Alwan and Minister for Immigration Multicultural and Indigenous Affairs
[2002] AATA 435
•7 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 435
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1938
GENERAL ADMINISTRATIVE DIVISION )
Re Mary Alwan
Applicant
And Minister for Immigration Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date7 June 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the Direction that Metodi Mitev passes the character test pursuant to s 501(6) of the Migration Act 1958.
..............................................
R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa application - spouse provisional visa – character test – examination of the visa applicant's past and present conduct – held that the visa applicant's conduct was not so deficient as to not pass the character test - matter remitted to the Minister with a direction to this effect.
Migration Act 1958 ss 499, 499(1)(2)(2A), 501, 501(1), 501(6)(c)(ii)
Goldie v Ministerfor Immigration and Multicultural Affairs (1999) 56 ALD 321
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Re Chavez and Minister for Immigration and Multicultural Affairs [2001] AATA 849
Re Mackney and Minister for Immigration and Multicultural Affairs [2001] AATA 472
Re Msumba and Department ofImmigration and Multicultural Affairs (2000) 31 AAR 192.
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
7 June 2002 R P HANDLEY
This is an application by Mary Alwan ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 21 November 2001 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant's spouse, Metodi Mitev ("the Visa Applicant"). At the hearing, the Applicant was represented by Ray Turner, Solicitor, of Yandell Wright Stell, Lawyers, and the Respondent was represented by Murray Allatt, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by the Applicant in person and by the Visa Applicant by telephone from Macedonia.
BACKGROUNDThe Applicant, Ms Alwan was born in Fairfield, Sydney on 5 August 1961 and is aged 40. She is an Australian citizen. The Visa Applicant, Mr Mitev was born in Stip, Macedonia on 17 May 1969 and is aged 33. On 19 December 1996, Mr Mitev applied for a student visa to undertake a business management course at the Alpha Beta College, Sydney. Mr Mitev was granted a student visa valid until 3 September 1997 and arrived in Sydney on 22 February 1997. In about May/June 1997, Mr Mitev approached a migration agent, Abel Miranda, for advice on applying for a visa to remain longer in Australia. On 19 June 1997, Mr Mitev signed an application for a protection visa, which was lodged with the Department of Immigration and Multicultural Affairs ("the Department") on 3 September 1997. The application was refused on 10 September 1997 and, on 7 October 1997, Mr Mitev applied to the Refugee Review Tribunal ("RRT") for a review of that decision. On 11 December 1998, the RRT affirmed the decision to refuse Mr Mitev's application for a protection visa.
On 31 December 1998, Mr Mitev and Ms Alwan met during New Year's Eve celebrations at Circular Quay in Sydney. On 8 January 1999, 28 days after the RRT decision, Mr Mitev's status in Australia should have become unlawful. However, Mr Mitev did not receive the letter of notification from the RRT and did not discover that he had not done so until after an enquiry by Ms Alwan on 31 January 2000. A further copy of the decision letter was sent to Mr Mitev by the RRT on 8 March 2000. Meanwhile, on 10 July 1999, Mr Mitev had proposed to Ms Alwan and they were married in Sydney on 22 January 2000.
Having received notification of the RRT decision on or about 13 March 2000, Mr Mitev wrote to the Respondent on 24 March 2000 seeking ministerial intervention. This was refused by letter dated 5 June 2000. On 15 December 2000, Mr Mitev was granted a Bridging Visa E and departed Australia on 27 December 2000, accompanied by Ms Alwan. On 4 January 2001, Mr Mitev lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Belgrade. He was interviewed at the Embassy on 24 April 2001 and 13 November 2001. On 21 November 2001, a delegate of the Respondent at the Embassy decided to refuse the grant of a visa to Mr Mitev on the ground of his past and present general conduct pursuant to s 501(6)(c)(ii) of the Migration Act 1958 ("the Act"). On 18 December 2001, Ms Alwan lodged an application for a review of this decision by the Tribunal.
RELEVANT LAW AND POLICYUnder s 501(1) of 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;…
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.
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".
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.
The issue for the Tribunal to determine in this case is, therefore, whether Mr Mitev is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
EVIDENCE
Metodi Mitev (the Visa Applicant)Mr Mitev said he first went to see Abel Miranda in about May/June 1997 on the recommendation of students at the college where he was studying because he wanted to explore the possibility of staying longer in Australia. Mr Mitev was aware that he could seek an extension of his student visa to enable him to undertake further study in Australia but knew this would be quite expensive entailing him paying about $2,500 to the Alpha Beta College to enable him to stay for a further six months. Mr Mitev said his original student visa application lodged in December 1996 had been completed by the Alpha Beta College's representative in Skopje who asked him to provide them with various documents. The representative told him that he could stay in Australia as a student for up to two years. Mr Mitev said while he knew that he needed a visa to stay in Australia legally, he did not know how to get another visa in Australia and was not aware that he could approach the Department directly to make an application. In May/June 1997, he was living with his uncle in Sydney. When he told his uncle that he wanted to stay longer in Australia, his uncle advised him to go and see a professional in the field.
