Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (Unreported Decision N( 9753 of the AAT, 27 September 1994)

Solicitors for the Applicant: Maurice Blackburn and Co.

Solicitors for the Respondent: Departmental Advocate

G L McDONALD This is an application by Mrs Ragni Mala Prasad to review a decision of the respondent to reject a spouse visa, class 100, for her husband, Mr Rameshwar Prasad. The respondent reached the decision after finding that Mr Prasad was not of good character having regard to his general conduct pursuant to section 180A(1) of the Migration Act 1958 ("the Act").

2. The applicant was represented by Mr Hay, of counsel, and the respondent was represented by Mr Sullivan, a departmental advocate. The documents filed for the purposes of section 37 of the Administrative Appeals Tribunal 1975 and some additional documents formed part of the evidence. Oral evidence was given by the applicant, her father, Mr Ram Charam, and her brother-in-law, Mr George Emtsis. Mr Prasad is in Fiji, and a facsimile of an affidavit sworn 30 September 1994 was filed upon the undertaking of the applicant's counsel to file the original when it arrives from Fiji.

3. The history of the events surrounding Mr Prasad's application for the visa are largely uncontested and are as follows:

(a) Mr and Mrs Rameshwar Prasad were married on 12 August 1983.

It was an arranged marriage. Following the marriage,

Mr and Mrs Prasad lived with Mr Prasad's family. At that

time, Mr Prasad's family consisted of his father, his father's

two wives, six brothers, one of whom was married with a child,

and one sister.

(b) Following the marriage, Mr and Mrs Prasad continued to work.

Their income was used to support Mr Prasad's siblings, who at

the time were unemployed. The only other member of the family

then working was Mr Prasad's father.

(c) Mrs Prasad told the Tribunal that, as well as contributing

her income to the upkeep of her husband's family, she was

expected to wear traditional clothing and to defer to her

mother-in-law. She described her husband's family as "not too

advanced", and said that she constantly fought with her in-laws.

Her husband, since he was the eldest of the children, was unable

to intervene on her behalf as he was expected, by tradition, to

support his family.

(d) Mrs Prasad wanted to live with her husband separately from

her in-laws. When, after three years, she had been unable to

achieve moving her husband on this point, she left and returned

to live with her parents.

(e) By that time, she was pregnant with her second child; her

first, Rayna, having been born on 27 June 1985. A second

child, Rachna, was born on 9 April 1987.

(f) There was no contact between Mr Prasad and Mrs Prasad and

the children from the time of separation in late 1986 until

mid-1987, when Mr Prasad commenced seeing the children once a

month. It appears throughout this period that Mrs Prasad's

parents were providing support for her and the children.

(g) During 1988, Mrs Prasad's parents, their four daughters and

a son migrated to Australia where they joined another daughter,

who had earlier migrated to Australia. At that time,

Mrs Prasad and the children remained in Fiji and went to live

with an uncle and aunt. However, Mrs Prasad wished to migrate

to Australia with her children so that she could be near her

parents and siblings.

(h) In August 1989, Mrs Prasad said that she told her husband

that she was going to Australia. She said then he wanted to

reconcile with her, but she would not because she thought the

same problems that she experienced with his family before would

arise again. On 10 August 1989, she obtained a decree nisi

which became absolute in 28 days, dissolving her marriage and

awarding her custody of the two children with reasonable access

to Mr Prasad.

(i) In order for Mrs Prasad to migrate with the children to

Australia, it was necessary to obtain her former husband's

consent to the children leaving Fiji. Under cover of a letter

dated 27 March 1990, she forwarded a statutory declaration made

by her former husband. The statutory declaration is dated 27

April 1990. Since the statutory declaration was forwarded

under a letter dated 27 March 1990, and since Mrs Prasad was

notified by the Australian Embassy in Suva that approval for her

and the children to migrate was granted on 20 April 1990, the

Tribunal concludes that the statutory declaration is misdated

and probably should have been dated 27 March 1990.

(j) In the course of the statutory declaration, Mr Prasad

declared, inter alia:

"That since we were divorced I have not seen my children nor the

wife because I have no interest in my children and wife.

