Bermudez and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 84

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/245

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MRS VICKY BERMUDEZ

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date24 January 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd Hon R J Groom)

Deputy President

CATCHWORDS

Immigration - refusal of visa on character grounds - false or misleading conduct in dealing with Immigration officials - illegal overstaying - working in breach of visa conditions - general deterrence - expectations of Australian community - best interests of children - other considerations - decision affirmed

Migration Act 1958 (Cth) ss. 501, 499

Ministerial Direction No. 21

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277

Chau v Minister for Immigration and Multicultural Affairs [2001] AATA 485

Wan v Minister for Immigration, Multicultural and Indigenous Affairs (2001) 107 FCR 133

REASONS FOR DECISION

24 January 2005 The Hon R J Groom (Deputy President)

1. This is an application by Vicky Bermudez (“the review applicant”) for the review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) refusing, pursuant to Section 501 of the Migration Act 1958 (“the Act”), to grant the review applicant’s husband Saul Antonio Bermudez Piedrahita (“the visa applicant”) a sub class 309-100 spouse visa.

2.      The hearing was held in Melbourne on 28 October 2004.  The review applicant was represented at the hearing by Mr Andrew Fraatz and the respondent by Mr Steven Small.  Oral evidence was given by the review applicant Victoria Bermudez, the visa applicant Saul Antonio Bermudez Piedrahita (by telephone link to Colombia), Reynaldo Buitrago, Julio Manzor, Beatrice Manzor, Rosita Diaz and Hernando Diaz.   The Section 37 documents, a medical report and several witness statements were tendered in evidence. 

3. Section 501 of the Act provides relevantly:

“501(1)The Minister may refuse to grant a visa to a person if a person does not satisfy the Minister that the person passes the character test.

…

501(6) For the purposes of this section, the person does not pass the character test if:

…

(c) having regard to either of the following

…

(ii) the persons past and present general conduct;

….  the person is not of good character”

4. The exercise of power under s501 of the Act involves, firstly a consideration of whether the visa applicant is “not of good character” and secondly, of whether the residual discretion not to refuse to grant the visa should be exercised in the visa applicant’s favour notwithstanding his failure to pass the character test.

5. In his decision the Minister’s delegate refused to grant the visa on the basis that he found that the visa applicant had not passed the character test and that he should not exercise the discretion in s501 of the Act in favour of the visa applicant.

BACKGROUND FACTS

6.        I find the following facts as set out in this and subsequent paragraphs:

(a) The review applicant is the wife of the visa applicant.  She was born in Chile on 7 September 1950 and became an Australian citizen on 25 January 1978.

(b) The visa applicant was born in Colombia on 31 August 1957.  He remains a citizen of that country and is presently living there. 

(c) The review applicant has two adult children from her previous marriage. They both reside in Australia.  The  visa applicant also has two children from two previous relationships, Cindy Dahiana Bermudez Zapata born the 21 February 1987 and Manuel Fernando Bermudez Cardenas born 29 October 1988.  Both Cindy and Manuel reside in Colombia.

(d) On 11 August 1994 the visa applicant arrived in Australia on a sub class 670 tourist visa.  This visa did not permit the visa applicant to undertake any work in Australia. 

(e) On 12 November 1994 the visa applicant’s tourist visa expired and so his residence in Australia became unlawful.

(f) From late 1994 until April 1996 the visa applicant continued to reside unlawfully in Australia and during this period undertook work for friends to pay for his board and sustenance.

(g) In 1995 the visa applicant commenced living with Vivianna Edith Cairo.  She temporarily ceased the relationship in April 1996.

(h) On 23 April 1996, following information received, officers of the Department of Immigration and Multicultural and Indigenous Affairs (“the department”) located the visa applicant in Traralgon, Victoria and he was placed in a detention centre in Melbourne.

