Vasia and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 86 (15 February 2002)

Last Updated: 25 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/138

GENERAL ADMINISTRATIVE DIVISION )

Re Tapeka Vasia

Applicant

And Minister for Immigration, Multicultural & Indigenous Affairs

Respondent

DECISION

Tribunal R P Handley, Deputy President

Date 15 February 2002

Place Sydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Manueli Vasia passes the character test under s 501(1) of the Migration Act 1958.

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

R P Handley

Deputy President

CATCHWORDS

IMMIGRATION- Spouse visa - character test - past and present general conduct - where Visa Applicant's uncle made false and misleading statements in an earlier application for permanent residence - significance of Visa Applicant's cultural background and the respect he owed to his uncle - where Visa Applicant failed to rectify these statements - character test passed

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

Migration Regulations 1994: Schedule 2, clause 309.225; 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

15 February 2002 R P Handley

1. This is an application by Tapeka Vasia ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") made on 13 December 2000 to refuse the grant of a subclass 309 (Spouse Provisional) visa to the Applicant's spouse, Manueli Vasia ("the Visa Applicant"). At the hearing, the Applicant represented herself 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 by phone by the Visa Applicant and Dawn Papera, and in person by the Applicant.

BACKGROUND

2. The Applicant, Ms Vasia, was born in the Cook Islands on 9 November 1963 and is aged 37. She arrived in Australia in 1985 and became an Australian citizen on 6 November 1998. She works as an office manager in Sydney. The Visa Applicant, Mr Vasia, was born in Fiji on 23 April 1976 and is aged 25. He first entered Australia on a visitor visa on 15 April 1996 and was later granted a multiple entry visa valid to 16 January 1997. Mr Vasia returned Fiji on 14 December 1996 and re-entered Australia on 29 December 1996. He was granted extensions of his visa to 14 April 1997 and then to 3 May 1997. Mr Vasia said he did not know anything about the further visitor visas. His uncle obtained these for him. Mr Vasia said, at this time, he was in Robinvale, Victoria, where he had met Ms Vasia in about January/February 1997.

3. On 2 May 1997, an application for permanent residence was lodged in Mr Vasia's name on the basis that he was living in a de facto relationship with Ms Tenia Noo-Enua. Mr Vasia said he had never met Ms Noo-Enua, nor spoken to her. On 28 May 1997, the Departmental Case Officer handling the application, Ms R Baker, received a telephone call from a person identifying himself as Mr Vasia requesting the return of the application for permanent residence, so that he could change the name of his fiance. He said he had found out that his fiance was having a relationship with another man and the informant said that he had therefore ended the relationship last week. Instead, he intended "to take" her cousin, Tateka (sic) Daniel, with whom he had been living for two months. Ms Baker advised the informant that he should put this in writing and that the current application for permanent residence would not be able to be approved. If Mr Vasia wished to make an application for permanent residence on the grounds of his relationship with Ms Daniel, he would need to make a fresh application with a $1,500.00 fee. On 1 June 1998, Mr Vasia's application for permanent residence was refused on the basis that he was no longer living in a de facto relationship with Ms Noo-Enua.

4. Mr Vasia claims not to have received notification of this decision and on 11 June 1998, he completed a Form 424 FOI request seeking access to his file documents. Receipt of this FOI request was acknowledged by letter dated 12 June 1998. On 8 July 1998, a departmental officer wrote to Mr Vasia at his former address in Robinvale, Victoria, enclosing a copy of the requested file documents. On 30 October 1998, Mr and Mrs Vasia wrote to the Minister seeking Ministerial Intervention. The Minister replied by letter dated 27 November 1998 advising that he had no power to intervene because no review of the decision dated 1 June 1998 had been lodged within the required period. Mr Vasia was advised to contact the Department's Compliance Manager at Bankstown to discuss his immigration status. Mr and Mrs Vasia did so on 7 December 1998 and, on 14 December 1998, Mr Vasia was granted a bridging visa.

5. On 9 January 1999, Mr and Ms Vasia were married in a registry office. Afterwards, there was a party at his uncle's house and was attended by members of Mr Vasia's family including Uncle Koto's daughters, although Uncle Koto, who was in Fiji at the time, did not come. Mr Vasia said he felt a bit ashamed that no close older relatives were present. Mr Vasia was granted a further bridging visa until 1 February 1999. On 30 January 1999, Mr Vasia flew to Fiji.

