Patel and Minister for Immigration and Multicultural Affairs [2002] AATA 78 (11 February 2002)

Last Updated: 13 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1236

GENERAL ADMINISTRATIVE DIVISION )

Re PRAFUL PATEL

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Justice PRA Gray, Presidential Member

Date 11 February 2002

Place Melbourne

Decision 1. The decision of the delegate of the Minister made on 23 August 2000 be set aside. 2. The matter be remitted for reconsideration in accordance with the direction that the delegate of the Minister not refuse to grant a visa to the visa applicant on the ground that the visa applicant does not satisfy the delegate that the visa applicant passes the character test.

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

Justice PRA Gray

Presidential Member

CATCHWORDS

MIGRATION - visa - visa applicant unable to pass character test because sentenced to a term of imprisonment for more than twelve months - whether visa should be refused - exercise of discretion - discretion exercised in accordance with ministerial direction

Administrative Appeals Tribunal Act 1975 (Cth) ss 37(1), 43(1)(c)(ii)

Migration Act 1958 (Cth) ss 499, 500, 501

Migration Regulations Sch 2 subclass 103

Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 referred to

Ruhl v Minister for Immigration & Multicultural Affairs [2001] FCA 648 (2001) 184 ALR 401 referred to

Ministerial Direction No. 21

Penal Code of Fiji s 279(1)(c)(ii)

REASONS FOR DECISION

GRAY J

The nature of the review

1. By an application dated 26 September 1998, and lodged at the Australian High Commission in Suva, Fiji, on 2 October 1998, Mr Raojibhai Patel ("the visa applicant") and his then wife, Savitaben Patel, applied for a visa to migrate from Fiji to Australia. The application specified that it was for a visa for entry into Australia in the class described as "parent". It was therefore treated as an application for a subclass 103 Parent visa, pursuant to the Migration Regulations, made under the Migration Act 1958 (Cth) ("the Migration Act"). The application was sponsored by the visa applicant's son, Praful Patel ("the review applicant"), with the consent of his wife, Anita Patel.

2. The visa applicant was born in Gujarat in India. He is presently a citizen of Fiji. It appeared from the application form that he had been convicted of a crime in Fiji and had served a sentence of imprisonment.

3. The application was dealt with by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") stationed at the Australian High Commission in Suva. After checking with the Fijian authorities with respect to the visa applicant's criminal record, the delegate dealt with the application pursuant to s 501 of the Migration Act. On 23 August 2000, the delegate decided not to exercise his discretion not to refuse the grant of the visa. The delegate therefore refused the grant of the visa.

4. By application filed on 11 October 2000, the review applicant sought a review of the decision by this Tribunal.

The conduct of the review

5. The Tribunal had before it the documents lodged with the Tribunal in accordance with s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth). On 19 March 2001, the review applicant lodged with the Tribunal a written submission on behalf of the visa applicant. Attached to that written submission were documents evidencing the transfer of funds by the review applicant on various occasions and a copy of a public notice, published in the Fiji Times, concerning the public examination of the visa applicant as a bankrupt. On 16 March 2001, the Minister lodged with the Tribunal a statement of facts and contentions with a number of attached documents, including court records from Fiji.

6. The review applicant filed witness statements from the following persons:

* Hari Kisun Mistry, Social Worker, of Lautoka, Fiji

* Manoj Kumar, Area Manager West, ANZ Bank, Lautoka, Fiji

* Jayanti Lal, Lautoka, Fiji

* Babu Bhai Chawda, General Manager, South Pacific Recordings Ltd, Nadi, Fiji

* Kantilal Patel, Sydney.

7. The Tribunal commenced its hearing on 25 June 2001. The review applicant appeared in person. Mr Knowles, Solicitor, appeared as counsel for the Minister. The hearing proceeded on 26 June. It was not possible to complete it on that day, because one of the witnesses was seriously ill in hospital in Sydney. The hearing therefore proceeded on 27 August 2001. In the course of the hearing, the following documents were tendered in evidence: the written submission of the review applicant and its attached documents; the statement of facts and contentions on behalf of the Minister and its attached documents; the witness statements that had been filed; a copy notice of assessment of the Commissioner of Inland Revenue in Fiji, dated 31 December 1999, relating to the visa applicant; and an extract from the Fijian Penal Code. The visa applicant gave oral evidence by telephone from Fiji. Mr Chagan Naranji Sidhi gave oral evidence by telephone from Fiji. Mr Ratilal Pranjivan gave evidence by telephone from Melbourne. Mr Suresh Chandra gave oral evidence by telephone from Auckland, New Zealand. Mr Hari Kisun Mistry gave oral evidence by telephone from Fiji. The review applicant gave oral evidence in person. Mr Jayanti Lal gave oral evidence by telephone from Melbourne. Mr Anil Patel gave oral evidence by telephone from Sydney. Mr Kantilal Patel gave oral evidence by telephone from Sydney. All witnesses were cross-examined by counsel for the Minister. In the case of many of them, the Tribunal was assisted greatly by Ms Meena Patel, who interpreted much of the evidence from the Gujarati language to the English language. (It should be noted that Patel is a common surname among people emanating from Gujarat. The fact that a number of the witnesses and the interpreter all bear that surname should not be taken as an indication that they are related to the visa applicant and the review applicant.)

