Administrative Appeals Tribunal Act 1975 s 37

Migration Act 1958 ss 20, 23(2)(b), 55, 180, 180A

This is an application to review a decision to refuse to grant a visa to Parasram Lachmaiya pursuant to s 180A of the Migration Act 1958 ("the Act").

B.J. McMAHON The application to this Tribunal was made in the name of Parasram Lachmaiya and some of the documents referred to him as the applicant, although the correct applicant was identified by the respondent in the documents furnished pursuant to s 37 of the Administrative Appeals Tribunal Act. The power to review the decision is granted by s 180 of the Act. Sub-section (3) of that section provides that a person who is the subject of the visa decision is not entitled to make an application for review, unless he has entered Australia and has not left this country. Although Mr Lachmaiya had previously entered this country, he was at the time of the hearing resident in Fiji and was therefore ineligible to apply for a review in his own name. In order to clarify the situation, and to any extent found to be necessary, I ordered that Mrs Lachmaiya be identified as the applicant, if necessary replacing the inappropriate naming of Mr Lachmaiya in the application for review.

2. Regulations have been made prescribing eligibility for various classes of visas. Section 23(2)(b) provides that regulations may be made entitling an applicant to a visa of a particular class if he or she satisfies all the prescribed criteria in relation to that class. Regulation 2.2(1)(b) sets out the prescribed criteria in the case of a visa granted to a primary person (as Mr Lachmaiya ultimately became in his application). These criteria are set out in the relevant part of schedule 2 to the regulations. One then turns to regulation 100.334 to find that an applicant such as Mr Lachmaiya must also satisfy the public interest criteria there specified and to be found in schedule 4 to the regulations. No issue arose concerning any of the matters contained in that schedule, except for the matters contained in regulation 4001. That regulation merely restates the method of operation of decisions made under s 180A.

3. It will therefore not be necessary to go to the regulations in reviewing the final decision. As will be seen a decision was made to invoke the provisions of s 180A which contains requirements appropriate to all classes of visas. The decision under review was made pursuant to this section and not pursuant to any of the regulations appropriate to any particular visa. The relevant terms of this section are as follows -

"s180A(1) The Minister may refuse to grant a visa or an entry permit

to a person, or may cancel a valid visa or a valid entry permit that has

been granted to a person, if :

(a) subsection (2) applies to the person; or

(b) the Minister is satisfied that, if the person were allowed to enter

or to remain in Australia, the person would :

(i) be likely to engage in criminal conduct in Australia; or

(ii) vilify a segment of the Australian commmunity; or

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

community; or

(iv) 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 violence threatening harm to, that

community or segment, or in any other way.

(2) This section applies to a person if the Minister :

(a) having regard to

(i) the person's past criminal conduct; or

(ii) the person's general conduct;

is satisfied that the person is not of good character; or

(b) is satisfied that the person is not of good character because of the

person's association with another person, or with a group or

organisation, who or that the Minister has reasonable grounds to believe

has been or is involved in criminal conduct."

4. The relevant parts of the decision under review are as follows -

"The application was lodged for assessment under Visa Class 100

(Spouse).

It was assessed that the applicant satisfied the Requirements reg.

in that the marital relationship is genuine and continuing. The

applicant was then assessed against public interest criteria. As part

of the assessment against the criteria of Reg. 4001 and in view of his

adverse immigration history, the applicant was assessed against s180A of

the Migration Act.

He was considered not to meet S180A(2)(a)(ii) of the Migration Act for

the following reasons :

(a) He assumed a false identity to obtain a Fijian passport and a

transit visa for Australia.

(b) He was charged with making a false declaration to obtain a passport

by the Fiji Government and bound over on a good behaviour bond for 1

year and fined $400.00.

(c) He continued to provide false information regarding his identities,

at interview with a DIEA officer.

(d) His conduct does not indicate that he has reformed."

5. It was the respondent's case that the Minister had reason to be satisfied that Mr Lachmaiya was not a person of good character, having regard to his general conduct and his past criminal conduct. In order to determine the reasonableness of this conclusion it is necessary to embark upon a wider enquiry into more material than appears in the terms of the decision under review.