Mr Mitev said his preferred option would have been to undertake a Master's degree at Sydney University and he did enquire about that at the time. However, he was told that he would not be eligible for a scholarship because he was from overseas. He therefore decided that he would like to work in order to live comfortably and support himself in undertaking a Master's degree. His intention was to stay longer in Australia but not to stay permanently.
When Mr Mitev went to see Mr Miranda and told him that he wanted to stay longer in Australia and asked for his assistance, Mr Miranda said he should be able to obtain a visa for Mr Mitev to enable him to stay in Australia with full rights to work, but this would come at a price. Mr Miranda did not say how he would achieve this for Mr Mitev. Mr Miranda asked Mr Mitev a series questions about his background, family, work history, and any troubles he had experienced in Macedonia. Mr Mitev said that he told Mr Miranda that he had worked for a number of companies in Macedonia, including four television companies. He told him of some trouble he had had in working for a German company which sold blankets. Mr Mitev was blamed when they wanted to cancel a contract and he was told to resign. They threatened that otherwise they would accuse him of stealing money from the company. Mr Mitev told Mr Miranda of his experience in working for another company when he was asked to endorse a product which was not healthy and he refused because he thought this was morally wrong. As a result, he was told to leave the company. Mr Mitev also told Mr Miranda about his having advocated on behalf of some underpaid workers. However, Mr Mitev said he never told Mr Miranda that he worked in a factory or that he arranged a strike.
On that first visit to Mr Miranda, Mr Mitev said he signed a blank application form without reading what he was signing: Mr Miranda told him where to sign and he signed. Mr Miranda never told him what a protection visa was and he had no knowledge of such a visa at that time. Mr Mitev said he accepts that he should of asked to see the completed application form. However, he did not do so, instead relying on Mr Miranda whom he trusted to work in his best interests. On his second visit to Mr Miranda, Mr Mitev took in part of the payment for Mr Miranda's fee. This constituted $3,000 up front and a further $2,000 when the visa was issued. Mr Mitev made three payments. The first payment was $1,500, followed soon afterwards by a further $500, and a third payment of $1,000 in about August 1997. Mr Mitev said this was money he brought with him from Macedonia. On the occasions when he made the further payments, he was not given any further information by Mr Miranda. Mr Mitev acknowledged that at the time he went to see Mr Miranda he could speak and read English quite well. Nevertheless, he did not have any understanding of what it meant to be a refugee.
When Mr Mitev received a letter from the Department refusing his application for a protection visa, he was very unhappy. He took the letter to Mr Miranda who reassured him that this was not unusual and that he should apply for a review by the RRT. Mr Mitev said he spent a lot of time going to Mr Miranda's office asking about the progress of his application, but was usually fobbed off. Eventually, Mr Miranda said he could get Mr Mitev a passport if he paid him $8,000. When Mr Mitev questioned this, Mr Miranda said he knew people who could arrange this for him, but Mr Mitev said that he was not even prepared to consider this. Mr Mitev acknowledged that having read the Protection Visa Decision Record (T p66), he knew that false claims had been made on his behalf. However, he still expected Mr Miranda to sort things out. It was Mr Miranda who lodged Mr Mitev's application for a review by the RRT. Mr Mitev could not recall whether he signed a blank RRT application form or whether it had been completed. He remembered signing the form in Mr Miranda's office, but could not recall whether others were present at the time.
Mr Mitev said he attended the RRT hearing on 4 November 1998 on his own having, by that time, abandoned any assistance from Mr Miranda. Mr Mitev had been told by Mr Miranda's secretary that his passport had been confiscated by the Department, but he found out that it was held by the Department's Bankstown office. He knew when he went to the RRT hearing that he was not a refugee and he was not in fear of returning to Macedonia, but he still went to the hearing to relate his experiences thinking that the threats made to him might persuade the RRT that he should be granted a visa. Mr Mitev said that he did not think that he had any responsibility to follow up with the RRT as to the outcome of the hearing. He hoped there would be a positive outcome. He did not understand that his status would become unlawful 28 days after the deemed service of the RRT decision if that decision was unfavourable to him. He did not receive the RRT decision until March 2000, after Ms Alwan enquired about whether a decision had been made.
After receiving the RRT decision, on the advice given to his wife by a local politician, Mr Mitev applied for ministerial intervention. However, this intervention was refused. Mr Mitev said he did not leave Australia immediately because he wanted to explore his options and, while in Australia, gather together the relevant documents for his application for a spouse visa. He waited until December 2000 so that his wife could accompany him to Macedonia for a longer holiday when she could also meet his family and friends. Since returning to Macedonia in December 1990, Mr Mitev has lived with his family in Stip and is currently unemployed.
