Badlu and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 608
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1292
GENERAL ADMINISTRATIVE DIVISION ) Re NEELA BADLU Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal MR J BLOCK, Deputy President Date27 June 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr J Block
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – refusal on character grounds – where the Visa Applicant failed to meet the character test – marriage of convenience – disregard for Australia’s immigration laws.
Migration Act 1958 – sections 234, 235, 351, 499, 501
Minister's Direction No 21 (Visa Refusal and Cancellation under section 501)
AATA 362
Gawronski and Minister for Immigration and Multicultural Affairs [2000] AATA 790
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438
Reyes and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 497
REASONS FOR DECISION
27 June 2003 MR J Block, Deputy President PART A – INTRODUCTION AND GENERAL
1. The decision under review is the decision dated 15 July 2002 by Ms Ondrae Campbell, First Secretary (Immigration) at the Australian Embassy in Warsaw, and being a delegate of the Respondent, refusing an application for a Spouse Provisional Subclass 309 Visa by Andrzej Buraczewski (“the Visa Applicant”); the application was sponsored by Ms Nella Badlu (“the Applicant”), who is the Visa Applicant’s wife.
2. The Applicant was represented by Boni Amin of Little n’ Bons’ Associates, accompanied by a letter dated 4 February 2003, while the Respondent was represented by Mr Murray Allatt of the Australian Government Solicitor’s office. The Tribunal had before it the T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 together with exhibits as follows:
· Exhibit A1 is a report in respect of the Applicant dated 3 February 2003 by Dr. Anthony Dinnen, a Consultant Psychiatrist.
· Exhibit A2 is a batch of eight reference letters by friends and relatives of the Applicant and the Visa Applicant; all of the reference letters have one particular factor in common and that is that they do not refer, whether directly or indirectly, to the conduct of the Visa Applicant which gave rise to this application.
· Exhibit R1 is a copy of the record of interview of the Visa Applicant by the Australian Embassy in Warsaw on 15 May 2002. That interview record, the validity of which was not challenged, is of such relevance that it is quoted in full in this decision as follows:
“Record of Interview: Andrzej Buraczewski 17091965
15 May 2002
Mr Buraczewski was interviewed with the assistance of Ms Joanna Madej, as although he has basic English, Polish was his preferred language for the purpose of the interview.
2. The Applicant was advised that the purpose of the interview was to put to him a range of issues, which were negative in terms of consideration of his case. In response, he has an opportunity under natural justice principles to respond to any such issues with further information or clarification of information held on his file.
3. He stated that he understands that his case is complicated and he wishes to be honest about all matters.
4. Using the attached the time line we then put to him the following series of issues for response:
Travel to Australia with first wife, Dorota.
5. How is he related to Wojciech Druc and his wife is related to Halina Druc? In response, he made a diagram which showed that they are Dorota’s relatives, not his. Halina Druc is Wojciech’s mother. Halina’s mother is a sister to Dorota’s mother. Therefore, Halina and Dorota are first cousins.
6. Did he and Dorota go to Australia with the goal of obtaining PR? He was shown time line where he went to A/a arriving 31/10/90 and Dorota arrived a year later.
Response:
7. No, they were married in Poland and at that time their situation in Poland was difficult. They decided to go to Australia to get work and save to buy an apartment and a car. One month after arriving in Australia he obtained work in a factory and later he became a painter. They stayed long enough to earn and save. They departed together on 14 December 1993. On return to Poland they bought an apartment and a car.
CHARACTER ISSUE #1: applicant admits working illegally in Australia from 1990 to 1993.
Visas for the US.
8. When asked about whether or not he or his wife, Dorota ever applied for visas to the USA he advised that his wife was granted a tourist visa and travelled there. He stated he wanted to go to the USA to visit a cousin for one month. He said that in 1996 tricksters offered to arrange visas for the US; he paid US$1,500. The American Embassy, Warsaw refused him the visa. Information at folio 110 of his file shows that he twice applied for a visa to the USA in 1996. The first time on 29 April when he was refused as he provided a false document that he had won the visa lottery. The second time on 2 December when again he was refused. At interview he claimed falsely, that among other things, he had a child.
Character Issue #2: 1996 Applicant uses a false document to apply for a visa to another country and makes false claims.
Marriage to Daniela Zablocka and application for PR sponsored by her.
9. The applicant was again shown the time line regarding his second visit to Australia where he arrived on 5 October 1998 after being invited by Wojciech Druc, son of his wife’s cousin.
10. The applicant divorced his first wife approximately eight weeks after leaving Poland. He stated at interview that his mother handled the divorce in his absence. He stated that he divorced Dorota because after ten years of marriage he had wanted children and she did not. Folio 139 of his migration file contains allegations that his wife was unhappy about the divorce as she is a religious person.
11. It was put to the applicant that his marriage to Daniela Zablocka could be seen as not genuine and entered into solely for the purposes of obtaining residence. The Applicant responded that at that time he did not intend to marry. He had fallen in love.
12. It was put to the Applicant that he could have complied with his visa and left Australia and returned to Poland with his new wife when she left Australia just three weeks after they were married. This was before he lodged his application for PR. He responded by saying that he could think of no reasons for accompanying his spouse to Poland. (note that the Applicant later returned to Poland to see his mother when she was sick).
13. The Applicant advised that he started work approximately a month after arrival. (i.e. Nov 98) He was working illegally when he married Zablocka.
14. It was put to him that it seemed very strange that a person would have no reasons to accompany their new spouse home to their own country. He responded by saying that he spoke with his solicitor who advised that it was not a problem. He did not know that his wife was thinking of going to Poland at the time he married her and she said she was only going for two months. They remained in telephone contact.
15. The Applicant was asked if he ever discussed with Zablocka obtaining permanent residence or a marriage of convenience. He answered yes and no. He confirmed no. This was clarified by asking the Applicant if he categorically denied having the intention of a marriage of convenience to get PR. He responded by saying that she was his friend and in difficult moments she helped him. He was asked if this meant that she helped him by getting him PR? He responded by saying that she knew his situation was difficult. She offered to marry him to help him. It was not a big romance.
16. He was asked if this was a marriage to help through friendship. He responded by saying: “Yes, I think so”.
17. He was then asked if this would explain how she could leave him just three weeks after marriage? He claimed he did not know she was planning to leave. It was put to him that he must have made a decision not to accompany her. He responded that he was working and paying rent on the flat. He had no reasons to go to Poland.
18. Assessment: Based on the applicant’s responses and the short time between the marriage and the departure of his spouse to Poland, I am of the view that the Applicant’s marriage was one of convenience for the purpose of obtaining PR.
19. Again, the Applicant was shown the time line. The Applicant was granted a BVA one month after his spouse left for Poland. On 5 Nov 1999 he was granted permission to work. He admitted that he worked illegally from Nov 98 to Nov 99 illegally and that he went to Australia with the intention to work to save funds as, through his divorce from Dorota, he no longer owned an apartment, car et.
CHARACTER ISSUE #3: Applicant admits working illegally in Australia in Nov 1998 – Nov 1999.
MEDICAL HISTORY
25. Confidential information was sent to the Visa Office of the Embassy claiming, amongst other things, that he had period of time in a psychiatric hospital.
26. The Applicant was shown his application for migration at q.69 relating to Health and Character. The Applicant had responded No to the question including mental illness. The Applicant was also shown questions 13(b) and (e) on the form 26 at folio 97. He confessed that he had lied. He stated that while doing military service in Poland he had mental health problems because he was against Communism. Claims he was in hospital for two weeks and was prescribed tranquillisers. Claims he is now taking an over the counter medication and using meditation to control his anxiety.