I understand that my wife has made application to migrate to

Australia through family sponsorship.

I hereby give consent to my wife to take both children with her

to Australia. I have no further interest in my wife and

children.

I again undertake that I do not hesitate to consent to my wife

to take the children to overseas."

In paragraph 9 of his affidavit, Mr Prasad admits the contents

are not true and that he should not have made a false

declaration.

(k) On 29 March 1990, Mr Prasad came to Australia for the

purpose of visiting Mrs Prasad's parents in Melbourne to discuss

with them, and to enlist their help in seeking to obtain, a

reconciliation with his wife. Mrs Prasad's father,

Mr Ram Charam, told the Tribunal that he discussed this with his

son-in-law when Mr Prasad came to Australia, and encouraged a

reconciliation.

On his return to Fiji from Australia, Mrs Prasad said that her

former husband telephoned and spoke to her concerning a

reconciliation, but she decided to wait and discuss the matter

with her father when she came to Australia.

(l) Mrs Prasad did not leave for Australia as soon as she

obtained approval for her and the children to migrate because

she said that, between May and July 1990, she was trying to sell

her father's house in Fiji. She also said that during this

period, her former husband wanted to reconcile with her while

she did not want to. By that stage, she said, two more of his

brothers had married and were still living with his parents, and

she thought that more problems would develop in the parents'

home.

(m) Mrs Prasad and the two children arrived in Australia with

the children on 28 July 1990. Initially, she stayed with her

parents in Melbourne. On 6 August 1990, after discussing the

matter with her father, who encouraged her to reconcile with her

former husband, she wrote to Mr Prasad proposing a

reconciliation.

(n) Mrs Prasad said in response that Mr Prasad rang her at her

sister's house in Melbourne, and said that he was interested and

was now willing to live separately from his parents.

Mrs Prasad said that, at that time, Mr Prasad had hold her that

his brothers were now working and his continuing financial

support was not needed.

(o) Mrs Prasad went to Fiji in August 1990, and she and

Mr Prasad were reconciled. In January 1993, they remarried.

In the last three years, Mrs Prasad and the children have spent

approximately 18 months in Fiji so that the parents and children

could all be together. The remainder of the time she and the

children spent in Australia.

(p) Mrs Prasad's brother-in-law, Mr George Emtsis, gave evidence

that he owns a carpet business and would be able to give

Mr Prasad a job of carpet cutting upon his arrival in Australia.

Currently, Mrs Prasad is unemployed and in receipt of

unemployment benefits.

4. Ministerial discretion over visas and entry permits is to be found in section 180A of the Act. It provides:

" ..180A. (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;

. . .

(2) This subsection 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;

. . . ."

5. The relevant Ministerial policy guideline (set out in exhibit A, T5) is in the following terms:

"8.5.6 As a matter of policy, irrespective of whether a person

has any criminal convictions, a person may be taken to be not of

good character because of their general conduct after having

regard to matters such as the following (but see paragraph

8.5.7):

(a) the person has been involved in activities indicating

contempt, or disregard, for the law or for human rights

- this could include, but need not be limited to, involvement in

activities such as organised crime, terrorism, drug related

activities, political extremism, extortion, prostitution, serious

anti-social behaviour, 'white collar' crime, fraud, immigration

malpractice;

(b) the person has, in connection with any application for or

grant of a visa or entry permit, provided a bogus document or

made a statement that was false or misleading in a material

particular

- specifically, the matters set out in paragraph 20(1)(c) of the

Migration Act 1958 are relevant here. More generally, a

misrepresentation in connection with an application for a visa or

entry permit might be taken into account, depending on the nature

and intent of the misrepresentation;

(c) the person has ever made a false or misleading declaration on

an approved form about his or her character or conduct or both

- that is, the matter set out in paragraph 20(1)(ca) of the

Migration Act 1958;

. . . ."

6. The Tribunal will usually follow Ministerial policy guidelines in the absence of cogent reasons why they should not be followed. In this case, with the one exception outlined in paragraph 9 herein, there is no reason why the policy guidelines should not be followed.