6. Mr Lachmaiya admitted in evidence that he had told many lies to various authorities. The first step on his path of deception occurred in or about April 1990. In that month he applied for a passport from the Fijian authorities, using the birth certificate of a friend and using a false name and date of birth. The passport in the name of Vishwa Nadan was issued in Fiji on 5 October 1990. Reference is made in the processing of the applicant's subsequent first visa application to a prior application to migrate to Australia. These papers however have been lost and were not available at the hearing. It is not possible to say, therefore, whether the false passport was used after October 1990 for the missing application.

7. When asked why he had applied for a false passport, Mr Lachmaiya agreed in evidence that he thought it would get him entry into Australia. He said : "I intended to go to Australia, work there, build up a business and bring money back. I did not intend to stay permanently".

8. The first visa application of which a record survives was signed by Mr Lachmaiya on 2 December 1990 and was presented to the Australian authorities in Suva, approximately one month later on 3 January 1991. In his application, Mr Lachmaiya said that his proposed length of stay was 4 weeks (he actually specified proposed arrival and departure dates) and stated that the purpose of his visit was to see his brother and his brother's family. In evidence on the hearing, Mr Lachmaiya agreed that this was a false statement. He agreed that he would have applied for an extension of time if necessary. He had no intention of returning within 4 weeks at the time he made the application. He intended to work in Australia and that was the reason for his visit.

9. In processing his application, an officer on 3 January 1991 noted that Mr Lachmaiya had an unresolved migration application. That has since not come to light and is the application referred to in paragraph 7 of these Reasons. The officer noted however that although Mr Lachmaiya had an employer reference, he had not obtained employer leave authority which was standard procedure for his then employer, the Regent Hotel, at Nadi. The officer formed the view that Mr Lachmaiya had a high risk profile and that the temptation to work illegally as a pastry chef du partie would be strong. Mr Lachmaiya is a highly qualified pastry cook. On the basis that the officer was not satisfied with the bona fides of the application, it was refused.

10. The second visa application was signed a few weeks later on 29 January 1991. It was made for the same disclosed purpose and for the same disclosed period. On this occasion the officer noted that he had requested a leave letter from Mr Lachmaiya's employer but as at 30 April 1991 he had not yet received it. The officer still considered that Mr Lachmaiya was likely to overstay his visa and seek illegal work. Accordingly the second visa application was rejected on 30 April 1991.

11. Although Mr Lachmaiya was later to say that he made the third application because he had been rejected on 2 previous occasions, this is not true. The third application was signed on 18 April 1991, 12 days before the second application had been rejected. At the time of signing the third application, Mr Lachmaiya could not have known officially that his second application was to be rejected.

12. The third application was made under his false name and on the basis of his false passport. The application contained many untruths, quite apart from the basic untruth of giving a false name and a false birth date. He asserted that the purpose of his visit was to conduct religious services. He described himself in the visa application as a priest. In fact, in evidence on the hearing before me, he agreed that he was not now, and never had been, a priest. He falsely denied in his application form that he had previously applied for any type of Australian visa. In answer to the question relating to length of employment with his present employer, he falsely stated that he had been employed for 8 years at the temple in Nadi. In fact he had been employed by the Regent Hotel under a different name.

13. The visa application was supported by a number of false documents. He told the interviewing officer that he had a visa for India to study for 6 months and that he would be in Australia only for a short period to carry out religious duties. Oddly enough, the interviewing officer does not appear to have checked his (false) passport for this non existent visa but relied for confirmation on the itinerary prepared by the travel agent. He persuaded the secretary of a temple to write to the Australian Embassy in Suva confirming that Vishwa Nadan was an assistant priest who was being sent to India for further religious training. The secretary confirmed that he would return after that training. In fact, of course, the applicant's name was not Vishwa Nadan and he was not an assistant priest. He was not a priest at all. In evidence before me, Mr Lachmaiya said that the secretary of the temple did not know his name. He (Mr Lachmaiya) had shown him his false birth certificate and the secretary knew that he attended the temple regularly. On that basis, Mr Lachmaiya agreed that he persuaded the secretary to say falsely that he was an assistant priest and to add that he would be going to India. Mr Lachmaiya agreed in evidence that these statements were all lies.