Character Issue #4: False statements regarding his medical history
27. In conclusion, it was put to the Applicant that he failed the character test. Specifically, he had:
· Worked illegally twice in Australia;
· Falsified documents and made false claims in relating to an application for a visa to the USA;
· Entered into a marriage of convenience to obtain PR; and,
· Made false statements in relation to his medical history.
28. The Applicant responded by saying that he realised that he had done the wrong thing in the past. He then showed us two photos of himself as a small child and emphasised that he had a very bad start to life as an orphan and this was his last chance to have a better life through his relationship with Neela whom he believes he truly loves.
29. I explained to the Applicant that his situation is not one where, for example, he had worked illegally over ten years ago but had led a blameless life since. What I saw before me was a pattern of repeated disregard for the law of any country in terms of visa conditions and a history of making false statements and seeking marriages purely for the purpose of obtaining PR. He was advised that we would write to him to about his character and his application.
Other issues:
30. The Applicant has also made other false declarations. For example, at folio 53 of clf/1999/13579, question 23 he claimed that his wife was not working when he applied for Permission to Work. (He failed to say his wife had left Australia and was in Poland and that he had been working since shortly after his arrival in Australia. We understand that, in fact, his wife went to Poland because of an offer of work). This issue, among others, was not pursued at the interview due to the sheer number of issues that were more directly relevant to his present application.
31. The Applicant will provide a copy of the letter to the Minister.
32. Folio 3 on the file CLF1999/13579 regarding his PR application in Australia contains a copy of a divorce certificate relating to his first marriage, to Dorota, at a court in Poland. This document is signed by Anna Buraczewska, a person having the same name as himself, in a style of signature that appears to be simply the name written out by hand rather than in the manner of a signature, let alone of an official who would sign many documents. The Applicant has never provided the original or a copy of this document for his migrant application. The Applicant told us that he initiated the divorce proceedings and that his mother handled them in his absence. I put it to the Applicant that we would be checking the authenticity of the document. The Applicant seemed very surprised by the coincidence of the same name and immediately, without any comment from us, drew the conclusion that if it were false he would be a bigamist. I explained to him that this was a serious matter and that if false, it would mean that he was never validly married to Zablocka or Bedlu. There are many coincidences in this case in terms of his first wife following him to Australia while he was married to Zablocka. At interview he stated he was in contact with Dorota after the divorce and when she came to Australia and that she had wanted to get back with him. As the Applicant has repeatedly made false claims I did not pursue this at the interview although I had noted that their travel to America seemed more to allow them to get work and residence there in the same way that he seems to have always travelled to Australia to obtain work and residence. A pattern evident among some cases in this office are sponsorships by Australian citizens or residents for their first wife or husband when they obtained PR by marrying an Australian resident after arriving in Australia on a visit visa. In confidential information, Dorota’s mother stated that Dorota was very unhappy about the divorce on religious grounds. This post has previously seen false marriage certificates from Poland obtained for PR applications in Australia. A key determinant was the official’s name and signature on the document.
Chris Nadolski: The Australian solicitor
33. The role of Chris Nadolski in this case is unclear. Once this application is finalised the relevant files should be sent to the Migration Agents’ Section for further consideration.
Ondrae Campbell
PMO Warsaw”
3. The Respondent furnished a statement of facts and contentions dated 20 May 2003. Clauses 4 (which under the heading “Facts” contains a useful summary of chronological events, and which is referred to as (the “Chronology”), 13, 14 and 15 of that statement are included in these reasons as follows:
“4. Facts
Date
Event
17/09/1965
Applicant born in Poland (T4, f39)
05/10/1971
Review applicant born in Fiji (T14, f164)
06/07/1993
Review applicant becomes Australian citizen (T14, f176).
15/04/1989
Applicant marries Dorota Buraczewska (T4, f66).
05/10/1998
Applicant enters Australia on a visitor visa valid for three months (T4, f40).
03/12/1998
Applicant divorces Dorota Buraczewska (T4, f66).
12/03/1999
Applicant meets Daniela Zablocks (T4, f27). Ms Zablocks was then aged 51, some 17 years older than the applicant.
01/07/1999
Applicant marries Daniela Zablocka (T4, f58).
23/07/1999
Daniela Zablocka departs Australia (T7, f87).
26/08/1999
Applicant lodges spouse visa application, with Daniela Zablocka as nominator (T4).
The application records that the applicant was not working between October 1990 and March 1994, and from November 1998 to the date of the application (f23).
The applicant also provides a “Medical examination for an Australian visa” Form 26, and answers no to questions as to whether he had ever been admitted to hospital for any reason and whether he had ever had anxiety, depression or nervous complaints requiring treatment (f44).
05/11/1999
Applicant applies for permission to work in Australia (T5). He states that his then wife was not working and could not afford to support him (f70).
00/12/1999
Daniela Zablocka advises applicant that she will not be returning to Australia, and was living in a de facto relationship in Poland (T23, f276). Applicant does not advise DIMIA of this change in his circumstances.
05/09/2000
Applicant’s spouse visa application refused (T7, f87).
27/09/2000
Applicant meets review applicant (T11, f103).
22/11/2000
Review applicant swears a statutory declaration, stating that she met the applicant in August 2000, in an Ashfield restaurant during her lunch break (T10, f97).
06/06/2001
Applicant divorces Daniela Zablocka (T14, f161).
14/07/2001
Applicant marries review applicant T14, f163).
04/09/2001
Applicant departs Australia (T2, f7).
05/09/2001
Applicant lodges further spouse visa application, with review applicant as nominator (T11, 13-15).
The applicant again provides a “Medical examination for an Australian visa” Form 26, and answers no to questions as to whether he had ever been admitted to hospital for any reason and whether he had ever had anxiety, depression or nervous complaints requiring treatment (f121).
The application also records (again) that the applicant was not working between January 1990 and March 1994 (f156).
The review applicant swore a statutory declaration, stating that she met the applicant in September 2000, at the post office where she works (f178).
15/05/2002
Applicant interviewed by DIMIA official at Australian Embassy, Warsaw (T2, f7-8). The applicant admitted that:
· he had worked illegally in Australia from 1990 to 1993, and from November 1998 to November 1999;
· he made false claims (that he had a child and was a student) and he used a false document to obtain a visa to the United States;
· when doing military service in Poland he had mental health problems and was in hospital for two weeks and prescribed tranquillisers. He did not admit to this on his application forms;
· he and Daniela Zablocka were friends and she offered to marry him to help him obtain residence;
· he made a false declaration when he claimed that his then wife (Ms Zablocka) was not working and he applied to DIMIA for permission to work.
20/06/2002
Applicant makes submission in response to notice of intention to refuse visa under section 501 of the Migration Act 1958 (“Act”) (T22). The applicant confirmed that:
· he worked illegally in Australia;
· he used a false document to apply for a visa to the United States;
· he did not mention his hospitalisation for mental health problems on his application forms.
15/07/2002
Delegate of the Minister refuses the grant of a visa under section 501 of the Act (T2).
04/09/2002
Review applicant lodges notice of application for review of decision with the Administrative Appeals Tribunal (T1).”