8. Both the review applicant and counsel for the Minister made written and oral submissions, which were completed on 27 August 2001.

9. In making his decision, the delegate of the Minister applied the Minister's Direction No. 17, made pursuant to s 499 of the Migration Act. When the hearing of the review began, that direction was in operation. On two occasions, the Federal Court of Australia had held that Direction No. 17 constituted a fetter on the discretion of the Minister when he was making decisions pursuant to s 501 of the Migration Act personally. See Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 at [28] and Ruhl v Minister for Immigration & Multicultural Affairs [2001] FCA 648 (2001) 184 ALR 401 at [38]. The conclusion might have been drawn from these decisions that Direction No. 17 was beyond the statutory power of the Minister and was therefore invalid. Before the hearing was completed, the Minister promulgated a document which, by its terms, may be cited as "Direction - Visa Refusal and Cancellation under Section 501 - No. 21" ("Direction No. 21"), which operates from 23 August 2001. Direction No. 21 revoked and replaced Direction No. 17. It does not appear to be in the form that brought about the findings of the Court in relation to Direction No. 17.

10. After the hearing had been concluded, counsel for the Minister referred me to Direction No. 21 and made a short written submission with respect to it. He did not concede that Direction No. 17 was invalid, but submitted that Direction No. 21 is applicable to the review. The review applicant did not make any further submission, so did not submit to the contrary. In the circumstances, I apply Direction No. 21.

11. The Tribunal's findings of fact on this case are based on the above material.

The legislation

12. Subclass 103 in Sch 2 to the Migration Regulations contains provisions relating to the kind of visa sought by the visa applicant. It contains criteria to be satisfied. The question of satisfaction of these criteria was not addressed before the Tribunal, because the parties perceive the Tribunal to be reviewing only the decision on the application of the character test. I should not pass over subclass 103 without adverting to subclass 103.5, which provides that the visa, if granted, takes effect as a permanent visa, permitting the holder to travel to and enter Australia for a period of five years from the date of grant.

13. The provisions with respect to the character test are to be found in s 501 of the Migration Act, which provides relevantly as follows:

"(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

...

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

(a) the person has a substantial criminal record (as defined by subsection (7); or

(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; 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; or

(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(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

(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

...

(12) In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence."

14. Section 500(1)(b) provides for review by the Tribunal of decisions of a delegate of the Minister under s 501. Section 500(5) provides that, for the purpose of reviewing a decision of a delegate of the Minister under s 501 (among others), the Tribunal shall be constituted by a presidential member alone.

15. Section 499 of the Migration Act provides relevantly as follows:

"(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A) A person or body must comply with a direction under subsection (1)."

16. As I have said, Direction No. 21 came into operation on 23 August 2001. Its preamble reads as follows:

"This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).

The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations.

The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.

...

For the purposes of this Direction the term decision-maker includes both the Minister's delegates for the purposes of section 501 of the Act, and members of the Administrative Appeals Tribunal when conducting a review of a decision made under section 501 of the Act."

17. The purpose of Direction No. 21 is stated in the following terms:

"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."

18. The arrangement of Direction No. 21 is dealt with as follows:

"This Direction consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them."

19. The remaining text of Direction No. 21 occupies some twelve pages of typescript. Rather than set it out in whole at this point in my reasons for decision, I set out the relevant provisions of Direction No. 21 prior to expressing my particular findings of fact in relation to them and my conclusions as to the appropriate weight to be given to the various considerations. Before doing that, however, it is convenient to set out some general findings of fact.

The facts

20. The visa applicant is a sixty-seven year old man, who was born in Gujarat, in India, and emigrated to Fiji. He is a citizen of Fiji. The application for a visa was originally made in respect of the visa applicant and his wife. His wife died on 31 August 2000. The visa applicant has four adult children. The oldest, a daughter, Ushaben Patel, is married to a citizen of the United States of America, and resides there on a permanent basis. A son named Sunil shares an apartment with the visa applicant in Lautoka in Fiji. A son, Nitesh, is an Australian citizen living in Sydney. The remaining child is the review applicant, who is also an Australian citizen. He lives in Melbourne with his wife and their two children.

