Lal and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 122 (27 February 2002)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2002] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/542

GENERAL ADMINISTRATIVE DIVISION )

Re Arina Lal

Applicant

And Minister for Immigration, Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 27 February 2002

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ronal Ravi Chand passes the character test pursuant to s 501(6) of the Migration Act 1958.

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

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION - Remaining Relative visa - sponsor - character test - where Visa Applicant illegally resided and worked in Australia - supervised departure to Fiji in 1989 - where Visa Applicant subsequently applied for Spouse Visa - where Spouse Visa refused - whether relationship genuine - whether false and misleading statements made at departmental interview in relation to application for Remaining Relative visa - character test passed

Exercise of discretion (in the alternative) - Expectations of the Australian Community - Protection of the Australian Community - Other Considerations

Migration Act 1958: ss 499(1), 499(2A), 501(1), 501(6)(c)(ii)

Migration Regulations 1994: Schedule 2, clause 104.223; Schedule 4, clause 4001

Ministerial Direction No. 21 - Visa Refusal and Cancellation under s 501

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

27 February 2002 R P Handley

1. This is an application by Arina Lal ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 27 February 2001 to refuse the grant of a Subclass 104 (Remaining Relative) visa to the Applicant's brother, Ronal Ravi Chand ("the Visa Applicant").

2. At the hearing, the Applicant was represented by James Sabharwal of Counsel, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given in person by Arina Lal and by telephone by the Visa Applicant and Alan Smith.

BACKGROUND

3. The Visa Applicant, Mr Chand, was born in Fiji on 24 June 1967 and is aged 34. He was given the name Bhawar Sen at birth which he changed to Ronal Ravi Chand by Deed Poll dated 12 September 1989. Mr Chand arrived in Australia on 11 April 1987 on a tourist visa valid until 11 May 1987. Mr Chand remained in Australia for over 2 years after the expiry of his visa and worked without permission in contravention of the terms of that visa. On 13 November 1987, Mr Chand lodged an application for the Grant of Residence Status based on compassionate or humanitarian grounds which was refused on 19 July 1988. He was advised that his temporary entry permit had expired and that he should make arrangements for his immediate departure. Mr Chand was subsequently arrested on 7 August 1989 and made a supervised departure from Australia on 10 August 1989.

4. In July 1992, Mr Chand married Veisinia Burton, a permanent resident of Australia. Mr Chand subsequently lodged a spouse visa application which was refused on the basis that his relationship with Ms Burton was not a genuine one. On 30 December 1996, a Fiji Magistrates Court granted Mr Chand and Ms Burton a Decree Absolute of divorce. On 21 August 1998, Mr Chand lodged an application for a subclass 104 (Remaining Relative) visa sponsored by his sister, Ms Arina Lal. On 26 February 2001, Mr Chand was interviewed at the Australian High Commission in Suva and, on 27 February 2001, a delegate of the Minister decided to refuse the grant of a visa to Mr Chand on the grounds of his past and present general conduct, pursuant to s 501(6)(c)(ii) of the Migration Act 1958 ("the Act"). On 9 May 2001, Ms Lal lodged an application for a review of this decision by the Tribunal.

RELEVANT LAW AND POLICY

5. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

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;...

6. Schedule 2 of the Migration Regulations set out the criteria relevant for the grant of a subclass 104 (Remaining Relative) visa. Clause 104.223 required that, at the time of the decision, the visa applicant satisfied public interest criteria 4001 which provides:

either

(a) the applicant satisfied the Minister that the applicant passes the character test; or

(b) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

7. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations".

8. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No. 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

9. The issue for the Tribunal to determine in this case is, therefore, whether Mr Chand is not of good character having regard to his past and present general conduct so as to be precluded from the grant of a subclass 104 visa. If the Tribunal decides he is not of good character, it must consider the exercise of the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

ORAL EVIDENCE

Ronal Ravi Chand (the Visa Applicant)

10. Mr Chand said he works as a panel beater for Ba Body Builders in Lautoka where he has worked since February 1994. For the past three years, he has been living in a rented house. Mr Chand was born in Lautoka, leaving school at the age of 18 and attending a computer school. Then, in April 1987, he travelled to Australia on a tourist visa. Mr Chand said although he realised his tourist visa did not permit him to work in Australia, he started work from about May 1987 working as a panel beater at an uncle's garage in Liverpool. On arrival in Australia, he had first stayed with his aunty in Bankstown for two weeks and then went to stay at his uncle's house in Liverpool where he stayed until about four months before he was arrested in August 1989. For the last four months before his arrest, he was staying in shared rented accommodation in Liverpool. His sister, Ms Lal, and her family also live in Liverpool.

11. Mr Chand said he stayed in Australia because of the coup in Fiji. He acknowledged that he had started working before making his application for the grant of resident status on 13 November 1987. His uncle (now deceased) helped him make this application and he was aware that, merely by making this application, he did not have any entitlement to work in Australia. Mr Chand thought he would receive an answer to the application and when he had heard nothing he asked his uncle about it and his uncle told him that everything was going well. Mr Chand said he did not receive notification in July 1988 that his application had been refused. He first learned of this at the time he was arrested in August 1989. Mr Chand said that with his supervised departure from Australia on 10 August 1989, the cost of his flight to Fiji was covered under the terms of his original ticket.

12. Mr Chand said he first met Ms Veisinia Burton through a friend, David, in about June 1988. They went out together as friends during the four months before Mr Chand returned to Fiji. Ms Burton lived in Warwick Farm and they would, for example, go out together to the City. About two months before he returned to Fiji, Mr Chand and Ms Burton discussed marriage. Mr Chand told Ms Burton that he loved her and about his illegal status in Australia. He said it was up to her whether they should get married. Mr Chand said the fact of his illegal status had nothing to do with his proposing marriage to Ms Burton. Ms Burton said she would marry him, but then, two months later, he was deported to Fiji. On arriving back in Fiji, Mr Chand went to Lambassa where he stayed with his uncle (who was married to his mother's sister). His uncle, who is now in Israel, is a Christian and Mr Chand also became a Christian. It was for this reason that he changed his name by Deed Poll on 12 September 1989. He stayed with his uncle for about two years and then moved to Ba where he lived with his cousin, who is now in Australia. Then, in 1994, he started work for Ba Body Builders where he has worked since and for the past three years he has lived on his own in rented accommodation. Mr Chand said he is still a practising Christian and goes to church regularly.

13. About two weeks after arriving back in Fiji, Mr Chand phoned Ms Burton but after this they did not speak again on the phone until about a month before Ms Burton flew to Fiji in July 1992. She obtained a one month visa with the intention of returning to Australia at the end of that time. In cross-examination, Mr Chand said he had not tried to find out whether she could stay in Fiji longer. She phoned to say she would come to Fiji to marry him, asked for his address and then wrote to him confirming this. Mr Chand said he was not surprised by this because he trusted Ms Burton. However, when he spoke to his sister on the phone shortly afterwards, he asked her to contact Ms Burton to see whether what Ms Burton had told him was true. Mr Chand said his sister had met Ms Burton in 1989 before he was deported to Fiji. He had taken Ms Burton to his sister's house and, altogether, his sister would have met Ms Burton on about three occasions before he was deported. Mr Chand said his sister spoke to Ms Burton and then phoned him to confirm that she was intending to come to Fiji to marry him.