Mr Mitev said he first met his wife on 31 December 1998 during New Year's Eve celebrations at Circular Quay. He does not remember exactly what he told her about his immigration status in the first six months of their relationship but he said they talked about their backgrounds and he would have mentioned his immigration status, though not in any detail and not the particular visa for which he had applied. He said he considered his immigration status was his personal affair, which he had to solve himself. Mr Mitev said that when he proposed to his wife in July 1999, he did not tell her that if his visa application was refused, he would have to return to Macedonia. He did not talk with his wife about his lodging a spouse visa application before they were married. He acknowledged that he knew his wife would probably prefer to continue living in Australia, but he assumed that they would want to live together wherever they were. Mr Mitev said he told his wife before the wedding that his visa application was being processed. It was not until after the wedding that he told her that it was a protection visa application.
Mr Mitev was asked about the arrangements for the wedding. He said his wife and her parents paid for the wedding. Her parents never asked him about his background. They knew he came from Macedonia, but he never told them about his immigration status. They also did not ask him why he was not working or studying. Before the wedding, Mr Mitev lived with his uncle and was supported by his uncle and cousins. After the wedding, he moved in with his wife at her house.
Mr Mitev was asked about the notes that he made after the two interviews he attended, the first at the Australian Consulate in Skopje on 24 April 2001 and the second at the Australian Embassy in Belgrade on 13 November 2001. Mr Mitev said he made notes on the interviews immediately afterwards when he was going home on the bus. His record of what was said is not exact but is based on his memory of what happened recorded immediately afterwards. He denied that he ever told Janet Brooks at the later interview that Mr Miranda had offered him a choice of two visas. Mr Mitev said although Mr Miranda had probably asked him what visa he was on in Australia, he did not offer Mr Mitev a choice.
Mr Mitev was asked about his knowledge of visas. He said before coming to Australia, he had travelled to Hungary and Bulgaria and was aware of the need for a visa to enter other countries. Beyond that, he had no specific knowledge of different types of visas.
Mary Alwan (the Applicant)Ms Alwan said she first met Mr Mitev during New Year's Eve celebrations at Circular Quay on 31 December 1998 in the area between the railway and Pitt Street. Ms Alwan went to watch the fireworks and was going to a party afterwards in Drummoyne. In the first few months of their relationship, Mr Mitev told her he was in Australia on a student visa and his application for a further visa was being processed and he was awaiting a response. He said he had a bridging visa which was valid until his situation was resolved. Ms Alwan said this was not something they talked a great deal about initially; their conversations tended to be more about things they were doing on a day to day basis. It was probably around the time of their engagement that Mr Mitev told her that his application was for a refugee visa, but she does not recall him giving her any details at that time. After they were engaged, he did tell her that if his application for a visa was refused, he would have to leave Australia. Ms Alwan said she assumed things were going through the normal channels and that there was no reason for concern. She assumed that he was applying for the right type of visa for his situation but she said, at that time, she knew nothing about the different types of visas or about immigration more generally.
It was not until after she and Mr Mitev were married that Ms Alwan decided to chase up her husband's visa application. She phoned her local federal Member of Parliament who made enquiries for her and told her that a letter had been sent by the RRT. Ms Alwan therefore phoned the RRT who confirmed this and said the letter had been sent by registered mail. Ms Alwan tracked this through Australia Post who told her that they had no record of any registered mail letter for Mr Mitev being delivered by them. Mr Mitev did not finally receive the letter until March 2000, after which they wrote to the Respondent seeking ministerial intervention which was refused in June 2000. Ms Alwan said they put off contacting the Department immediately on receipt of the letter refusing ministerial intervention, to give them time to gather together documents for her husband's spouse visa application and because she was busy at work and wanted to accompany her husband to Macedonia at the end of the year when she would take a long holiday with him. Ms Alwan said matters were complicated when, about four to six weeks before they were due to leave, her department at work was restructured with the result that her application for one years leave without pay was refused and she was only permitted to take eight weeks leave. Ultimately, when she returned from Macedonia, she was made redundant as at the end of May 2001. Ms Alwan said she and her husband made an error of judgment by not going to the Department straight away after receiving the letter in June 2000. They did not realise that what they were doing would create such problems for which they are now very sorry. Ms Alwan noted that the letter refusing ministerial intervention did not actually say that her husband would become unlawful and so they thought it was not urgent for them to contact the Department.
Ms Alwan said once she became aware of her husband's immigration status, she did tell her mother about this. Her parents were happy that she was marrying someone she loved and they assumed that her husband's immigration status would be sorted out later. She said it was mainly her parents who paid for their wedding which took place not long after her sister's wedding. Ms Alwan said she has lived away from her parents for more than 10 years. When she introduced Mr Mitev to them, they recognised him as a decent person and he treated them with great respect.
After Ms Alwan returned to Australia in 2001, she was worried about the ongoing hostilities in Macedonia and, after she was made redundant, she and her husband decided that she would go back to Macedonia which she did because of her love for him. In June 2001, because of the threat of Skopje Airport being bombed, she flew to Turkey where she met her husband. They spent a few days together there and then went by bus to Skopje where they spent the next few months. However, because of the short duration of her visitor visa, she had to leave Macedonia every 90 days. Thus, in August 2001, she went to Lebanon to attend her cousin's wedding and was there while the September 11 incidents in New York occurred. At that time, she wanted to return to Australia, but instead went back to Macedonia to be with her husband.