(i) Whilst in detention the visa applicant informed immigration officers that he intended marrying Angela Rojas whom he had met before he moved to Traralgon.  Angela Rojas had agreed to marry him after he proposed whilst in detention.  The visa applicant thought that if he married Ms Rojas he might get a visa to stay in Australia.  That was the sole purpose of the marriage proposal.  At the time he did not have a genuine relationship with Ms Rojas.

(j) On 26 April 1996 the visa application was released on a $5,000.00 security bond after undertaking that he would depart Australia after his marriage to Angela Rojas.  He was also granted a bridging visa E.  On 13 May 1996 the visa applicant was granted an extension of his bridging visa until 10 June 1996.  He did not proceed with his proposed marriage to Ms Rojas.

(k) On 19 June 1996 the visa applicant lodged an application for permanent residence on the basis of his marriage to Vivianno Edith Cairo which had taken place on 22 May 1996.

(l) On 31 August 2000 the department received a letter dated 28 August 2000 from Ms Cairo stating that she and the visa applicant had separated.  At that time the application for permanent residence based on the marriage to Ms Cairo was still being processed however the visa applicant had not advised the department, as required, that the relationship had broken down in December 1999.

(m) The marriage between the visa applicant and Ms Cairo ended in divorce with the divorce becoming absolute on 8 January 2001.

(n) In April 2001 the visa applicant and the review applicant, then known as Victoria Manzor, commenced their relationship.  They began living together in July 2001 and were married on 13 April 2002.

(o) The department refused the application for a spouse visa.   An application was then made to the Migration Review Tribunal but this was unsuccessful.  An application was then made for ministerial intervention.  This was declined on 6 February 2003.

(p) On 10 March 2003 the visa applicant left Australia and returned to Colombia to live.

(q) A further spouse visa application based on the marriage to the review applicant was refused on 28 January 2004. This decision was made pursuant to Section 501 of the Act.

SECTION 501 AND DIRECTION 21

7.        The first issue the Tribunal must consider is whether, in light of the visa applicant’s “past and general conduct” he is not a person of “good character”.

8. Under Section 499(1) of the Act the Minister in empowered to give directions to a person or body performing functions or exercising powers under the Act. On 23 August 2001 the Minister, pursuant to Section 499(1), issued Direction No 21 providing guidance to decision makers in making decisions to refuse or cancel a visa under Section 501 of the Act (“Direction 21”). This Tribunal is required to accept the guidance of this direction so long as it is consistent with the provisions of the Act and regulations made thereunder. (see s.499(2) of the Act and Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 583)

9. Direction 21 consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under s.501 must satisfy the decision maker that they pass the Character Test. If the non-citizen fails the Character Test then Part 2 of Direction 21 provides guidance in the exercise of the discretion under s.501 to grant or refuse a visa.

10. Paragraph 1.9 of Direction 21 provides examples of matters which, in the absence of countervailing factors, constitute a failure to pass the character test. These include the following relevant matters:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law ……

(b) whether the non-citizen has, in connection with any application for the grant of a visa ……. made a false or misleading statement

11. Paragraph 1.10 of Direction 21 provides that ….. “…. Both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizens character ……”

12. In considering Section 501 of the Act and the Character Test the Full Court of the Federal Court of Australia in Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277 said:

“The concept of “good character” in s 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 short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”

13. In Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 149 at 115-6 Deputy President McMahon made the following remarks with which I agree:

“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.”

14.      The evidence in this application satisfies me that the visa applicant has consistently displayed a lack of honesty and integrity in his dealings with the department.  These must be considered by the Tribunal to be extremely serious matters reflecting flaws in the essential character of the individual.  I now point to the particular matters of concern:

(a) The visa applicant came to Australia on 11 August 1994 on a 3 month tourist visa.  The evidence raises serious doubts about his real intentions when he first entered Australia.  At paragraph 3 of his witness statement, the truth and accuracy of which he confirmed in oral evidence, he said:

“I told Immigration I was coming to Australia for a holiday.  I did not disclose that if I liked it in Australia I would consider staying beyond the tourist visa period”.

But later in cross examination he denied that he intended staying beyond the visa period if he like it here.

