Migration Fraud Often Leads to Adverse Character Finding

Visa applicants who have committed serious criminal offences often do better in character cases then those who have breached migration laws.  A typical example is Still v MIAC [2008] AATA 759 (28.8.08) an unusual case which involved a female spouse visa applicant 20 years older than her Australian citizen husband.  Here is how the AAT described her breaches of migration law:

•44.              There did not appear to be any dispute that Ms Farida had committed several breaches of migration law over a number of years, namely, being the subject of a deportation order, remaining unlawfully in Australia and providing false and misleading statements and documents.

•45.              Ms Farida remained in Australia unlawfully on three occasions. On the first occasion she was the holder of a tourist visa in 1989, and remained unlawfully in Australia after her visa expired on 8 April 1989. Secondly, following a deportation order made on 23 September 1991, she unlawfully remained in Australia until 23 April 1996 when she applied for a protection visa. She again remained unlawfully in Australia after her tourist visa expired on 30 August 2003 until her voluntary departure on 16 January 2007.

•46.              Ms Farida provided misleading statements and false documents to Australian immigration officials in order to obtain a visa to enter and remain in Australia. She provided false information and documents with her visa applications in relation to her name and date of birth. She also provided false passports, identity cards and documents in relation to her employment history.

•47.              I find that because of these breaches of immigration law, Ms Farida does not pass the character test in ss 501(6)(c)(ii) of the Act. She was prepared to obtain bogus documents and made statements which were false or misleading in multiple particulars. I was asked to accept that once she had overstayed her first visa she had no option but to obtain false documents in order to be able to come here again in support of her daughter. I do not accept this as a countervailing factor.

The AAT concluded that any hardship did not warrant the exercise of the discretion in her favour:

•108.          I accept that the refusal of the visa will cause disappointment and hardship for Mr Still and Ms Farida and that Mr Still’s relocation to Indonesia or elsewhere may be problematic. However, those considerations are outweighed by the primary considerations of the need to protect the Australian community and the expectations of the Australian community.