set aside by the Federal Court of Australia following appeals lodged by Mr Vaitaki.
3. Matthews J in her decision summarised the relevant facts leading up to her consideration of the issues then before the Tribunal as follows.
15. Until 1979 the applicant lived primarily in Melbourne. It was there that he had his first brush with the law. In May 1979 he was convicted in the Magistrates' Court of driving with more than the prescribed content of alcohol in his blood (a PCA offence) and was disqualified from obtaining any license for a period of three years. Later in 1979 he moved to Sydney. Shortly afterwards he met Pauline Langi, a Tongan by birth who was then an Australian citizen. They married on 25 August 1981. Three children were born of this marriage. Giving them their Anglicised names they are: Mary, who was born on 7 May 1982; William, who was born on 23 August 1983, and Christina, who was born on 29 January 1985. In 1986 the applicant and Ms Langi separated. They were divorced about two years later.
16. During the early 1980s the applicant was working as a travel agent and taking frequent trips overseas. Also during this period it became clear that the applicant had an alcohol problem. He was a very heavy drinker and he later admitted that alcohol was starting to affect his behaviour (affidavit 19 September 1994).
17. The applicant's criminal record during the 1980s supports the proposition that he was a problem drinker. His first recorded conviction in New South Wales was in June 1980 when he was convicted of various traffic offences including fraudulently using a license. In May 1984 he was convicted of a mid-range PCA offence. In April 1985 he was convicted of a high-range PCA offence and placed on a three year bond. On 10 March 1986 he was convicted of a mid-range PCA offence for which he was sentenced to six months periodic detention. Other convictions were recorded at the same time, including one of resisting arrest. More importantly, on 14 October 1986 the applicant was convicted of assault occasioning actual bodily harm and of common assault. The victim in each case was his wife, Pauline. In relation to the more serious charge he was sentenced to 14 months periodic detention. On the lesser charge he received a three year bond. Less than two weeks later, on 27 October 1986, he was convicted of driving in a manner dangerous and resisting arrest for which he was sentenced to a further nine months periodic detention.
18. After the applicant and Pauline Langi separated in 1986 the applicant commenced to live in a de facto relationship with Janet Kotoa, also a Tongan by birth and an Australian citizen. They have since had four children: Andrew born on 9 November 1987, John born on 8 June 1989, Florence born on 13 February 1992 and Koheleti born on 28 March 1997. This change in lifestyle had little apparent effect on the applicant's behaviour. On 28 May 1987 he was convicted and given a three year bond on a charge of malicious wounding, the victim again being Pauline Langi. A condition of the bond was that he undertake alcohol rehabilitation. On 21 October 1987 he was fined for malicious injury and failing to appear. Most significantly, on 3 December 1988 the applicant committed the offences which subsequently led to his deportation order. They were: threatening to inflict actual bodily harm with intent to have sexual intercourse, and having sexual intercourse without consent. The circumstances of these offences are central to the issues in this case and I shall describe them later. They were very serious offences. Nevertheless, he remained at large for nearly two years before being arrested and charged with them. He said in an affidavit tendered to the earlier Tribunal that he knew shortly after the offences that he was being sought by the police, as they had come to his relatives' homes looking for him. A solicitor advised him that he had no obligation to give himself up to the police, so he did not do so. It was not until November 1990, when he was apprehended for a number of further driving offences, that he was also charged with the sexual offences committed in December 1988.
19. The further driving offences, which were apparently committed in March 1990, were also serious. They included a high-range PCA offence and driving whilst disqualified. In relation to the former, the applicant was sentenced in 1991 to four months imprisonment. This was his first full-time prison sentence. He remained in gaol until May 1991.
20. As to the charges of sexual assault, the applicant pleaded not guilty, and in due course a District Court jury trial was held. On 7 May the jury convicted him of both charges. On 29 May he was sentenced by Judge Kinchington of the Sydney District Court. In relation to the first charge, he was sentenced to a minimum term of three years and three months imprisonment, with a 12 month additional term. In relation to the second charge he was sentenced to a concurrent fixed term of two years imprisonment. The applicant appealed against both conviction and sentence, but in October 1993 the appeals were dismissed.
21. The applicant was in prison for nearly three-and-a-half years after his trial, namely between 7 May 1992 and 19 October 1995. In the meantime, on 11 January 1994, the deportation order was made. This was affirmed by the first Tribunal in September 1994. On 19 October 1995 the applicant was released from prison. The second AAT hearing took place precisely two weeks later, on 2 November 1995. This resulted, as already mentioned, in a further affirmation of the deportation order. At both Tribunal hearings the applicant gave evidence in which he attributed his criminal behaviour to his alcohol addiction. He had not drunk, he said, since 1989 and he was committed to abstaining from alcohol and living an upright, stable life with his de facto wife and their children. He was very involved in church work and was planning to become a missionary. His evidence was supported in all respects by his defacto wife Janet Katoa.
22. On 6 March 1997 and again on 2 April 1997 the applicant committed a series of indecent assaults upon women with intellectual disabilities for which he was later ordered to perform 200 hours community service. I shall be referring to these offences later as they are particularly relevant to the issues in this case. Five days before the second offences, namely on 28 March 1997, Janet Katoa had a fourth child, a son Koheleti. On 20 September 1997 the applicant and Janet Katoa were married. Their legal union was, however, to be a short-lived one. On 18 March 1998 the applicant brutally assaulted her and they separated immediately afterwards. He was later convicted of assault and was sentenced to 200 hours community service. This was in addition to the 200 hours which had earlier been imposed in relation to the indecent assault charges.