Ms Alwan said the conditions in Macedonia are very bad. She does not want to go back. It is so hard living there. She does not speak the language and there are no facilities for those who speak other languages. Her husband has to translate everything for her. He has been applying for jobs without success. She has been told that without his working and being able to support her, she might not be granted a longer term visa. She said there is 40% unemployment in Macedonia and no employment for women in Stip. Virtually the only work for women in Macedonia is in factories, and the factory where her mother-in-law works is going into liquidation. Even if a person has a job, he or she may not get paid for up to six months.
Ms Alwan said she and her husband were living with his parents and brother in a very small house in Stip. Ms Alwan said she found it very difficult adapting to their different culture and traditions and, during the winter months, there was no privacy in the house and nothing to do. Ms Alwan showed a video which she took in the house and in the area immediately outside on 22 December 2001. At that time, there was deep snow in the lane outside the house. Only one cold water tap was working in the whole house and had to be left running slowly for fear that it would freeze up. All the other taps were frozen. There was no hot or cold water in the kitchen. There is outside access to the bathroom and Ms Alwan could not go out there alone because of the dog in the backyard which had not accepted her. There was ice on the ceiling of one bedroom where the temperature was below zero even during the day. Ms Alwan and Mr Mitev had to sleep in a storeroom and keep their clothes in their suitcases. It was often below zero at night and they had to use an electric heater in the room to warm the room so that they could go to bed. The bed was a put-you-up couch that was very uncomfortable and gave Ms Alwan a sore back. Only one room in the house was heated – the living room where Mr Mitev's parents and his brother slept. Electricity is very expensive in Macedonia and they could not afford to run an expensive heater. Ms Alwan said if she and Mr Mitev wanted some privacy, they had to go out for a walk.
Ms Alwan said she is used to being independent, having worked for over 20 years and having bought and paid for her own house. In Stip, she could not even buy sugar from a shop on her own. She was totally reliant on her husband which she found very demoralising. She found it very difficult to buy toiletries because they were simply not available. Normally, she wears contact lenses but because there was no water to rinse the lens container, she wore glasses. However, this affected her adversely because the glasses put pressure on her sinuses.
Ms Alwan said she had food poisoning four times while she was in Macedonia and went to the doctor on two occasions. The doctor's surgery comprises one room where people wait, the receptionist sits, and the doctor examines patients behind a curtain to one side. Ms Alwan said the medical facilities were inadequate. She went to visit her husband's uncle in hospital where the conditions were very poor and the hospital was dirty. There was no proper maternity equipment and no ultra sound equipment. Ms Alwan said she desperately wants to have a baby because she will be 41 in August. Because of her age, she is worried about having a safe delivery and a healthy child. Ms Alwan said she tried very hard to get used to living in Macedonia, but she does not want to go back. She arrived back in Australia on 26 April 2000 and, saw Dr. Ben Teoh, Consultant Psychiatrist, on 3 May 2002. She said she had not yet read his report (A12). Around December 2001, she was very depressed. Having just arrived home from Macedonia, she is not currently working. Most of the money from her redundancy payment has now been spent on her travelling to and, living in, Macedonia.
SUBMISSIONS
ApplicantMr Turner, for the Applicant, said at the time Mr Mitev's application for a protection visa was lodged in September 1997, he was represented by Mr Miranda, a migration agent whose reputation is well known. Mr Miranda told Mr Mitev that he could apply for a protection visa. Mr Mitev did not know what a protection visa was and relied on Mr Miranda's advice. Mr Turner said that a reputable agent would have insisted on the Visa Applicant reading and understanding the application. Although Mr Mitev signed the application form knowing it would ultimately be completed, he relied on Mr Miranda, as a registered migration agent, acting correctly. However, Mr Miranda chose not even to indicate on the protection visa application form that he was the responsible agent.
With regard to the reasons for Mr Mitev claiming to be a refugee stated in the visa application form, Mr Mitev gave evidence that he never told Mr Miranda, as part of the answer to Question 36 "Why did you leave your country?", that he started experiencing trouble "when I became the head of our union in our factory". Even the answer to Question 34 on the form which requires details of past employment, makes no reference to Mr Mitev ever having any involvement in factory work. Mr Mitev gave evidence that he was not aware of what was contained in his protection visa application and, Mr Turner noted, Mr Mitev did not make such claims at the RRT hearing or in his interview with Janet Brooks on 13 November 2001. The notes made by the RRT member who heard Mr Mitev's application (R1) indicate that Mr Mitev gave a true account of his employment in Macedonia and did not present any false information at the RRT hearing.
Mr Turner said Mr Mitev's student visa permitted him to stay in Australia until 3 September 1997. Although Mr Mitev signed his protection visa application on 19 June 1997, Mr Miranda left it until the last day to lodge Mr Mitev's application. No adverse inference of wrongdoing should be attributed to Mr Mitev by reason of this.