21. When the visa applicant's father-in-law died, he left a will dividing his estate between four beneficiaries, his three daughters and one nephew. The estate consisted of, or included, significant assets in Fiji. Some time after his father-in-law's death, the visa applicant and his wife became aware that the executors named in the will had failed to manage the estate properly. The visa applicant therefore took steps to ensure that the estate was dealt with properly, on behalf of his wife and the other beneficiaries. For this purpose, he was given a power of attorney by his wife's sister, Pushpa Ben, who lived in Gujarat. The visa applicant thereby came to control a bank account in which was deposited a substantial sum of money to which Pushpa Ben was entitled. At the time, the visa applicant ran a successful retail business in Lautoka. From time to time between 16 July 1984 and 23 June 1987, he took from the funds deposited in this bank account sums of money and applied them to his own business. In due course, Pushpa Ben and her husband, aware that the visa applicant had not paid over Pushpa Ben's share of the estate, began to demand that he do so. The visa applicant's business had suffered a substantial downturn, following the overturning of the Fijian government in the coup led by Colonel Rabuka and the resulting preference for the interests of indigenous Fijians over those of Fijian citizens and residents of Indian origin. The visa applicant did not refund all of the money he had used in his business. He paid over only approximately 36,000 Fijian dollars. There was a dispute as to whether this should be regarded as a repayment of principal, or as a payment on account of interest. After failing to obtain satisfaction from the visa applicant, Pushpa Ben's husband made a complaint to the police in Fiji.

22. As a result, the visa applicant was charged with seventeen counts of fraudulent conversion, contrary to s 279(1)(c)(ii) of the Penal Code of Fiji, of amounts ranging from 14,000 Fijian dollars to 334 Fijian dollars, on various dates between 16 July 1984 and 23 June 1987. The total of the amounts charged was 99,914 Fijian dollars.

23. The visa applicant pleaded not guilty to all counts and was tried in the Magistrate's Court at Lautoka. He was convicted of all seventeen counts. On each of the seventeen counts, he was fined 100 Fijian dollars with a period of three months' imprisonment fixed in default of payment of the fine. On each count he was also sentenced to one year's imprisonment, suspended for two years. The suspended prison sentences were expressed to be concurrent.

24. The Director of Public Prosecutions of Fiji appealed against the sentences by way of petition to the High Court of Fiji. Any record of the hearing of the appeal has been destroyed as a result of a fire. The visa applicant recalled that the hearing of the appeal seemed to be very short, about half an hour. The appeal was allowed and the visa applicant was sentenced to four years' imprisonment on each count, to be served concurrently.

25. The visa applicant served his sentence. He was released after 16 months in prison. Since his release, he has lived in Lautoka, sharing an apartment with his oldest son, Sunil. Sunil is divorced and spends much of his time away from the apartment. The relationship between the visa applicant and Sunil is strained. The review applicant considers that his brother does not care properly for the visa applicant. The visa applicant is supplied with meals from time to time by neighbours and friends. His own business has ceased to exist altogether and he was made bankrupt while in prison. He is employed in a video business at a modest wage.

26. Both the visa applicant and the review applicant desire that the visa applicant should come to Australia and live with the review applicant and his family.

The character test

27. The visa applicant does not pass the character test, on the ground specified in s 501(6)(a) of the Migration Act. He has a substantial criminal record as defined by s 501(7)(c), having been sentenced to a term of imprisonment of twelve months or more.

28. Counsel for the Minister drew to my attention the fact that, in a 1998 application for a visa for the visa applicant and his wife to visit the review applicant in Australia, the visa applicant gave a false answer to the question "have you ... been convicted of a crime or any offence in any country?" He answered in the negative. Despite this fact, counsel for the Minister did not contend that the visa applicant did not pass the character test on the basis of any of the criteria in s 501(6) other than par (a). It is therefore unnecessary to have regard to any of the matters specified in Pt 1 of Direction No. 21, which deal with the manner in which the other provisions of s 501(6) are to be applied in assessing whether a person has not passed the character test.

Considerations in the exercise of the discretion

29. The fact that the visa applicant has not passed the character test gives rise to a discretion to refuse to grant him a visa, pursuant to s 501(1) of the Migration Act. Part 2 of Direction No. 21 deals with the exercise of this discretion. Although it is long, it is convenient to set out in these reasons for decision the contents of Pt 2:

"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 paragraphs 2.3 - 2.16 and other considerations are set out at 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.

PRIMARY CONSIDERATIONS

2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(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 or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Protection of the Australian Community

2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.

2.5 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).