4. A full copy of the applicant's criminal history (in Australia) is included in the G documents [G8].
5. As mentioned above, on 22 March 1999, the then President of the Tribunal affirmed the decision of the delegate to deport Mr Vaitaiki. The Full Federal Court dismissed the subsequent appeal from Mr Vaitaiki against the President's decision. Mr Vaitaiki then lodged an application for special leave to appeal to the High Court from the judgment of the Full Federal Court. On 7 January 2000, the High Court dismissed that application. Mr Vaitaiki was subsequently deported from Australia on 12 January 2000.
6. On 25 October 2001, the applicant arrived in Australia having been granted a Transit visa (Subclass TX-771) in the assumed name of Tevita MUSIE for the purpose of transiting Australia en-route to the USA. Mr Vaitaiki, however, once again abandoned his journey in Sydney, after he reported that he could not travel on to Honolulu due to ill health.
7. Mr Vaitaiki then lodged an application for a Medical Treatment (Short Stay) visa (UB765) in the assumed name of Tevita MUSIE on 26 October 2001 [G3]. He was granted a Bridging A visa pending the decision of the Medical treatment visa application.
8. On 29 October 2001, the Department of Immigration and Multicultural and Indigenous Afairs ("the Department") received community information alleging that Tevita Vaitaiki had returned to Australia using an alias.
9. On 1 November 2001, Departmental compliance officers and the NSW Police executed a search warrant on a residential address where Mr Vaitaiki was located. He produced a Tongan passport in the name of Tevita MUSIE. Upon questioning Mr Vaitaiki denied his immigration history. Mr Vaitaiki was given the opportunity to provide fingerprint evidence to confirm his identity, however he declined.
10. Mr Vaitaiki's Bridging Visa A was cancelled under s.109 of the Act for providing misleading information [G4 and S1]. He was then detained under s.189 of the Act, and transferred to Silverwater Correctional Centre. On 6 February 2002, the applicant was transferred to Villawood Detention Centre.
11. Mr Vaitaiki attempted to lodge an appeal to the Migration Review Tribunal ("the MRT") against the cancellation of his Bridging A visa, however he was informed that this application was lodged out of time and therefore was deemed invalid. He then lodged an application for judicial review with the Federal Court from the decision that the MRT did not have the jurisdiction to consider his application.
12. On 28 November 2001, the Department notified Mr Vaitaiki of the delegate's decision to refuse his medical treatment visa based on his failure to meet public interest criteria 4001 [G5]. Mr Vaitaki also lodged a judicial review application with the Federal Court in respect of this decision.
13. Both applications were dismissed as incompetent by the Federal Court on 12 December 2001: see [2001] FCA 1842.
14. On 18 December 2001, Mr Vaitaiki lodged a merits review application with the MRT in respect of the refusal to grant him a short stay medical visa. By a decision dated 3 June 2002 [G6], the MRT remitted the application to the Department for reconsideration, having noted as follows.
33. The Tribunal is satisfied that grounds exist for the visa to be refused under section 501 and in accordance with policy, where a preliminary assessment reveals that grounds do exist; the matter should be referred to a delegate exercising power under section 501.
15. In the meantime, the applicant remained in detention at Villawood Detention Centre. Whilst there, he was the subject of various investigations regarding his claimed medical condition [see supplementary documents]. No evidence of any cardiac condition has been found by the Medical Officer at Villawood, or disclosed by any pathology reports.
16. On 5 August 2002, Mr Vaitaki was examined by Dr Day, Consultant Physician and Cardiologist. On 6 August, Dr Day reported [S13] as follows:
eft precordial tightness, however, there were no ischaemic ECG changes.
There is no evidence that this patient has ischaemic heart disease, the nature of his chest pain suggests that it is musculo-sceletal in origin rather than ischaemic.
17. On 4 September 2002, a delegate of the Minister made the decision that is the subject of the present application for review [G20]. The decision was in the following terms [G20, p.21].
fuse the visa.
Contentions
18. The respondent contends that the applicant is a person who does not pass the character test because:
(a) he is a person who has a substantial criminal record, as that term is defined under s.501(7) of the Act; and
(b) he is not a person of good character having regard to his:
(i) past and present criminal conduct, and
(ii) past and present general conduct.
19. The respondent contends that the decision of the Minister's delegate to refuse the grant of the visa to the applicant should be affirmed under s.43(1)(a) of the Administrative Appeals Tribunal Act 1975.
Relevant legislation
20. The Act relevantly provides:
Section 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."
Section 501(6):
"For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
...
(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..."
Section 501(7):
"For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
...
Section 499(1):
(a) the performance of those functions; or
(b) the exercise of those powers."
Section 499(2A):
"A person or body must comply with a directions under subsection (1)."
21. The Minister has issued written directions pursuant to s.499(1) of the Act as to refusal or cancellation decisions under section 501 of the Act: see Direction - Visa Refusal and Cancellation under section 501 - No. 21 ("the Ministerial Direction").
Contentions as to law
22. In Irving v MILGEA (1996) 139 ALR 84 at 94, Lee J said:
sment apt to be proved as fact while the latter is a review of subjective public opinion."
23. In MIMA v Baker (1997) 45 ALD 136, Burchett, Branson and Tamberlin JJ considered the meaning of 'general conduct'. Their Honours held that the term 'general conduct' inherently implies universality but does not necessarily incorporate qualities of frequency or prevalence. Their Honours stated at page 142:
"Some instances of 'general conduct'... displayed but once or twice, may lay character bare very tellingly."
Contentions on application of the law
24. There can be no doubt that the applicant cannot pass the character test. He does not pass the character test, at least, for two separate reasons.
25. First, the applicant has a substantial criminal record as that terms is defined at s.501(7) of the Act.
26. Secondly, the respondent contends that the applicant, by reason of his past and present criminal and general conduct, is a person who is not of good character, and is therefore a person who does not pass the character test as provided for under s.501(6)(c) of the Act. It is for the applicant to satisfy the Tribunal that he passes the character test: s.501(1).