14. He persuaded his brother in Australia and his brother's wife to write to the authorities in Suva, stating that they had known Vishwa Nadan as their family priest, that they were expecting twin babies and that they wished to have the services of Vishwa Nadan to perform certain religious rites on the birth of the twins. They guaranteed his travelling and accommodation costs and promised to see that he was safely returned to Fiji. This letter was a concoction, resulting from the applicant's disclosure of his false name and passport to his brother and requesting his brother's assistance.

15. In the event, the officer dealing with the application decided not to grant a visa for a 21-day stay but to grant a transit visa for 3 days in accordance with "Vishwa Nadan's" expressed wishes. On the basis of this transit visa for 3 days, Mr Lachmaiya travelled to Australia, arriving on 7 May 1991. He was to remain on the 3-day transit visa for over 2 years until his departure on 21 July 1993.

16. Shortly after his arrival, he made application for refugee status in Australia under the false name. He stated in that application a number of false particulars, including details of his supposed father and brother. He stated that he had been employed as a priest between 1986 and 1991 at a monthly salary of $140. He stated that the reason for his application was persecution of Indians by Fijians since the coup. In giving details he said : "Being I am a Hindu priest I used to live in a temple in Nadi. Native Fijians stoned temples and destroyed. They didn't allow to worship at the temple". Mr Lachmaiya agreed in evidence that these were lies.

17. He arranged for a number of supporting documents to be provided, all of which contained many false statements. He produced a letter from a person who signed himself as the head priest of the temple, affirming that Vishwa Nadan had been employed as a full time South Indian priest from July 1986 and gave details of the apprenticeship he is said to have served as a junior priest for 4 years from 1986 under the guidance of the head priest. He confirmed that he was a fully qualified priest, qualified to conduct and perform all South Indian religious services. All of these, of course, were false statements. When he was said to be serving his apprenticeship as a priest, Mr Lachmaiya was in fact employed at the Regent Hotel as a pastry cook. It is hard to understand why a head priest (if indeed he was a head priest) would sign such a document unless he was deliberately deceived by Mr Lachmaiya.

18. A second letter was arranged from another Indian gentleman who certified that he knew Vishwa Nadan and that he had performed all the writer's religious services. Another letter from another Indian local resident certified that the writer knew Vishwa Nadan "as a very well known South Indian priest in Fiji" who performed all their religious services in Fiji before the writer migrated to Australia. All of these statements were false.

19. The application for refugee status was never resolved. It does not seem to have been pursued vigorously beyond the initial application. In any event, it would no longer have been appropriate once Mr Lachmaiya returned to Fiji. At the same time that the refugee status application was made, Mr Lachmaiya applied for permission to work. Following an assessment of the application, permission was refused on 12 July 1991, without prejudice to the ultimate decision to be made in relation to the refugee status application. Having been refused permission to work legally, Mr Lachmaiya then set about finding work illegally.

20. He obtained employment at the Liverpool factory of Buttercup Bakeries as a senior bakehouse operator. In 1992 he was transferred to the Newcastle factory of Buttercup Bakeries, retaining his status as a senior bakehouse operator.

21. In April 1992 Jill Bender (as she then was) began work on converting premises at 557 Hunter Street, Newcastle, to a patisserie shop and residence which she intended to operate and in which she intended to live. While she was carrying out extensive painting and renovation to the premises, Mr Lachmaiya visited her in response to an enquiry he had made at the Commonwealth Employment Service. Mr Lachmaiya told Mrs Bender that he would be interested in obtaining employment with her. He added that he had had considerable experience as a pastry cook at the Regent Hotel, Nadi. Mrs Bender told him that it would be some weeks before she was ready to open but that she would be interested in employing him if, by then, he was still looking for a position. Mr Lachmaiya continued to return to the premises on a number of occasions to discuss work in progress with Mrs Bender.

22. The business was opened on 22 August 1992 and on 15 October 1992 Mr Lachmaiya commenced working for Mrs Bender as her bakehouse manager. She said in her affidavit that she was drawn to Mr Lachmaiya and a relationship developed which led to their commencing to live together about October 1992.