With regard to the interview with Ms Brooks on 13 November 2001, Mr Mitev's recollection of the interview differs in some respects from hers. Mr Turner noted that Ms Brooks did not explore the claims made in Mr Mitev's protection visa concerning his employment, even though she refers to those claims in the second paragraph of her interview notes (T13). In the fourth paragraph of those notes, Ms Brooks' statement that Mr Mitev requested ministerial intervention through a different agent is incorrect because no agent was involved in that request. Indeed, the request for ministerial intervention (T6) was based on Mr Mitev's relationship with his wife and not on his protection visa claims. Mr Turner said that since Mr Mitev became aware of what was stated in his protection visa application, he has continually sought to explain what happened. Essentially, the statements in the application were an embellishment by Mr Miranda on what Mr Mitev had told him.
Mr Turner said that although Mr Mitev is guilty of overstaying his visa, this is his only misconduct. Mr Mitev did not engage in lengthy litigation to extend his stay. He returned to Macedonia and made a new application for a spouse visa. The Applicant submits that Mr Mitev does not fail the character test. Mr Turner referred the Tribunal to Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 and the emphasis placed by the Full Federal Court on a person's "enduring moral qualities". The Applicant acknowledges that Mr Mitev was naive and foolish. This does not mean that he does not have enduring moral qualities. Mr Turner noted that the character references submitted for Mr Mitev speak of him in glowing terms (A8).
Mr Turner referred the Tribunal to the preamble to Direction No. 21 where the emphasis appears to be on protecting the Australian community from criminal activity, reprehensible conduct and abhorrent actions. Mr Turner said there is nothing in Mr Mitev's conduct requiring protection for the Australian community. Referring to paragraph 1.9(a) of the Direction, Mr Turner noted that Mr Mitev's only breaches of Australia's migration law were to put faith in a registered migration agent and to overstay his visa for a short time after receiving notice of the refusal of his request for ministerial intervention.
With regard to the exercise of the Minister's discretion under s 501(1) of the Act and the guidance provided to decision-makers by Part 2 of Direction No. 21, Mr Turner reiterated that there is nothing in Mr Mitev's conduct requiring protection for the Australian community. Mr Turner submitted that Mr Mitev had not committed a crime under s 234(1) of the Act because of the requirement that the person has knowledge of the wrongdoing. In any event, Mr Turner said there is no likelihood of repetition of this misconduct and, since the misconduct was so minimal, there will be little deterrent effect if a visa is refused. Mr Turner submitted that the Australian community would take a compassionate, humane view of the situation.
With regard to the "Other Considerations" referred to in Direction No. 21, Mr Turner said the Tribunal should take into account the best interests of Ms Alwan and, in particular, her desire to have a child, the poor conditions in Macedonia, and the extreme hardship to her if she is forced to live in Macedonia with her husband. He noted that Ms Alwan has provided graphic evidence of the living conditions in Mr Mitev's parents' house in Stip. Mr Turner said even though Ms Alwan gave evidence that she knew of Mr Mitev's immigration status around the time of their engagement, nevertheless, they were already committed to one another at this time, well before the wedding.
Mr Turner referred the Tribunal to the Federal Court decision in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67, where Deane J said:
It is an ordinary requirement of natural justice that a person bound to act judicially "based his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.
Mr Turner said that Mr Mitev has always contended that he did not know what was included in the protection visa application. Mr Turner also referred the Tribunal to the decision in ReMackney and Minister for Immigration and Multicultural Affairs [2001] AATA 472 where Deputy President Estcourt declined to find that the applicant had provided false or misleading information when her solicitor embellished a statement with regard to her fear. Finally, Mr Turner referred to the decision in Re Chavez andMinister for Immigration and Multicultural Affairs [2001] AATA 849 as to the length of time overstayed and the reconciling of this with the factors affecting the visa applicant's spouse.
In summary, Mr Turner submitted that Mr Mitev passes the character test or in the alternative, none of the primary considerations are adverse to Mr Mitev and the significant hardship to Ms Alwan favours the grant of a visa.
RespondentMr Allatt confirmed that the Respondent relies on s 501(6)(c)(ii) as the basis for Mr Mitev failing the character test. Mr Allatt noted that Mr Mitev signed a blank protection visa application at the request of someone he had only just met. Where an intelligent person signs a declaration as to the truth of the content of the application without knowing that content, he must accept responsibility for doing so. Mr Allatt submitted that it was not plausible for Mr Mitev to say that he did not know what a refugee was, especially given his background and history in Macedonia. If he did not know, why did Mr Mitev not ask what a protection visa application was? When the protection visa application was refused on 10 September 1997, the letter of refusal referred to the claims made in the application and, thus, Mr Mitev must have known the content from that time and that the application was for a protection visa.
Mr Allatt said that when Mr Mitev appealed to the RRT, he was essentially adopting the protection visa application and the claims made therein. It would have been open to him to have withdrawn the protection visa application but he chose not to do so. At the RRT hearing, Mr Mitev did not resile from the claims made in the application. Thus, in the decision of the RRT, the RRT refers to Mr Mitev's claims in his application "that he became the head of a union in the factory where he worked" (T p74). In his original application for a visitor visa, Mr Mitev submitted a document from his employer referring to the benefit to Mr Mitev from study in Australia and referring to the six months leave of absence from his employment to permit him to undertake this (T p31). In giving evidence, Mr Mitev also conceded that he had no fear of returning to Macedonia. Notwithstanding this, Mr Mitev hoped that the RRT might, nevertheless, grant him a visa. Mr Allatt said pursuing such a course of action amounted to a serious misuse of Australia's immigration law.