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:

(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs:

* persons who embark upon drug-related crime for financial gain have

* shown a callous disregard for the insidious effects of illicit drugs on the

* health and welfare of Australia's young people;

* the Government views non-citizens who have sought to profit from the

* import or supply of drugs, whether or not motivated by their own need

* for illicit drugs, as extremely serious offenders. It is important both as

* a deterrent to other criminals and to protect Australian society that it

* is clearly understood that crimes involving drug trafficking, which puts

* the lives of young Australians at risk, be viewed as completely

* unacceptable to the community; and

* offences involving illicit drugs of dependency or addiction, such as

* heroin, are also of particular concern to the Government and the

* community;

(b) organised criminal activity resulting in a conviction in Australia or elsewhere;

(c) serious crimes against the Migration Act 1958, including, but not limited to, offences attracting a sentence of imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act; or to harbour unlawful non-citizens; arranging a contrived marriage, de facto relationship or interdependency to obtain permanent residence; or providing certain false or misleading information about a marital, de facto or interdependency relationship, applying or nominating for permanent residence on the basis of a contrived marriage, de facto relationship or interdependency relationship; or using or possessing a visa granted to another person; or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

(d) sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children regardless of whether there was overt violence or the threat of violence;

(e) armed robbery (including robbery involving the use of imitation weapons), home invasion;

(f) murder, manslaughter, assault or any other form of violence against persons;

(g) terrorist activity;

(h) kidnapping;

(i) blackmail;

(j) extortion;

(k) arson;

(l) serious theft (including 'white collar' crimes):

* such crimes are of concern because of the amounts of money

* involved and/or the disruption caused to individuals, business and

* Government;

(m) crimes against children:

* due to their vulnerability as victims and potential victims, crimes

* against children take on a special significance, especially crimes

* involving inducing children to take illicit drugs, sexual assaults on

* children, child prostitution, violence to children, kidnapping and crimes

* taking advantage of children;

(n) any other crimes involving violence or the threat of violence:

* such crimes are of special concern to the welfare and safety of the

* Australian community; and

(o) ancillary offences in respect to [sic] any of the above offences, including:

* convictions for attempting to commit any of the above offences;

* convictions for conspiracy to commit any of the above offences; and

* convictions for being an accessory before or after the fact in any of

* the above offences.

2.7 It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision-makers should have due regard to the Government's view in this respect, including:

(a) the extent of the person's criminal record, including the number and nature of offences, the time between offences, and the time that has elapsed since the most recent offence; and

(b) the repugnance of the crime:

* crimes involving violence or fraud against defenceless persons (such

* as children, the elderly, the disabled and the incapacitated) are

* especially repugnant to the whole community.

2.8 When exercising discretion, decision-makers must also take the following factors into account as relevant considerations:

(a) any relevant factors provided by the non-citizen as mitigating factors;

(b) the offence is not classified as an offence in Australia.

* for example, a non-citizen who has been subjected to imprisonment

* as a result of political, religious or ethnic persecution may fail the

* substantial criminal record component of the Character Test.

* However, discretion may be exercised to grant the visa permitting the

* non-citizen to enter or stay;

(c) a lighter sentence would be incurred in Australia for a similar offence;

or

(d) the non-citizen has been pardoned:

* Note in some jurisdictions 'pardons' may only have the status of

* spent convictions legislation in Australia.

2.9 In relation to non-citizens who do not pass the Character Test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequences of a non-citizen deliberately or accidentally not taking their medication must be considered.

b. likelihood that the conduct may be repeated (including

any risk of recidivism)

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism. In particular, the following factors will be relevant to the assessment:

(a) a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;

(b) a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and

(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

c. general deterrence - the likelihood that visa refusal or visa

cancellation would prevent (or inhibit the commission of) like

offences by other persons

2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that that [sic] the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17.

2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation.

2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to:

(a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or

(b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

2.16 When considering the best interests of the child, decision-makers should have regard to the following:

(a) the nature of the relationship between the child and the non-citizen;

(b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct;

(c) the age of the child;

(d) whether the child is an Australian citizen or permanent resident;

(e) the likely effect that any separation from the non-citizen would have on the child;

(f) the impact of the non-citizen's prior conduct on the child;

(g) the time (if any) that the child has spent in Australia;

(h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia;

(i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and

(j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances.

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;

* 'Article 23.1 of the International Covenant on Civil and Political

* Rights (ICCPR) provides that::[sic]

'The family is the natural and fundamental group unit of society, and

is entitled to protection by society and the State.

Article 17.1 provides that:

'No one shall be subjected to arbitrary or unlawful interference with

his privacy, family, home or correspondence, nor to unlawful attacks

on his honour and reputation.'

(b) genuine marriage to, or de facto or interdependent relationship with,

an Australian citizen, permanent resident or eligible New Zealand

citizen:

* in assessing the compassionate claims of the Australian partner

* (Australian citizen, resident or eligible New Zealand citizen),

* decision-makers must consider the circumstances under which the

* relationship was established and whether the Australian partner knew

* that the non-citizen was of character concern at the time of entering

* into or establishing the relationship;

(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;

(d) family composition of the non-citizen's family, both in Australia and overseas;

(e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h) any evidence of rehabilitation and any recent good conduct;

(i) whether the application is for a temporary visa or permanent visa;

(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.