23. In July 1993 Mrs Bender first became aware that there was an irregularity in Mr Lachmaiya continuing to reside in Australia. They had been discussing marriage. She said that Mr Lachmaiya told her that he had gained entry to Australia by use of a passport which was based on a false declaration. Following a discussion, it was agreed that he should return to Fiji in order to obtain legal re-entry. As a result of that decision, Mr Lachmaiya returned to Fiji on 21 July 1993.

24. The following day, he made an application to migrate which led to the present decision under review. Originally, his application was based on a prospective marriage to an Australian citizen. On 15 August 1993 Mrs Bender and Mr Lachmaiya were married at Lautoka when she came to Fiji for that purpose. She was then aged 53 and he was aged 26. Notwithstanding the differences between their ages and backgrounds, there is no issue that the relationship between the 2 people is genuine and that the marriage was not a mere marriage of convenience.

25. On 19 August 1993, they were interviewed by an officer in connection with the application which was now converted to a spouse application. The officer knew of the false passport. Mr Lachmaiya was, however, less than forthcoming in admitting his wrong doings. At first he denied that the photograph in the false passport was his own. It was only after persistent questioning that he admitted the truth. Even then a false statement was made. He told the officer that he had met Mrs Lachmaiya (as she now is, and was at that interview) in about 1986 at the Travelodge in Suva. He said that they became friends and that they communicated by phone and letter. He had visited her at her pastry shop and that they had lived together for some time before marrying. He said he was anxious to return and that the false passport had been used because he had been refused permission to see his fiancee in Australia on 2 previous occasions. These of course were lies. They did not meet at the Travelodge in 1986. They did not meet until April 1992 at the shop in Newcastle. The application for the false passport and the 2 previous visa applications, as well as the visa application made in the false name, were all made long before Mr Lachmaiya knew the woman who is now his wife.

26. His story about the 1986 meeting was supported by Mrs Lachmaiya who agreed in evidence on the hearing that it was false. She also agreed that after July 1993 she was aware that he was working illegally and that it was possible that if he returned to Fiji he would not be permitted to come back to Australia. Notwithstanding this, she married him after his return to Fiji.

27. Initially, as a result of interview, the application was treated as one for a Class 100 permanent entry visa. The processing officer advised Mr Lachmaiya that he was subject to an exclusion period of 6 months from the date of his departure from Australia because of his breaches of Immigration law. On 30 September 1993, Mr Lachmaiya pleaded guilty before a magistrate in Suva to a breach of s 312 of the Fijian penal code. He was fined $100 (not $400 as stated in the reviewable decision) and given a further bond of $400 to be of good behaviour. This offence related to obtaining the false passport. The charge arose out of information passed on by the Australian authorities.

28. The officer however was not concerned with breaches of Fijian law so much as possible breaches of Australian law. He pointed out that the exclusion period could be waived only if there were compassionate or compelling circumstances that justified a waiver and invited Mr Lachmaiya to provide information in writing supporting his claims.

29. As a result of some of the above facts coming to light, it was decided to maintain the period of exclusion and further to re-assess the case under the general provisions of s 180A. On 7 October 1993 a formal refusal was given on those grounds.

30. The Minister must have regard to the person's past criminal conduct and the person's general conduct. Criminal conduct can only mean conduct for which a conviction has been recorded. There may have been many offences committed in the course of the circumstances outlined above. Indeed I found it necessary to warn Mr Lachmaiya, in giving his evidence, that there were certain questions he was not obliged to answer for that reason. However, in my view, the only criminal conduct that can be considered pursuant to the statute is conduct that led to a conviction. In Mr Lachmaiya's case this was the conviction before the Suva Magistrate. A fine of $100 and a bond of $400 for 12 months does not seem to be a heavy penalty by Australian standards. Having regard to the well known discrepancy between average wages in both countries, however, the seriousness of the offence for which he was convicted is apparent. If it were the only matter to be taken into account, however, I would not be satisfied that it alone was evidence that Mr Lachmaiya was not of good character. One does not, however, look at the conviction in isolation. It must be looked at against the background of the facts leading up to it and in conjunction with "the person's general conduct".