…
13. The applicant’s history shows that he has, on numerous occasions, given false and misleading statements in connection with visa applications. In particular, the applicant provided the following false claims:
· the applicant provided work histories in connection with his spouse visa applications dated 26 August 1999 and 5 September 2001, respectively. In each application, he does not record being employed from 1990 to 1993, and from November 1998 to November 1999. At the interview conducted by a DIMIA official in Warsaw on 15 May 2002, the applicant admitted that he had worked illegally in Australia during these periods;
· the applicant applied for permission to work on 5 November 1999. In this application, he stated that his then wife was not working. The applicant admitted at the interview conducted on 15 May 2002 that this statement was false;
· the applicant provided a “Medical examination for an Australian visa” Form 26 in connection with his spouse visa applications dated 26 August 1999 and 5 September 2001, respectively. On both occasions, he answered “no” to questions as to whether he had ever been admitted to hospital for any reason and whether he had ever had anxiety, depression or nervous complaints requiring treatment. At the interview, the applicant admitted to having been hospitalised for two weeks for mental health problems, for which he was prescribed tranquillisers;
· the applicant made false claims (that he had a child and was a student) and he used a false document to obtain a visa to the United States;
· the applicant submitted documents in support of his spouse visa application dated 26 August 1999, to the effect that his marriage with Daniela Zablocka was genuine, when in fact on his own admission it was contrived for the purpose of enabling him to obtain residence.
14. As part of each visa application, the applicant signed a declaration declaring that:
· “The information I have supplied on or with this form is complete, correct and up-to-date in every detail.
· I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled …
· In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Ethnic Affairs of any changes to my personal circumstances (eg marital status, changes to the family composition) while my application is being considered …
· I have read and understood the information supplied to me in this application.”
15. In addition to giving false statements in support of his applications for migration to Australia, and a bogus document in support of his application for migration to the United States, the applicant also:
· failed to comply with the conditions of his visas that he not work during the periods from 1990 to 1993, and from November 1998 to November 1999;
· undertook employment unlawfully in Australia for a prolonged period;
· entered into a contrived a marriage with Daniela Zablocka for the purpose of enabling residence.”
4. Specifically in respect of clause 4 of the Respondent’s Statement of Facts and Contentions, the evidence before the Tribunal revealed that two significant events were not included in the Chronology; those events could conveniently have been included immediately after the entry dated 5 September 2000. In the first instance, and after the Visa Applicant’s Spouse Visa application rising from his marriage in July 1999 to Daniela Zablocka (“Daniela”) was refused (T7, p 87), the Visa Applicant sought to have that refusal reviewed by the Migration Review Tribunal (“MRT”). (The Tribunal refers to that particular spouse visa application as the “Daniela spouse visa application” in order to distinguish it from the spouse visa application referred to in clause 1 above). The application for review by the MRT was made out of time; accordingly and by letter dated 15 November 2000 (Tp92), the MRT advised the Visa Applicant that it could not accept the application and advised that it was arranging to refund his application fee of $1400.00. The fact that the Visa Applicant sought the review by the MRT of the refusal of the Daniela spouse visa application was significant because, as the evidence revealed, the refusal arose in particular in consequence of two matters; in the first place T pages 88 and 89 indicate that in February 2000 correspondence was sent to the Visa Applicant requesting “documentation essential to the determination of regulatory criteria”, and to which the Visa Applicant did not respond. In the second place, and even more to the point, the relationship between the Visa Applicant and Daniela had ended some considerable time previously, and indeed Daniela had returned to Poland.
5. In the second instance, and on 22nd November 2000, Mr Chris Nadolski, a solicitor, (“Nadolski”) wrote to the Respondent on behalf of the Visa Applicant; that letter (“the Nadolski letter”) T10 pages 95 and 96 reads as follows:
“We act for the abovementioned Applicant in relation to his application for dissolution of marriage. Our client requested us to write to you concerning his application for permanent residence in Australia.
The purpose of this letter is to make representation on behalf of the Applicant for the purpose of allowing him to make a further application for permanent residence on spouse grounds once the Dissolution for Marriage proceedings are concluded.
The facts of the matter as are follows:
The Applicant arrived in Australia as a visitor and after extending his visa twice, lodged an application for permanent residence on spouse grounds. The application was processed in the usual fashion. However, shortly after the marriage the Applicant’s wife departed Australia for Poland where she still resides. Accordingly the Applicant’s application was refused. Applicant appealed to the Migration Review Tribunal and his appeal was refused.
At present the Applicant instructed us to commence dissolution proceedings and such proceedings will take some time particularly in view of the Applicants status in Australia and the fact that the marriage did not last for the period of two (2) years.
In August 2000, the Applicant met Ms Neela Badlu, an Australian citizen and they now live together in a de facto relationship. The Applicant and Ms Badlu intend to marry as soon as the divorce proceedings are concluded and they intend to live in Australia.
In these circumstance, we ask that you exercise your discretion
1. stay in Australia until the parties marry legally; and
2. allow the Applicant to make a further application for permanent residence while in Australia.
We enclose Ms Badlu Statutory Declaration”.
6. The Applicant did not submit a statement of facts and contentions. However Mr Amin said that his letter dated 4 February 2003 addressed to the Tribunal should be regarded as containing and embodying the Applicant’s submissions. That letter is in the view of the Tribunal difficult to classify. It contains evidence (some of a hearsay nature) and it contains statements which might be termed contentions; some of those contentions are cast in language which is not easy to comprehend. However and if only as a matter of balance, the content of that letter dated 4 February 2003 is included in these reasons in its entirety as follows:-
Little n’ Bons’ Associates
Migration & Language Service
“Date: 4th February 2003 By Express Mail
Administrative Appeal Tribunal
Sydney District Registry
Level #7, 55 Market Street
SYDNEY. NSW - 2000
Dear Sir/Madam,
Ref: Ms. Neela Badlu, DOB: 05/10/1971, Administrative Appeals Tribunal Ref #N2002/1292
Please find enclosed 8 copies of reference letters from the applicant and her husband’s various friends, relatives including her parents stating her husband Mr Buraczewski’s honesty and loyalty to his wife as well as to the Australian community.
I have an intensive discussion with Ms Badlu on the issues that the DIMIA in Warsaw has raised as the grounds of the refusal of her husband’s spouse visa application. Ms. Badlu has informed me that regarding Mr Buraczewski’s compulsory military service, during his early youth, in Poland given his tender age, a mere youth, and his horror at being forced to serve in an army whose beliefs were against all his principles he engineered an escape from it in the only way he could think of. This consisted of faking a mental illness hoping that this would have him discharge from the compulsory military service.
Ms Badlu also acknowledge that during the end of the communist regime in Poland the employment market was very bad like the neighbouring communist countries including former USSR, which caused many youths to migrate from their own soil to seek their fortune and her husband was no exception to that. The tribunal may notice from the history of world politics that early 90’s most of the communist country has just opened their windows towards the modern world and open market and it is obvious to any human being, after being released from a long solitary confinement, to rush to that window hole to see the glimpse of eternal light and to have a long breath of the fresh and cool breeze coming through.
Ms Badlu has advised me that in 1990 his husband along with his former wife Dorota did not come with the goal of P.R rather for a visit which later encouraged the poor couple from a communist country stay back further in Australia for a while.
Regarding the misleading information in the USA visa application Mr Badlu has informed me that her beloved at his youth was conned by a Polish guy who cheated on many youths like Mr Buraczewski. Regarding the information of child was just a mistake as a human error.
Her first wife in fact was not religious and her unhappiness about the divorce is not true. The couple were really in problem and Mr Buraczewski had struggled a lot to cope with his former wife Ms. Dorota. Their divorce was very genuine which was also questioned and suspected by the DIMIA in Warsaw due to the identical surname of the signatory person in the court document. Ms. Badlu has commented that, due to the applicant’s some mistakes, the DIMIA officials were always suspicious on every documents and information that her husband has provided them and they were suspicious on everything. She believes that the application was jeopardised and rejected unjustly by the DIMIA with the serious influence of prejudice.