27. The Ministerial Direction sets out certain matters to which decision makers should have regard in determining whether or not a visa applicant is a person of good character and accordingly whether or not the person passes the character test.
28. Considerations required to be taken into account pursuant to paragraph 1.9 of the Ministerial Direction include:
"1.9 (a) Whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:
...
* involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; (emphasis added).
(b) Whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement."
29. Section 234 of the Act provides as follows.
"(1) A person shall not, in connection with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
...
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both."
30. The applicant's lengthy immigration history is canvassed at paragraph 1 above. He has been deported from Australia on two separate occasions, once for overstaying his entry permit, and once pursuant to a criminal deportation order under s.200 of the Act.
31. As a consequence of his second deportation, the applicant could not be eligible for any off-shore visa; i.e. to any visa to enter Australia (see special return criteria 5001), other than a criminal justice visa.
32. On his latest arrival, the applicant presented a Tongan passport under the name Tevita Musie; claimed to be in transit to the USA (as he has done once before in 1986), alleged that he was too ill to travel on, and applied for a Medical Treatment (Short Stay) visa under the name in his passport.
33. In his application, he answered the following questions with the word "No", having signed a declaration to the effect that the information given on the form is complete and correct and that he has never been convicted of a crime or any offence in any country [G3, p.30]:
(a) "Have you ever been convicted of a crime or offence in any country?"
(b) "Have you ever been excluded from or asked to leave any country (including Australia)?" [G3, p.29]
34. Following the cancellation of his bridging visa, during the interview conducted by Departmental officers, the applicant claimed that:
(a) He has never used any other names [S1, p.1];
(b) He has never worked in Australia [S1, p.3];
(c) He has never been to Australia before [S1, p.1 and 6]; and
(d) He has never been convicted of any criminal offence in Australia or overseas [S1, p.4].
35. There can be no question that the applicant provided a bogus document, and made false or misleading statements in connection with his visa application, and that he has made false and misleading statements to officers who interviewed him when he was located. In fact, the applicant's behaviour following his most recent arrival is in total conformity with his past actions, the applicant having been actively engaged in the repeated and calculated abuse of Australia's immigration laws for a period of over 25 years.
36. Quite apart from having a substantial criminal record, he is clearly a person who is not of good character.
The residual discretion
37. If the Tribunal is not satisfied (as the respondent submits it ought not be) that the applicant passes the character test, the issue for determination by the Tribunal is as follows:
(a) should the decision of the Minister's delegate be affirmed by an exercise of the residual discretion under s.501(1) against the applicant; or
(b) should the decision of the Minister's delegate be set aside by an exercise of the residual discretion under s.501(1) in favour of the applicant.
38. In making this determination the Tribunal must have regard to the Ministerial Direction.
39. The Ministerial Direction relevantly provides:
Part 2 - Exercising the Discretion
2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
Weight of considerations
2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraph 2.3 - 2.16 and other considerations are set out in paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations."
40. The Ministerial Direction, at paragraph 2.3, identifies three primary considerations that must be taken into account by decision-makers when deciding whether or not the non-citizen should be permitted to enter Australia. They are as follows:
(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.
Protection of the Australian community
41. The Ministerial Direction provides that the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
42. This must be one of the clearest cases ever to come before the Tribunal where the protection of the Australian community demands that the decision under review be affirmed.
43. The applicant having been deported pursuant to s.200 of the Act was unable to lawfully re-enter Australia as an operation of the Act and Regulations. He contrived to enter Australia under an assumed name and attempted to mislead the authorities as to his identity, previous convictions and immigration history.
44. The seriousness of this most recent conduct adds to the seriousness of his past conduct, which warranted his deportation from Australia in the first place.
45. The likelihood of the applicant attempting to remain in Australia beyond any authorised date if he is granted a visa is difficult, if not impossible, to overestimate. He is a serial abuser of Australia's immigration laws, who appears to be determined to continue to inflict himself on the citizens of this country.
46. There are cogent public policy reasons in favour of deterring those who may be minded to make false statements or abuse immigration laws. A prevalence of such instances have a direct and ongoing implication on resources needed to properly administer the Act, and is likely to impact upon the timeliness of the consideration of genuine visa applications and the community's resources generally.
47. The respondent contends that by affirming the decision not to grant the visa to the applicant, other people would be generally deterred from concealing the truth with the purpose of obtaining an advantage to which they otherwise may not be entitled (see paragraph 2.11(a) of the Ministerial Direction).
Expectations of the Australian community
48. The respondent contends that the seriousness and ongoing nature of the conduct engaged in by the applicant is such that the Australian community would fully expect that the applicant's application for a visa would be refused.
The best interests of the children
49. The applicant has a large family in Australia, including a number of children.
50. The respondent is prepared to assume for relevant purposes that, in a general sense, it would be in the children's best interests if their father was granted a visa.
51. The visa applied for, however, is a short term visa only, that could not authorise a stay beyond a period of 3 months: see item 675.216(c) of Schedule 2 to the Regulations.
52. In the circumstances, the best interests of the children would not be a strong interest, and would be easily outweighed by the other primary considerations.
Secondary considerations
53. Paragraph 2.17 of the Ministerial Direction provides:
rally be given less individual weight than that given to the primary considerations."
54. The considerations specified under paragraph 2.17 include:
* knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;"
55. As mentioned above, the applicant does have a large family in Australia. Again, however, even assuming that it is in the best interests of all, or some, of these family members that the applicant be given a visa, the limited term of the visa applied for renders such interests to be a relatively insignificant factor in the context of the other considerations.