OTHER INTERNATIONAL OBLIGATIONS

2.18 Where relevant, decision-makers are required to consider the international obligations contained in this section.

2.19 The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of their removal or deportation from Australia, the person would face a real risk of violation of his or her rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) of the ICCPR, or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol to the ICCPR).

2.20 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has an explicit prohibition against refoulement 'where there are substantial grounds for believing (the person) would be in danger of being subject to torture'.

2.21 The prohibition of refoulement under the CAT and ICCPR is absolute: there is no balancing of other factors if refusal or cancellation would amount to refoulement under the CAT or ICCPR.

2.22 In cases where issues of protection pursuant to the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process.

2.23 If Article 33(1) of the Refugees Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugees Convention. If Article 33(1) applies, then there will need to be consideration whether the non-citizen can claim the benefit of Article 33(1).

2.24 Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister."

The exercise of the discretion

30. The first of the three primary considerations referred to in par 2.3 of Direction No. 21 is the protection of the Australian community and its members. It is necessary to assess the risk to the Australian community and its members of granting a visa to the visa applicant. In this respect, I note that there is no suggestion on the evidence before me that, based on his record, the visa applicant is likely to pose any particular risk to those specifically mentioned in par 2.4, being "the more vulnerable members of the community", such as children and young people. The visa applicant's offences were not related to drugs and contained no element of violence.

31. The maximum penalty prescribed by the Penal Code of Fiji for the offences of which the visa applicant was convicted was seven years. The decision of the High Court of Fiji to sentence the visa applicant to imprisonment for four years reflects the view of the court that the offences are to be regarded as towards the high end of the scale of seriousness. Having been released after serving 16 months of his four-year prison term, the visa applicant must have been considered worthy of maximum, or close to maximum, remission for good behaviour while serving his sentence.

32. In assessing the seriousness and nature of the visa applicant's conduct, I note the list of examples of offences which are considered by the government to be very serious in par 2.6 of Direction No. 21. The offences of which the visa applicant was convicted would fall within subpar (l) as crimes of serious theft of a "white collar" nature. As is noted, such crimes are of concern because of the amounts of money involved and the disruption caused to individuals, business and government. The offences for which the visa applicant was convicted involved a substantial total amount of money. The review applicant told me that one Fijian dollar has a slightly greater value than one Australian dollar, so it is likely that the equivalent amount in Australian dollars is in excess of $100,000. When he committed the offences, the visa applicant was in a position of trust. He had the care and control of the funds deposited in the bank account on behalf of his sister-in-law, who was in a distant country. Pushpa Ben was an adult. Her husband was eventually able to assert her rights against the visa applicant, but she was vulnerable in the sense that distance hampered her in supervising the visa applicant's dealings with the funds. The visa applicant took advantage of this lack of supervision and thereby abused the trust reposed in him. The disruption to Pushpa Ben's life was substantial and remains so. She has been deprived of a large portion of her inheritance from her father because of the visa applicant's depredations and his present inability to refund the money owed.

33. In assessing the seriousness of the visa applicant's offences, it is legitimate to look at the list of offences in par 2.6 of Direction No. 21. Serious theft is by no means the most weighty of the offences there listed. The visa applicant's offences were not drug-related, had no element of sexual impropriety, violence or threat of violence, were not directed against children, did not involve destruction of property and were not part of any organised crime.

34. In terms of the considerations in par 2.7(a), the visa applicant's criminal record is limited to the seventeen offences, committed in a period of less than three years in the mid 1980's. Apart from the false answer in his visa application in 1998, there is no suggestion that the visa applicant has offended again since his release from prison in 1992.

35. Paragraph 2.7(b) of Direction No. 21 requires an assessment of the repugnance of the visa applicant's crimes. They are to be regarded as "especially repugnant to the whole community", because they involve fraud against a defenceless person, albeit that the visa applicant's sister-in-law was not a child, an elderly person, disabled or incapacitated. She was made defenceless by her geographical separation from Fiji.

36. The visa applicant endeavoured to rely on several mitigating factors in relation to the offence. Paragraph 2.8(a) of Direction No. 21 requires that they be taken into account. He said that he had repaid 36,000 Fijian dollars of the money belonging to Pushpa Ben. This issue was determined against him by the magistrate in Fiji, who found that the sum repaid was on account of interest and not in reduction of principal outstanding. It is not open to the visa applicant to canvass that point again. More importantly, the visa applicant relied on the proposition that he had at all times intended to repay the money. Again, this issue was determined against the visa applicant in Fiji and cannot be reopened. At best, it can be said that the visa applicant had an optimistic view of the future of his business, which led him to believe that a situation in which he was unable to repay if required to do so would never occur. It must have become apparent, however, that continued resort to Pushpa Ben's funds was necessary throughout the three year period of the offences and that the prospect of repayment was becoming progressively more remote as the total of the amounts appropriated for the business grew. Although not at the highest level of repugnance, the offences cannot be regarded as at the lowest end of the scale either.