6. On 7 February 2000, Mr Vasia lodged an application for a spouse visa sponsored by his wife. On 4 May 2000, Mr Vasia was interviewed by a Senior Migration Officer, David Whitehead, at the Australian High Commission in Suva. When Mr Whitehead asked Mr Vasia about his making an application for a visa, Mr Vasia said he thought Mr Whitehead was talking about his most recent application. He told Mr Whitehead that he had nothing to do with making the first application which was made by Uncle Koto, who told him to marry Ms Noo-Enua. Mr Vasia said he relied entirely on his Uncle because neither he, nor Ms Vasia knew anything about immigration at that time. On 13 December 2000, Mr Whitehead, acting as a delegate of the Respondent, refused Mr Vasia's application pursuant to s 501(6)(c) of the Migration Act 1958 ("the Act"), on the ground of his past and present general conduct, and declined to exercise the discretion under s 501(1) not to refuse the grant of a visa. On 31 January 2001, Ms Vasia lodged an application for a review of this decision by the Tribunal.

RELEVANT LAW

7. 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;...

8. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:

Either

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

(d) 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.

9. 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".

10. 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.

11. The issue for the Tribunal to determine in this case is, therefore, whether Mr Vasia 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 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

ORAL EVIDENCE

Manueli Vasia (the Visa Applicant) (A2)

12. Mr Vasia acknowledged that he had first entered Australia in April 1996 on a visitor visa valid for three months. He was later granted a further visa allowing multiple entries. He departed Australia for Fiji on 14 December 1996 returning to Australia on 29 December 1996. Early in 1997, he was granted a further visa valid until April 1997, which was extended until 3 May 1997.

13. Mr Vasia said when he arrived in Sydney, he stayed with and was supported by his Uncle Koto. At the time, he was aged 21. Uncle Koto retained his passport while Mr Vasia was in Australia and obtained the further visas for him. After spending the first three months in Sydney, Mr Vasia spent about three months in Victoria, at Robinvale, before returning to Sydney for about a week before he flew to Fiji on 14 December 1996. He was working in Victoria packing fruit near the Victorian/New South Wales border, although he was aware that his visa did not permit him to work.

14. When Mr Vasia returned from Fiji on 29 December 1996, he went straight back to Victoria because his Uncle Koto was in Fiji at the time. He first met Ms Vasia in Robinvale in about January/February 1997 and subsequently told his Uncle Koto about her about a month later. He continued to speak to his uncle regularly on the phone and (probably about late April 1997) his uncle said that he would do something about Mr Vasia's visa. Mr Vasia never saw the application for permanent residence submitted by his uncle on Mr Vasia's behalf, nor did he discuss the application with his uncle before it was lodged, and he did not sign it. He was not aware until he spoke to his uncle on the phone after the application had been lodged that the application was on the basis of an alleged de facto relationship between Mr Vasia and Ms Tenia Noo-Enua. Mr Vasia said when his uncle told him this, Mr Vasia was "pretty upset but scared to say anything to his uncle about this" but he could not do anything. He did, however, mention his relationship with Ms Vasia and his uncle said he would phone the Department.

15. Mr Vasia said he was raised in Fiji by his Uncle Manu, the Chief of his family, after his mother died. When Mr Vasia came to Australia in 1996, his Uncle Manu passed the responsibility for his welfare to his cousin in Sydney, Uncle Koto. According to Fijian culture, Mr Vasia was obliged to act in accordance with his uncle's wishes and his uncle assumed responsibility with regard to his migration status.

16. Mr Vasia noted that Uncle Koto had included the people who had raised him in Fiji - his uncle and aunty - as his parents in the application for permanent residence, although they were not his natural parents. After Mr Vasia and Uncle Koto spoke in early May, Mr Vasia said it was Uncle Koto who phoned Ms Baker to say that Mr Vasia's relationship with Ms Noo-Enua was over. Mr Vasia said when he next spoke to his Uncle, his Uncle told him that he had phoned the Department and changed the name of the person, with whom Mr Vasia was allegedly in a de facto relationship to Ms Tapeka Daniel. For the first five or six months of 1997, Mr Vasia remained with Ms Vasia in Robinvale. They then travelled by car straight to Queensland without stopping in Sydney to see Uncle Koto. Mr Vasia said, however, that he did continue to speak to Uncle Koto regularly on the phone.

17. While Mr Vasia and Ms Vasia were in Queensland, with Ms Vasia's help, Mr Vasia wrote a letter to the Department "about the lies Uncle Koto did". The letter also explained about Mr Vasia's relationship with Ms Vasia and, in particular, stated that the relationship with Ms Noo-Enua was a lie. Mr Vasia sent this letter to Uncle Koto for forwarding to the Department. However, when Mr and Ms Vasia returned from Queensland later in 1997, they discovered that Uncle Koto had not forwarded the letter to the Department. At this time, Uncle Koto was in Fiji and Mr Vasia decided not to do anything about the letter because he was scared that something might happen to his uncle if he revealed the part played by his uncle.

18. Mr Vasia said when he made the FOI application, he was not aware that his application for permanent residence had been determined. He said that although the FOI application contained his then current address in Cabramatta, the documents were sent to his old address in Victoria. It was therefore some time before he obtained the documents when he travelled to Robinvale. Mr Vasia, with Ms Vasia's assistance, then wrote a letter to Mr Ruddock explaining the situation. However, following Mr Ruddock's refusal to intervene, Mr Vasia was told that the only thing he could do was to return to Fiji and lodge a fresh application.

19. Mr and Ms Vasia returned from Queensland in December 1997. His Uncle Koto had talked to a solicitor at Kessel & Associates in Parramatta and told Mr Vasia to go and see them. In about January/February 1998, Mr Vasia went with Ms Vasia to Kessel & Associates to see a female solicitor to whom they had been referred. However, she was overseas at the time. Mr Vasia could not recall the name of the solicitor, but he was informed that she had moved permanently overseas. Mr Vasia said that he did not tell his uncle about this. He and Ms Vasia then went to see another solicitor, Mr Labba, who gave him an FOI form to complete and lodge. (Mr Vasia later said, in re -examination, that it was in fact Ms Vasia who phoned the Department to enquire about getting access to his file and who was advised by a departmental officer to make an application under FOI). Mr and Mrs Vasia met Mr Labba in early June 1998. However, soon after, Mr Labba also left Australia to go overseas and Mr Labba referred them to another solicitor who told them Mr Vasia's case was hopeless unless they were prepared to pay at least $2,000. Mr Vasia said he knew nothing about immigration procedure, but thought his application for permanent residence was unlikely to be decided in his favour because he had not lodged the extra evidence which his Uncle had asked him to lodge. He said he did not do this because the application for permanent residence was a lie.

20. Mr Vasia emphasised that he loved his wife and did not marry her in order to obtain permanent residence. He said that during the interview with the Senior Migration Officer, Mr Whitehead, he was very nervous. Mr Whitehead kept saying "How can I trust you?". Mr Vasia said the people at the Australian High Commission were not courteous towards Fijian people. He acknowledged that he had told Mr Whitehead that he had not overstayed, but this was because he was trying to be nice. He also agreed with Mr Whitehead that "we rang up" the Department even though this was a lie. He said he thought this might help his application. With Mr Whitehead, he was confused and admitted that he had lied to him.

21. Mr Vasia said he did not recall receiving a letter from Ms Baker acknowledging the application for permanent residence. With regard to his working at a biscuit factory in 1998, Mr Vasia said he had been able to obtain a tax file number because one of his uncle's friends had fixed this for him. Mr Vasia emphasised that the only application for migration which he completed was the second one which he signed in 2000. Mr Vasia said he is a hard-working family man who comes from a house where they are taught to be respectful of other people. In Fijian culture, the Chief is a respected person and whatever he says goes. Thus, when his Uncle Manu, the Chief, passed responsibility to his Uncle Koto to look after Mr Vasia in Australia, Mr Vasia could not question Uncle Koto's conduct.

22. Mr Vasia said he has now been back in Fiji for almost three years. Although his wife visited him twice in 1999, he did not lodge his application for migration until early 2000, because he did not have enough money for the application fee. He has not got a permanent job in Fiji. His present job, which he has had for about five months, is as a casual worker. He is now on a break from that employment because the Department has run out of money. Mr Vasia said he misses his wife a lot, although they speak to each other on the phone and exchange letters.

23. Mr Vasia was asked in cross-examination why he had not asked his Uncle Koto to give evidence. He said he had not talked to him since leaving Australia because he is too scared. In any event, he tends to talk to Uncle Koto's wife, Aunty Mary. Also, Mr Vasia is concerned that Uncle Koto would get into trouble and Mr Vasia does not want this to happen because Uncle Koto has a family to support. Uncle Koto no longer has any responsibility for Mr Vasia since he returned to Fiji and, any way, the responsibility for a person ends when the person is married.

24. Mr Vasia was asked why he did not notify the Department after he became aware of the first false application. Mr Vasia said he was aware that he would have to make a fresh application and was saving up for the application fee.

Tapeka Vasia (the Applicant)

25. Ms Vasia said she first met her husband in late 1996 at a friend's place. Early in 1997, she went to Robinvale to see some family friends who also were friends of her husband. Her husband was also there in Robinvale at that time and they became good friends. She said her husband is well liked and respected because he is a good listener and provides wise advice. Ms Vasia said she decided to stay on in Robinvale with Mr Vasia and then, one day, Mr Vasia told her that his Uncle had filed a permanent residence application for him in Sydney alleging that Mr Vasia was in a de facto relationship with Ms Noo-Enua. Her husband said he did not even know her but he did not want to get his uncle's family into trouble. Mr Vasia said Uncle Koto tried to do things for Mr Vasia, including offering to put down the deposit for the purchase of a house. Ms Vasia said this is all part of the tradition of Fijian culture.

26. From Robinvale, Ms Vasia and her husband travelled to Queensland from where her husband kept in touch with his uncle by phone. While they were in Queensland, Ms Vasia rang the Department and gave the application number which appeared on Ms Baker's letter dated 8 May 1997 (A7, attachment). Ms Vasia thought they must have obtained this letter from Uncle Koto because, although the letter was posted to Mr Vasia's address in Robinvale, he would have passed the letter to his uncle as he did all correspondence relating to immigration matters.

27. Uncle Koto told Mr Vasia that when he phoned the Department on 28 May 1997, he told them that he would file a fresh application with details of Ms Tapeka Daniel as the person with whom Mr Vasia was in a de facto relationship, as soon as he had received a response to the first application. However, Mr and Ms Vasia decided, while they were in Queensland, that they should write a letter to the Department setting out a full account of what had happened. They therefore wrote a letter which they sent to Uncle Koto in Sydney asking him to forward it to the Department. When they returned to Sydney in December 1997, because they had been asked to look after Uncle Koto's house while he was away, they discovered from one of his children that he had not sent the letter.

28. Ms Vasia said she rang the Department again to find out what was happening about the application and she was advised that her husband should complete an FOI application. He did so, but the papers were sent to their old address and it was some time before her husband went to Robinvale and was able to collect the papers from a cousin. Mr Vasia said when they went to see the solicitor, Mr Labba, who they had heard of through a friend, he looked at the file papers and advised them that they were out of time for seeking a review of the Department's decision. He said the only thing they could do was to write a letter to Mr Ruddock. At the time, Mr Labba was about to go overseas, so he referred them to an associate of his, another solicitor, who was an American. Ms Vasia said he just kept talking about the situation in America and said there was nothing they could do unless they were prepared to pay him at least $2,000. Ms Vasia subsequently assisted her husband in writing a letter to Mr Ruddock.

29. Ms Vasia said her husband has not had as much education as she has. However, he is from a chiefly family, and is very respectful in accordance with cultural rules about contact with others. Ms Vasia said her husband is scared of Uncle Koto's wife, through whom he must go to contact Uncle Koto, because she has got people deported. Ms Vasia said the reason why they have not called Uncle Koto to give evidence is because she and her husband are concerned for his welfare and that of his family. She acknowledged that her husband had made a mistake by listening to his uncle, but this was as a result of his cultural background.

30. Ms Vasia said after she and her husband returned to Sydney in December 1997, they remained in Sydney for about a year before getting married. When her husband left Australia, his departure at the airport was not supervised by any immigration officers.

31. Ms Vasia said she has been to Fiji on a number of occasions since her husband returned there. On the first occasion, a person tried to steal her purse. On the second occasion, she was followed by two men until her husband appeared and spoke to them. Then, in May 2001, her husband assisted the pastor of their church in Sydney, who was visiting Fiji, by driving a minibus. She and her husband had to sleep in the bus in order to protect it from a gang of young men and, ultimately, had to drive it into the centre of Suva to get away from them. Finally, on her last visit to Fiji, while they were in church, a man came into the church wielding a cane knife. He tried to strike at the pastor but a deacon of the church stood in his way and the man struck him with the knife instead. At this stage, the ladies and children in the church had been sent to the back room where they were being guarded by her husband, but she saw the injured deacon dripping with blood and her husband subsequently took him to the hospital where he died three days later. They attended his funeral. Although the police had been called, they did not arrest the assailant that night. Ms Vasia later learned that they had been drinking Kava with the man before the assault.

32. Ms Vasia said she did not want to live in Fiji. She has found it very hard to adjust when she has visited Fiji because the situation is quite different to that which she is used to in Australia, including all the different cultural traditions. There is also a lot of killing, public hygiene is poor, and homes are over-crowded because people are poor. Where her husband lives in a flat in his uncle's house, there are many members of his family living there. It is also difficult to obtain employment. In September 2001, when she last went to Fiji, her husband had a casual job obtained as a result of his Uncle Manu's contacts. However, her husband is currently not working because no money has been allocated by the Government for this work.

33. Ms Vasia said that if her husband's application is rejected, she might go to Fiji to be with her husband and to make a fresh visa application. However, she does not want to stay for more than a short time and might otherwise go to New Zealand or the Cook Islands. However, she does not want to leave Australia because this is her home, where her family are and where she has a job. She is an only child and her mother is sickly and suffers from arthritis and diabetes. Although her mother is not so sick so as to prevent her travelling, Ms Vasia does not want to be away longer term. She loves her mother and provides a significant amount of support and assistance for her, including cleaning her house from top to bottom on a regular basis.

34. In cross-examination, Ms Vasia was asked about Ms Baker's letter dated 8 May 1997 (A7, attachment). Ms Vasia said although this letter was addressed to Robinvale, her husband would probably have passed the letter to his Uncle Koto. Ms Vasia knows that Uncle Koto gave the letter back to Mr Vasia. With regard to the last line of the letter which states "You are asked to refrain from making general enquiries as to the status of your application before you hear from the Department.", Ms Vasia said she and her husband understood by this statement that they should wait to hear from the Department about the outcome of the application. Mr Vasia said that while she and her husband were in Queensland, she rang the Department in Queensland, not Sydney, to enquire about providing a change of address. She was advised that they should write a letter to the Department setting out the new address. They therefore wrote a letter to the Department explaining what had happened and providing the new address, and they sent this letter to Uncle Koto in Sydney asking him to forward this to the Department. However, when Ms Vasia and her husband returned to Sydney in December 1997, they found the letter had not been sent. One of Uncle Koto's children told them that he had not sent the letter and that it was still in his room. Because Uncle Koto was in Fiji at that time, they did not like to try and locate the letter in his absence and they never heard anything further about it.

35. Ms Vasia said that in the early part of 1997, Mr Vasia trusted his uncle to take care of everything with respect to his immigration status. Because she also knew nothing about immigration at that time, she accepted this.

Dawn Papera

36. Ms Papera is the wife of the Pastor of the Apostolic Oneness Church in Belmore which Ms Vasia attends. Ms Papera said she met Mr Vasia in about April/May 1998 when he first came to their church. Ms Vasia was already a member of the church. Ms Papera said she found Mr Vasia a very pleasant man, shy and humble, very respectful, but, at first hard to talk to. During the course of 1998, as he came to church more, he started to open up, and she found him to be a happy man who loved children. In December 1998, Mr Vasia was baptized into the church and, early in 1999, he and Ms Vasia were married.

37. Ms Papera said she met Mr Vasia again in May 1999 in Fiji when she and her husband were there for a church conference. Mr Vasia helped them with translating Fijian into English and with travelling around the local area. Later in 1999, she and her husband moved into a unit next door to Ms Vasia in Belmore. As a result, when Mr Vasia phones his wife, Ms Papera often talks with him. Ms Papera said Mr Vasia and his wife really love one another. Ms Papera has got to know them well over the past couple of years. She is aware that Ms Vasia has found it unsafe on the streets of Fiji, especially if you are a person who looks like a visitor. Ms Papera said young women tend to be followed in the streets. She herself was harassed in Fiji, and it was because of this problem, when Ms Vasia was in Fiji last, that she was escorted wherever she went.

SUBMISSIONS

The Respondent

38. Mr Allatt, for the Respondent, submitted that Mr Vasia fails to pass the character test as a result of his past and present general conduct. Mr Allatt referred to the alleged conduct by Uncle Koto and submitted that the lodging of the application for permanent residence was intended to allow Mr Vasia to stay in Australia. Mr Vasia's evidence is that he knew nothing of this application at the time it was lodged. However, he later became aware of it and, subsequently, a man phoned the Department to say that the name of the alleged de facto partner stated in the application was to be changed and gave a spurious excuse for doing so. Mr Vasia clearly knew that a false application had been lodged in his name but did not do anything to rectify the situation. He merely says that it was not a matter for him to deal with. Mr Allatt doubted Mr Vasia's and Ms Vasia's evidence with regard to their writing a letter whilst they were in Queensland which they say they sent to Uncle Koto for forwarding to the Department. Mr Allatt questioned why this letter was not sent directly to the Department.

39. Mr Allatt submitted that the Tribunal should make a number of findings of fact. First, as to whether Mr Vasia was involved in making the original false application, if he was not involved, does his failure to do anything about the false application constitute the maintaining of a false application? Mr Allatt said the Respondent concedes that the signatures on the 1997 application for permanent residence and the February 2000 application are different. Secondly, if Mr Vasia was involved in making the false application, does that involvement go to a finding that Mr Vasia is not of good character?

40. In making a finding as to Mr Vasia's character, Mr Allatt submitted that the Tribunal should also consider other matters, including Mr Vasia's alleged ignorance, the cultural restraints to which he was subject, and the extent to which he was reliant on his Uncle Koto. Having considered these matters, the Respondent submits that the Tribunal should find that Mr Vasia's lack of action indicates that he is a person who is not of good character. The Respondent contends, at the very least, that Mr Vasia was willing to take the benefit of the false application, although concedes that the chances of that application succeeding were "zero". However, given Mr Vasia's lack of knowledge of the immigration process, he may not have realised this.

41. Mr Allatt said that if the Tribunal found that Mr Vasia was not of good character, then it must consider the exercise of the discretion in s 501(1) of the Act and in doing so have regard to the guidance provided by Direction No. 21. Of the primary considerations to which decision-makers are directed, the Tribunal should have regard to the Protection of the Australian Community, and the Expectations of the Australian Community. There are no children whose best interests need to be considered. With regard to the Protection of the Australian Community, Mr Allatt submitted that a serious offence had been committed in relation to the lodging of the false application for permanent residence, involving a breach of Australia's migration law. The Tribunal should consider whether such conduct might be repeated and the deterrent effect of a refusal of Mr Vasia's visa application.

42. Of the Other Considerations to which decision-makers are directed by paragraph 2.17, Mr Allatt said the Respondent concedes that Mr and Mrs Vasia's marriage is a genuine one. However, Ms Vasia must have known at the time of the wedding of the risk of her husband not being granted a spouse visa. Mr Allatt noted Ms Vasia was prepared to go to Fiji for a short time to be with her husband. With regard to hardship to Ms Vasia's family, Mr Allatt contended that although Ms Vasia's presence in Australia to provide support for her mother is preferable, it is not essential.

43. Mr Allatt said the Tribunal should make findings as to any rehabilitation and good conduct by Mr Vasia, including reference to his church affiliations. Mr Allatt noted that Mr Vasia now concedes that during the course of his interview with Mr Whitehead at the Australian High Commission in Suva on 4 May 2000, he told some untruths, although Mr Vasia contends that he was nervous at the time and trying to be nice. He did, however, admit in cross-examination that he had given some answers in order to favour his application.

The Applicant

44. Ms Vasia said her husband tends to agree with things that are put to him. English is his second language, his main language spoken with his family being Fijian, and he easily gets confused. She said her husband speaks English with her, but having been separated from her for nearly three years, his English has had less use.

45. Ms Vasia pointed to her husband's lack of knowledge or understanding of Australia's migration law and said that it was his Uncle Koto who made the visitor visa and permanent resident visa applications on his behalf. Mr Vasia made the mistake of relying totally on his uncle. Ms Vasia said her husband is a humble man who, in accordance with Fijian culture, respects his elders. Ms Vasia drew attention to information on the Fijian culture which she had provided to the Tribunal (A1, attachment).

46. Ms Vasia said that while she might be able to travel overseas on a short term basis, her mother depends on her, in particular because her mother is sickly and does not have a partner. Ms Vasia said if she was living overseas, she would not be able to afford to return to Australia to see her mother on a regular basis. Ms Vasia said she does not want to go to Fiji for other than a short visit. She drew attention to the unstable position in Fiji and the difficulty of finding jobs there. She said she has a home and a job in Australia and her family is here. She is an Australian citizen and she believes she has the right to raise a family in Australia.

FINDINGS

47. In making the findings that follow, the Tribunal relies on the oral evidence given by Mr Vasia, Ms Vasia and Ms Papera during the course of the hearing. The Tribunal notes that it was impressed by Ms Vasia as an intelligent, articulate and truthful witness who clearly feels frustrated in her attempts to set the record straight and persuade the Department of the genuiness of her relationship with her husband, of her commitment to him, and her need for them to be reunited permanently. The Tribunal's impression of Mr Vasia is of a gentle man with a limited education who is easily confused by anything other than straight-forward questioning. The Tribunal notes that English is his second language and that he has a tendency to agree with questions that are put to him, this was apparent during his giving evidence when his wife regularly admonished him for doing so. The Tribunal's assessment is that Mr Vasia was truthful in giving evidence, although at times he became confused. In accordance with the Fijian culture, which is obviously a part of his background and up-bringing, he is very respectful in his dealings with others.

48. The Tribunal finds that Mr Vasia neither completed nor signed the application for permanent residence lodged on 2 May 1997 and had no knowledge of this application until informed of it by his Uncle Koto after lodgement. The Tribunal accepts Mr Vasia's evidence that he did not know and had never met Ms Noo-Enua and that reference to her in the application was an invention of his Uuncle's. Up until that time, Mr Vasia had relied entirely on his Uncle Koto to take the necessary steps to obtain an appropriate visa enabling Mr Vasia to remain in Australia. The Tribunal notes that Mr Vasia was aged 20 when he first arrived in Australia and was aged 21 at the time the application for permanent residence was lodged on 2 May 1997. The Tribunal accepts that Uncle Koto had undertaken responsibility for Mr Vasia's welfare in Australia at the request of Mr Vasia's Uncle Manu, by whom he was brought up in Fiji and who was the Chief of his family. That Uncle Koto should undertake this responsibility, is part of the tradition of such Fijian families. The Tribunal accepts that when Uncle Koto told Mr Vasia of the application for permanent residence and that he had based the application on an alleged de facto relationship with Ms Noo-Enua, Mr Vasia was upset. He had already informed Uncle Koto of his relationship with Ms Daniels and Uncle Koto agreed to telephone the Department to try and change the name of the person with whom the application had stated Mr Vasia was in an alleged de facto relationship, to that of Ms Daniel. The Tribunal finds that the telephone call to Ms Baker, dated 28 May 1997 (T5) was not made by Mr Vasia. Mr Vasia states that the call was made his Uncle Koto.

49. The Tribunal finds that Mr and Ms Vasia understood Ms Baker's letter of 8 May 1997 (A7, attachment) to mean that they should wait to hear from the Department on the outcome of the application for permanent residence. Mr Vasia told the Tribunal that he did not believe that the application would be successful because he had not supplied the additional information which Uncle Koto said he should provide. He did not do this because he believed that the original application was "a lie". The Tribunal accepts that Ms Vasia telephoned the Department in Queensland to enquire how the Department should be notified of a change of address. Subsequently, she and Mr Vasia wrote a letter to the Department notifying their change of address and explaining the circumstances in which the application for permanent residence had been made. This letter they sent to Uncle Koto in Sydney asking that he forward it to the Department. He did not do so.

50. Mr Vasia did not receive notification of the decision of 1 June 1998 to refuse the application for permanent residence. On 11 June 1998, Mr Vasia lodged a request for access to his file documents under the Freedom of Information Act 1982. Mr Vasia was subsequently granted access to these documents but they were sent to the wrong address: to his previous in Robinvale rather than the address in Cabramatta given on the FOI request form. As a result, by the time Mr Vasia received the documents, the time for seeking a review of the decision of 1 June 1998 to refuse his visa had expired. Mr and Ms Vasia therefore sought advice from a solicitor and, acting on that advice, wrote to the Respondent seeking Ministerial intervention. That intervention was refused on the basis that the time for applying for a review of the decision had expired. The Respondent's letter dated 27 November 1998 (T17) requested that Mr Vasia should immediately contact the Department to discuss his status Mr Vasia did so on 7 December 1998 (T18) and, following advice from a departmental officer, applied for a bridging visa, which was granted on 14 December 1998. A further bridging visa was granted on 14 January 1999 permitting Mr Vasia to remain in Australia provided he departed before 1 February 1999. On 30 January 1999, Mr Vasia flew from Sydney to Fiji.

51. Mr Vasia acknowledged that he had worked in Australia in breach of the conditions on which he had entered. He married Tapeka Daniel on 9 January 1999. The Tribunal has no doubt that Mr Vasia's and Ms Vasia's marriage is a genuine one and that they have a real affection for one another and are distraught at being separated. As a result of his relationship with Ms Vasia, Mr Vasia has become a member of her church and the Tribunal accepts that they are committed to their church's christian values as was attested to by Ms Papera, the wife of their pastor.

52. With regard to Mr Vasia's interview with David Whitehead, the Senior Migration Officer at the Australian High Commission in Suva, on 4 May 2000, the Tribunal accepts that some of the answers given by Mr Vasia to questions put by Mr Whitehead were not correct. In the main, the Tribunal considers that this was because of Mr Vasia's tendency to agree with questions and some nervousness and confusion on his part. He corrected most of the answers when questioned further by Mr Whitehead. The Tribunal does not consider that Mr Vasia intended to mislead Mr Whitehead, but rather may have become confused and said things without thinking through the consequences. The Tribunal does not therefore attach any great weight to the incorrect answers.

53. The Tribunal accepts that Ms Vasia's family is in Australia and that her mother looks to her for significant support. Ms Vasia has a job and home in Sydney, has had a number of unpleasant experiences on her visits to Fiji and is committed to continuing to live in Australia. Mr Vasia has been in Fiji since his returning there on 30 January 1999. Although he has a casual job, he presently has no prospect of on-going employment. He lives with members of his family. The Tribunal accepts the evidence of Ms Papera and Ms Vasia as to his continuing involvement with their church in Fiji, as to his good conduct in relation to a violent incident in that church in September 2001, and in relation to a visit by Ms Papera and her husband, the Pastor of Ms Vasia's church in Belmore.

APPLICATION OF THE LAW

54. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Vasia 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, first, 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...

55. 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 Vasia 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.

56. 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 is paragraph 1.9(b), which directs the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false or misleading statement.

57. The Tribunal has found, relying on Mr Vasia's and Ms Vasia's evidence, that Mr Vasia was not responsible for the false application for permanent residence lodged on 2 May 1997, nor did Mr Vasia make any false or misleading statement in connection with that application. The Tribunal does not accept that he subsequently sought to benefit by that application by failing to make good the misleading statements of his uncle. In hindsight, Mr and Mrs Vasia should have sent their letter written in Queensland, explaining what happened in relation to the first application for permanent residence lodged on 2 May 1997, directly to the Department. However, given Uncle Koto's influence over Mr Vasia, the Tribunal considers, in the circumstances, that it was reasonable for Mr Vasia to have sent the letter to Uncle Koto for forwarding to the Department.

58. The only misleading statements which can be attributed to Mr Vasia are the incorrect answers which he gave in the interview with Mr Whitehead on 4 May 2000. However, in the Tribunal's view, no great weight should be attached to those incorrect answers given that most were immediately corrected on further questioning from Mr Whitehead, and, in any event, it is likely that Mr Vasia was confused and did what he often does in such situations when under pressure - followed his practice of agreeing to statements which were put to him. The Tribunal saw this happen on a number of occasions in the course of his giving evidence at the hearing.

59. While Mr Vasia acknowledged that he worked without permission in Australia, the Respondent does not appear to have attached any great weight to this and, in the Tribunal's view, the overwhelming weight of evidence suggests that Mr Vasia is of good character. As the Tribunal has found above, he comes across as a gentle and humble man who is respectful of others. He is a practising Christian and the Tribunal heard evidence of his good conduct in recent years. He and his wife are clearly committed to one another and are distraught at their on-going separation after a period of three years, except for Ms Vasia's visit to Fiji.

60. The Tribunal concludes that Mr Vasia is of good character and therefore passes the character test. Thus, the decision under review should be set aside and the matter remitted to the Respondent for reconsideration with a direction that Manueli Vasia passes the character test under s 501(1) of the Act.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley,

Deputy President

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

Associate

Date/s of Hearing 16 & 17 January 2002

Date of Decision 15 February 2002

Representative for the Applicant Self-represented

Solicitor for the Respondent Mr M Allatt, Australian Government Solicitor