14. Mr Chand said Ms Burton paid for her own return airfare to Fiji. He picked her up from the airport and took her to stay with him at his cousin's place where he was living. His cousin's place was part of a two storey building owned by his uncle. Ms Burton shared the same bedroom with Mr Chand and they engaged in normal sexual activity. They were married in a Registry Office, having given the required one day's notice. Mr Chand said after their marriage he lodged a migration application with the Australian High Commission in Suva and he and Ms Burton were interviewed there. About two weeks after the wedding, Ms Burton returned to Australia. Two weeks later, Mr Chand received a letter from the High Commission refusing his application and he phoned Ms Burton to tell her this. She said she would appeal. When Mr Chand next phoned her, he was told that she was no longer at that address. He tried phoning on a number of occasions with no success. This was the last contact he had with Ms Burton. He also asked his sister to try and locate Ms Burton, but she was unable to do so. After four years, he filed for divorce in Fiji because he had lost hope. He asked his sister to put an advertisement in the Notices Section in the Daily Telegraph in Sydney in an attempt to find Ms Burton, but this was also unsuccessful. Mr Chand said that since his relationship with Ms Burton, he has not had another girlfriend.

15. Subsequently, in 1998, Ms Lal lodged an application to sponsor Mr Chand's migration to Australia. In completing the migration application form, Mr Chand was assisted by Adrian Joel, Solicitor. In the application, he disclosed that he had been removed from Australia. He said he did not have a copy of his application with him at the time he was interviewed at the Australian High Commission on 26 February 2001. At the interview, he explained to the Senior Migration Officer, Mr Smith, how he had been arrested before his supervised departure from Australia. Mr Chand denied that he had answered "No" to Mr Smith's question "Were you arrested?". Mr Chand said he was very nervous at the time but had explained the circumstances to Mr Smith. Mr Chand agreed that he had answered "No" to Mr Smith's question "Were you working?", which was a false answer. However, when Mr Smith pressed him about this, Mr Chand acknowledged that he had been working at his cousin's garage earning $150.00 per week.

16. With regard to Mr Chand's relationship with Ms Burton, Mr Chand said Mr Smith asked him five or six times whether it was a false marriage and finally Mr Chand replied "May be you're right". However, Mr Chand emphasised that it was a genuine marriage and he does not know why Ms Burton subsequently changed. Mr Chand said he has never been in trouble with the police either in Fiji or Australia.

17. Mr Chand said he talks to his mother in Sydney on the phone about once a month. His mother visited him in Fiji in 1998 and is presently living with his sister and her family. His mother is very sick and cannot walk properly: she worries a lot that he is in Fiji by himself. Mr Chand said that in Fijian culture, it is the son's responsibility to look after his mother.

Arina Lal (the Applicant)

18. Ms Lal said she is an administration manager for Woolworths. She arrived in Australia in 1986 and became a citizen in 1990. When her brother came to Australia in 1987, he initially lived with their aunty and later with their uncle in Liverpool. This person was not a real uncle, but a close friend of the family's whom they called uncle as a matter of respect.

19. Ms Lal said her brother tries to avoid talking about personal matters. She recalled her brother phoning her in 1989 before he left Australia, to tell her that Ms Burton had said she wanted to marry him. Ms Lal had previously met Ms Burton in a restaurant in Liverpool, together with her brother and some of Ms Lal's friends. This was probably a couple of months before Mr Chand was deported. Ms Lal advised her brother that he should tell Ms Burton that he was not an Australian citizen and had no legal status in Australia. Ms Lal was concerned that Ms Burton might be using her brother because he lavished presents on her. Ms Lal acknowledged she thought it strange that so soon after meeting someone, her brother should agree to marry that person.

20. Ms Lal said she saw Ms Burton on a couple of other occasions before her brother was deported. Ms Burton would visit the shared flat that her brother was then renting at Liverpool and Ms Lal met her there on one occasion. Ms Lal said her brother was sharing a flat with a Chinese man paying $55.00 per week in rent. At that time, he was earning $150.00 per week. Ms Lal also visited Ms Burton at her flat at Warwick Farm and they spoke on the phone. Ms Lal said she had asked Ms Burton whether she was working and Ms Burton replied that she was working at the Villawood Detention Centre. Ms Burton also said she was from Tonga.

21. Ms Lal said after her brother was deported, she and Ms Burton phoned each other about once every month or two to chat. However, the topic of marriage was never discussed. Ms Lal was therefore surprised when Mr Chand told her on the phone that Ms Burton was proposing to go to Fiji to marry him. Ms Lal agreed to contact Ms Burton who confirmed that she did intend to go to Fiji to marry Mr Chand.