37. It must also be said that the visa applicant has not repaid any of the money to Pushpa Ben since his apprehension, conviction and imprisonment. This is the result of the general disadvantage suffered by Fijian Indians in the wake of the coup. The resulting downturn in the visa applicant's business, coupled with his inability to conduct that business while in Fiji led to his bankruptcy. He does not now have the resources to repay. His gross income was assessed for tax purposes in Fiji for the year ended 31 December 1999 as 6,105.51 Fijian dollars. It is true that, in another visa application made in 1998, he indicated that he would be able to bring assets totalling $90,000 into Australia if granted a visa then. I accept the visa applicant's explanation that he would only have had such a sum if it had been provided by his children. Nonetheless, he indicated in his evidence that one reason why repayment to Pushpa Ben did not occur was that the relationship between them had broken down completely as a result of Pushpa Ben's husband taking the matter to the police. I say more about this issue later in these reasons for decision. The fact that no repayment has been made or is likely to be made of the money stolen must weigh significantly against the visa applicant.

38. Given the facts found by the court in Fiji, it is clear that, if the visa applicant had done in Australia what he did in Fiji, he would have been convicted of similar offences in Australia. The offences were not the result of political, religious or ethnic persecution. Nor is it possible to say that a lighter sentence would be incurred in Australia for a similar offence. The visa applicant has not been pardoned. The factors referred to in par 2.8(b), (c) and (d) of Direction No. 21 cannot weigh in the visa applicant's favour. Paragraph 2.9 of Direction No. 21 is not relevant to the present case.

39. There is a good deal of evidence in the present case concerned with the issue of the likelihood that the visa applicant may repeat his criminal conduct. The factors referred to in par 2.10(a) and (b) of Direction No. 21 are not relevant to the present case.

40. In relation to par 2.10(c), there is every reason to suppose that the sentence of imprisonment served by the visa applicant will have a strong effect in deterring him from the commission of future offences. He is plainly shaken by the experience, to the extent that he would be very anxious to avoid a repetition of it. He is an example of the effectiveness of individual deterrence. This is an important factor in considering rehabilitation.

41. The review applicant was able to call a considerable amount of evidence in relation to the character of the visa applicant. An old friend, Chagan Narangi Sidhi, described him as "a good, hard and honest working person". He said that the visa applicant has done a lot of social work in the Gujarati community in Fiji. Another old friend, Ratilal Pranjivan said that the visa applicant had contributed to an education society and had given in kind and in cash for the building of an institution in the community. He also described the visa applicant as "a very nice, very courteous person". Mr Pranjivan and another old friend, Suresh Chandra, expressed the view that the visa applicant would not be a danger to the Australian community. Yet another old friend, Hari Kisun Mistry, described the visa applicant as "naturally kind, cheerful and helpful". He said that the visa applicant was held in high esteem by many of his friends and other businessmen. A friend and neighbour, Jayanti Lal, described the visa applicant as "thoroughly rehabilitated and reformed man", and as "somewhat of a retiring personality", who "has worked very hard to gain back his dignity and honour in our community". Anil Patel, a younger friend, who "respected him as a fond father figure" described the visa applicant as "a well-respected, a pleasant community figure and a very well-known figure in our community in Fiji". Kantilal Dhoribhai Patel, who has known the visa applicant for fifty years, described him as "my best friend." He said the visa applicant is "a very diligent person and hardworking" as well as "a very honest man and a respected figure".

42. Babu Bhai Chawda, the General Manager of South Pacific Recordings Ltd, the business in which the visa applicant has been employed as a Senior Sales Assistant since 1 July 1995, provided a reference in which he said of the visa applicant:

"Raojibhai is an honest, dedicated worker, who is always punctual and most willing to put in extra hours whenever required.

A mature team player, Raojibhai Patel has developed excellent customer relation skills and can be relied upon to work without supervision."

43. Manoj Kumar, Area Manager West of the ANZ Bank in Fiji also provided a personal reference, in which he said of the visa applicant:

"I have found Mr Patel to be honest and reliable in all my dealings with him and have no hesitation in recommending him to any person or organisations looking at assisting Mr Patel in anyway [sic]."

44. On the basis of all this evidence, I accept that the conduct of the visa applicant that led to his convictions and sentence was an aberration, not a manifestation of a propensity to steal other people's money. Despite the offences, and the false answer on his visa application in 1998 (which was not explored in detail in the evidence), I accept that the visa applicant is an honest person. He is without vices and has made a positive contribution to the Gujarati community in Fiji. Despite his age, he leads an industrious life. Those who deal with him are prepared to trust him.