56. The respondent does accept that, were there strong evidence of the applicant's medical condition being of such acuteness that his well-being was seriously threatened unless he was given a visa, that would be a significant consideration in the exercise of the relevant discretionary power. The evidence available, however, all point to the conclusion that the applicant does not suffer from any heart condition at all, but is simply once again engaged in an attempt to manipulate the immigration laws of Australia.
57. The applicant has now been in Australia, and in detention, for approximately one year; four times the period he would have been allowed to stay on the visa sought by him. He suffered no serious medical emergencies during that period. His claim of being unfit to travel to Honolulu is plainly untrue and self serving.
Other international obligations
58. The respondent contends that there are no other international obligations to be considered on the facts of this matter.
Conclusion
59. The respondent submits that the decision of the Minister's delegate should be affirmed."
5. On the 25 October 2001 the Applicant landed in Sydney. He had previously flown from Tonga to Auckland (a trip of about three hours) and then changed to a different aircraft in order to fly on to Sydney.
6. On 26 October 2001 the Applicant applied for a medical visa in his assumed name. In respect of that application, he claimed that he had become ill during his flight to Sydney. Although the precise nature of the illness is not set out in that application, the evidence before me revealed that he was referring to a heart problem. In his application for a medical visa (G3; G pages 25 to G page 30) the Applicant answered a number of questions untruthfully. Question 15 (G page 29) asked inter alia whether the Applicant had ever been convicted of any crimes or offences in any country and whether he had ever been excluded from or asked to leave any country; he answered by ticking the "No" box. His declaration at G page 30 confirmed that the information provided was true and correct.
7. The Applicant was granted a Bridging A Visa pending a decision as to his medical visa application.
8. The Department of Immigration and Multicultural and Indigenous Affairs ("the Department") received information that the Applicant had returned to Australia under a different name and as a result of which he was detained on 1 November 2001 at the home of his sister. (The Applicant claimed that he was detained on 31 October 2001.) In evidence before me he said that he had committed no crime and that his second wife had phoned the Department to advise them that he was with his third wife in Australia. "That's how I got arrested - no crime - just family problems" (The Applicant was ignoring the fact that in completing his medical visa application untruthfully he was breaching section 234 of the Act.)
9. When questioned the Applicant stated that he had never previously visited Australia and that his medical visa application was accurate. G page 36 records that:
"Mr Vaitaiki has continually denied that Tevita Musie Vaitaiki and Tevita Musie is the same person despite photographic evidence that supports that conclusion. Mr Vaitaiki was given an opportunity to provide fingerprint evidence to determine his identity. He declined to allow his fingerprints to be taken despite being told he would be free to leave if the fingerprints did not match."
The Respondent then terminated the Bridging A Visa (G4). The Applicant sought the review of that termination by the Migration Review Tribunal ("MRT") which held that the application was out of time. An application to the Federal Court was dismissed.
10. The Applicant has a lengthy criminal history which is set out in G8 of the G documents. I do not think it necessary to set out that history in detail.
11. The Applicant was again interviewed on 2 November 2001. The interview record, signed by him on every page, appears at S1. In that interview he stated that he had never used any other names, that he had never worked in Australia and that he had never been convicted of any criminal offences in Australia or elsewhere. The Supplementary Sheet in respect of that interview, at S page 6 reads as follows:
"SUPPLEMENTARY SHEET - OFFICE INFORMATION ONLY
* Medical condition (Yes/No) If yes, state medication required and further details.
Yes.
Has not been seen by doctor as yet, stated that he informed a nurse upon reception that he had an appointment to see a heart specialist for 2.00pm 02-11-2001 - referred matter to V.I.D.C. medical staff.
* Bond amount $ Not discussed.
* Preferred destination (the airport in their country closest to their town/city/village)
Nukualofa
* Any additional comments
Denies. He has ever been deported or been to Australia at all before. Wants to return home ASAP. States he does not wish to provide fingerprints because his lawyer in Tonga advised him not to provide fingerprints. (Advice given 2-3 years ago) (stated just general talk over a beer).
Case officer name Date 02/11/2001
Rod Taylor"
12. The medical visa application was refused by the Respondent on 28 November 2001. The Applicant sought review of that decision by the Migration Review Tribunal ("the MRT"). (He also sought judicial review of that decision by the Federal Court but that application was dismissed.) The MRT subsequently and in a lengthy decision (G6) remitted the matter to the Respondent for reconsideration. The Applicant contended before me that the fact that the MRT took this course indicated that his application was not without merit. That contention was without foundation as a consideration of the MRT decision clearly indicates. The MRT remitted the decision because, so it found, there were relevant character issues within section 501 of the Act and that where there were issues under both section 501 and also section 65 of the Act, the section 501 issues should first be resolved by the Respondent.
13. It is convenient at this point to refer to the Migration Regulations which relate to medical visas and which, according to Mr Markus, are designed to provide for visas in medical emergency situations. I refer in this context to Schedule 2 to the Migration Regulations which provides firstly in 675.2 that the Applicant must satisfy the primary criteria and secondly in accordance with 675.212(2)(b) the Applicant must satisfy the Respondent that arrangements have been concluded to carry out the treatment.
14. On a strict reading of the relevant regulations, the Applicant had not at the time when he made the application concluded medical treatment arrangements in accordance with the regulations. Indeed and some thirteen months later, the Applicant has still not concluded arrangements within the regulations. It is possible then that his application was from the outset flawed and perhaps even fatally flawed; however Mr Markus advised me that whether or not this is so, the application was refused on character grounds and that I should consider the matter on this basis.
