Khan and Minister for Immigration and Multicultural and Indigenou s Affairs [2003] AATA 104 (5 February 2003)

Last Updated: 5 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1024

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Virgilia Khan

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr RP Handley, Deputy President

Date 5 February 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

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

RP Handley

Deputy President

CATCHWORDS

IMMIGRATION - spouse visa - subclass 309 spouse (provisional) visa - conceded that the Visa Applicant fails the character test - discretion that the Tribunal may apply where the Visa Applicant fails the character test - necessity to balance the primary and other considerations - necessity to protect the Australian community against those who abuse the immigration system held to outweigh any inconvenience to the Visa Applicant - decision of the Respondent affirmed.

Migration Act 1958 ss 499, 501, 501(1), 501(6)(c), 601(6)(c)(ii)

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

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

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

REASONS FOR DECISION

5 February 2003

Mr RP Handley, Deputy President

1. This is an application by Virgilia Khan ("the Applicant") for a review of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 13 May 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Munawar Khan ("the Visa Applicant").

2. At the hearing, the Applicant was represented by Christopher Levingston, Solicitor, of Christopher Levingston & Associates, Solicitors, and the Respondent was represented by Kiran Grewal, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), including supplementary T documents ("the S Documents"). Oral evidence was given in person by the Applicant and her son Ricardo Sestoso, and by conference telephone by the Visa Applicant.

Background

3. The Applicant, Mrs Khan, was born in the Philippines on 27 November 1947 and is aged 55. She has one son, Ricardo Sestoso who was born on 24 September 1964 and is aged 38. Mr Sestoso migrated to Australia in 1992 and later sponsored his mother's migration to Australia. Mrs Khan arrived in Australia on 14 September 1996 (T p52) and became an Australian citizen on 25 November 1998 (T p57).

4. The Visa Applicant, Mr Khan, was born in Rawalpindi, Pakistan on 26 February 1946 and is aged 56. On 26 October 1970, Mr Khan married Fazal Jan, who died on 6 June 1991 (T p93). Mr Khan has one child by this relationship, a son, Amir Khan, born 1 January 1974, who resides in New Zealand. Mr Khan arrived in Australia on the 28 August 1990 on a visitor visa valid for one month. He remained in Australia unlawfully when his visa expired. On 7 May 1993, he lodged a protection visa application which was refused on 28 October 1993. This decision was affirmed by the Refugee Review Tribunal ("RRT") on 29 September 1994 (T p10). On 8 July 1994, he applied for a subclass 816 (special (permanent) entry) visa, which was refused on 15 November 1995. This decision was affirmed on 19 March 1996 by the Migration Internal Review Office ("MIRO") (Sup T p73) and, on 16 April 1997, by the Immigration Review Tribunal ("IRT") (Sup T p114).

5. On 11 January 1997, Mr and Mrs Khan met in Merrylands. They commenced their relationship on 4 July 1997 and were married in Sydney on 6 September 1997. On 24 September 1997, Mr Khan lodged an application for a subclass 309 spouse (provisional) visa. On 12 January 1998, Mr Khan was notified that this application was invalid. In November 1998, he was granted a Bridging Visa E after he joined a Federal Court class action. A further Bridging Visa E was granted on 30 September 1999. He subsequently withdrew from that class action and, on 5 March 2000, he departed Australia. He is currently residing in New Zealand with his wife.

Relevant Law and Policy

6. Under s 501(1) of the Migration Act 1958 ("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;...

7. 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.

8. 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"..

9. 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 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.

10. The Applicant concedes that Mr Khan does not pass the character test as a result of his past general conduct. The issue for the Tribunal to determine, therefore, is whether, nevertheless, to exercise the residual discretion under s 501(1) not to refuse the grant of a visa.

Evidence

Munawar Khan (the Visa Applicant)

11. Mr Khan said he first entered Australia in August 1990 having obtained a visitor visa issued at the Australian High Commission in Islamabad. On his application for the visa, Mr Khan said he was a squash coach for Ghengkis Khan, a squash champion who was his cousin. The visa permitted Mr Khan to remain in Australia for a period of one month. Mr Khan acknowledged that he did not depart Australia at the end of this period but overstayed and worked without permission which he knew was a breach of Australia's immigration law. He overstayed because his wife was very sick at the time and because it was very hard living in Pakistan. He enquired about lodging a protection visa application but was advised that this would cost over $1,000. As he had no money at the time, he decided to work and save in order to be able to pay this fee.

