Australian Citizen Children

 
 

Often, reluctantly, the AAT exercises discretion in favour of applicants who are found to be of bad character because of immigration fraud or criminal convictions, when Australian citizen children end up not living in Australia as a result of the adverse character finding.  Not so in Zanzoul v MIMIA [2004] AATA 174 (20.2.04). Here the applicant had a complex web of immigration deception including false passports, bogus refugee applications, re-registering birth certificates of children etc etc (the facts are worth reading for the inventiveness of the applicant).

Eventually Mr Z, his wife and his Australian born (& therefore Australian citizen) children returned to Syria after a series of bridging visa applications all of which failed.  From there the spouse visa application eventually made its way to the AAT.  The AAT found Mr Z of bad character because of the extensive migration deception.

The Ministerial Direction at the time[4] in relation to character stated :

2.3       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; &

(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.

In  assessing these considerations the AAT concluded:

The Tribunal notes the decision of the Full Federal Court in Wan v MIMA (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v MIEA (1998) 150 ALR 608. In Wan at para 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa, and, second, “to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the children understood as a primary consideration”.

In the end the AAT found against the applicant:

  1. Ms Z has spent over 2 years living in Syria… she hated it. Howerer… she is reasonably fluent in Arabic although she cannot read or write in Arabic. In the [AAT’s] view, the problem seems in part to have been that she did not have her own home, although the [AAT] accepts that conditions in Syria are probably significantly inferior to those in Australia. As noted, the family situation is likely to improve if Mr Z can find employment.
  2. The [AAT] has found making an appropriate decision in this case to be very difficult. While the protection and expectations of the Australian community unequivocally favour Mr Z’s exclusion from Australia, the children’s best interests must be given careful consideration.
  3. On balance, the Tribunal considers that, for the children, the most important factor is the maintenance of the family unit. While conditions in Syria may not be as favourable as those in Australia, the family’s experience of the past 2 years suggests that the family unit can function effectively in Syria. Clearly, part of the problem seems to have been that Mr Z has been “in limbo” pending the outcome of the visa application process, sustaining the hope that he would be able to return to Australia. He obviously has skills, and a decision having finally been made, it is then open to him to take steps to try and secure the future of his family.

Tactically one can only surmise but the better approach would have been for the spouse and child to have remained in Australia, thus making the maintenance of the family unit an important factor in favour of exercising the discretion.

In contrast in Mack v MIMIA [2004] AATA 42 (21.1.04), the existence of Australian citizen children was the deciding factor. Here there were a series of criminal offences (including drugs) in the moderate range plus some misleading information to DIMIA with the result that there was a finding of failing the character test.

But the AAT concluded:

  1. The [AAT] finds that the refusal of a visa to Mr M would have a devastating effect on his family in Australia. There is no question.. that the relationship between Mr M and Ms Thomas is a genuine loving and caring marriage-like relationship. Mr M provides significant support for Ms T in terms of caring for their 3 children and running the home…
  2. The evidence indicates that Mr M has found a place for himself in the Australian community. He is a keen sportsman and.. played representative American football – gridiron – for the ACT. He has a passion for rap music in which he attracts some casual work and in which he is trying to establish himself. He also undertakes other unskilled labouring work to contribute to the family income. Ms T receives Social Security benefits and earns about $50 per week from her casual work as a waitress.
  3. ..Mr M has sought to divorce himself from his background in the US and to make a new life for himself in Australia. He appears to have some contact with his mother but otherwise his family is that in Australia.. Mr M has given talks at 2 ACT schools drawing on his background to warn the students off drugs. The evidence of his character witnesses is very supportive in terms of his character, good conduct and place in the community. If Mr M were to return to the US, his prospects for employment are limited. Ms T was adamant that she would not relocate to the US with his children and they cannot afford to travel to the US to see him – effectively her children would be without a father.
  4. Weighing up the primary and other considerations, there is a powerful case for exercise of the s 501(1) discretion. The [AAT] does not consider Mr M to be a threat to the Australian community and the community would be likely to take a compassionate view of his situation. Even if the protection and expectations of the Australian community favoured the refusal of a visa, in this case they are outweighed by the best interests of the 3 children in Australia, which strongly favour the granting of a visa. The other considerations also support such a decision.

There is vast difference in the character of the visa applicant in Mack and Zanzoul.  But there is no doubt that the fact that Mr Z left Australia with his wife and children meant that the argument that the family would be split by an adverse decision could not be made.  One could never advise a family to separate just to achieve a migration outcome, but had Mr Z left Australia but allowed his wife and his children to remain in Australia, the result may well have been different.  One feels for the Australian citizen children who’s whole life will be affected by the fact that they will not grow up in Australia.

Barbara DavidsonAustralian Citizen Children