Also he said in his witness statement that he had a return ticket to go back to Colombia yet in an interview on 2 October 2003 when asked why he didn’t return to Colombia after the three month visa period he said “I did not have any money”,

That evidence leaves me in considerable doubt about his true intentions when he first came to Australia and also about the honesty of his answers.

(b) He remained unlawfully in Australia between 12 November 1994 and 26 April 1996 and between 11 June 1996 and 19 June 1996.

(c) The visa applicant worked unlawfully at various times between 11 August 1994 and 23 April 1996.

(d) The visa applicant provided false and misleading information in relation to a bridging E visa applied for and granted on 26 April 1996 in that he told an Immigration officer that he wished to marry his girlfriend Angela Rojas before departing Australia.  He also said this in a written statement dated 26 April 1996.  In those statements the visa applicant gave false and misleading information about the true nature of his relationship with Ms Rojas.

(e) The visa applicant has acknowledged that he intended to marry Ms Rojas.  He said Ms Rojas had agreed to marry because she “wanted to help me”.  This marriage was to be solely for the purpose of obtaining a visa so that he could remain in Australia thus displaying a serious and blatant disregard for the laws of Australia.

(f)  The visa applicant was released from detention on the understanding that he would marry Ms Rojas and then return to Colombia.  Neither event subsequently eventuated.  The very next month he married a different person namely Ms Cairo.

(g) The visa applicant admitted that the marriage to Ms Rojas was to be contrived and in his witness statement at paragraph 14 he said:

“We were not in love.  I thought if I married her I might get a visa to stay in Australia.  I intended to marry her, but I was actually in love with Vivianna Cairo”.

Yet in his oral evidence he agreed, rather surprisingly, that if he had married Ms Rojas he would have committed to her as her husband.  I do not accept that evidence as truthful particularly in view of his record in relationships.

(h) He failed to inform the department of changes to his address as required by the conditions of his bridging visas.

(i) The visa applicant failed to inform the department that his relationship with Ms Cairo had ended.  The visa applicant stated that the relationship ended in December 1999 but it was Ms Cairo who informed the department by letter dated the 28 August 2000 that the two had separated.  This must be considered a serious failure on the part of the visa applicant.

(j)  The visa applicant was clearly quite deliberately involved in serious migration misconduct.  He had breached his visa condition by overstaying, been involved in making false or misleading statements, was evasive and uncooperative and also willing to contrive a marriage in order to gain permanent entry.  The integrity of Australia’s migration system depends very largely upon the honesty of applicants seeking entry and therefore misconduct of this kind must be treated very seriously.

15.      Although the visa applicant has a history of moving from one relationship to another after relatively short intervals there is no persuasive evidence before me to show that the marriage between the two applicants is not genuine.  I am inclined to the view that it is genuine even though the visa applicant’s past record demands caution in judgment.  I note that the applicants were married in April 2002 after commencing living together in July 2001.  So when the visa applicant departed Australia in March 2003 the couple had been married for less than two years.  The review applicant, who is a decent hard-working and law abiding Australian citizen, is certainly committed to the marriage and has provided strong on-going support to the visa applicant including regularly forwarding money to him in Colombia.

16. The provisions in s501 (6)(c)(ii) of the Act require me to carefully consider all of the evidence before me relating to the visa applicant’s past and present conduct. I must take into account any evidence of good conduct which may disclose positive character traits.

17.      The evidence suggests that the visa applicant is a popular person who readily made friends in Australia.  To his credit he performed extensive voluntary work for the Colombian Club in Victoria including helping with social, cultural and sporting activities.  He was variously described by his witnesses as, for example, “a great guy”, “a very good person” and as someone who “helps everyone that needs help”.  A petition from his fellow workers suggests they thought well of him.  These positive reflections by family, friends and associates must be weighed against other evidence of character.