15. The only person who gave oral evidence was the Applicant himself. This arose in particular because Mr Markus advised the Tribunal that he did not intend to cross-examine any of the persons whose statements (and that term encompasses letters) are included in the G documents and the exhibits. The statements which I can and do thus accept are those by his ex-wife Pauline Vasi, his daughters Mary and Christina, his mother Ilaisaane Vaitaiki, his sister Mila Nightingale, Mr Gerald Palmer (a Senior Correctional Officer), Mr Andrew Schofield, who is an employee of Australasian Correctional Management Pty Ltd and the Reverend Kolo of Tokaikolo Christian church. With the exception of the statements by Mr Palmer, Mr Schofield and the Reverend Kolo, all of the relevant statements are by members of the Applicant's family (and assuming for the moment that his ex-wife Pauline can be regarded at least for these purposes as a family member.) These statements all speak of ties with the Applicant and a desire for his presence in Australia. In respect of each of his mother (now aged 87) and his sister there are two statements; they include typewritten statements by each of them in much the same terms.
16. G10 dated 18 June 2002 (G page 69 to G page 70) is the Applicant's letter dated 18 June 2002 written in reply to a notice of intention to consider the refusal of the medical visa. That letter is significant in that it does not (except in a line numbered 2 towards its end) refer to his own health or the fact that the relevant application was for a medical visa but rather concentrates on what might loosely be termed general and family matters, and is in my view clearly more apposite to a residence visa than a short-term medical visa. That letter reads as follows:
"Dear Ms S. Kupeli,
Thank you for your letter dated 14th June 2002 when you invited me to make comments for your consideration, regarding my application for a Sub-Class 675 Medical Treatment (Short Stay) Visa.
As you are aware I first arrived in Australia in 1975. In 1988 I committed a deportable offence and between 1992 and 1995 I served a jail term.
I have some other minor convictions resulting in court appointed Community Service hours, which were all alcohol related.
In December 1999 - January 2000 I spent time in jail when Immigration Offices arrested me. I am unclear why I was held in jail at those times rather than Villawood Detention Centre, as it is my understanding that these arrests were the result of Immigration matters rather than other criminal matters.
During my incarceration in early December 2001 I assisted in saving the life of Senior Officer Terry Palmer who was violently attacked by an inmate, and in doing so, I managed to rescue the Senior, but I hurt myself in the process. I also was threatened and called a dog by the other inmates.
The causes of these passed events I believe were the result of my addiction to alcohol. I have since recognised and taken appropriate action to address my illness.
I have regularly attended Alcoholics Anonymous meetings and sought other professional help as well as maintaining a close association with the church.
Although it has not been an easy recovery, I have an absolute commitment to continue to abstain from alcohol.
I have been crime free for a number of years now and I believe I am not a threat to either the community or my family. My family is happy to support me if my application is granted.
Additionally I have concerns for the health and care of my 87-year-old mother, who is quite frail and has been distressed since I was detained.
Unfortunately since my previous deportation I have been unable to provide guidance to my children and as a result my eldest son was placed in the care of Juvenile Justice and is now serving a Five year sentence.
Before my departure in 2000 he had been a good boy, he attended school and had a promising football career as a representative player for the NSW rugby team (Under 16's). I fear for his future without my guidance.
There are a number of reasons why I have taken these steps to address this problem. In Australia I have my immediate and extended family, and in Tonga there is no one. This includes my elderly mother, sisters and my eight children who are all depending on me.
You also invited me to comment on the MRT's decision on the 3rd June 2002 to remit my application to your department for reconsideration, and all I can say is "That commonsense will prevail".
In making your decision regarding my present application, I ask that you take into consideration the following points:
1. My successful efforts to rehabilitate myself.
2. The need to seek treatment for my heart condition as soon as possible.
3. The deportable offence was committed 15 years ago.
4. The future of my children, especially my son that is now in jail. My 87 year old mother, sister and niece.
5. I have had a clean record for a number of years now.
6. My family will support me and pay for my medical bills.
I believe it is important for me to be apart of my children's lives so that they can continue to develop and contribute to their community in Australia in a positive and productive manner.
Please find attached personal references for your consideration.
Yours sincerely
Tevita Musie (David) Vaitaiki"
I refer also in the same context to S11; S page 38 which is a file note by Greta Cranston made on 12 April 2002 reading as follows:
I visited Mr Tevita VAITAIKI at the VIDC on 11/04/2002.
I asked Mr Vaitaiki if he was aware of his immigration status and the progress of his case and he stated that he was.
Mr Vaitaiki also appeared to be extremely frustrated that the MRT were taking so long to consider his application for review. He also told me that he believes that the Department has made the wrong decision about his case and that 'if for nothing else he should be allowed to stay in Australia for his kid's sake.' And 'that it is the Department's fault that his eldest son is in goal for armed robbery as Mr Vaitaiki was deported under s200 in January 2000 and his son was convicted in May 2000.' Mr Vaitaiki claimed that DIMIA was denying his family a father. I asked if he saw his family at the VIDC - and he told me that his kids, his wife, and his girlfriend, visit him every day.
I explained to Mr Vaitaiki that his previous deportations do not entitle him to enter Australia, and that it was only that he entered Australia with a document in an assumed name and that he was able to clear immigration. Mr Vaitaiki denied this and said that the name 'Tevita Musie' as on his last travel document, is his legal name in Tonga - and that he has had it changed to this. He stated that the name 'Vaitaiki is dead'.
Mr Vaitaiki believes that the only immigration offence he committed during his last entry to Australia is that he did not declare his previous deportations on the incoming passenger card.
Mr Vaitaiki also accused DIMIA of informing the US Consul of his immigration and criminal history, so he would have his USA visa cancelled.
I stated that this would be a very unusual occurrence if it happened.
When I asked Mr Vaitaiki if he had any inquiries regarding his case. He asked 'would it be possible to have one month stay per year to see my children', and 'can I have my air tickets returned to me.'
I explained that a 1-month visit to Australia was not possible - and that I would inquire about his airline tickets, and check them into his property at the VIDC if DIMIA had them.