With regard to the fee charged by Mr Miranda for his services, a total of $5,000, Mr Allatt questioned why an intelligent person like Mr Mitev did not approach the Department directly. He had family who had lived in Australia for some years who could have assisted him. Mr Mitev's evidence is that he told Ms Alwan about his immigration status after their marriage. However, Ms Alwan's evidence is that he told her about this around the time of their engagement. Mr Allatt said when a person's evidence is contradicted by that of his wife, this raises questions about his honesty. Mr Allatt also referred the Tribunal to Ms Brooks' record of her interview with Mr Mitev on 13 November 2001. She recorded that Mr Mitev told her that Mr Miranda had advised Mr Mitev that he could either apply for a further student visa or for a protection visa.
Mr Allatt said it is an offence under s 234 of the Act for a non-citizen to present a document which is false or forged or to give information that is false or misleading in a material particular. The Respondent contends that the actions of Mr Mitev in making false protection visa claims and in pursuing those false claims, leads to the conclusion that he is not of good character and therefore fails the character test.
With regard to the exercise of the discretion in s 501(1) of the Act, Mr Allatt referred the Tribunal to the first of the primary considerations to which decision-makers are referred by Direction No. 21, namely the protection of the Australian community. Mr Allatt submitted that Mr Mitev has committed serious breaches of Australia's immigration law and that the refusal of a visa would deter others from making false protection visa applications. Mr Allatt said the evidence of Mr Mitev's willingness to make false claims suggests that there is a likelihood that such conduct might be repeated. The expectations of the Australian community would be that a person who has made a false application for a protection visa should not be permitted to obtain the benefit of a visa leading to permanent residency.
With regard to the other considerations to which decision-makers are directed, Mr Allatt said the Respondent acknowledges that the conditions in Macedonia are likely to cause hardship to Ms Alwan. However, Ms Alwan's evidence was that she was aware of Mr Mitev's immigration status at the time of their engagement and therefore, before their marriage. She followed up his visa application immediately after their honeymoon. With regard to any rehabilitation or recent good conduct on the part of Mr Mitev, the Respondent contends that there is no compelling evidence of this. Mr Allatt said the references from Mr Mitev's and Ms Alwan's family members should be discounted because of the possibility of bias. However, the Respondent acknowledges that Mr Mitev said he is sorry for what occurred. Mr Allatt said these other considerations must be balanced against the primary considerations and, in this case, the primary considerations outweigh any hardship which may be caused to Mr Mitev and Ms Alwan.
APPLICATION OF THE LAW AND FINDINGSAs stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Mitev passes the "character test" having regard to his past and present general conduct. The application of the "character test" is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie (supra), at paragraph 8, the Full Federal Court said:
The concept of "good character" in section 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is "not of good character" within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the applicant's "enduring moral qualities" (Irving 68 FCR 422 at 431). However, this does not require the applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Goldie 1999 FCA 1277).
Secondly, the Tribunal must have regard to Part 1 of Direction No. 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Mitev, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No. 21 as a guide to the exercise of its discretion.
Paragraph 1.9 of Part 1 of Direction No. 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, made a false or misleading statement (paragraph 1.9 (b)), or has ever made a false or misleading declaration on an approved form about the non-citizen's character or conduct or both (paragraph 1.9 (c)).
The Tribunal finds, based on Mr Mitev's evidence, that in about May/June 1997 he approached Abel Miranda, a migration agent who had been recommended to him by fellow students, for immigration advice and assistance. Mr Mitev's uncle, with whom he was living in Sydney, had suggested that he seek professional advice about whether he might be able to remain longer in Australia. The Tribunal accepts that Mr Mitev had little understanding of Australia's migration system or of the differences between the classes of visa. Like many members of the community, he did not understand the basis for making a protection visa application and, when presented with a blank application form to sign by Mr Miranda, he signed the form relying on Mr Miranda to act in his best interests. Mr Miranda asked Mr Mitev various questions about his background, including his family and employment history in Macedonia, and used this information to embellish Mr Mitev's story with claims of persecution in order to secure the issue of a visa.
Mr Mitev acknowledges that he should have asked Mr Miranda to explain the visa application and he should have read what he was signing. While, as Mr Allatt noted, Mr Mitev is an intelligent man, he acted foolishly in trusting Mr Miranda to act in his best interests. The Tribunal is aware of Mr Miranda having been sentenced in the New South Wales District Court on 25 May 2001 to a significant term of imprisonment and to Judge Shadbolt's comments concerning "the outrageous sums of money Mr Miranda took from people and the jeopardy he placed them in when handling their migration applications". In Mr Mitev's case, Mr Miranda concocted a number of false and misleading statements in the protection visa application, failed to explain the nature of the application to Mr Mitev, and failed to give him proper advice.