7. In Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148, the Tribunal decided that "the good character" provision had broader meaning than was commonly attributed to it in criminal trials. The Tribunal, in that case, quoted from the Macquarie Dictionary as to the definitions of character:

"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."

A similar approach was taken by the Tribunal in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs (decision of Deputy President Forrest, Decision N( 9753, 27 September 1994). A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.

8. The statutory declaration by Mr Prasad warrants close scrutiny. It is strange that he should declare, contrary to the facts, a statutory declaration that he had no contact with his former wife and his children when, within two days of making the declaration, he flew to Australia for the purpose of seeing his parents-in-law so as to enlist their help in persuading his former wife to reconcile with him. The Tribunal is satisfied that he knew that the purpose of the statutory declaration was for submission to the Department of Immigration and Ethnic Affairs ("the Department"), and that he knew the contents were false. The explanation given in paragraph 9 of his affidavit that he intended, by this statement, to hurt his wife is inconsistent with his seeking a reconciliation. Indeed, had Mr Prasad wanted to hurt his wife, an even cursory consideration of the matter would suggest that this would be achieved by refusing consent.

9. Mr Hay submits that the statutory declaration is not false in "a material particular" as contemplated by the Ministerial Policy Guideline 8.5.6(b). In his view, the material particular is Mr Prasad's consent for the children to migrate to Australia. In reaching a decision about good character under section 180A(1) of the Act, the criteria is not limited to consideration of "material particular(s)". Certainly, that term is used in the guidelines, but that cannot restrict the application of the provisions of section 180A(2) of the Act, which is not confined by words of limitation.

10. Had the truth of the matter come to the attention of the Department, i.e. that Mr Prasad was seeing his children and contemplating reconciliation with his wife, the decision to grant Mrs Prasad and the children immigration visas may have been different. Suffice it for the Tribunal to say that, to make a false declaration is serious. In this case, the seriousness is aggravated by Mr Prasad's knowledge that the statutory declaration is to be used with respect to an immigration application.

11. The respondent points to two other significant incidents. The first is a record of an interview taken by a departmental officer in the Australian Embassy, Suva, on 21 May 1991. The officer interviewed both Mr and Mrs Prasad.

12. In the notes taken by the officer of the interview with Mr Prasad (exh A, T39), the following appears:

"Applicant and sponsor had decided to reconcile before she went to

Australia."

Mr Prasad, in paragraph 12 of his affidavit to the Tribunal, denies saying this. In the notes of the record of interview with Mrs Prasad (exh A, T39), the following appears:

"Talk of reconciliation was before she went to Australia."

In relation to those statements, the respondent submits that Mr Prasad is putting a stronger case to support his position than was represented by the truth of the matter.

13. It was certainly Mrs Prasad's evidence that reconciliation had not occurred prior to her leaving for Australia. Indeed, she told the Tribunal that she made no decision over the issue, and she delayed reaching any decision until at least she had seen and spoken to her father after her arrival in Australia. What appeared in Mrs Prasad's record of interview is consistent with her writing to Mr Prasad after she came to Australia proposing her reconciliation. The record of interview with Mr Prasad is inconsistent with his later written statement to the Department (exh A, T40) when he intimates that, while they had agreed to a reconciliation, such a reconciliation had not occurred prior to him going to Australia to discuss the matter with her relations. The Tribunal is of the view that the evidence, constituted by notes taken of her record of interview, is not persuasive on this point and does not support a conclusion adverse to Mr Prasad.

14. The other matter to which the respondent draws the Tribunal's attention is two hand-written statements made by Mr and Mrs Prasad. In the statement given by Mr Prasad (exh A, T40) the following appears:

"The only reason my wife helped me in obtaining a visa was that I

could go to Australia and discuss the issue in person and if they

agreed, she had no hesitation in reconciliation . . . ."