22. Ms Lal went to Fiji to attend their wedding, leaving a couple of days after Ms Burton. Ms Lal was met at the airport by her cousin with whom she stayed in the same house as her brother and Ms Burton. Her brother and Ms Burton were sharing the same bedroom. At that stage, both Ms Lal's parents were still living in Fiji. Ms Lal said she attended the wedding ceremony at the Registry Office in Lautoka and then the small party at her uncle's house afterwards. Her mother was also present, her uncle and his wife and their cousins. All the family members present would have been recorded in the photographs which were taken at that time. Ms Lal confirmed that she was still in Fiji when her brother lodged his application for a spouse visa. This would have included copies of wedding photographs. Ms Lal said she had been aware that Ms Burton would be returning to Australia after the wedding and therefore was not surprised when she did so. Ms Burton returned to Australia about a week after Ms Lal and phoned Ms Lal to say that she was home. Ms Burton had bought a parcel for Ms Lal from Ms Lal's mother containing some sweets and other things, and Ms Lal went to Ms Burton's flat at Warwick Farm to collect the parcel.

23. A few weeks later, her brother phoned Ms Lal to say that his visa application had been refused. He had already tried to phone Ms Burton but had been unable to contact her. He said he was going to try phoning her again. He subsequently did so and Ms Burton told him that she was going to appeal. Mr Chand then phoned Ms Lal to tell her that he had spoken to Ms Burton, but Ms Lal had, in the meanwhile, also herself spoken to Ms Burton. Ms Lal said Ms Burton had been "pretty upset" and had told her that she was going to appeal the decision. Ms Lal spoke to Ms Burton on a couple of further occasions over a period of over two months, but then got no reply when she rang. Ms Lal also discovered that Ms Burton had done nothing about appealing the decision. Eventually, Ms Lal went to Ms Burton's flat at Warwick Farm to see her, but found the flat to be empty. She spoke to the real estate agents who managed the flat who confirmed that there was no one there and that they could not assist Ms Lal with regard to Ms Burton's whereabouts. Ms Lal also phoned the Villawood Detention Centre but they said no one by the name of Ms Burton worked there. Ms Lal has had no further contact with Ms Burton since this time. At her brother's request, she placed an advertisement in the Sydney Daily Telegraph in October 1996 seeking Ms Burton's whereabouts but had no response. Ms Lal said her brother's migration agents, Tahmina & Associates had also tried to trace Ms Burton without success. Ms Lal said when finally her brother realised in 1989 that he was going to be unable to contact Ms Burton, he was very upset. He was really in love with her. Eventually, he threw everything away concerning his relationship with Ms Burton including his photographs.

24. Ms Lal confirmed that her mother is now living with her and her family, as of right according to Fijian culture. This is because, although in Fijian culture parents do not want to stay with their son-in-law, but should stay with their son, because Mr Chand is not in Australia and therefore unable to provide a home for their mother, she has presently no choice but to live with Ms Lal and her family. Ms Lal indicated this is difficult for her because she has two children to bring up. She said her mother worries about Mr Chand because he is living in Fiji by himself.

Alan Smith

25. Alan Smith is currently a Senior Migration Officer and Second Secretary of the Australian High Commission in Islamabad, Pakistan. In 2001, he held the same position at the Australian High Commission in Suva, Fiji.

26. Mr Smith said he normally makes a written record of the questions he asks and the answers given in the course of interviews like that conducted with Mr Chand on 26 February 2001 (T12). He does not normally record his standard introductory questions at the commencement of an interview. Otherwise, he writes down his questions as he asks them, although glancing up to maintain eye contact, and writes down the answer word for word unless he considers this unnecessary or uses abbreviations: for example "P/V" short for protection visa where, in this case, Mr Chand probably said he had previously applied for a "refugee visa", as it is commonly referred to.