Mr Vaitaiki appeared frustrated and at times aggressive. He walked out of the discussion before I had finished speaking.
[SGD] Greta Cranston
Detention Case Management - Parramatta
12/04/2002"
17. The untruthful statements made by the Applicant in relation to the transit visa, the medical visa and at interviews are such that they constitute breaches of section 234 of the Act. The maximum penalty prescribed for a breach of section 234 is a prison term of ten years. The conduct of the Applicant since his unlawful return to Australia is such that when regard is had to that conduct, and also his prior criminal conduct, a finding that he fails the character test under section 501(6)(c) of the Act must be made. It is however unnecessary to resort to that section since the prison terms served by the Applicant have the effect that he fails the character test under section 501(6)(a) read with section 501(7) of the Act. This being so, the matter falls to be decided under Part 2 of Direction under section 499, Visa Refusal and Cancellation under section 501 - No. 21 (referred to in the Statement as the "Ministerial Direction" and in these reasons as "Direction 21").
18. The Applicant at the hearing found it difficult to accept that a finding against him as to the character test is mandatory having regard to the prison terms served by him. So it was that he repeatedly referred to the fact that at Villawood he was a sweeper (an office described by him as that of a mediator between the inmates and the authorities). He repeatedly referred to the fact that as appears from a statement by Mr Palmer, he intervened in a fight involving Mr Palmer and an inmate. To say that he saved Mr Palmer's life is, having regard to Mr. Palmer's statement, clearly an exaggeration. Mr Schofield also has spoken well (albeit briefly) of him. There was no reference during the hearing to a brief favourable statement by the Reverend Kolo or the certificates as to bible study courses completed and included with the exhibits.
19. In his evidence before the Tribunal, the Applicant said that he felt ill on the flight from Auckland to Sydney. He said that a doctor on board the aircraft advised him to seek medical advice in Sydney. That doctor has since gone on to Malaysia.
20. The Applicant consulted a general practitioner, (Dr Bala) in Sydney as to his chest pains. Dr Bala advised him to see a cardiac specialist and referred him to Dr Patel. When he phoned Dr Patel's rooms on 26 October 2001, he was told that he would have to wait for an appointment. A subsequent call on 29 October 2001 to Dr Patel's rooms to say that he needed an appointment urgently resulted in the making of an appointment on 2 November 2001.
S10 (dated 19 March 2002) is an authority to Dr Bala authorising him to release the Applicant's medical history. Dr Bala did not respond to that authorisation.
There was no medical evidence of any kind as to any treatment in Tonga (or anywhere else) as to a heart condition, and so that the only medical evidence before the Tribunal was that of medical treatment at Villawood and referred to in the G documents and more fully later in these reasons.
21. The Applicant had anticipated that he would be sent from Auburn, where he was first detained, to Villawood. However he was detained for a period at Silverwater before being sent to Villawood and where he is currently a detainee.
22. The Applicant referred repeatedly to his assertion that the medical assistance provided to him at Villawood was bad. He referred in particular to Dr Amin and Dr Galea; he described them as effectively creatures of the Respondent and whose advice was poor. He was equally condemnatory of the nurses described by him as students who were learning on the job. He said that Dr Day, although independent was under the influence of the Department. He was cross-examined as to the medical treatment afforded to him, and conceded reluctantly that the medical treatment included pathology, radiology and ECG testing and being tests of an objective nature. He was reluctant to accept that the objective tests did not indicate anything untoward so far as his heart was concerned. I refer in this context to S6, S7, S8 and S9 as to the tests included in the G documents.
23. Also as to medical treatment given to the Applicant at Villawood I refer:
(a) To the relevant decision refusing the medical visa which is G20; G20 page 10 and in particular paragraphs 35 to 37 inclusive read as follows:
"[35] Since his detention, Mr Vaitaiki has received medical attention. Dr Amin, who was the consulting doctor at the VIDC, has examined him. On 26 July 2002, Mr Vaitaiki's case officers confirmed the following:
[36] Dr Amin from the Villawood Immigration Detention Centre examined Mr Vaitaiki on the following dates:
7/02/02, 11/02/02, 27/02/02, 11/03/02, 19/03/02, 25/03/02 and 10/07/02.
[37] Dr Amin treated Mr Vaitaiki for Asthma. On 25/03/02, an ECG was done and found to be normal. On 10/07/02, Dr Amin referred Mr Vaitaiki to Dr Day a Cardiac Specialist. Mr Vaitaiki attended an appointment with Dr Day on 5/08/02. Dr Day provided a report dated 6/8/02 stating there was no evidence of any cardiac condition. It is submitted that Mr Vaitaiki has been medically examined on numerous occasions whilst in Immigration Detention. The necessary tests have been conducted and he was referred to a specialist for further examination. Janet Lipman, Health Services Co-ordinator confirmed on 3/09/02 that Mr Vaitaiki did attend the specialist appointment and there is no evidence of any cardiac condition found by either Dr Galea (treating doctor at Villawood Immigration Detention Centre) or the Specialist, Dr Day. On the available information, Mr Vaitaiki is fit to travel."