45. One matter did concern me on the issue of the likelihood of any further offence. In his own evidence, the visa applicant appeared to be placing the blame for his convictions and sentence on Pushpa Ben and her husband, rather than on himself. I was concerned that he was displaying a lack of remorse, which might indicate that he would be likely to commit further offences. Many of his character witnesses seemed to attribute blame in the same way. As the evidence unfolded, however, I came to see that inherent in it was a distinction between remorse in respect of the use of Pushpa Ben's money and the process leading to conviction and sentence. In his evidence, the review applicant confirmed my suspicion that the visa applicant and members of the Gujarati community in Fiji were critical of Pushpa Ben and her husband for taking the dispute over the visa applicant's use of the money to the police. There was a strong view that the use of the money gave rise to a dispute that was capable of resolution, and ought to have been resolved, within the visa applicant's family or, at the farthest, within the Gujarati community in Fiji. It is common for minority communities to wish to resolve their own disputes without resort to outside agencies, and to resent both the intrusion of outside agencies and those who communicate the disputes to those agencies. I am satisfied that what I took to be the attribution of blame to Pushpa Ben and her husband was a reflection of this resentment and criticism, and not an indication of lack of remorse on the part of the visa applicant. I am satisfied that he does feel remorseful about having used his sister-in-law's funds and being unable to reimburse her. So much was said expressly by Jayanti Lal.

46. Paragraph 2.10(c) of Direction No. 21 draws attention to the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make. Because the extent of the visa applicant's rehabilitation already is so great, there is neither a likelihood of, nor room for, significant further rehabilitation. The probability of further offence by the visa applicant is negligible. At the same time, given his age, the visa applicant is unlikely to make to the Australian community the sort of contribution that he has made to the Gujarati community in Fiji. If he comes to live in Australia, he is likely to live a quiet life with his son the review applicant, his daughter-in-law and his grandchildren.

47. The element of general deterrence, in the context of the protection of the Australian community, appears to be directed to cases unlike the present. It appears to be directed to cases involving persons who have committed offences in Australia. In the consideration of the cancellation of existing visas held by such offenders, or the possible grant of new visas to them, the decision-maker must have in mind the need to bring home to other non-citizens already in Australia the consequences to them of conduct that would cause them not to pass the character test. In this way, non-citizens in Australia will be dissuaded from such conduct if they wish to remain in Australia, either by retaining their existing visas or by applying successfully for subsequent visas. The notion that persons in Fiji, or any other country but Australia, could be deterred from committing offences by the consideration that they would thereby become ineligible for visas to enter Australia is altogether too remote. This element therefore has no application in the present case.

48. In summary, therefore, in relation to the primary consideration of the protection of the Australian community and its members, I find that, if the visa applicant were to be granted a visa, despite the seriousness of the offences committed by him, the risk of any harm to the Australian community or any member of it is negligible.

49. The second primary consideration referred to in Direction No. 21 is the expectations of the Australian community. So far as those expectations are that non-citizens will obey Australian laws while in Australia, as suggested in par 2.12, they will be satisfied in the present case. The counterpart of a negligible risk of harm to the Australian community is the expectation that the visa applicant will obey Australian laws while in Australia. There is no significant risk that he will act in breach of the trust reposed in him by the grant of a visa. Although the offences committed by the visa applicant were serious in their nature and effect, in the circumstances of this case, I would not refuse to grant a visa solely on that ground. The nature of the offences is not such that the Australian community would expect that a person of the visa applicant's character would not be granted a visa.

50. The third primary consideration referred to in Direction No. 21 is the best interests of a child or children, in cases involving a parental or other close relationship. As par 2.13 indicates, as a primary consideration, this element is concerned with children under the age of eighteen. It is therefore marginal to the present case. There is no parental relationship between the visa applicant and any child under the age of eighteen. There is, however, an "other close relationship" between the visa applicant and the review applicant's children. There is no reason why a relationship between a grandparent and grandchildren should not be regarded as a close one. The review applicant stressed the benefit that would flow to his children from being able to live with their grandfather as they grow up. The review applicant did not develop the evidence about this aspect to any great extent. There is, for instance, no evidence of the relationship, if any, between the children and their maternal grandparents. Nor can it be said that there is, in the words of par 2.16(b) a "proven history of the relationship [between the children and the visa applicant] based on past conduct". The children are very young and have not yet had an opportunity of developing a close relationship with their grandfather. All that can be considered is "the hypothetical prospect for developing a better/stronger relationship in future". The children are children of Australian citizens, born here, so have Australian citizenship. It cannot be said that continued separation from the visa applicant would have a significant negative effect on the children. All that can be said is that prolonged contact with their grandfather may have a significant positive effect.

51. Of the primary considerations referred to in Direction No. 21, therefore, the first two (protection of the Australian community and its members and the expectations of the Australian community) do not weigh heavily against the visa applicant. The third, the best interests of children, must be said to weigh slightly in his favour. The outcome of the balancing process in the exercise of the discretion under s 501(1) of the Migration Act might therefore depend upon other considerations that are not primary, and must therefore be given less individual weight than that given to the primary considerations.