27. Mr Smith said in Mr Chand's case, he has no independent recollection of the interview. He noted that the interview lasted 40 minutes and was conducted in English without the assistance of an interpreter. He acknowledged his 2½ page record of the interview was relatively short given the 40 minute duration but said this would have been because he did not record his introductory remarks and there may also have been interruptions, for example telephone calls, during the interview.

28. Mr Smith said his record of the interview indicates that he must have been aware of a previous spouse visa application in 1992 and may have had that file. He no longer has that file. However, in Suva, spouse application files are normally kept for one to two years and then destroyed. He may have obtained information about the earlier application from the Department's computerised records.

29. Mr Smith said his record of the interview also indicated that he did not consider Mr Chand was being truthful. However, he acknowledged that most people are nervous when interviewed.

SUBMISSIONS

The Applicant

30. Mr Sabharwal, for the Applicant, conceded that Mr Chand had worked without permission in Australia until the time of his arrest. He was also without a valid visa from 18 May 1987 to about 13 November 1987 after his application for the grant of resident status was lodged, and from 28 days after the refusal of his visa on 19 July 1988 until his arrest on 7 August 1989. However, Mr Sabharwal noted that it is Mr Chand's evidence that he did not receive notification of the refusal. Mr Sabharwal conceded that Mr Chand's conduct does not meet the character test requirements.

31. Mr Sabharwal said Ms Lal has tried to locate Ms Burton with a view to her giving evidence, but without success. Advertisements were placed in a newspaper on 18 January 2002 and 26 January 2002 seeking Ms Burton's whereabouts but no response was received. The Applicant is also disadvantaged by the 1992 spouse application file having been destroyed. For example, that file would have contained photographs of Mr Chand's and Ms Burton's wedding. Mr Sabharwal contended that this was a genuine marriage. In 1992, after Mr Chand's spouse visa application had been refused, both he and Ms Lal informed Ms Burton of the refusal. Shortly afterwards, she disappeared. It is Ms Lal's evidence that when, in 1989, Mr Chand finally realised he was going to be unable to contact Ms Burton again, he was very upset and threw away everything concerning his relationship with Ms Burton including his photographs.

32. With regard to Mr Chand's interview with Mr Smith on 26 February 2001, Mr Sabharwal said Mr Chand's evidence should be preferred because Mr Smith has no independent recollection of the interview. Mr Sabharwal said Mr Chand appears to have lacked sufficient understanding of the questions and, thus, little reliance should be placed on Mr Chand's responses during the course of the interview. For example, in his application to migrate to Australia lodged on 21 August 1998 (T6), Mr Chand declared in answer to question 70 that in 1988 (sic) he had been deported from Australia, while at the interview on 26 February 2001, he answered "No" to Mr Smith's question "you were arrested?" (T12). Mr Sabharwal noted that Mr Chand had shown a similar difficulty in understanding questions during the course of his cross-examination in the Tribunal hearing.

33. Mr Sabharwal said Mr Chand was only 20 years old when he came to Australia and was not then a person of full maturity. He had relied on his uncle for advice and assistance. Mr Sabharwal said Mr Chand has never been in trouble with the police and has a good work ethic. In the circumstances, Mr Chand's conduct with regard to his working without permission and being in Australia illegally, should not be considered heinous. He was young at the time, and refusal of a visa now is unlikely to deter others, his having left Australia over 12 years ago. There is also no likelihood of Mr Chand's repeating such misconduct.

34. Mr Sabharwal drew attention to Mr Chand's application being for a Subclass 104 (Remaining Relative) visa. Mr Chand has an elderly, sick mother who lives in Australia. As her son, there is a cultural expectation in their community that he should be available to look after her. She is currently living with her daughter, Ms Lal, who works and has two children to bring up. Thus, to refuse Mr Chand a visa will also have an adverse effect on Ms Lal and her family.