(b) G13; G pages 76 and 77 reading as follows:
AND INDIGENOUS AFFAIRS
MINUTE
Date: 26/07/02
On the 26/07/02, Kevin Thompson and I attended the VIDC to interview the following detainee:
VAITAIKI, Tevita David Musie. Located in Stage 1
Mr Vaitaiki refused to attend an interview with us today. He spoke to us through the glass window at the Reception area of Stage 1. He became very irate. He said that he has contacted the Tongan Consulate to complain about his mistreatment. When asked what how he was being mistreated, he explain that he is sick and will die in the Detention Centre. He said that we don't care what happens to him. He said that the medical staff at the VIDC doesn't care and have refused to see him. He also said that the Doctors at the VIDC don't know anything and are not good. I told Mr Vaitaiki that Kevin and I spoke with Dr Amin at the VIDC who later examined Mr Vaitaiki. I explained to Mr Vaitaiki that it is up to the doctor to refer him to a specialist if he feels that it is necessary. Dr Amin is no longer working at the VIDC. His replacement is Dr Galea. Jing made an appointment for Mr Vaitaiki to see Dr Galea later this afternoon. Mr Vaitaiki was not happy with that. He said that we should release him so that he may see him own doctor. He said that he has requested that his file be transferred from the Parramatta Office.
Kevin and I tried to talk to Mr Vaitaiki to calm him down. He refused to listen and talked over us. He then walked away.
Rao the Shift supervisor was present.
Kevin, Rao and I spoke to the nurse, Jing who was present at Stage 1. She showed us Mr Vaitaiki's medical file. Mr Vaitaiki has seen Dr Amin on many occasions. The dates are as follows:
7/02/02
11/02/02
27/02/02
11/03/02
19/03/02
25/03/01
10/07/02
This is contrary to Mr Vaitaiki's complaints. Dr Amin has examined Mr Vaitaiki on numerous occasions and prescribed medicine for treating Asthma.
On the 25/03/02, an ECG was done and found to be normal. On the 10/07/02, Doctor Amin again examined Mr Vaitaiki and made a referral for him to be examined by a Cardiologist, Dr Day. The appointment was not confirmed, however, I spoke with Janette, who is the medical administrator, on 0407899917. She told me that it usually takes up to 4-6 weeks to make an appointment with a specialist. Furthermore, Vaitaiki will have to visit the Doctor's surgery.
Kevin and I requested that Mr Vaitaiki be paged so that we could inform him of this. Mr Vaitaiki did not attend interview.
Semra Kupeli
Criminal Detentions
Compliance, Parramatta"
24. Dr Day is an independent specialist who is not an employee of the Respondent. The Applicant was examined by Dr Day on 5 August 2002 and Dr Day's report dated 6 August 2002 (in respect of which an extract appears in the Statement) indicate that an ECG was performed by him. The Applicant complained that Dr Day fell asleep both while performing the ECG and also while examining him. He said during cross-examination that he received a copy of the report only on 9 September 2002 and that shortly thereafter (on 12 September 2002) he made a written complaint to the Health Care Complaints Commission about Dr Day. That complaint was included with the exhibits. It is in my view significant that the Applicant did not complain about Dr Day's conduct at the time of the examination and that he did so only after he received a copy of the report and the doctor's findings that he did not suffer from any heart trouble at all. The Tribunal considers that the timing of the complaint indicates the strong probability that it is baseless. He said in evidence before me that he did not question the report but that he had reported Dr Day to the Health Care Complaints Commission because he (Dr Day) fell asleep.
25. The Applicant said that according to a United Nations official, Villawood is worse than a prison. It was pointed out to him that he is free to leave at any time and to return to Tonga. The G Documents referred to statements by him that he would return to Tonga as soon as his heart problem has been dealt with and he repeated that assertion at the hearing. "All I ask is to see a doctor - and then I go". However, in evidence before me he said that he needs the medical visa (which in its terms cannot be granted for a period greater than three months) in order to cater for the needs of his family. It was pointed out to him that he has been in Australia for thirteen months already. However, he again emphasised that the grant of a medical visa for three months will be what he needs in order to look after his family and that he will then return to Tonga. He complained that his son Michael (serving a five-year jail sentence) would not be in trouble if he, the Applicant and been here. He complained that other desired family visits had not been allowed. He did say however that he was allowed to visit his mother and to attend a funeral and felt that his return to Villawood deserved recognition; (the evidence before me does not reveal whether on those visits he was accompanied).
26. The Applicant was cross-examined as to his transit visa. It was put to him that he had had no intention of travelling on to Honolulu. He denied that this was so. It was pointed out to him that on a previous occasion (in 1986) he entered Australia on a transit visa and that he did not then travel to the United States. He said that he was then a resident of Australia; however he subsequently agreed that he was not then a resident.
27. The Applicant was cross-examined as to his alleged cardiac problem. He said that he did not know whether he does have such a problem and perhaps does not, but that various members of his family (including his father who died aged 62) have and had heart problems. When it was put to him that notwithstanding his alleged problem he had played cricket, his answer was that the game was in a small area (perhaps twice the size of the hearing room) and that it was played with a tennis ball and not a cricket ball. When playing cricket he fell and grazed his knees and hand. S12 dated 1 July 2002 is a medical incident report as to those minor injuries. It is also perhaps relevant in this context that he did intervene in a fight to help Mr Palmer. He spoke of other ailments and including an ulcer complaint for which he had an operation some fifteen years ago and also of asthma. It was put to him that the objective evidence (ECG, X-rays and pathology) all established that he does not have a heart problem. It was with some reluctance that he agreed that he might not.
28. The Applicant referred on a number of occasions to his aged mother, his sick sister and the needs of his children and including the youngest who is aged three. (Except for the fact that he was detained at her home, the Applicant hardly referred to his current wife.) He again referred to his son Michael and the fact that had he been in Australia, Michael would not have got into serious trouble.
29. Having regard to the fact that the Applicant fails the character test, the discretionary powers contained in Part 2 of Direction 21 are relevant. The primary considerations are set out in clause 2.3 of Direction 21; and contained in clause 40 of the Statement.
30. Clause 2.3 of Direction 21 must be considered in conjunction with clause 2.5 of Direction 21 which is set out in clause 41 of the Statement.