31. Ministerial guidelines have been formulated to deal with decisions made under s 55 to deport. So far as I am aware, no such guidelines have been formulated to indicate what specific matters are to be taken into account in assessing a person's "good character". Section 180A was inserted by Act _ 213 of 1992. So far as I am aware, there has been no decision made under that section which has yet been reviewed by this Tribunal until now.

32. "Good character" can not have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the 2 sub paragraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.

33. The Macquarie Dictionary defines character as "1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing". In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.

34. Some assistance is to be found in s 20. The relevant parts of that section are -

"s20(1) This subsection applies to a person, being a non-citizen,

who has entered Australia, whether before or after the commencement of

this section, if;

(a) the person has ever evaded an officer for the purpose of entering

Australia; or

(b) when, or before, the person entered Australia on any occasion, he or

she :

(i) produced, or caused to be produced, to an officer or a person

exercising powers or performing functions under this Act, in respect of

that entry:

(A) a bogus document; or

(B) a passenger card containing information that was false or misleading

in a material particular; or

(ii) made, or caused to be made, to an officer or a person exercising

powers or performing functions under this Act, in respect of that entry,

a statement that was false or misleading in a material particular;

(c) when, or before, a visa was granted or issued on any occasion in

respect of the person, he or she:

(i) produced, or caused to be produced, to an officer or a person

exercising powers or performing functions under this Act, in respect of

the grant of that visa, a bogus document; or

(ii) made, or caused to be made, to an officer or a person exercising

powers or performing functions under this Act, in respect of the grant

of that visa, a statement that was false or misleading in a material

particular; or

(ca) the person has ever made, or caused to be made, a false or

misleading statement in a declaration covered by subsection 24(1A) or

34(1A); or ....."

35. The section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again trangress in matters where truth and good faith could be deceptively withheld.

36. In the deportation guidelines to which I have referred, provision is made for a decision-maker to take into account any hardship that might be suffered by any person as a result of the carrying out of the deportation order. There is no such requirement under any guidelines, under the statute, or under the regulations in the case of a decision to refuse to grant a visa. The use of the word "may" in the opening words of s 180A suggests that possibly the Minister has a discretion. If that is so, then the effect of the decision on third parties would properly be a matter to be taken into account in exercising that discretion.

37. Mrs Lachmaiya is in a precarious state of health. She suffers from severe depression as well as from physical ailments. Evidence from her psychiatrist was tendered. She has been in and out of a private hospital in recent years on a number of occasions and in fact was an inpatient of the hospital when she gave her evidence by telephone in these proceedings. She suffered the loss of a close relative as a result of the Newcastle earthquake. She had previously been divorced. She believes that she has found in Mr Lachmaiya an emotional anchor and a person of material assistance in her shop. I accept that she would dearly wish to have him back with her and that the fact that he is not here causes her further worry.

38. Having said that, however, there are some observations that I should make. Dr Edmeades, her psychiatrist, has provided several reports certifying as to her undoubted ill health and expressing the view that Mr Lachmaiya's return might assist. It would appear, however, from some expressions used in his reports that he too had been told that the couple met in 1986 at the Travelodge and that there had been a long standing relationship between them. It is not clear to what extent his report might have changed had the truth been made known to him.

39. More importantly, the fact is that Mrs Lachmaiya knew of some of her husband's wrong doing and in particular knew of the use of the false passport. She knew that if he returned to Fiji there was a possibility he would not be allowed to come back to Australia. Nevertheless she did not wait until the result of his application before marrying him. She entered into marriage knowing the possibility of his fate. Even in the deportation guidelines, little weight is given to the effect on others caused by a relationship entered into after the material date. In this case, that would be when Mrs Lachmaiya became aware of the legal problems. I have great sympathy, naturally, for Mrs Lachmaiya who has been under stress for quite some time. Nevertheless her stress long pre-dates her meeting with Mr Lachmaiya. There have been many reasons for her undoubted vulnerability. If she has added another source of stress through marrying Mr Lachmaiya instead of awaiting the result of his visa application, she can not complain if little weight is given to any hardship from which she may thereby be found to be suffering.

40. Having regard to all these factors, I have concluded that the decision under review should be affirmed.