The "they" referred to Mrs Prasad's parents. The impression, the respondent claims, that is left on the reader is that Mrs Prasad had agreed to a reconciliation prior to Mr Prasad leaving for Australia to discuss the situation with her parents. However, it will be recalled that he left for Australia two days after signing the false statutory declaration. The evidence of Mrs Prasad, supported by her letter to Mr Prasad of 6 August (exh C), establishes that Mrs Prasad had not yet committed herself to a reconciliation prior to her departure from Fiji and would not do so until she had discussed the matter with her father. The Tribunal notes that the statement was given some time after the events occurred. The exaggeration contained in the statement is not of such weight that it would influence the Tribunal's ultimate determination of this matter. If anything, the statement is significant in further highlighting the disparity between the contents of Mr Prasad's statutory declaration and as against what was actually occurring at the time. Other considerations

15. A number of references were tendered to the respondent on behalf of Mr Prasad's character and employment history. There was one from the research officer at the Sugar Cane Research Centre, where Mr Prasad worked from 1979 to 1990 as a technical field assistant; another from a local member of Parliament; and also one from a registered Hindu priest. A further reference came from his then employer, Sun Tours Limited, dated 30 April 1993, attesting to his accounting abilities. References from an earlier period (exh A, T11 and T38) were also tendered. They all attest well to his honesty, competence, and involvement in community and religious affairs.

16. These references, his continuous employment and his adherence to cultural and religious norms, despite the effect on his own marriage, are in his favour.

17. However, in the Tribunal's view, in the words of Deputy President McMahon, in Lachmaiya (at pp.155-156):

"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."

This statement of principle applies not only to applicants seeking to migrate, but to people, such as Mr Prasad, who are providing information to the Department which will affect the applications of other people (in this case, the applications relating to his then former wife and children). In this case, Mrs Prasad also knew the contents of the statutory declaration were false prior to it being submitted: yet it was submitted to the Department without comment. That Mrs Prasad did not draw this to the Department's attention does not take away from the responsibilities attaching to Mr Prasad of being open and honest in his dealings with the Department. The declaration was made knowing its contents to be misleading, and this fact cannot be condoned. In these circumstances, the Tribunal is of the view that the misleading statutory declaration was serious enough that the unfavourable considerations, which attach to it, outweigh the favourable considerations which otherwise exist with respect to assessing Mr Prasad's character. Thus, the Tribunal is satisfied that Mr Prasad is not a person of good character having regard to his general conduct, and he does not satisfy the provisions of section 180A of the Act.

18. Mr Hay submitted that, even if the applicant fails to satisfy the requirements of good character, there is a general discretion provided in section 180A(1) by the use of the word "may" and that this should be exercised in the applicant's favour to issue a visa. The refusal of the visa will affect not only Mr Prasad, but also affect Mrs Prasad and the two children. Mrs Prasad gave evidence that the children are enrolled in schools in Australia. The Tribunal accepts she is close to members of her immediate family, who now all reside in Australia. It was submitted that there would be hardship imposed on Mrs Prasad and the children if they had to return to Fiji. However, in the past three years, she and the children have spent 18 months in Fiji, so that the children could enjoy a relationship with their father, and 18 months in Australia.

19. Mrs Prasad had no explanation when asked why she forwarded the statutory declaration knowing the contents of it to be false. She said she could not explain it. To that extent, her participation in an action which led to the deception of the Department is a factor which the Tribunal should take into account when she is, at least, one of the people who stands to benefit by the exercise of the discretion. If the truth of the matter in that statutory declaration had been told to the Department, it may well be that its decision to grant an entry visa to Mrs Prasad and her children would have been different. That may well have changed the whole course of the events. Given those facts, the considerations surrounding the false statements made in the statutory declaration, along with Mrs Prasad's silent acquiescence in forwarding the false statutory declaration to the Department without comment knowing its contents to contain a blatant untruth, are such that the Tribunal is not persuaded that it should exercise a discretion in Mr Prasad's favour. In considering whether or not to exercise a discretion in favour of Mr Prasad, the Tribunal has also considered the position of the two children of the marriage, Rayna and Rachna. Given that in the last three years both children have spent half of the time in Australia and half in Fiji, it could not be said that the children have become so accustomed to living in Australia that they would not be able to adapt to life in Fiji. Their stay in Australia has not been so extensive that they would find it difficult to re-adjust to life in Fiji. For that reason, the Tribunal is not persuaded that, by not exercising a discretion in Mr Prasad's favour, the children will suffer undue hardship.

20. For these reasons, the decision under review is affirmed.