12. In May 1993, Mr Khan lodged an application for a protection visa. In this application, he claimed to be a member of the Pakistan Peoples' Party ("PPP"). Mr Khan said he was the President of the PPP in his village. He said it was partly true that he could not return to Pakistan at the time. Now he realises that not to tell the truth is an offence and he did not tell the whole truth then.

13. In July 1994, Mr Khan lodged an application for a subclass 816 visa on the advice of an Immigration Consultant, Mohamed Shafiq Shahid. Mr Shahid assisted Mr Khan in completing the application which required that he be less than 45 years of age. Mr Khan therefore changed his date of birth to 26 February 1950 and this is the date of birth he used from then on. Prior to Mr Khan's being interviewed by officers from the Department of Immigration and Ethnic Affairs on 4 September 1995, he phoned Mr Shadid about what he should say at the interview. Mr Shahid came over to see him and dictated what he should say. Mr Shahid blackmailed him by telling Mr Khan that if he told the truth, they would put him in jail. So, at the interview on 4 September 1995, he did not tell the immigration officers his correct date of birth and he claimed to have a university degree. Mr Khan acknowledges that he did not tell the truth and he accepts responsibility for this. However, he said he had followed Mr Shahid's advice, who was himself being investigated by the Department. Mr Shahid was assisting 50 or 60 others who, like Mr Khan, were seeking visas to permit them to remain in Australia.

14. Mr Khan said a friend of his did complain about Mr Shahid to the Department. Mr Khan later saw a solicitor, David Bitel, who complained on Mr Khan's behalf about Mr Shahid's conduct to the Department. When the Department refused Mr Khan's subclass 816 application, he sought a review of this decision by the MIRO and subsequently by the IRT. Mr Khan acknowledged that at the IRT hearing, he did not tell the Tribunal member the truth about his date of birth. Mr Khan is sorry for this. He said for ten years he has suffered as a result of his lies. He will not lie again. Lying has only created problems for him.

15. Mr Khan acknowledged that he also lied at St Vincent's Hospital by changing his date of birth from 1946 to 1950. He did this because he had already changed his passport to show his date of birth as being 1950. Mr Khan said that he kept on telling the same lie and, in support of this, he supplied a false birth certificate and made a false statutory declaration (T p248). Mr Khan agreed that he had breached Australia's immigration law over a period of ten years. He continued to appeal against decisions to refuse him a visa because he wanted to remain in Australia. Mr Khan said he joined the Adrian Joel Class Action in order to obtain a Bridging Visa E to permit him to stay in Australia. Although the visa did not permit him to work, he had to work in order to continue supporting his family. Ultimately, he decided to leave the class action when he obtained permanent residence in New Zealand.

16. Mr Khan said he has no convictions for any criminal offence. Even though he was in Australia unlawfully, he paid taxes as required over a period of 10 years. He emphasised that his marriage is a genuine one, that his wife does not work and that he supports her financially. In the period before leaving for New Zealand on 5 March 2000, Mr Khan owned and drove a taxi in Sydney. He said he had to sell the licence when he went to New Zealand, losing a small amount of money in the process. Mr Khan said he is also driving a taxi in Auckland. He acknowledged he has the same job opportunities and earns a similar amount of money there.

17. Mr Khan said living in New Zealand, his wife misses her family, in particular her son and two grandchildren, a boy of eight and a girl of six. Her son and his family came to visit Mr and Mrs Khan in New Zealand about two months ago and stayed for about a week. His wife is currently in Sydney for the Tribunal hearing. This is the first time she has travelled to Australia from New Zealand since leaving Australia with him on 5 March 2000. Mr Khan said his wife would prefer to live in Australia. He acknowledged that his son is now living in New Zealand.

Virgilia Khan (the Applicant)

18. Mrs Khan said she was born in the Philippines on 27 November 1947. She migrated to Australia in September 1996 sponsored by her son, Ricardo Sestoso. She does not work. On her arrival in Australia, she was supported by her son and, since marrying Mr Khan on 6 September 1997, she has been supported by him. Mrs Khan was aware that, at the time of her marriage, her husband had an ongoing case with the Department. She was aware he had previously been in Australia illegally and thought that if she sponsored him as a spouse, then he could become legal. She was, therefore, very surprised when, after their marriage, Mr Khan was informed that his spouse visa application was invalid. This was because he was in Australia at the time.

19. Mrs Khan said she is currently living in Auckland with her husband with whom she has a genuine marital relationship. She went with her husband to New Zealand when he could not live legally in Australia. Her current visit to Australia is her first since leaving Australia on 5 March 2000, a period of nearly three years. She would prefer to be living in Australia near her family, in particular her son, his wife Claudette, and their two children, a boy aged eight and a girl aged six. Her son and his family visited Mrs Khan and her husband in New Zealand last October and stayed about six days. She and her son have a very good relationship and she also has a very good relationship with their grandchildren. She finds it hard being in New Zealand because of her separation from them. She acknowledged that her husband is very good to her and she would not divorce him in order to return to Australia. Even if her husband is unable to obtain a visa to live in Australia, she will still remain with him. She acknowledged that between her son migrating to Australia in 1992 and her migrating to Australia sponsored by him in 1996, she saw her son only once in the Philippines.

20. Mrs Khan said she is now aware that her husband has a bad immigration record. He followed bad advice and lied. She acknowledged that this was his fault. She will not allow him to lie again. She first met her husband in early 1997. However, he did not tell her the truth about his date of birth until May 2002 when his spouse visa application was refused.

21. Mrs Khan said she and her husband sold their house before they left Australia in March 2000. They did, however, leave some furniture and other possessions at her son's house where they remain.

Ricardo Sestoso

22. Mr Sestoso said he was born on 24 September 1964 and is aged 38. He has been married to his wife, Claudette, for more than eight years, and they have two children, a boy aged eight and a girl who will soon be seven. Mr Sestoso loves his mother with whom he has a close relationship. He grew up without a father and is an only child. He missed his mother very much between his migrating to Australia in September 1992 and her arriving in Australia, sponsored by him, in September 1996. When his mother first arrived in Australia, she lived with him and his family. Mr Sestoso was sponsored to migrate to Australia by his mother's sister, his aunt. It was easier for her to sponsor his migration and then, when Mr Sestoso had obtained permanent residency, he was able to sponsor his mother as an only child. His mother is currently staying with Mr Sestoso and his family. They visited her and Mr Khan in New Zealand for about five days in October 2002 during the school holidays.

23. Mr Sestoso said he has a good relationship with Mr Khan whom he considers a father, never having had a father. Mr Khan is a good man. Until the hearing, Mr Sestoso was not aware that Mr Khan had lied to the Department and he was surprised when he discovered this. Mr Khan had never mentioned this previously and Mr Sestoso had never asked about such matters. He agreed that telling the truth is important.

24. Mr Sestoso said it is hard for his mother living in New Zealand. If she was in Australia, she could help by minding the children when he and his wife are working.

Submissions

Applicant

25. Mr Levingston, for the Applicant, conceded that the facts highlight a significant history of false statements and disregard of Australia's immigration laws. This initially arose out of Mr Khan's subclass 816 application. Mr Levingston conceded that such misconduct is sufficient to warrant Mr Khan's failing the character test pursuant to s 501(6)(c)(ii) on the ground of his past conduct. Mr Levingston also conceded that Mr Khan overstayed his original visitor visa and remained in Australia without permission until lodging his protection visa application and that he worked without permission. These are all very serious breaches of Australia's immigration laws. Mr Khan was frank in acknowledging his misconduct, did not resile from it, and accepted responsibility for it. He has said that he will tell no more lies.

26. Referring specifically to the exercise of the discretion under s 501(1) of the Act, Mr Levingston said while the Applicant had committed a number of offences under the Act, his misconduct should be seen in context, including as to his age and prior good conduct. He has no criminal convictions and much of his misconduct flowed from his initial lie about his date of birth. Mr Levingston submitted that the risk of recidivism is low and that there is no evidence to support a contention that refusing Mr Khan a visa would have a deterrent effect.

27. With regard to the expectations of the Australian community, Mr Levingston submitted that the community would expect that an Australian citizen such as Mrs Khan would be able to live in Australia with her spouse. The community would adopt a fair approach and balance the relevant factors. In particular, the community would note the close relationship between Mrs Khan and her son and the evidence of the hardship suffered by her due to the separation from her son between 1992 and 1996 and while she has been in Australia for the past nearly three years.

28. With regard to other considerations, Mr Levingston noted that Mr and Mrs Khan have been married for more than five years and the evidence indicates an enduring marital relationship. Mrs Khan chose to reside overseas with her husband when he had to leave Australia. At the time of their marriage, Mrs Khan had no knowledge of her husband's misconduct and, although she was aware of his ongoing application with the Department, she believed that her sponsoring her husband's migration would solve his immigration problems.

Respondent

29. Ms Grewal, for the Respondent, contended that primary considerations should be given more weight than other considerations in accordance with Direction No 21. She pointed to the seriousness of Mr Khan's misconduct over a period of 13 years, including making false statements and false statutory declarations, for example as to his date of birth and in relation to his falsely claiming to have a university degree. He also provided bogus documents in relation to his date of birth. Moreover, he stayed in Australia without permission after the expiry of his original visa and worked without permission, including relatively recently when issued with a Bridging Visa E. It is only very recently, since May 2002, that he has acknowledged his misconduct. Until then, it would appear that he was still prepared to lie in order to achieve his ends. The Respondent therefore submits that there is a real of recidivism and insufficient evidence of good conduct since his acknowledging his misconduct.

30. With regard to deterrence, Ms Grewal noted Mr Khan's evidence that he is aware of 50 or 60 other visa applicants who had been advised by the Immigration Consultant, Mr Shahid. It is important that such applicants should be deterred from making false statements and submitting bogus documents in support of their applications. Ms Grewal submitted that the Australian community would not expect that Mr Khan's misconduct should be rewarded with the issue of a visa.

31. With regard to other considerations, Ms Grewal submitted that Mrs Khan was aware that her husband had problems with his immigration status at the time they were married even if she believed that she would be able to sponsor him as a spouse. Mrs Khan has not been employed in either Australia or New Zealand and has lived with her husband in New Zealand for nearly three years. This is almost as long as she lived with Mr Khan in Australia after they were married. Ms Grewal noted that Mrs Khan would be able to enter Australia in order to visit her son and that her son and his family would be able to visit her in New Zealand. Apart from a sister in Sydney, the rest of her family are in the Philippines. Ms Grewal noted that Mr Khan is able to support himself as a taxi driver in the same way as he did in Australia. As noted above, she pointed to the lack of evidence of any recent good conduct on his part.

Application of the Law and Findings

32. As noted above, the Applicant concedes that, pursuant to s 501(6)(c)(ii), Mr Khan fails the "character test" having regard to his past general conduct by reason of Mr Khan having committed serious breaches of Australia's immigration law over a number of years. The Tribunal agrees and makes the following findings.

33. The Tribunal finds that Mr Khan remained in Australia unlawfully after the expiry of his visitor visa on 28 September 1990 and worked without permission. The Tribunal notes that even when he was issued with a Bridging Visa E in November 1998, permitting him to remain in Australia pending the resolution of the Federal Court class action which he had joined, he continued to work unlawfully. By his own admission, parts of his statement in relation to his protection visa application were not wholly true and, when he submitted an application for a subclass 816 visa on 8 July 1994, he stated a false date of birth. Mr Khan subsequently arranged for the date of birth in his passport to reflect this false date of birth and procured a false statement in relation to his birth certificate (Sup T p87) and made a false statutory declaration in support of this (Sup T p110). Mr Khan also falsely claimed to have a university degree. He continued to make false statements in respect of his date of birth in support of his visa application until May 2002. This included making a false statement to St Vincent's Hospital in relation to its medical records. In the Tribunal's view, the facts establish that Mr Khan committed serious immigration misconduct over a number of years which he acknowledged only recently. This is sufficient to warrant a determination that he fails the character test pursuant to s 501(6)(c)(ii) of the Act.

34. Mr and Mrs Khan departed Australia for New Zealand on 5 March 2000 after Mr Khan had obtained permanent residence there. He has obtained employment in Auckland as a taxi driver, having previously worked as a taxi driver in Sydney. There is no evidence to suggest that he and his wife are living otherwise than comfortably in New Zealand. Mr Khan's son by his first marriage is also now resident in New Zealand. However, Mrs Khan's son, Mr Sestoso, who is married with two children aged eight and six, lives in Sydney. Mr Sestoso is her only child and the Tribunal accepts that they have a close relationship and that Mrs Khan misses regular contact with him and her grandchildren. Nevertheless, she is able to visit them in Australia and they are able to visit her in New Zealand. The Tribunal finds that Mrs Khan was aware that her husband's immigration status had not been resolved at the time of their marriage although she may have believed that she would be able to sponsor his migration as her spouse.

35. As stated above, the issue for the Tribunal to determine is, notwithstanding that Mr Khan does not pass the character test, whether to exercise the discretion in s 501(1) not to refuse the grant of a visa. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

36. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

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.

Paragraph 2.3 sets out the primary considerations:

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.

37. With reference to the protection of the Australian community, paragraph 2.4 states:

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...

Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).

Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include "making a false or misleading statement in connection with entry or stay in Australia".. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

38. With reference to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, "aims to deter other people from committing the same or a similar offence".

39. With regard to the first primary consideration, the Tribunal has found that Mr Khan made a number of false or misleading statements in connection with his stay in Australia over a period of more than 10 years. He also remained in Australia unlawfully and worked without permission over a significant period. Mr Khan has now acknowledged his misconduct and, in particular, the lies he told in respect of the false date of birth that he claimed. He said that his sequence of lies about his date of birth were consequent upon advice he received from an Immigration Consultant, Mr Shahid.

40. Given that the misconduct occurred over a significant period of time and that Mr Khan has only recently, since May 2002, acknowledged the false statements made and bogus documents supplied in relation to his date of birth, the Tribunal finds insufficient evidence of recent good conduct to establish that his rehabilitation has been achieved, and considers that there still exists a risk of misconduct. This will only be assauged by the passage of time and further evidence of good conduct and rehabilitation.

41. The Tribunal recognises that the refusal of a visa where a person has been guilty of immigration misconduct may have a deterrent effect. Mr Khan gave evidence of 50 or 60 similar applications from people assisted by Mr Shahid. The refusal of a visa in the case of false statements made and bogus documents supplied may discourage others from similar misconduct.

42. While the Tribunal accepts that Mr Khan does not have a criminal record and poses no real threat to the Australian community, nevertheless, the Tribunal considers that the community should be protected against those who seek to abuse its immigration system. In such circumstances, with reference to the second of the primary considerations, the expectations of the Australian community, the Tribunal considers that the community would expect that a visa would not be granted to a person who has committed serious misconduct over a significant period of time involving not only remaining in Australia and working unlawfully but also making false statements and providing bogus documents. While on occasion the Australian community will take a humane view of a person's situation, in the present case, Mr Khan's situation in New Zealand is not one involving any significant hardship for him and the Tribunal considers that the community would expect that his visa should be refused.

43. The third primary consideration, the best interests of the child, is not relevant in this matter. However, the Tribunal must also have regard to the other considerations to which a decision-maker is directed by Direction No 21. Paragraph 2.17 states that, where relevant, "it is appropriate 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 include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

44. The Tribunal finds while Mrs Khan would prefer to live in Australia in order to be close to her only son and his family which includes two grandchildren, she is able to visit them in Australia and they in turn can visit her in New Zealand. Mrs Khan lives in Auckland with her husband, Mr Khan, who supports her financially from his employment as a taxi driver. There is no evidence to show that there is any hardship to either of them arising from their living conditions in New Zealand. The Tribunal notes that Mrs Khan was aware that her husband's immigration status had not been resolved at the time of their marriage, although recognises that she believed that she would be able to sponsor him as her spouse. The Tribunal has no doubt that their marriage is a genuine one and Mrs Khan gave evidence that she would not leave her husband if he is not permitted to migrate to Australia. As noted above, the Tribunal considers that there is insufficient evidence of Mr Khan's rehabilitation and of any recent good conduct, given that he has only recently acknowledged the false statements made and bogus documents provided in relation to his false date of birth.

45. In summary, the Tribunal considers that the only other consideration which has any weight in this case is the hardship to Mrs Khan by reason of her separation from her son and his family, and the hardship to her son and his wife by not having Mrs Khan living nearby and able to provide them with assistance in relation to the care of their children. Given the ability of Mrs Khan and her family to visit each other in their respective countries of residence, the Tribunal is not satisfied that this hardship is sufficient to outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community which, in the Tribunal's view, support a decision not to exercise the Minister's discretion under s 501(1) of the Act. The Tribunal therefore affirms the decision under review.

I certify that the preceding 45 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

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

Associate

Date/s of Hearing 20 January 2003

Date of Decision 5 February 2003

Solicitor for the Applicant Mr C Levingston

Solicitor for the Respondent Ms K Grewal