52. The most important of the other considerations are those relating to the visa applicant's family, made relevant by par 2.17(a), (c) and (d) of Direction No. 21. I have already outlined the structure of the visa applicant's immediate family. The son with whom he shares an apartment in Lautoka commutes a very considerable distance to his work and generally spends weekends away from the apartment. He and the visa applicant do not have a strong bond of affection between them and the evidence is that the son does not care for the visa applicant in the way that the visa applicant and the review applicant consider to be appropriate. The visa applicant's daughter who lives in the United States visits him on occasions. The visa applicant has siblings in various countries. Undoubtedly, his strongest ties are with Australia, where his two sons who are Australian citizens live. The bond between the visa applicant and the review applicant appears to be particularly strong. The visa applicant desires to live with the review applicant and his family. For him to do so would relieve the hardship falling upon the review applicant by his needing to visit the visa applicant in Fiji as he has done in the past on several occasions. Visits from the son in Sydney would be facilitated. The difference between the daughter who lives in the United States visiting the visa applicant in Fiji and visiting the visa applicant in Melbourne would not be great. Hardship would fall on the son who lives in Fiji if he wished to visit his father. Overall, the visa applicant's family circumstances weigh in favour of him being permitted to live in Australia.

53. Paragraph 2.17(b) is not relevant to this case. As to the matters in par 2.17(e), (f) and (g), there is little to be said. The visa applicant was made bankrupt while he was in prison. This had the effect of discharging any legal liability to repay his outstanding debt to Pushpa Ben. There is therefore no outstanding legal matter or on-going liability. To the extent to which there is a moral obligation to repay, it is unlikely that the visa applicant will have the resources to discharge that obligation whether he remains in Fiji or comes to Australia. As I have said, his present income is very small. The review applicant and the visa applicant's daughter provide him with amounts of money from time to time, to enable him to live. The review applicant intends to support the visa applicant if he should come to live in Australia. If that should occur, there will be no effect either way on any outstanding obligation.

54. I have referred in some detail to evidence of rehabilitation and recent good conduct on the part of the visa applicant. This is a factor which must weigh in his favour.

55. The visa applicant seeks a permanent visa. Paragraph 2.17(i) suggests that consideration be given to whether the application is for a temporary visa or a permanent visa. If there is doubt as to whether a non-citizen will behave well while living in Australia, it might be thought that a temporary visa provides an easier route to the removal of the non-citizen, in the event of future bad behaviour, than does a permanent visa. In the case of a permanent visa, positive steps to cancel, or to order deportation, would be necessary. On this basis, some weight must be given to the fact that the visa applicant has applied for a permanent visa.

56. In my view, there are significant compassionate circumstances surrounding the desire of the visa applicant to live in Australia for the rest of his life. He wishes to be cared for in his old age by his son the review applicant, who is determined to care for him if possible. He wishes to participate in the family environment that will be offered by the review applicant's home, rather than the difficult circumstances in which he finds himself at present. He wishes no longer to be dependent on the charity of friends and neighbours who supply him with meals. This factor must be weighed in the visa applicant's favour.

57. There is no evidence that the visa applicant has engaged in any conduct following any formal advice by an officer of the Department of Immigration and Multicultural Affairs, as contemplated by par 2.17(k).

58. It does not appear that any of the international obligations referred to in pars 2.18 to 2.24 of Direction No. 21 can be relevant to the present case.

59. The balance of the "other considerations" (ie the considerations other than the primary considerations) must be held to lie in favour of the visa applicant. His family situation, his rehabilitation and good conduct and his compassionate circumstances outweigh the fact that he is seeking a permanent visa.

60. It is then necessary to weigh these other considerations with the primary considerations. In my view, the result is that, notwithstanding that he does not pass the character test, the visa applicant should be considered for the grant of the visa that he seeks. The grant of such a visa would carry with it a negligible risk of harm to the Australian community or the members of the Australian community. It would not offend the expectations of the Australian community. It would tend slightly to favour the best interests of the review applicant's children. The balance of the other considerations is therefore sufficient, in my view, to override the seriousness of the offences of which the visa applicant has been convicted.

61. For these reasons, in all the circumstances, the Tribunal should exercise its power pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) by setting aside the decision of the delegate of the Minister made on 23 August 2000 and remitting the matter for reconsideration. Such reconsideration must be in accordance with the direction of the Tribunal that the delegate of the Minister not refuse to grant a visa to the visa applicant on the ground that the visa applicant does not satisfy the delegate that the visa applicant passes the character test.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of the Honourable Justice Gray.

Signed:

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

Associate

Date of Hearing: 25, 26 June 2001 and 27 August 2001

Date of Decision: 11 February 2002

Counsel for the Applicant: The review applicant appeared in person

Counsel for the Respondent: Mr Richard Knowles

Solicitors for the Respondent: Clayton Utz