31. I commence with the interests of the children who are under 18, and of whom there are six ranging in age from the youngest aged three to Christina who is seventeen. Their interests are primary. I accept that their best interests would be served by having their father in Australia. There was no evidence before me as to who actually cares for each of these children and I assume that the carer is his or her mother as the case may be. (The Applicant is currently married to his third wife who also lives in Australia.) Nor was there any evidence before me as to what financial support is provided by the Applicant for those children or indeed as to his ability (if any) to do so. I accept nevertheless that in each case there is a bond between that child and the Applicant. The Applicant complained that the President's decision in 1999 did not take account of the interests of the children. Of course it did. The President found that their interests were outweighed by the other primary considerations. And she was considering a deportation decision whereas I am considering a medical visa application and which is short-term (three months) only. The fact that at most the children would have their father with them for another three months, must of necessity have the effect that this consideration of the best interests of the children in favour of the Applicant is of limited relevance.
It is in this context that consideration should be given to the Convention on the Rights of the Child. I refer in this context to the decision of Deputy President Handley in Wan v Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 217; clause 49 of that decision reads as follows:
"49. The Tribunal will also have regard to the best interests of Mr Wan's and Ms Yang's children, Annie and Andrew, as a primary consideration, in accordance with the legitimate expectation that administrative decision-makers will act in conformity with the United Nations Convention on the Rights of the Child of 17 December 1990, as recognised in Teoh (supra) at 291-292 by Mason CJ and Deane J. Such an approach was adopted in Vaitaiki (supra) and in Wan (supra). As the Full Federal Court stated in Wan at paragraph 32, the approach which the Tribunal should adopt is first "to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion" and, second, "to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration". As the Full Court recognised, the Tribunal is also entitled to regard the expectations of the Australian community as a primary consideration."
32. There are of course other persons whose interests should be considered; they are the Applicant's mother, his sister and his children who are over 18 (and including Michael). I assume also that the same considerations apply to his current wife although there was no evidence to this effect. All of them will suffer hardship to some extent by the removal of the Applicant from Australia but limited by the same considerations as are applicable to the children under 18, and in particular by the fact that a medical visa cannot be granted for more than three months.
33. I next consider the question of recidivism. Having regard to the whole history of the Applicant over the past 25 years, the danger of recidivism if the medical visa were to be granted, is unacceptably high. Mr Markus said that it is likely that he would disappear underground and I agree that there must a very real risk that this would happen. The manner in which he obtained a transit visa (knowing that he was not entitled to obtain one) indicates that he will stop at nothing to achieve his desired aim, which is of course to live in Australia. He is aptly described in the Statement as a serial offender.
34. The question of deterrence may not be of great relevance in this case. It is unlikely that there are other serial offenders whose record is comparable with that of the Applicant. However, I should in this context say that to grant a visa in these circumstances would give entirely the wrong message to other persons seeking a medical visa in similar or comparable circumstances.
35. The expectations of the Australian community would in my view be that a visa should be denied. The Applicant does in my view, having regard to the entire history, pose an unacceptable risk to Australia.
36. I have taken into account the fact that the Applicant did intervene on part of Mr Palmer. It is to his credit also that he is a sweeper. I have previously referred to the bible study certificates included in the exhibits. The President in her decision noted inter alia that at one stage he indicated his intention to become a missionary; his subsequent conduct caused her to question his suitability for such a role. In his closing submissions the Applicant cited two biblical stories (of little relevance). In the first he related the story of David and Goliath on the basis that the Applicant with all of its might is Goliath while he and his family armed only with their faith together constitute David.
37. As Mr Markus said, I should recommend the grant of a medical visa if I was satisfied that the Applicant does have a serious health problem. To send him back to Tonga at a time when to do so would endanger his life, would not be right. I am satisfied on the evidence that no such circumstances exist.
38. The Applicant has committed numerous breaches of section 234 of the Act in relation to the transit visa, the medical visa and at the interviews. His conduct is serious within clause 2.6 of Direction 21. There is a body of medical evidence which establishes conclusively that he has no heart problem of any kind. I again note that whatever complaint the Applicant has against the standard of medical care at Villawood, he cannot seriously deny that the objective tests have established that there is no such problem. The evidence before me establishes that the application for a transit visa was merely the first step in a scheme to get back into Australia, and the Applicant has demonstrated a willingness to stop at nothing in his efforts to do so. And so repeated lies to the authority were embarked on over a period. Much of his evidence before me and particularly as regards his health was untruthful.
39. I have previously noted that the Applicant has said that as soon as he receives medical treatment he will go back to Tonga. It is in my view odd to hear the Applicant complain so bitterly about Villawood and then to consider those complaints in conjunction with his desperate fight to remain in Villawood. As I have said, he could leave whenever he pleases. The evidence before me establishes that the medical visa application was nothing more than a part of his illegal plan to get back into Australia. The Applicant is a man who has little credibility and whose behaviour has consistently been both amoral and unprincipled. I have previously found that the risk of recidivism is unacceptably high. This is quintessentially a case where the considerations which favour the Applicant, and being the primary interests of his children under 18 coupled with the hardship considerations for other members of his family (limited by the short-term nature of the visa sought) are greatly outweighed by the primary considerations against him.
40. I note if only for the sake of completeness that it has been reported to me that after the hearing was over, the Applicant contacted a member of the Tribunal staff and said that he would be sending a further fax; I understand also that a further fax was subsequently sent but of course I cannot of course consider it.
41. The Respondent contended in clause 42 of the Statement that if ever there were a decision, which ought to be affirmed, this is it; I agree.
42. Accordingly the decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr J Block, Deputy President
Signed: H Sim .....................................................................................
Associate
Date of Hearing 7 November 2002
Date of Decision 22 November 2002
Counsel for the Applicant Self-Represented
Solicitor for the Respondent Mr Andras Markus, AGS
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2002/1209.html