The Respondent

35. Mr Allatt, for the Respondent, said the record of interview made by Mr Smith, in particular, of Mr Chand's answers to questions, is truthful and accurate. Mr Allatt noted that Mr Chand's evidence was inconsistent: he gave different answers at different times. Mr Chand's evidence was also at times inconsistent with that of Ms Lal who, for example, gave a different account of her meetings with Ms Burton to that of Mr Chand. Mr Allatt said that Ms Lal's account of Mr Chand's telling her that Ms Burton wanted to marry him and Ms Lal's warning him of Ms Burton "just trying to use you", was also very improbable.

36. Mr Allatt said the Respondent contends that Mr Chand's marriage to Ms Burton was not genuine. Mr Smith, in making his decision to refuse Mr Chand a visa on 27 February 2001, found that Mr Chand "entered into a false spousal relationship and lodged a spouse visa application on the basis of that relationship" (T2). Mr Allatt said that the false marriage was a perpetration of Mr Chand's earlier illegality. Then, in the interview with Mr Smith, Mr Chand continued to lie in answering Mr Smith's questions.

37. Thus, Mr Allatt submitted that Mr Chand does not pass the character test. If the Tribunal so finds, then it must consider the guidance provided by Direction No. 21 in relation to the exercise of the discretion under s 501(1). In relation to the primary consideration of the Protection of the Australian Community, Mr Allatt noted Mr Chand was in Australia for over 2 years without authority and that he worked without permission during that period. Such conduct should be viewed seriously. Moreover, that Mr Chand should lie to Mr Smith at the interview on 26 February 2001 is a perpetuation of that misconduct. Mr Allatt contended that to refuse Mr Chand's visa application would deter others from similar misconduct.

38. With regard to the second primary consideration, the Expectations of the Australian Community, Mr Allatt said Australian citizens expect non-citizens to obey Australian laws while in Australia. Mr Chand had shown disregard for Australia's laws and the community expected that such a person should not be rewarded for attempting falsely to obtain an immigration benefit. In relation to Other Considerations, the Respondent concedes that Mr Chand has family in Australia and that refusing him a visa will cause emotional distress to him and his family, in particular, to his mother. However, there is no evidence that his family in Australia are in any way dependent on support which cannot be provided elsewhere. Moreover, Mr Chand's family could visit him in Fiji.

39. Mr Allatt submitted that the primary considerations clearly outweigh any secondary considerations and that the Tribunal should decline to exercise the s 501(1) discretion and should affirm the decision under review.

APPLICATION OF THE LAW AND FINDINGS

40. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Chand passes the "character test" having regard to his past and present general conduct. The application of the "character test" in s 501(6)(c) is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry...

41. The concept of "good character" in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long term entry.

42. Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Chand does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.

43. Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are sub-paragraphs 1.9(a)(b) and (d) which direct the decision-maker to consider whether the non-citizen has been involved in activities such as: breaches of immigration law (paragraph 1.9(a)), 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 (paragraph 1.9(b)); and has been removed/deported from Australia or from another country (paragraph 1.9(d)).

44. The Tribunal finds Mr Chand was in breach of Australia's immigration law by remaining in Australia unlawfully for the periods 12 May 1987 to 30 November 1987 (when his application for grant of resident status was lodged) and from 28 days after 19 July 1988 (when that application was refused) until his supervised departure on 19 August 1989. He also worked without permission from shortly after his arrival in Australia until the time of his arrest. The Tribunal notes Mr Chand's relatively young age of 20 on arrival in Australia in 1987, and his evidence that he relied on his uncle in Sydney and that he did not receive notification of the refusal of his application for permanent resident status and was not aware of this until the time of his arrest in August 1989. The Tribunal also notes that over 12 years have passed since Mr Chand's unlawful conduct.

45. The Tribunal is not persuaded that Mr Chand's relationship with Ms Burton and their subsequent marriage in Fiji in July 1992 was not genuine. Mr Chand's and Ms Lal's evidence at the hearing was that this was a genuine marriage and since the Department's file containing the papers relating to Mr Chand's 1992 spouse visa application, including photographs provided by Mr Chand in support of the application, have been destroyed, there is no substantial evidence that the marriage was not genuine.