Ms Badlu also informed me that her husband did not go to Poland while his second wife Daniela was there, as she wanted him to stay back in Australia. Mr Buraczewski was completely unaware of Daniela’s sudden plan, 3 weeks after the marriage, about the trip to Poland. Later he did go to Poland and that was to visit his ailing mother, which is humanly acceptable.
During Mr Buraczewski’s stay in Australia he worked without permission from the DIMIA, it is true and could be acceptable by any human avenue considering someone’s persuasive circumstance for survival in a foreign land. Tribunal will accept that definition of cooked meat and dead animal or cannibalism to some lost sailors in Dead Sea or desert travellers, during their serious starvation, does not give them much difference. Compelling situation can convince or motivate any human being for his survival to do anything as long as it does not personally harm anyone else.
Ms Badlu has instructed my office that in the interview with the principal migration officer, Ms. Ondrae Campbell, he was asked whether he discussed with Zablocka (second wife) obtaining P.R on marriage of convenience. He answered to this question, NO. He never said, YES. It was true that they were friend before marriage and then fell in love later on, which is natural. Zablocka knew that Mr Buraczewski was going through a rough time with his recent divorce and she came closer to him during his ordeal as a moral supporter with reliable comfort. He never told the DIMIA officer that his second marriage to Zablocka was help through friendship. Moreover, he was continuously misinformed and mislead by a person named Chris Nadolski, during the course of his previous onshore spouse visa application, who held himself out to be a migration agent/solicitor, and placed his full trust in that person. Regarding the wrong information in his work permission application he commented that Mr Nadolski, his former adviser, advised him to do so. Ms Badlu thinks that her husband is a very honest and a family oriented person. He is the victim of circumstances.
The DIMIA officer in Warsaw has noted that his first wife followed him to Australia while he was married to Zablocka is not true. She came to Australia in October 1999 and did contact him but he told her he didn’t want her back. The DIMIA also commented that he travelled to USA to obtain work and residency but he has never been to USA. His first wife Dorota did go by herself.
I like to submit to the honourable tribunal that the enclosed letters from various people who know this couple could be considered as substantial evidence that Mr Buraczewski is honest and usually is of good character for the purposes of the Migration Act. I would like to refer to the decision in Goldie v MIMA (1999) 56 ALD 321 and the finding of the Full Federal Court, that a person does not have to be perfect to pass the character test but does have to have “enduring moral qualities”.. This approach was also followed by Deputy President McMahon in Re Msumba and DIMA (2000) 31 AAR 192.
The honourable tribunal of course realise that Mr Buraczewski’s absence from Australia is causing significant disruption to his family, namely Ms. Badlu and she said if her husband is refused to join her in Australia it will cause her severe mental anguish and heartbreak to her. She has been under the care of a renowned psychologist as a result of the ongoing frustration caused by his situation. And a report of her mental state will shortly be forwarded by the psychologist to our office and will be forwarded to the tribunal upon its arrival.
Their plans to begin a normal family life here in Australia including children are all up in the air pending the tribunal’s decision regarding her husband. Mrs. Badlu is now almost 32 and given that she would like to start a family with her beloved husband as soon as possible. They are appealing to the tribunal to use their discretionary power to allow the couple to become a happy Australian family. I submit that if the applicant does not pass the prescribed character test, then the exercise of the discretion in Sec 501(1) must be considered.
It is very convincing to us that Mr Buraczewski is no real threat to the peaceful Australian community and the community would take a humane view of his situation, would note his behaviour and good conduct after his last marriage, and take into account his wife Ms. Badlu’s emotional and psychological situation. I request the tribunal to set aside the primary decision under review by exercising its discretion under the Sec 501(1) of the Act and remit the decision to the respondent with a direction to that affect.
Should you have any queries regarding the above please feel free to contact me. Thanking you.
Yours faithfully
Little N’ Bons” Associates”
7. As to whether the Nadolski letter was competent as a matter of law is doubtful. It may have been intended to constitute an application under section 351 of the Migration Act 1958 (“the Act”); however the MRT had not determined the Visa Applicant’s appeal because it was lodged out of time. Mr Amin conceded that it was probably incompetent and Mr Allatt was inclined to agree with that view. The Nadolski letter was relevant in particular because the Visa Applicant and also the Applicant in evidence, took the view based, so they said, on advice by Nadolski, that the Visa Applicant’s status in Australia could not have become illegal until the Respondent responded to the Nadolski letter. (Statements to this effect were made on more than one occasion during the hearing.) There was of course no legal basis for such a contention.
8. Evidence was given by the Applicant, the Visa Applicant and each of the Applicant’s parents. In the case of the Visa Applicant, evidence was taken by telephone link to Poland, and with the aid of a Polish Interpreter. In respect of the Visa Applicant it became clear that he is reasonably fluent in English having spent a number of years in Australia. Accordingly his answers were on many occasions given in English without waiting for the interpreter first to interpret the question into Polish.
9. Clause 33 of Exhibit R1 suggests that it is the view of the Department that the role of Nadolski may require further consideration. He was consulted by the Visa Applicant before he met the Applicant. The Applicant in her evidence sought in respect of a large number of matters, to blame Nadolski; the Visa Applicant was less prone to blame Nadolski in respect of at least some of those matters. I intend later in these reasons to set out the relevant allegations in more detail.
10. I have previously noted that Mr Amin did not file any statement of facts and contentions. I have also previously noted that he felt that his letter dated 4 February 2003 (set out in clause 6) might serve as such. He did not moreover serve any witness statements in respect of the witnesses called by him; Mr Allatt waived this obligation. There is one final aspect of a preliminary nature. This is a case where the dates and times on which events occurred were of particular significance and relevance. I will elaborate on these aspects later in these reasons.
PART B – THE EVIDENCE OF THE APPLICANT
11. The Applicant was born on 5 October 1971 in Fiji. She was and is a member of the Fijian Indian community; she speaks Hindi and takes her religion seriously. She went to primary school and high school up to year 10 in Fiji where she studied in the medium of English. English is the Applicant’s first language and she is altogether fluent in English.
12. The Applicant came to Australia on a student visa in February 1989 and took years 11 and 12 of high school in Adelaide. In 1991 she went to Fiji on holiday for four weeks, and returned with her parents and brother who had permission to reside in Australia. (Her elder sister was already resident in Australia).
13. The family became resident in Marrickville. The Applicant attended the Sydney TAFE where she studied chemical technology for two years. After graduating she obtained employment as a laboratory technician in Hoxton Park. However she left that job in October 1995 because of the nature of the job which had an adverse effect on an asthmatic condition.
14. The Applicant struggled to obtain employment in another field and for ten months was unsuccessful. She then obtained employment at first on a casual basis and later on a full time at the post office. She is currently a customer service officer at the Ashfield post office.
15. For some years the Applicant was in a relationship with Ravi, a young man of Fijian Indian origin of about the same age. Both Ravi’s and the Applicant’s parents and have known each other in Fiji and the relationship between the two young people was arranged by them (the parents of the two young people) even before the Applicant’s family came to Australia. Ravi had come to Australia with his family in 1987.
16. The relationship did not ever become one involving their living together. The Applicant said that her parents would permit such a relationship only after a formal engagement and a firm commitment to marry. The relationship with Ravi got into difficulty because according to the Applicant, he tended to be domineering and in any event was reluctant to marry, perhaps because of his ambition to study and in order to become a pilot with Qantas. (He is currently a civil engineer with Qantas.) The relationship ended in November 1996. The Applicant said that they were then only separated and she would have liked to have had resumed the relationship especially because her parents were pressing her to get married. But this in the end was not possible. The Applicant said that she was single and aged 29 when she met the Visa Applicant. Her sister was married while she was still living with her parents; she said that she did not want to be a burden to them. Having regard to her evidence and that of her parents, it would seem that especially as they reach their late twenties, young women of her class and background are under some considerable social and family pressure to marry.
17. As to when precisely the Applicant met the Visa Applicant was the subject of some conflicting evidence. In a statutory declaration referred to later in these reasons, the Applicant said that she met the Visa Applicant at a restaurant in Ashfield in August 2000. Her evidence before me was that she met him as a customer of the Ashfield Post Office on 27 September 2000, when he came in to buy stamps. He asked her to have coffee with him. On their second date he bought her a crystal. By their third date he had told her about his first marriage to Dorota (“Dorota”) and his second marriage, then not dissolved, to Daniela. He also told her about his immigration status.
18. The relationship progressed. She said that he was open with her and she was open with him, and in particular told him about Ravi. A considerable part of the Applicant’s evidence was hearsay and in reality a recital by her of what the Visa Applicant had told her. Attempts to limit her evidence, as to what the Visa Applicant had said to her as regards events prior to their meeting, were marginally successful only.
19. The Visa Applicant had told her that his first marriage to Dorota was unsuccessful because Dorota would not visit his family and more importantly because Dorota did not want children whereas he, the Visa Applicant, did. She said that the Visa Applicant had completed primary and high school education in Poland, but did not have any further qualifications or education. The Visa Applicant came from a broken home and was in an orphanage until he was three. He was then adopted by a couple who could not have children of their own. His adoptive parents separated when he was twelve and he was devastated because he was devoted to his adoptive father, of whom he saw very little in the years which followed.
20. When the Applicant was aged 20 (in 1985) had to go into the Polish army for compulsory training. He wanted to escape the army because he was depressed; in addition he wanted to be with his mother who was his only real family.
21. The Applicant said that the Visa Applicant came to Australia in 1991 with Dorota (in fact he came in 1990 and Dorota came some time later). They decided to stay in Australia to earn money even though for them to work in Australia was illegal, and in 1993 they returned together to Poland. The Applicant said that the Visa Applicant was in Poland from 1993 to 1998 and that he then returned to Australia on his own in 1998. He met Daniela who was then a singer at the Polish Club and although Daniela was then 51, the Visa Applicant said that he and Daniela were married in May 1999 (in fact they got married in July 1999). They had lived together before marriage, and the marriage was happy but then Daniela said in July 1999 that she was going back to Poland to earn more money and would return to Australia later. The Applicant also said in this context that Daniela did not tell the Visa Applicant that she intended to return to Poland, that he had no idea that she planned to do so, and that he was shocked by this decision. Daniela advised the Visa Applicant two or three months later (from Poland) that she intended to return to Australia at Christmas 1999. In December 1999 the Visa Applicant had sought advice from Nadolski; Nadolski advised him, the Visa Applicant, that he could apply for the Daniela spouse visa in Australia (that reference to December 1999 was probably mistaken given that the Daniela spouse visa application was lodged in August 1999, and after Daniela had already left Australia).
22. Nadolski having advised the Visa Applicant that he could apply for a spouse visa in Australia, then advised him to seek permission to work in Australia. An application for a bridging visa was lodged on 5 November 1999. The question and answers in respect of questions 16 and 23, both appearing at (T page 70) read as follows:
“Question 16: How have you supported yourself until the time of this application?
Answer 16: I have been supported by my wife but at present my wife has no income. I used all my savings.
Question 23: Provide details of any additional Information you would like to considered in support of your application for permission to work?
Answer 23: I have used all my savings and have no income to support myself. My wife is not working and cannot afford to support me. I wish to work to not only to support.”
Those answers were of course not truthful because Daniela was by that time in Poland whereas the answers were designed to indicate an entirely different position.
23. T5 page 72 contains a notation to the effect that permission was granted although it is not clear who in particular signed the handwritten notation to this effect, or his or her capacity to do so. Nor does T5 page 72 contain any identifying particulars of the office of the authorising person.
24. According to the Applicant, the Visa Applicant was told to apply for a work permit by Nadolski on the basis that he needed money to support his wife (Daniela). Moreover Nadolski advised him that it was not necessary to inform the authorities that Daniela had gone back to Poland in July 1999. The Visa Applicant did not check on the advice given by Nadolski and, so she said, assumed that it was correct.
25. T page 276 contains notes by the Department as to a conversation with the Applicant. That note indicates that Daniela told the Visa Applicant, in December 1999, she would not be returning to Australia and indeed that she was living with someone else. An extract from T23 page 276 reads as follows:
“Did they advise immigration that they married – yes within a month of their wedding.
BVA granted 26 August 99.
Two months later his wife advised him that she will come back for xmas 99 to Australia.
When xmas came she advised him that she is not coming back to Australia at all, she was living in a de facto relationship in Poland.
Did he advise Immigration about this – he didn’t know Immigration law so he went to a lawyer for advice, Chris Nadolski.
Nadolski told him that he does not have to advise Immigration. Just wait until Immigration contacts him.
Why didn’t he come back to Poland, especially if his wife was in Poland – he hoped that she would come back.
His mother advised him that his father had a stroke and is in hospital. Did he go back to Poland to see his father – no, his father survived and pa decided not to go back to Poland.
On 5 November 99 he applied for permission to work as he had not much money left, BVA with permission to work granted 5 November 99. He worked as a house painter.
He applied for a BVA in June 2000 to visit his mother, who was in hospital. He came to Poland in June and stayed 6 weeks. He went back to a/a in August 2000.”
26. As to when Nadolski was in fact consulted is not clear. If Nadolski was first consulted in December 1999 he could not have been involved in the application made on 5 November 1999 nor could he have been involved in the Daniela spouse visa application made in August 1999 and in respect of which Daniela was the sponsor. (Daniela had, as will have been noted, left Australia in July 1999.)
27. The Applicant said that Nadolski’s advice in December 1999, when Daniela finally advised the Visa Applicant that she would not be returning, was to do nothing and that everything would be in order. According to the Applicant, Nadolski also advised the Visa Applicant to do nothing and say nothing to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) even after his return from Poland in August 2000 and after a brief visit to Poland in order to see his mother. The Nadolski letter was sent in November 2000, after the Applicant and the Visa Applicant consulted him, and after their relationship commenced. (By the end of October 2000, the Visa Applicant asked the Applicant’s parents for permission to marry the Applicant.)
28. The Nadolski letter noted inter alia that “the Applicant and the Visa Applicant met in August 2000 and that they now live together in a de facto relationship”. That letter was written (as has been noted) in November 2000. According to the Applicant, the Applicant and the Visa Applicant started living together after they became engaged on 23 December 2000. The statutory declarations of the Applicant’s parents (referred to later in these reasons) state they commenced living together in early December; I will revert to this aspect later when I deal with the evidence of the Applicant’s parents.
29. The Applicant spoke at some lengths of a letter from the Department received in April 2001 refusing the application contained in the Nadolski letter. The evidence revealed that in fact there was no such letter and that she may have been referring to the letter by the MRT (T9 page 92) as to its inability to hear an appeal against the refusal of the Daniela spouse visa application, because that appeal was out of time. The Applicant was confused in another respect and that was as regards her statement that Nadolski refunded an amount of $1,400.00 paid to him. T9 page 92 indicates that that amount was in fact a refund by the MRT of the lodgement fee.
30. The Applicant went on to say that she and the Visa Applicant were married in July 2001, firstly in a civil ceremony and then in an Hindu religious ceremony. The T documents contain photographs of the ceremony, (T13 page 135 and following). After their marriage they went on honeymoon to the Gold Coast. On their return the Applicant and the Visa Applicant together with Nadolski went to the Department at the Rocks in order to lodge their spouse visa application. Nadolski did not tell the Department that he was there as their lawyer but rather that he was there as their friend. The Department said that the spouse visa application would have to be lodged in Poland. The Department said also that the Visa Applicant had been in Australia illegally for some six months and that he would have to leave Australia, but gave him a brief bridging visa allowing him to stay in Australia for a short period of time prior to departure.
31. The Visa Applicant went back to Poland on 4 September 2001 and currently lives with his mother in Suwaeki, which is north-east of Warsaw. The spouse visa application was lodged in Warsaw on 12 September 2000. Since that time she has phoned him every day and has even sent him some money. (He said in his evidence that she phones him once a week). She has not been able to visit him in Poland because she has financial commitments in Australia and in particular in respect of the house bought together with her parents and brother, and in which they all reside. In addition there was evidence before me that the Applicant is making payments in respect of the car purchased by the Visa Applicant in Australia. The evidence was that she bears the cost of all of the telephone calls to the Visa Applicant who is not working.
32. The Applicant was asked what she would do if the visa applied for were refused. She made it clear that she would not consider going to Poland: she does not speak Polish, would not be able to find work, would find it too cold and in any event could not possible contemplate parting from her supportive and close knit family. It was put to her that Poland might enter the European community and in which event a reunion in the United Kingdom might be possible. She said that she would not consider being parted from her parents. As she put it, Australia is her home and she could see no reason why she should contemplate leaving Australia.
33. In cross-examination the attention of the Applicant was drawn to her statutory declaration dated 22 November 2000 which appears at T10 page 97; in that statutory declaration she said in clauses 5 and 6:
“5. We have made arrangements for our engagement on 23 December, 2000 and we intend to marry in February 2000 after Andrew’s present marriage is dissolved.
6. I met Andrew in August 2000 in Ashfield restaurant during the lunch break, and we now at present Andrew and I live together at my and my parents place at 20 Lauderdale Street, West Hoxton, New South Wales.”
The Applicant said that she was sure that she met the Visa Applicant at the Ashfield Post Office in September 2000. She also denied the correctness of the statutory declaration insofar as it specified that she and the Visa Applicant were living together. She said that Nadolski typed the statutory declaration and that it was wrong. She accepted that the term “living together” means living together in such circumstances that a bed is shared. She said that she probably did not read the statutory declaration (T10 page 97) carefully before signing it.
34. The Applicant was asked whether the Visa Applicant told her that in September 2000 the Daniela spouse visa application had been refused. She said that he told her on either their second or third date and probably in October 2000, however he did not tell her at that time of his intention to appeal that decision.
35. The Applicant was then asked about the Daniela marriage. She said that she knew that the marriage was over and that Daniela had formed a de facto relationship with someone else in Poland. She said that the Nadolski letter was primarily an attempt to obtain permission to work; she agreed that a work visa was necessarily linked with the spouse visa application. She again said that the Nadolski letter contains statements which were untrue.
36. The Applicant was asked about the fact that T14 page 179 (the statutory declaration by her mother, Kusum Badlu) referred to the Visa Applicant seeking her hand in marriage in October 2000 and the fact that they lived together as from early December; it was put to her that this occurred very soon after their first meeting. She denied that it was possible that the Visa Applicant was seeking to use her. The Applicant was adamant about the fact that he was not “a man on the make”.
37. It was put to the Applicant that the Visa Applicant’s first marriage had failed because, inter alia, Dorota had refused to have children, and that this raised questions as to why the Visa Applicant’s second marriage to Daniela, aged 51 and probably past child bearing age had taken place. The Applicant’s answer was that she had heard of a woman who had a child at the age of 56.
38. The Applicant in cross-examination was adamant in her view that in respect of the Nadolski letter the Visa Applicant was legally in Australia until such time as the Respondent replied to it.
39. I would categorise the Applicant’s evidence as truthful for the most part. I accept that at least so far as she is concerned her marriage to the Visa Applicant is genuine. Some of her evidence was in my view untrue and in particular as to when they started living together. It is not likely that the Applicant can be unaware of the fact that the marriage to Daniela was on the balance of probabilities, one of convenience only. Having not heard from Nadolski, it would be unfair to make findings of fact as to allegations related to the part played by him.
PART C – THE EVIDENCE OF THE APPLICANT’S PARENTS
40. The evidence of Kusum Badlu (the Applicant’s mother) and Chhabi Ram Badlu (the Applicant’s father) can conveniently be dealt with together. Their statutory declarations (T14 pages 179 and 181) are cast in similar terms.
41. Mr Badlu was while in Fiji, a lecturer in plumbing at an institution equivalent to a TAFE. He was more articulate than his wife who was plainly nervous. She had said that the Visa Applicant was kind to her and drove her to the station in the mornings when she was working. The evidence of Mr Badlu indicated to me that it is likely that he and his wife were delighted when the Visa Applicant came on the scene and that even though he asked to marry their daughter very soon after meeting her, and even though he was already married, they were not disposed to deny her the man of her choice. The Visa Applicant was polite to them and their friends and relatives; they knew nothing about his immigration status.
42. Mr Badlu agreed in cross-examination that everything happened very quickly. It was put to him that the Daniela spouse visa application, having been refused in September 2000, meant that the Visa Applicant seeking permission to marry the Applicant in October 2000, after meeting the Applicant in late September 2000, could be seen as circumstances which to an outsider might seem suspicious. Mr Badlu said that this might appear to be the case but that the Visa Applicant was very nice to them. He did not strike them (the parents) as someone who had psychological problems.
PART D – THE VISA APPLICANT
43. The Visa Applicant was born in Poland in 1965 and currently lives with his mother in Suwaeki. He went to primary school and technical college (equivalent to high school) in Poland. He said that he did not have any further education.
44. T14 page 156 sets out an employment record for the Visa Applicant during the period July 1985 to January 1990 and in which he was engaged variously (in Poland) as a clerk and as a mechanic. It is silent as to the period between January 1990 and March 1994. From March 1994 to October 1994 he worked in Poland as a fitter and turner.
45. It is unnecessary for me to go into detail as to the Visa Applicant’s illegal work activities in Australia. He admitted that on his first visit he worked illegally in Australia and also that he worked illegally after he returned to Australia in 1998. He reluctantly conceded that his work activities were omitted from official applications because he knew that his conduct was illegal.
46. The Visa Applicant married Dorota in April 1989 when he was 23. That marriage lasted some nine years; he divorced Dorota after he came returned to Australia. The divorce was obtained in Poland with his mother representing him under a power of attorney. Dorota who was unhappy about the divorce, is currently in Australia but the Visa Applicant has no contact with her.
47. On each of the two relevant occasions the Visa Applicant came to Australia as a tourist. He knew that his visa prohibited him from working in Australia.
48. It was at that stage that Mr Amin, probably having regard to Direction 21 (to which his, Mr Amin’s attention, had been drawn on the previous day) asked the Visa Applicant as to whether he had been involved in drugs, criminal associations or terrorist organisations. He was asked whether apart from working in breach of visa conditions and giving false information as to health he was ever involved in any activity which was a threat to Australia’s national security.
49. The Visa Applicant went into the army in Poland for training because it was compulsory. Training normally lasts for three years but he obtained a discharge after only eight months by feigning mental illness and depression. He said (repeatedly) that he wanted to escape the army because of his political convictions (and because he was not a communist) and because he was persecuted for his beliefs. He said that his discharge came after a hearing which lasted two or three days and at which there were no doctors of any kind. He said that he was never hospitalised or given treatment.
50. This evidence cannot be accepted especially having regard to Exhibit R1. It is highly unlikely that one can escape national service in the manner specified by simply by feigning depression. There would be medical treatment; it is likely on the balance of probabilities that he was hospitalised and treated. Nevertheless on all official documents submitted to the Department he has repeatedly denied that he was ever ill or that he ever required medication or hospitalisation.
51. Mr Amin asked the Visa Applicant a number of questions about Nadolski. The Visa Applicant said that he trusted Nadolski because Nadolski is a lawyer but that he is sorry that he ever briefed him. At the same time he admitted that he knew that he was working illegally, but did not think that that was very serious. At times the Visa Applicant was reluctant to blame Nadolski for everything. He did say that he thought that the Daniela spouse visa application was completed by him and Nadolski while the later spouse visa application (referred to in clause 1) was completed by him and the Applicant without any assistance from Nadolski. The evidence of both the Visa Applicant and the Applicant was that they had lost confidence in Nadolski prior to the visit to the Department in August 2001, and it is unclear in that event as to why he accompanied them on that occasion.
52. Mr Amin asked the Visa Applicant about two visa applications (described by him as tourist applications) made in 1996 in respect of the USA. The Visa Applicant said that he was the victim of a confidence trickster as were many others. He was accused by the USA Embassy of endeavouring to deceive them and said that he explained to the embassy that he was on the contrary only a victim.
53. The Visa Applicant denied that he had ever admitted that his marriage to Daniela was purely a matter of convenience.
54. The Visa Applicant said that he told the Applicant of his prior relationships on either their second or third dates.
55. When asked what he would do if the visa applied for was refused, he said that: “Neela is my only wife and she will remain my only wife”.. He said that he might take refuge in the Roman Catholic Church (by which I understood him to mean that he might consider taking orders). He said that he would never marry again. He said that he did not think that the Applicant could possibly live in Poland and that “Neela is very fragile”.. He also said that he feared the possibility of suicide by the Applicant. (These somewhat melodramatic statements were made, it must be remembered, by a man who had married for the third time before he was 40.)
56. There were a number of such speeches (some irrelevant) by the Visa Applicant. He sought permission to speak on occasions; he did so in relation to a grandfather who had been apparently an inmate of a concentration camp. He said repeatedly how sorry he was that he had breached Australian law and said that he would teach his children not to do so. There were a number of professions of devout and enduring love for Applicant.
57. In cross-examination by Mr Allatt, the Visa Applicant admitted that he came to Australia in 1990. (He said that he had a visa for six months although Mr Allatt put it to him that it might have been for three months only). He denied that he intended to stay in Australia and work from the time of his arrival and said that he formed the intention only after coming to Australia. In fact he started work in Australia about one month after arrival. Dorota came to Australia some time later and she also worked in Australia. Exhibit R1 indicates that they worked to save money for a car and an apartment, both of which were acquired on their return to Poland.
58. The Visa Applicant admitted that in T14 page 156 (character assessment) he deliberately concealed the fact that he worked illegally in Australia on his first visit.
59. The Visa Applicant returned to Australia in 1998. His relationship with Dorota had deteriorated, and he divorced her some eight weeks after leaving Poland but denied that proceedings commenced before he left. He had told Dorota that he was “thinking about the relationship, no more than that. She was not happy about the position.”
60. He was asked whether he came here to find work; his answer was “not really”.. It was put to him that again he started work within a month after his arrival. He agreed that he knew that his visa had prohibited him from working here.
61. The Visa Applicant agreed that he divorced his first wife because she did not want children. He met Daniela in February 1999, started living with her in May 1999 and married her at the beginning of July 1999. Some three weeks later Daniela went back to Poland. That she did so came as a shock to him. He said that he kept hoping that she would return and indeed some months later she said that she would return by Christmas; however she said in December 1999 that she was living with someone else and would not be returning.
62. According to the Visa Applicant Nadolski said that it was acceptable to lodge the Daniela spouse visa application in August 1999 even though Daniela was no longer in Australia, on the basis that it was possible that she might return.
63. The Visa Applicant admitted that he knew that the Daniela spouse visa application had been refused and the reasons for refusal. He denied that he knew of any request by the Department for correspondence or documents. He knew at that time that Daniela would not be returning to Australia. He was asked why in October 1999 he sought to appeal that decision to the MRT especially bearing in mind that by that time he was involved with the Applicant. His answer was that he lodged the appeal because “it wasn’t my fault that she had left me”.. It was put to him that he had known for some nine months that Daniela would not be returning but that he did not at any time advise the Department of this important change in circumstances. His answer was “I’m sorry I didn’t do this – maybe I don’t have enough brains”. The Visa Applicant’s evidence as regards the questions in T5 page 70 referred to previously were even more unsatisfactory. He was after all working in Australia although illegally. He said that he was working casually only and that Daniela before she left gave him some money (about $1,000.00) and which was sufficient for two months.
64. The Visa Applicant said that he did not complete the document of which T5 page 70 is a part but refused to blame anyone else. It was put to the Visa Applicant that if his appeal to the MRT had not been out of time he would have pursued it. His answer was “I didn’t lodge it myself”.. It was put to him that there was no possible basis for it and his answer was that he “wanted to clarify my situation”.. It was also put to him that he had falsely stated that he had not worked in Australia on his first visit (T4 pages 23 and 29). (The visa pursuant to which work was prohibited appears at T4 page 40).
65. The Visa Applicant denied that he had ever been ill or in hospital and so that his “no” answer in official documents submitted to the Department was truthful (T4 pages 26 and 44 and T13 page 121).
61. The Visa Applicant was cross-examined as to his United States applications. In one case he applied for a migrant (and not a tourist visa) and later for a tourist visa, and in which he alleged that he had a child. The first application was the “confidence trickster” application on the basis that he had won a green card lottery; this was not likely since he had not entered for it. As to the second application “the mistake“ as regards his having a child arose so he said because there were two questions close together in the relevant form and he made an error in his answers. In a recent decision by me in Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438, the visa applicant falsely alleged the existence of a child in an application to the Australian embassy on the basis that the Embassy is more likely in the case of a child to consider that a return to the country of origin is likely.
66. The migrant visa was applied for in April 1996 whereas the tourist visa was applied for in December 1996. In respect of the later application the Visa Applicant claimed to be a student at a business college in Suwaeki and where, so he said, he would complete the course in 1996. Neither the Visa Applicant nor the Applicant said anything about any tertiary education of any kind.
62. The Visa Applicant was cross-examined about his marriage to Daniela. He agreed that the circumstances might seem suspicious but claimed that appearances were deceptive. The Visa Applicant contended that he did consider, on Nadolski’s advice, that he was legally in Australia until the Respondent replied to the Nadolski letter, although subsequently he agreed that, following the visit to the Department in August 2001, this was not so.
63. Having regard to all of the evidence and including Exhibit R1, it is at the very least likely on the balance of probabilities that the marriage to Daniela was a marriage of convenience only and designed solely to obtain residence in Australia for the Visa Applicant. A man who divorced his first wife because she would not have children is hardly likely to marry a woman of 51 who is in all probability past childbearing age for any reason other than to obtain residence. The statements by the Visa Applicant to the contrary were untrue (as were many other statements made by him during the course of his evidence).
64. I do not believe that the Visa Applicant was able to obtain his discharge from the Polish Army in the manner stated. It is likely that he was treated and in a hospital, and his statements to the contrary were untruthful.
65. As to his marriage to the Applicant, the circumstances are undoubtedly very suspicious indeed. The Daniela spouse visa application was refused in September 2000, his first date with the Applicant occurred on 27 September 2000, he sought and obtained the permission of the Applicant’s parents to marry her in October 2000 and moved into her home in December 2000. It is likely that they were living together as from early December 2000, or perhaps, having regard to some of the evidence, even earlier. The statements of her parents in evidence that “living together“ meant living under the same roof but not in the same bed, cannot be accepted.
66. Although there are references in the Applicant’s statutory declaration (clause 33 above) to an intention on the part of the parties to marry in February 2000, it is presumably necessary to read that as a reference to February 2001. This was in any event not possible until the Visa Applicant had managed to become divorced from Daniela and that did not occur until later in 2001.
67. It is entirely conceivable, and perhaps even likely that the Visa Applicant has sought to use the Applicant; there is considerable doubt in my mind as to whether he can possibly be as much in love with her as he professes. The timing is such that those doubts are if anything reinforced. The Visa Applicant was a man at the end of his tether and he had to marry in order to stay in Australia; marriage to the Applicant was very much a step of last resort. I should however note that it is just possible that he has become rather more devoted to her since that time and even if only as a matter of gratitude. She is paying off his car and has kept in contact with him at her expense and has even sent him money. On the other hand it is also conceivable that he recognized that the profession of devotion was necessary for the purposes of his case. He has been untruthful so often even in the most difficult of circumstances (and I refer by way of example to his answers as regards the MRT application). It is not necessary for me to come to a firm conclusion on this aspect.
68. There was no evidence as to why the Visa Applicant seems to have been able to obtain work in earlier years but is no longer able to do so. At one time he was in regular work in Poland even if his place of employment changed at intervals. If work is not available in Suwaeki it might be available in a big city such as Warsaw. Poland was painted by him as a very grim place indeed but it must be relevant that it is apparently possible that Poland will enter the European Community in the not too far distant future.
PART E – THE CHARACTER TEST
69. It is clear to me that the Visa Applicant fails the character test. For a period of many years he committed serious breaches of sections 234 and 235 of the Act. The penalties prescribed for breaches of section 234 were such that these breaches must of necessity be regarded as very serious indeed. I refer also in this context to clause 2.6 of Direction No. 21.
70. Mr Allatt submitted that while any individual breach taken in isolation, might not of itself be at the higher end of the scale, the continuum of repeated breaches over a very long period, of the Act, must cause me to find that the Visa Applicant is quite unscrupulous as to what he is prepared to do in his efforts to obtain residence in Australia or for that matter another convenient country. (His evidence as regards the USA indicates that he was just as unscrupulous in his dealings with that country) I accept that contention and find in accordance with Mr Allatt’s submission that his offences taken as a whole must be regarded as serious. On both visits to Australia he worked illegally almost from arrival; he has repeatedly made false statements in official documents and contrived a false marriage for the purpose of obtaining residence. His behaviour in relation to the MRT was unconscionable. His evidence before me was frequently untruthful.
PART F – DIRECTION NO. 21 – VISA REFUSAL AND CANCELLATION UNDER SECTION 501 (“DIRECTION 21”)
71. I refer in this part F to the provisions of Direction 21; references to numbered clauses should be construed as references to numbered clauses in Direction 21.
72. Clause 2.3 provides that the primary considerations are:
“2.3(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(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”.
73. Clause 2.3 should be read in conjunction with clause 2.5 which provides:
“2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
74. I think that I can safely take the view that the risk of recidivism is not high, but at the same time it cannot be discounted having regard to the fact that the Visa Applicant’s breaches occurred over a lengthy period culminating in evidence before me which was to a considerable extent untruthful. As I noted earlier in these reasons I do not and should not in the absence of his version of events indicate any findings as regards Nadolski.
75. I consider that the Australian community would be surprised and indeed concerned if a visa should be granted to a person who has behaved as the Visa Applicant has done.
76. As to deterrence I include, in clauses 77 and 78 below, two clauses which were included in my recent decision in Reyes and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 497 and which are equally apposite in this case.
77. Deterrence is a major factor. To grant a visa in the face of conduct such as this would send entirely the wrong message, and indeed to reward such conduct with a visa would be altogether wrong. I refer in this context to the decision by Deputy President Chappell in Re Gawronski and Minister for Immigration and MulticulturalAffairs [2000] AATA 790; clauses 44 and 45 of that decision read as follows:
“44. I turn now to the balancing process which must be carried out in regard to the exercise of the discretion. In all cases of this type, where a decision can have such a direct impact upon people's lives this balancing process is not an easy one. The Tribunal certainly has some sympathy for the situation in which the review applicant, Mr Gawronski, an Australian citizen, now finds himself. In regard, however, to the primary considerations relevant to this case - the protection of the Australian community and the expectations of that community - the Tribunal is firmly of the view that this is a case where very significant weight should be attached to the issue of general deterrence. Ms Gawronski's general conduct must be viewed in the context of the convincing and authoritative evidence provided in Ms Reay-Young's statement about the pervasive nature of the false claims made by Filipino citizens for protection visas in order to allow them to remain in Australia for economic and allied reasons. The Tribunal has already expressed the opinion that Ms Gawronski was not an innocent victim caught up in immigration malpractice but was rather a willing recipient of advice and assistance that allowed her to fulfil her ambitions of working for a number of years in Australia.
45. The Tribunal has no doubt that it would be a legitimate expectation on the part of the Australian community that Ms Gawronski should not now be rewarded for that conduct. This is especially the case when she and her advisers have utilised the international humanitarian procedures established under the Convention and the Protocols relating to the Status of Refugees (otherwise known as the Refugee Convention). As the Tribunal stated recently in the decision of May v Minister of Immigration and Multicultural Affairs [2000] AATA 480.
As a signatory to the Refugee Convention Australia has established a well recognised assessment process to determine the legitimacy of claims made for protection visas by persons reaching Australian shores. It is a matter of common knowledge that each year many thousands of dispossessed and traumatised persons do arrive in Australia seeking refugee status. It is both an affront to these displaced persons, as well as to the Australian community at large, that certain individuals -
In this case like Ms Gawronski and her uncle and friends:
should abuse this assessment process in such a flagrant and deliberate manner in order to obtain benefits, such as residency and the right to work, to which they would not otherwise be entitled.
The Australian community has every reason to send a very strong deterrent message to any such non citizens contemplating engaging in such cynical immigration malpractice that if detected they can anticipate little if any sympathy or further assistance in fulfilling their aims and ambitions of becoming residents of this country.”
78. I refer also in this context to the often quoted passage from the decision of Deputy President McMahon in Re Lachmaiya and Department of Immigration andEthnic Affairs [1994] 19 AAR 148; that statement at 155 – 156 reads as follows:
“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 transgress in matters where truth and good faith could be deceptively withheld.”
79. That there is hardship to the Applicant within clause 2.17 cannot be doubted but it is mitigated to a considerable extent by the fact that she was aware of the true circumstances from an early point in time and even before the marriage. It is understandable that she would not want to go to Poland but she also rejected the concept of a reunion in the United Kingdom which might be possible in the not too far distant future. If a woman marries a foreigner who does not have residency status, it is necessary for her at least to contemplate the possibility of living in his home country.
80. This is not a case in which the discretion can be exercised in favour of the Visa Applicant and accordingly the decision under review is affirmed.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of MR J BLOCK, DEPUTY PRESIDENT
Signed: L Bonouvrie
AssociateDate/s of Hearing 26 & 27 May 2003
Date of Decision 27 June 2002
Solicitor for the Applicant Mr Boni Amin
Solicitor for the Respondent Mr Murray Allatt
4
0