While the Tribunal finds that Mr Mitev was not initially aware of the claims that Mr Miranda had concocted in Mr Mitev's protection visa application, clearly, Mr Mitev would have been aware of these claims from about the time he received the letter of refusal of his application dated 10 September 1997. Mr Mitev said when he went to see Mr Miranda about this, Mr Miranda reassured him that such a refusal was not unusual and that he would still obtain the visa for Mr Mitev as he had promised. Mr Mitev said he still expected that Mr Miranda would "sort things out". Mr Mitev said he could not recall whether he signed a blank RRT application form or whether the form had been completed at this stage. Nevertheless, it appears that the form was completed in the same handwriting as the original protection visa application form (T3 and R1) which was presumably that of Mr Miranda. The RRT application makes no new claims but states "I will present evidence at the RRT hearing in support of my application for protection visa".
Mr Mitev said that by the time of the RRT hearing on 4 November 1998, he had "abandoned Mr Miranda" and went to the hearing on his own. Although he knew by this time that he was not a refugee, he thought that relating his experiences and the threats made to him in the course of his employment, might persuade the RRT that he should be granted a visa. There is no evidence that Mr Mitev gave false evidence at the RRT hearing. He gave evidence of being a victim of bribery and corruption, but he did not repeat some of the claims made in his protection visa application concerning his being the head of a union in a factory, which were untrue. However, it appears that Mr Mitev did not correct the false information in his protection visa either. He acknowledged to the Tribunal that he did not fear returning to Macedonia.
The RRT was not satisfied that Mr Mitev had "a well founded fear of persecution" and therefore affirmed the decision to refuse the grant of a protection visa. The decision was made on 11 December 1998 and a letter was sent to Mr Mitev enclosing the decision on 14 December 1998. However, the Tribunal finds that Mr Mitev did not receive that notification. His evidence is that he did not receive it and Australia Post had no evidence of ever handling a registered post article addressed to Mr Mitev at about that time. Mr Allatt said he had also confirmed this with Australia Post. An inspection of the RRT's file (R1) indicates that the registered post envelope which seemingly contained the RRT decision and letter of notification was returned to the RRT on 8 January 1999 after unsuccessful attempts to deliver the item. Mr Mitev's evidence is that he did not follow up the decision after the RRT hearing because he did not think he had a responsibility to do so. The Tribunal notes that it was about seven weeks after the RRT hearing on 4 November 1998 that he first met Ms Alwan and assumes that as their relationship developed, he felt no urgency to ascertain the RRT decision, hoping that it would be "a positive outcome".
It was not until 31 January 2000, in the period after their honeymoon, that Ms Alwan rang her local federal Member of Parliament for advice as to how she should chase up the decision on Mr Mitev's visa application. The RRT case notes (R1) record that Ms Alwan phoned the RRT on 31 January 2000 to enquire about the decision. Following this and some further correspondence, on 8 March 2000, the RRT sent Mr Mitev a copy of the decision.
The Tribunal finds that after receiving notification of the decision in March 2000, on 24 March 2000, Mr Mitev wrote to the Respondent seeking ministerial intervention (T6). Mr Mitev asked that his case be reconsidered in the light of his changed circumstances, in particular his marriage to an Australian citizen. By letter dated 5 June 2000 (T7), Mr Mitev was notified that his request for ministerial intervention had been denied. The letter stated:
I now ask that you contact the nearest Regional Office of this Department to discuss your status in Australia. A list of offices in the Sydney area is enclosed for your information.
Mr Mitev's and Ms Alwan's evidence is that on receipt of this letter, they began to put together the necessary documentation to support Mr Mitev's application for a spouse visa. They decided to leave returning to Macedonia until the end of the year to enable Ms Alwan to accompany her husband to meet his family. Ms Alwan acknowledged in giving evidence that their delay in contacting the Department was an error of judgment on their part and they should have made contact with the Department straight away. They did not realise that what they were doing would create such problems and they are both very sorry for this. She noted, however, that the letter dated 5 June 2000 did not state that her husband would become unlawful in the meanwhile. Nevertheless, the Tribunal finds that Mr Mitev was in Australia unlawfully between 28 days after notification of the refusal of ministerial intervention and 15 December 2000 when a bridging visa E was granted to Mr Mitev prior to his departure on 27 December 2000.
Mr Mitev's application for a spouse visa was lodged at the Australian Embassy in Belgrade on 4 January 2001. Mr Mitev was subsequently interviewed at the Australian Consulate in Skopje on 24 April 2001 and at the Australian Embassy in Belgrade on 13 November 2001. Mr Mitev disputes the accuracy of parts of the interview notes made by the decision-maker, Janet Brooks, in respect of the interview. Mr Mitev recorded his recollection of the questions put to him and the answers given in respect of each interview (A5 and A6 respectively) immediately afterwards on his way home. In particular, Mr Mitev disputes Ms Brooks' note that Mr Miranda advised Mr Mitev that he could apply either for a further student visa or for a protection visa. In Mr Mitev's record, there is no reference to Mr Miranda outlining these two options. As Mr Turner pointed out, there is also a mistake in Ms Brooks' interview notes when she recorded that a different agent requested ministerial intervention on Mr Mitev's behalf. The evidence clearly shows that no agent was involved and that the letter was prepared by Mr Mitev and Ms Alwan who sought to rely on Mr Mitev's changed circumstances (T6).
In summary, the Tribunal finds that Mr Mitev's misconduct comprises his having signed a blank protection visa application in which Mr Miranda subsequently included a number of false claims which were an embellishment on the information provided to him by Mr Mitev; secondly, Mr Mitev's not correcting this false information at the RRT hearing; and, thirdly, his remaining in Australia unlawfully for a period of about six months after notification of the refusal of ministerial intervention. Mr Mitev has expressed his remorse that the failed to contact the Department immediately, and he and Ms Alwan recognise that this was an error of judgment on their part.
Looking first at the application of the character test and, in particular, a consideration of Mr Mitev's past and present general conduct pursuant to s 501(6)(c)(ii), the Tribunal recognises that breaches of Australia's immigration law are regarded seriously. However, the Tribunal notes the discussion of what is meant by good character in Goldie (supra) and Msumba (supra) which refer the decision-maker to a person's "enduring moral qualities". As the Tribunal said in Re Msumba at paragraph 37, an applicant is not required to meet the highest standards of integrity. The issue is whether the deficiencies in his or her character are such "that it is in the public good to refuse the visa". In Mr Mitev's case, the Tribunal is not satisfied on the basis of the evidence as to his past and present general conduct that his enduring moral qualities are such that he should be refused a visa. In the Tribunal's view, his conduct was naïve and foolish but is not so deficient as to be for the public good that he should be refused entry. In accordance with s 501(6), he therefore passes the character test.
The Tribunal notes that even if it were to find that Mr Mitev does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No. 21, in the Tribunal's opinion, neither the protection of nor the expectations of the Australian community require that Mr Mitev be excluded from Australia. While Mr Mitev must accept responsibility for false and misleading statements and a false declaration in his protection visa application, and remaining unlawfully in Australia in 2000, nevertheless, there were mitigating factors, particularly in relation to the protection visa application. The Tribunal also finds that the likelihood of repetition is low and while deterrence is always an important consideration in respect of breaches of Australia's immigration law, in the Tribunal's view, the Australian community would take a humane view having regard to the other considerations in this case.
The other considerations are those to which decision-makers are directed by paragraph 2.17 of Direction No. 21. They include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; the non-citizen's business and other ties to the Australian community; 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; and the family composition of the non-citizen's family, both in Australia and overseas.
The Tribunal has no doubt that the relationship between Mr Mitev and Ms Alwan is a genuine marital relationship. The Tribunal finds that Ms Alwan was aware, at the time they became engaged, that Mr Mitev was not entitled to remain permanently in Australia and that if his visa application, which was being processed, was refused, this would mean he would have to leave Australia. Of the other considerations, in the Tribunal's view the most compelling is that of Ms Alwan. The Tribunal accepts her evidence that she has tried very hard to adapt to the situation in Macedonia but finds it too difficult. She does not want to return. She also desperately wants to have a child and, at the age of 40, feels an urgency with this. Ms Alwan's family are in Australia and she has a house which she has bought and paid for. Mr Mitev's family are, with the exception of an uncle and cousins, all in Macedonia. The Applicant provided character references for Ms Alwan (A9) and Mr Mitev (A8), though most are from members of their respective families. The Tribunal finds that the situation in Macedonia described by Ms Alwan is one of considerable hardship, with poor prospects of employment and medical facilities which are significantly inferior to those in Australia, particularly bearing in mind Ms Alwan's concern for proper medical facilities in the event of her having a child. The Applicant also provided material about the violence and unrest in Macedonia (A10) and the collapsing economy (A7).
The Tribunal also notes that Dr Ben Teoh, Consultant Psychiatrist, in a report dated 3 May 2002 (A12), diagnosed Ms Alwan as suffering from:
An Adjustment Disorder with Depressed and Anxious Mood (DSM IV Diagnostic Criteria). It is a "reactive depression" as a result of environmental stressors.
Dr Teoh said, in his opinion, Ms Alwan:
Would become more depressed if she was to live in Macedonia as a result of the unfavourable and hostile environment.
Weighing up the primary and other considerations, in the Tribunal's view Mr Mitev is no real threat to the Australian community and the community would take a humane view, particularly having regard to Ms Alwan's situation. Thus, the Tribunal concludes that the discretion not to refuse the grant of a visa should, if Mr Mitev were not to pass the character test, be exercised in his favour.
In conclusion, the Tribunal sets a side the decision under review and remits the matter to the Respondent with the direction that Metodi Mitev passes the character test pursuant to s 501(6) of the Act.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: .....................................................................................
AssociateDate/s of Hearing 7 May and 17 May 2002
Date of Decision 7 June 2002
Representative for the Applicant Mr R Turner, Solicitor
Representative for the Respondent Mr M Allatt, Solicitor
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