46. The Tribunal accepts Ms Lal's evidence that her brother destroyed his copies of the photographs and other papers relating to Ms Burton in about 1989 when he finally realised that he was going to be unable to contact her again. The Tribunal notes the recent attempts made by the Applicant to locate Ms Burton, without success, with a view to her giving evidence. The Tribunal finds, on the balance of probabilities, that Mr Chand's relationship with and marriage to Ms Burton was a genuine one, and that Mr Chand did not, therefore, commit a breach of Australia's immigration laws in relation to his 1992 spouse visa application.

47. The Tribunal is not satisfied that Mr Chand deliberately made any false or misleading statements in answer to questions by the Senior Migration Officer, Mr Smith at the Australian High Commission in Suva on 26 February 2001. Where he gave incorrect answers to Mr Smith, he afterwards corrected those answers. The Tribunal accepts that Mr Chand was nervous at the interview and notes that in answering questions during cross-examination at the Tribunal hearing, he was prone to misunderstanding the questions and giving incorrect answers without, in the Tribunal's opinion, having any intention of doing so. The Tribunal notes that Mr Smith's record of the interview is somewhat brief - 2½ pages of well-spaced handwritten notes for a 40 minute interview, and that Mr Smith has no independent recollection of the interview.

48. There is no dispute that Mr Chand had a supervised departure from Australia on 7 August 1989. He declared this on his application for a subclass 104 visa lodged on 21 August 1998. Once again, it is relevant to note that over 12 years have passed since his departure.

49. The Tribunal finds, based on Mr Chand's evidence and a reference dated 31 August 2001 from his employers in Fiji, Ba Body Builders (A5) for whom Mr Chand has worked as a panel beater since 24 February 1994, that he is a responsible employee. The Managing Director of Ba Body Builders states that Mr Chand is an "honest, hardworking and punctual worker". There is no evidence of any misconduct by Mr Chand other than in relation to his being in Australia unlawfully and working without permission during the periods in 1987 to 1989 detailed above.

50. The Tribunal is not satisfied that Mr Chand's character, in the sense of his enduring moral qualities, as described in Goldie (supra), is deficient such that it is for the public good to refuse his application for entry to Australia. The length of time since his misconduct in 1989, the nature of that misconduct, and his more recent history are sufficient to persuade the Tribunal that he does not fail the character test by virtue of his past and present general conduct and, in the terms of s 501(6), he therefore passes the character test.

51. The Tribunal notes that even if it were to find that Mr Chand does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No. 21, in the Tribunal's opinion, neither the Protection of nor the Expectations of the Australian Community require that Mr Chand be excluded from Australia. Bearing in mind the circumstances, Mr Chand's misconduct, while serious, was not so serious to require his exclusion 12 years later when there is no likelihood of the repetition of that misconduct and no substantial evidence of any deterrent effect after such a significant passage of time. Nor, in the Tribunal's opinion, would the Australian community expect that he should continue to be excluded in such circumstances. There is no substantial evidence of any other misconduct by Mr Chand since 1989 and there is recent evidence of his good conduct.

52. Moreover, in terms of Other Considerations, the Tribunal accepts that hardship would be caused to Mr Chand and his family in Australia, especially his mother, Ms Prabah Wati, by refusal of a visa. The Tribunal notes his mother's statutory declaration dated 19 September 2001 (A1) concerning her need to have her son in Australia and a medical certificate from her doctor dated 11 September 2001 (A4) stating that Ms Wati suffers from hypertension and asthma.

53. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Ronal Ravi Chand passes the character test pursuant to s 501(6) of the Migration Act 1958.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President

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

Associate

Date of Hearing 14 January 2002

Date of Decision 27 February 2002

Counsel for the Applicant Mr J Sabharwal

Solicitor for the Applicant Mr H Prasad, Harish Prasad & Associates

Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor