Basantes and Minister for Immigration and Multicultural and Indig Enous Affairs
[2003] AATA 470
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 470
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1332
GENERAL ADMINISTRATIVE DIVISION ) Re Ivette Basantes Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date23 May 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in the case of Hender Basantes Cordova.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 (provisional) spouse visa – refusal on character grounds – character test – general conduct – examination of the Visa Applicant’s immigration history – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – necessity to balance the expectations and protection of the Australian community against the hardship to the Applicant – held that the Tribunal’s discretion should be exercised in favour of the Visa Applicant – decision of the Respondent set aside.
Migration Act 1958 ss 499, 499(1), 501, 501(1), 501(6)(c)(ii)
Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510
Briginshaw v Bringinshaw (1938) 60 CLR 336
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054
ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
23 May 2003 Mr RP Handley, Deputy President 1. This is an application by Ivette Basantes (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 6 September 2002 to refuse the grant of a subclass 309 (provisional) spouse visa to the Applicant’s spouse, Hender Manuel Basantes Cordova (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Shaun Kerrigan, Solicitor, and the Respondent was represented by Ishan Muthalib, Solicitor, of Blake Dawson Waldron, Solicitors. 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 other documents produced by the parties. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone.
Background
3. The Applicant, Ivette Basantes, was born in San Salvador, El Salvador, on 11 February 1967 and is aged 36. Ms Basantes arrived in Australia from El Salvador on 13 December 1989. Ms Basantes married her first husband, Mario Chicas, in January 1989. This marriage was dissolved by divorce on 19 September 2000. She is employed as an enrolled nurse by the Central Sydney Area Health Service.
4. The Visa Applicant, Hender Manuel Basantes Cordova, was born in Antonio Jose Holguin, Ecuador, on 5 October 1958 and is aged 44 years. In December 1985, Mr Basantes Cordova entered into a de facto relationship with Ganet Vibliana Granja Parra. Two children were born to this relationship: Johanna Andrea Basantes, born 24 May 1989, now aged 13, and Christian Alejandro Basantes, born 21 July 1993, now aged 9.
5. Mr Basantes Cordova came to Australia on 8 January 1996 on a subclass 676 visitor visa valid for three months. He did not leave Australia when the visa expired. On 25 April 1996, Mr Basantes Cordova was detained and taken to the Villawood Detention Centre.
6. On 23 May 1996, Mr Basantes Cordova applied for a protection visa and bridging visa. The bridging visa was refused on the ground that he could not pay the $5,000 surety. On appeal to the Immigration Review Tribunal (“IRT”), the decision was set aside and a bridging visa granted. The protection visa was refused on 8 July 1996, and the decision was affirmed by the Refugee Review Tribunal (“RRT”) on 10 March 1997.
7. Mr Basantes Cordova’s de facto wife, Ms Granja Parra, and their two children, Johanna and Christian, were granted a visitor visa on 12 March 1997 and entered Australia on 1 May 1997. On arrival, they began living together again as a family with Mr Basantes Cordova.
8. On 8 April 1997, Mr Basantes Cordova had applied for ministerial intervention. This was refused on 25 September 1997. On 10 June 1997, Mr Basantes Cordova applied for a bridging visa WE, which was granted, permitting him to remain in Australia until 10 September 1997. On 10 September 1997, Mr Basantes Cordova was granted a further bridging visa WE, permitting him to remain in Australia until 10 November 1997. On 27 November 1997, he was granted another bridging visa WE which permitted him to remain in Australia until 12 January 1998.
9. Early in 1998, Mr Basantes Cordova and his de facto wife separated. Initially, the two children of the relationship stayed with him but later went to live with their mother. Ms Granja Parra and the two children continue to live in Australia unlawfully.
10. Mr Basantes Cordova did not leave Australia when his bridging visa WE expired, but remained in Australia unlawfully from 13 January 1998 until 20 December 2000.
11. In April 2000, Mr Basantes Cordova met Ms Basantes at a brasserie in the Rocks, Sydney. At that time, Ms Basantes was separated from her first husband. She was subsequently divorced on 19 September 2000. She and Mr Basantes Cordova commenced a relationship on 1 May 2000. On 26 November 2000, Mr Basantes Cordova and Ms Basantes were married in Sydney.
12. On 21 December 2000, Mr Basantes Cordova was issued with a bridging visa WE which allowed him to remain in Australia until 5 March 2001. He returned to Ecuador on this date.
13. On 6 March 2001, Mr Basantes Cordova lodged an application for a subclass 309 (provisional) spouse visa at the Australian Embassy in Santiago, Chile. On 17 June 2001 and 17 June 2002, Mr Basantes Cordova was interviewed by an immigration officer at Quito, Ecuador. On 6 September 2002, a delegate of the Respondent decided to refuse the grant of a visa to Mr Basantes Cordova on the ground that he is not of good character because of his past and present general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”). On 11 September 2002, the Applicant lodged an application for review of this decision with the Tribunal.
Relevant Law and Policy
14. Under 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;…
15. 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.
16. 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”..
17. 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.
18. The issue for the Tribunal to determine in this case is, therefore, whether Mr Basantes Cordova 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 (provisional) 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
Ivette Basantes (the Applicant)
19. Ms Basantes is an enrolled nurse working for the Central Sydney Area Health Service. She said her husband left Australia on 5 March 2001 to return to Ecuador because there was nowhere else he could go. She went with him, returning shortly before Easter 2001. They went first to Santiago, Chile to lodge Mr Basantes Cordova’s spouse visa application and then to Quito, Ecuador. Mr Basantes Cordova remained in Quito for approximately three months before moving to Ibarra where he became a wood carver and sculptor. He left Ibarra about three weeks ago and is now living in Chile because he felt he could never have a normal life in Ecuador because of his fear of persecution.
20. Ms Basantes also spent about two months with her husband from December 2001 when they went together from Ecuador to El Salvador. Mr Basantes Cordova did not need a visa to visit El Salvador as a tourist. They considered seeking residence there, but she could not stay long enough to sort out the visa requirements and had to return to Australia. Mr Basantes Cordova therefore returned to Ecuador. Ms Basantes subsequently saw her husband for a week in June 2002 when she went to Ecuador to be with him for the interview with Richard Ross, the Senior Migration Officer from the Australian Embassy in Santiago who interviewed them in Quito.
21. Ms Basantes said when her husband travelled to Chile recently he went initially as a tourist but, on arrival, he applied for a working visa which has been granted. He wanted to make sure that everything in relation to his status in Chile was done legally. He had previously been making a living from his wood sculptures in Ibarra and hopes to do the same in Chile. The local council in Santiago has said they are prepared to exhibit his work but he will need to raise some money to arrange this. Prior to going to Chile, Mr Basantes Cordova went to the Chilian Embassy in Ecuador and obtained advice that he could travel to Chile as a visitor and then apply for a working visa when there. This is the advice that he followed.
22. Ms Basantes said she was aware of her husband’s immigration problems before they were married. He told her more of this little by little and at the time they were married she knew he had immigration problems but did not know of their exact nature. She did not know that he was in Australia unlawfully until about two weeks after the wedding. They then went to see a solicitor who said she could assist them sort out his status. Ms Basantes said they married not very long after meeting because they love one another. She knew of his children from the beginning of their relationship and of his previous de facto relationship. When they met, Mr Basantes Cordova was already separated from his de facto wife as a result of her becoming involved with someone else. Ms Basantes said while Mr Basantes Cordova was in Australia, the children spent every other weekend with him and he had free access to them during the week, for example if they needed to go somewhere.
23. Ms Basantes was asked about her husband’s protection visa application. She said she understands that the basis for his application was his political associations in Ecuador, in particular with an organisation representing indigenous people. Mr Basantes Cordova made allegations and spoke out against injustice. The persons whom he named sought to punish him as a result, possibly by “disappearing” him and his family. Despite what was said in the RRT decision, Ms Basantes said she believes her husband. She knows what it is like to be in such a country. She noted that when she last left Ecuador, she was the only person in a queue of over twenty who was stopped, searched and questioned. She was intimidated and does not want to return to Ecuador. Essentially, her husband was in internal exile in the small town of Ibarra and did not feel that he could move around freely. However, he did not have any problems in Ibarra because it is a small country town well away from everywhere else.
24. Ms Basantes said she and her husband now communicate by email and speak on the telephone. If her husband’s visa application is not successful, she will leave Australia to be with him. She would go to Chile but she would have to apply for a visa.
Hender Basantes Cordova (the Visa Applicant)
25. Mr Basantes Cordova said he left Ecuador because his life was in danger as a result of a media interview in the course of which he named influential people who were involved in drug trafficking cartels. He feared that he and his family would be killed. He was detained and threatened and his de facto wife was also threatened and sexually abused. As a result of the threats, Mr Basantes Cordova sought to leave Ecuador and, on the recommendation of a friend, he contacted a person for advice and assistance. This adviser offered to obtain a visa for him to travel to Australia and told Mr Basantes Cordova that he could arrange work for him on arrival in Australia. Mr Basantes Cordova therefore engaged the assistance of the adviser whom he paid. When Mr Basantes Cordova had his passport returned to him bearing an Australian visa, he noted that it did not entitle him to work. When he queried this, the adviser told him that his brother was in Australia and would arrange work when he got there. He was asked to sign a contract, written in English that he could not read, which he believed guaranteed him work when he arrived in Australia. Mr Basantes Cordova acknowledged that he did not contact the Australian Embassy in Chile about obtaining a visa. While he realised he was entering Australia as a tourist, he had been assured that within the first few weeks of his being in Australia this would be resolved and he would be able to work.
26. Mr Basantes Cordova was asked about the incoming passenger card which he completed on his arrival in Sydney on 8 January 1996. He said he declared he was married on this card because he had a family and a moral obligation to them. He acknowledged that he lied but he thought at the time that the best option was for him to tick “married” in order to save himself and his family. He was very afraid. Mr Basantes Cordova said he was not formally married to Ms Granja Parra although they had a good relationship and she was the mother of his children. He acknowledged that he understood the nature of a de facto relationship when he arrived in Australia.
27. Mr Basantes Cordova also acknowledged that he stated on the incoming passenger card that the intended length of his stay in Australia was two months and that the main reason for him coming to Australia was education. Mr Basantes Cordova said he never thought clearly about how long he would stay in Australia. He was just confident that he would be safe there and he intended to live legally in Australia as he had been assured he could by his adviser in Ecuador. Mr Basantes Cordova was advised to tick education on the incoming passenger card. His intention was to study as well as work. He only realised that he would not be able to obtain permission to work when he contacted his Ecuadorian adviser’s brother in Sydney, a short time after arriving, and was told that his adviser had lied to him about his being able to work in Australia. Mr Basantes Cordova said he was very fearful on learning this and did not know where to go. He also phoned the Department of Immigration to check this and they confirmed that he had no right to residence and to work in Australia.
28. Mr Basantes Cordova said he was detained at a train station when it was alleged that he did not have a valid ticket. In fact, he did have a valid ticket. However, he was detained by the police and taken by immigration officers to Villawood Detention Centre. He lodged an application for a protection visa from there because he genuinely considered that he needed protection. He was assisted in completing the application by Peter Strain, a migration agent. He did not include his de facto wife and children in the application, although he is not clear why he did not do so. At the time, he did not realise that he could include them in the application. He acknowledged that at the interview with the Senior Migration Officer, Richard Ross, on 17 June 2002, he said he was also scared that if he included them in the application they might not receive visitor visas to come to Australia. He said his family were in danger and he had to help them to leave Ecuador somehow.
29. Mr Basantes Cordova acknowledged that in his protection visa application he stated that he was married and that the place of marriage was Quito although he could not recall the date. He said he lied about this because he had already declared himself to be married. Not only did he state this on the incoming passenger card, but he also stated this in an interview with departmental officers at Villawood on 30 April 1996.
30. Mr Basantes Cordova was asked about his de facto wife’s protection visa application in which she stated that she was married and provided a date and place for this having taken place. He said that she did this because he told her that she should do this because he had already declared himself to be married. She also lied. He also said that his de facto wife’s family did not want them to marry because he was indigenous and she became isolated from her family because of their relationship. Mr Basantes Cordova continued to maintain that he was married both in relation to the IRT and RRT proceedings. This was in part because he felt he had a moral obligation to his family but when his relationship with his de facto wife was over, he no longer felt the need to maintain that they were married.
31. Mr Basantes Cordova acknowledged that he had worked unlawfully on a banana plantation in Queensland probably for about three weeks before he was detained. After being released from Villawood, he worked legally.
32. Mr Basantes Cordova was asked about the claims he made in his protection visa application. He said he studied law in Ecuador but left in his third year when he was detained and threatened. He said indigenous people have more difficulty studying in Ecuador and he had problems getting into law school. He quit studying law after a march in about 1980 which was in support of water rights for indigenous people’s land. Those opposing such rights were influential people who had interests in haciendas and exploited indigenous people. The police were on the side of these influential people and so, because he worked for a defence organisation for indigenous people, he was detained and threatened and had a finger broken. Mr Basantes Cordova acknowledged that in the statutory declaration dated 28 February 2001, he stated that he quit his law studies due to financial hardship. He said that it was partly due to this and partly due to the problems experienced by indigenous students who have difficulty in finding employment. He was asked why he had ticked “no” to the question in the protection visa application asking whether he belonged to an ethnic group. He said he did this because he believes that human beings should not be differentiated by their ethnic groups. In his protection visa application, he also stated that he had lost his passport. Mr Basantes Cordova agreed that he had lost his passport on purpose – he threw it out.
33. Mr Basantes Cordova was asked about the evidence he gave to the RRT. He said he did not raise some of the events until later in the proceedings because of the advice he received. However, he said that the evidence he gave to the RRT was correct although he did not go into detail about the specific events.
34. Mr Basantes Cordova acknowledged that he was in Australia unlawfully for about two weeks in November 1997. He said this was because he was seeking the advice of a solicitor, in particular, because his children were then in Australia and he had to work to support them. He was afraid and wanted to obtain legal advice before he approached the Department for another bridging visa.
35. Mr Basantes Cordova said that when he first met his wife, Ivette, he told her that he was trying to fix his legal problems. When he had to obtain further documents prior to their marriage, he told her that he had big problems but did not tell her that he was in Australia illegally. He was afraid that if he told her this, she would reject him. When, after their marriage, he did tell her, she was very upset. She said he must do whatever is necessary legally in order to put things right.
36. Mr Basantes Cordova said on returning to Ecuador, he at first worked at a bakery in Quito with his cousin. However, he did not feel safe when suspicious people started asking questions about him. So he went to a very small town, Ibarra, far away, where he undertook a course in wood sculpting and began work as a sculptor. He is now living in Chile because he still fears for his life in Ecuador. He wanted to ensure that he entered Chile legally so he inquired about the necessary requirements. He was informed that he could visit Chile as a tourist without a visa but, as soon as he arrived, he could approach a government body in order to obtain a work permit. Mr Basantes Cordova was also aware that artisans from Ecuador do not have difficulty in obtaining such work permits in Chile. He travelled to Chile in the second week of April and, on arrival, applied for a work permit. He told his wife that he expected to obtain a permit in the next day or so. In the meantime, he has been living on his savings waiting for a permit to be issued. He bought some examples of his wood sculpting with him and he intends to exhibit these although it will be necessary to pay a fee.
37. Mr Basantes Cordova was asked about other work he has done in Ecuador. He acknowledged that amongst his character references is a reference from a dentist for whom he worked for a short time as a dental assistant. He said this was a part-time job that he did in the evenings for a few months. It was a simple job assisting the dentist which involved a 20 minute bus trip from where he lived.
38. Mr Basantes Cordova agreed that he and his wife travelled to El Salvador in December 2001. They considered living there but he did not apply for residency because he needed further documents and would have to go through an application procedure. He said that if his visa application to Australia is unsuccessful, he will discuss plans for the future with his wife. He has no particular destination in mind although Chile might be a possibility if there is no other alternative.
Submissions
Applicant
39. Mr Kerrigan, for the Applicant, said Mr Basantes Cordova was the victim of a visa scam, as is apparent from a Departmental fax dated 22 May 1996 (A1). He signed what he believed was a contract to secure his employment in Australia and believed that his status would be resolved soon after arrival. He completed the incoming passenger card under instruction indicating that his main reason for visiting Australia was education. This was in part true because he did intend learning English by undertaking a course (S p220).. He stated he was “married” on the card believing he had a moral obligation to his then de facto wife and children. Having declared that he was married, he continued to perpetuate that lie until he and his de facto wife separated not long after her arrival in Australia in May 1997.
40. Mr Kerrigan said Mr Basantes Cordova acknowledges that his intention on arriving in Australia was not that of visiting as a tourist and that he intended to stay here long term and to work. His reasons for so doing derive in part from the genuine fear for his life which led him to leave Ecuador and in part from the scam as a result of which he believed he had entered into a contract to enable him to obtain work legally in Australia. The departmental delegate whose decision was reviewed by the RRT found that the harm Mr Basantes Cordova feared was of sufficient gravity to constitute persecution although such persecution was not covered by the Refugees Convention. The RRT accepted his evidence that he feared harm as a result of naming persons involved in drug trafficking and that he was threatened and intimidated and his de facto wife harmed as a result.
41. Mr Kerrigan contended that where Mr Basantes Cordova has lied it is because of his fear. Mr Kerrigan said that one of the reasons Mr Basantes Cordova may not have raised his claims in relation to his persecution as an indigenous person prior to the RRT hearing is that he was confused, having received advice from a significant number of advisers, now totalling seven.
42. Mr Kerrigan said Mr Basantes Cordova acknowledges that he overstayed his visas and worked unlawfully in Australia. He has apologised for that misconduct but has explained his actions by reason of his concern for his safety and that of his family and the need to provide them with support.
43. Mr Kerrigan submitted that Mr Basantes Cordova passes the character test. His “enduring moral qualities” are not such that it is in the public good to refuse entry. His actions can be explained by his situation. Ultimately, he sought to rectify the problem with his status by departing Australia on 5 March 2001 and lodging his visa application externally. Mr Basantes Cordova has shown recent good conduct and has apologised for his past misconduct. There is no likelihood of his re-offending. A series of character references have been tendered, both recent and from the time of the IRT application. Since departing Australia, Mr Basantes Cordova has undertaken training for a new career. He has no criminal record and the evidence suggests good conduct in the two year period since he departed Australia.
44. Mr Kerrigan said in the alternative, if the Tribunal finds that Mr Basantes Cordova does not pass the character test, then it should exercise the s 501(1) discretion in his favour. In particular, apart from his immigration misconduct, there is no evidence of any other criminal activity or undesirable conduct and there is no real risk to the Australian community by granting him a visa. Consideration should also be given to Ms Basantes’ situation and the hardship that will be caused to her. A report from her treating psychologist, Barry Dunn, dated 10 January 2003, states that she is suffering from anxiety and depression as a
result of cumulative stress and chronic anxiety experienced due to the separation from her husband, her fear concerning his safety (her fear being reasonable given her own experience as a refugee), her ongoing efforts to collect and collate material required for his appeal, moving from her home, and working in a second job on weekends to meet legal and other costs.
45. With regard to the best interests of the child, Mr Kerrigan said that the Applicant is in agreement with the position expressed by the Respondent. This is that because of the uncertainty surrounding the status of Mr Basantes Cordova’s two children, who are in Australia unlawfully with their mother, the weight given to the best interests of the children in the exercise of the s 501(1) discretion should be minimal.
46. Mr Kerrigan noted that Ms Basantes is a qualified enrolled nurse working for the Central Sydney Area Health Service and also undertaking further study for a Bachelor of Nursing degree which will enable her to qualify as a registered nurse. If Ms Basantes is forced to leave Australia in order for her to be with her husband, the Australian community will lose a qualified person whose skills and qualifications are in short supply in Australia.
Respondent
47. Mr Muthalib, for the Respondent, noted that Mr Basantes Cordova overstayed his visa and breached visa conditions on three separate occasions, on the last occasion for nearly three years. Although his coming to Australia on a tourist visa may well have been the result of him being the victim of a scam, nevertheless, Mr Basantes Cordova should have followed the proper channels in applying for a visa to come to Australia.
48. Mr Muthalib said Mr Basantes Cordova had admitted lying in the answers he gave on his incoming passenger card: he intended to come permanently and not as a tourist and he lied about being married. He then worked without permission even before being granted a protection visa. On hearing Mr Basantes Cordova’s appeal against the refusal of his protection visa application, the RRT did not accept his claim to having been arrested and detained on three occasions owing to either his political activities or his ethnicity. The RRT found he was not a credible witness and was of the view that some of his claims were fabricated. Mr Muthalib contended that Mr Basantes Cordova has tailored his claims to assist him in staying in Australia. Even in giving evidence to the Tribunal, there was an inconsistency between Mr Basantes Cordova’s evidence and Ms Basantes’ evidence concerning whether he has a work permit in Chile.
49. Mr Muthalib submitted that Mr Basantes Cordova has made false and misleading statements and engaged in conduct which warrants a finding that he does not pass the character test. With regard to the exercise of the s 501(1) discretion and the guidance provided by Direction No 21, Mr Muthalib said that the lies which Mr Basantes Cordova has acknowledged and the false and misleading statements he has made should be regarded as serious misconduct and his circumvention of Australia’s immigration laws indicates that there is a risk that he will not respect Australian law if allowed to re-enter Australia. The refusal of a visa in such circumstances would send a clear message to others that such misconduct is not acceptable to the Australian community. Moreover, the Australian community would not expect that such a person should be granted a visa.
50. With regard to the interests of Mr Basantes Cordova’s two children, Mr Muthalib said that since they are in Australia unlawfully and it is likely that they will be returned to Ecuador with their mother, the weight to be given to their interests should be minimal. Finally, he said the Respondent recognises that refusal of a visa to Mr Basantes Cordova will cause hardship to Ms Basantes. Nevertheless, the Tribunal should take into account that she was aware that Mr Basantes Cordova’s status was undetermined at the time of their marriage.
Application of the Law and Findings
51. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Basantes Cordova 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 v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, 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) 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 (Godly 1999 FCA 1277).
52. 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 Basantes Cordova, 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.
53. 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(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
54. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. The Tribunal is satisfied that Mr Basantes Cordova left Ecuador in January 1996 and travelled to Australia as a result of fear for his safety following his making allegations that prominent persons in Ecuador were involved in drug trafficking. This was accepted by the departmental delegate who determined Mr Basantes Cordova’s protection visa application and by the RRT, notwithstanding the RRT’s concerns about his credibility. Those concerns related to his evidence to the Tribunal about his political activities on behalf of an organisation seeking to advance the cause of the indigenous community, Mr Basantes Cordova himself being of indigenous background. Despite the doubt as to Mr Basantes Cordova’s credibility expressed by the RRT, an examination of other documentation, including a translation of Mr Basantes Cordova’s statement in Spanish dated 3 January 1997 (A2) and his statutory declaration dated 28 February 2001 (T p97), lead the Tribunal to conclude otherwise.
55. In particular, the Tribunal notes the evidence concerning the “scam” in Ecuador promising visas, work contracts and permanent residence in Australia (Departmental fax dated 22 May 1996 - A1), and Mr Basantes Cordova’s statement dated 24 June 1996 (S p8). While the Tribunal acknowledges that it was a matter of choice for Mr Basantes Cordova to obtain a visa in this way rather than through more regular channels, nevertheless, it is understandable given the circumstances in which he was placed at the time and his fear for his safety and that of his family. In the Tribunal’s view, it was therefore plausible that he should state two months as his intended length of stay and that the main reason for his coming to Australia was “education”.. Mr Basantes Cordova acknowledged that he lied about his intended length of stay and the Tribunal finds that his undertaking a course in English, whilst part of his purpose, was not the main reason which was long term stay in Australia.
56. The Tribunal finds that Mr Basantes Cordova stated that he was “married” on the incoming passenger card. This, as he acknowledged, was incorrect but he stated that he ticked the “married” box because he felt a moral obligation towards his family. From then on until his separation from his de facto wife, he perpetuated this lie and his de facto wife, on his advice, also did so in her protection visa application. Mr Basantes Cordova told the Tribunal that when their relationship was over, he no longer felt the obligation to maintain the lie.
57. There is no dispute that Mr Basantes Cordova worked without permission before the grant of his first bridging visa and after his bridging visa expired on 13 January 1998. He was also in Australia without a valid visa during three periods: first, from 9 April 1996 until his detention and eventual grant of a bridging visa application; second, between 11 November 1997 and 26 November 1997; and, third, from 13 January 1998 until the issue of his final bridging visa on 21 December 2000 prior to his departure from Australia on 5 March 2001.
58. The Tribunal accepts that Mr Basantes Cordova’s evidence that he is still fearful for his safety in Ecuador. Since returning to Ecuador in March 2001, he has worked for approximately three months in a bakery in Quito before moving to a small country town, Ibarra, because suspicious people were asking questions about him and he became frightened. In Ibarra, he undertook a wood sculpting course which he successfully completed. Since then, he has been working as a wood sculptor. Three weeks prior to the hearing, Mr Basantes Cordova travelled to Chile, having first sought advice from the Chilean Embassy on visa requirements.. Acting on that advice, on arrival in Santiago he has applied for a work permit which he is optimistic will be issued to him imminently. He has moved to Chile to escape the fear he felt in Ecuador and the constraints which that fear has imposed on him.
59. The Applicant has tendered numerous character references for Mr Basantes Cordova, both recent and dating from the time of his IRT hearing, attesting to his good character. His evidence and that of Ms Basantes suggests that he is close to his children who are still, apparently, in Australia. There is no evidence before the Tribunal as to their present status and both parties agreed that they should not be a significant consideration for the purpose of these proceedings. Nevertheless, Mr Basantes Cordova’s evidence suggests that moral considerations are important for him in relation to his family.
60. Ms Basantes is an enrolled nurse. She migrated to Australia from El Salvador in December 1989. She and Mr Basantes Cordova were married on 26 November 2000 and the Tribunal accepts that their relationship is genuine. Ms Basantes was not aware of the nature of Mr Basantes Cordova’s unlawful status prior to or at the time of their marriage although she was aware that he had immigration problems. Both Ms Basantes’ and Mr Basantes Cordova’s evidence is consistent on this. Ms Basantes has travelled to Ecuador to be with her husband on two occasions since his departure on 5 March 2001, on the second occasion for a week in June 2002 because she was anxious and wished to be present during Mr Basantes Cordova’s interview in Quito with Richard Ross, a Senior Migration Officer from the Australian Embassy in Santiago.
61. The Tribunal finds that, currently, Ms Basantes is suffering significant anxiety and depression as a result of the separation from her husband. Her psychologist’s report dated 10 January 2003 attests to this. Ms Basantes has a home, a job and career in Sydney. Her evidence is that she would leave Australia in order to be with her husband if he is denied a visa.
62. Turning to the application of the character test, there is no dispute that Mr Basantes Cordova has breached Australia’s immigration law and has made false and misleading statements in connection with his entry into and stay in Australia. As the Tribunal has stated above, he acknowledges the false statements made on his incoming passenger card and later. He explains these by reason of his fear and the “scam” in which he became involved. Mr Basantes Cordova also stayed in Australia unlawfully and worked without consent, the longest period being of nearly three years. He has expressed remorse for his misconduct. The Tribunal accepts that when he first came to Australia he believed he would be able to regularise his status in Australia and remain and work lawfully. His evidence about his recent move to Chile suggests that he has sought to follow the proper, legal channels.
63. On balance, the Tribunal concludes that the seriousness of Mr Basantes Cordova’s misconduct in relation to his entry and stay in Australia is sufficient to warrant a finding that he fails the character test by reason of his past general conduct. Nevertheless, the Tribunal accepts that there is some evidence of good character and that, in the future, it could be satisfied that he passes the character test. This is also a relevant consideration in relation to the exercise of the s 501(1) discretion discussed below.
64. Having decided that Mr Basantes Cordova does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether not to refuse the grant of a visa to Mr Basantes Cordova. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; 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.
65. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which 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).
Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
66. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
67. With regard to the first primary consideration, the Tribunal considers that Mr Basantes Cordova’s breaches of Australia’s immigration law and his making of false and misleading statements should be regarded as serious misconduct. A person’s truthfulness in the immigration process is of paramount importance. Nevertheless, in the Tribunal’s view, there were relevant mitigating factors arising from his situation in Ecuador, his perceived need to escape, and the immigration scam in which he became caught up. The Tribunal finds that the likelihood that such misconduct will be repeated is minimal. While the Tribunal recognises that the refusal of a visa in the case of immigration misconduct will generally have a deterrent effect, nevertheless, the Tribunal considers that Mr Basantes Cordova’s future entry into Australia poses no threat to the Australian community.
68. With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s view the Australian community would take a humane view of Mr Basantes Cordova’s situation and would not expect that a visa would be refused: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA/054. Mr Basantes Cordova has now moved to a third country, Chile, in order to be free of his fear and of the constraints this imposed on him in Ecuador. He has now been separated from his wife and family for over two years while he has been trying to regularise his status.
69. The parties agree that the third of the primary considerations, the best interests of the children, should not be considered significant in this case. Mr Basantes Cordova has two children, Johanna, who is aged 13, and Christian, who is aged 9, who are in Australia with their mother, Mr Basantes Cordova’s former de facto wife. There was no evidence before the Tribunal as to the children’s current status. The Respondent states that "it is highly likely that the visa applicant's children will be returned to Ecuador with their mother" (Respondent’s Statement of Facts and Contentions para 32.1). The evidence suggests that Mr Basantes Cordova is close to his children but he has had no physical contact with them for over two years. Ms Basantes’ evidence is that while Mr Basantes Cordova was in Australia, and after the separation from his de facto wife, the children spent every other weekend with him and he had free access to them during the week. One of his stated reasons for working unlawfully was his need to support them financially.
70. Given the submissions of the parties on this consideration and the lack of evidence and of any clarity as to the children’s legal status in Australia, the Tribunal has given this consideration only minimal weight.
71. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; 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; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
72. Of particular significance here is the degree of hardship caused to the Applicant by the separation from her husband. The Tribunal has found, relying on her treating psychologist’s report, that Ms Basantes is suffering from anxiety and depression due to the separation and visa application process. Ms Basantes migrated to Australia from El Salvador and has made her life here. She has qualified as and is working as an enrolled nurse and is studying for a Bachelor of Nursing to qualify as a registered nurse. It is well known that there is a shortage of qualified nurses in Australia.
73. The Tribunal has found that Ms Basantes and Mr Basantes Cordova have a genuine marital relationship. Ms Basantes knew Mr Basantes Cordova had immigration problems at the time of their marriage but was not aware of the full extent of them and was not aware that her husband was in Australia unlawfully. Given her love for him, this might not have made any difference to her decision to marry.
74. The Applicant has provided a range of character references for Mr Basantes Cordova, both recent and from the time of his IRT hearing in 1996, attesting to his good character. His evidence of his recent history in Ecuador and Chile indicates good conduct and an intention to comply with immigration law.
75. Weighing up the primary and other considerations, the Tribunal finds that Mr Basantes Cordova is no risk to the Australian community and that the Australian community would take a humane view of Mr Basantes Cordova’s and Ms Basantes’ situation and would not expect that Mr Basantes Cordova would be refused the grant of a visa. The other considerations to which the Tribunal is directed by Direction No 21 also support the grant of a visa. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion not to refuse the grant of a visa under s 501(1) should be exercised in the case of Mr Basantes Cordova.
I certify that the preceding 75 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 29 April 2003
Date of Decision 23 May 2003
Representative for the Applicant Mr S Kerrigan, Solicitor
Representative for the Respondent Mr I Muthalib, Solicitor
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