18.      The Tribunal is not bound by the strict rules of evidence and can give appropriate weight to the range of material before it.  A far less flattering view of the visa applicant is included in the Section 37 documents (Exhibit R1) at page 103.  After conducting a detailed personal interview with the visa applicant, presumably in Colombia, on 2 October 2003 Richard Ross, then a senior migration officer based in Santiago, said of the visa applicant:

“I am not satisfied that the relationship is genuine and continuing.  Given the number of relationships that the applicant has had and then disregarded even when he has children from that relationship.  I am also not satisfied as it appears he is more than willing to make up responses to suit him and use the system”.

As Mr Ross did not give oral evidence and was not subjected to cross examination I give little weight certainly to the first part of his comments.  I do, however, give more weight to the last sentence which is a comment made in an official record of interview about the manner in which he answered questions put to him in that interview.  The comment is consistent with other evidence of migration misconduct by the visa applicant.

19. I have carefully considered the total picture of the visa applicant’s character as disclosed by the evidence before me. I have continuing serious concerns about the visa applicant’s pattern of dishonesty in dealing with the department and its officers and conclude that the countervailing positive factors are not sufficient to satisfy me that the visa applicant passes the Character Test in Section 501 of the Act.

20. As the visa applicant does not pass the Character Test I must now consider the discretion provided in Section 501 of the Act. That section permits the Tribunal to authorise a visa if, having regard to all the circumstances of the case, including a number of “primary” and “other considerations” set out in Ministerial Direction No 21, it is considered appropriate to do so.

21. The first of the primary considerations, set out in Direction 21, namely the protection of the Australian community, involves an assessment of:

·The seriousness and nature of the conduct

·The likelihood the conduct may be repeated;  and

·The likelihood that visa refusal would prevent like conduct by others

22. Ministerial Direction 21 make it clear that the provision of false and misleading information in relation to visa applications is to be treated very seriously. Indeed s.234 of the Act makes it an offence to provide such information. The maximum penalty for this offence is “imprisonment for 10 years or 1,000 penalty units, or both”

23. There are also offences under the Act carrying heavy penalties for applying for a visa on the basis of a marriage which is not genuine and also for working contrary to visa conditions.

24.      As to the question of deterrence I am satisfied that if the visa applicant is refused a visa because of dishonesty in relation to entry into Australia others might be more careful about the provision of truthful and accurate information and also complying with visa conditions.

25.      As to the second of the primary considerations namely the expectation of the Australian community I find myself in agreement with the views of Deputy President Wright in Chau v Minister for Immigration and Multicultural Affairs [2001] AATA 485.

“As to the expectations of the Australian community, it is my view that it is expected that non-citizens will be open and honest with migration officials in relation to visa applications and the community would not expect a person who contravenes Australia’s migration laws to later be afforded the privilege of a visa.”

26.      The third of the primary considerations to be considered is the best interests of any child involved.  The visa applicant has two children from two previous relationships namely a daughter Cindy who will be 18 in February 2005 and a son Manuel who is now 16 years of age.  Both children live in Colombia and are included in the visa applicant’s migration application.

27. The visa applicant also has two children from her previous marriage. They are both now adults and because of their ages are not relevant as primary consideration under Direction 21.

28. The best interests of a child is a factor to be assessed as part of the exercise of the discretion and then weighed with all other relevant factors. See Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133.

29.      In some applications the best interests of a child can be an extremely persuasive factor however on the facts of this case I find that this consideration does not outweigh others.  The following factors have influenced my conclusion:

(a) The visa applicant left his children in Colombia when he came to Australia in 1994.  He was in this country for over eight years and so lived separately from his children for that lengthy period.

(b) The two children have never been to Australia.  One will soon be 18 the other is now 16.  There was no direct evidence from them of their personal wishes or intentions.  The evidence suggests they speak very little English.  Their mothers reside in Colombia and they have other family support there and no doubt also friends there.  The evidence suggests they have not personally met the review applicant.  It may be difficult for them to move to Australia and settle successfully here. 

(c) Although living conditions in Colombia may be relatively difficult there is no persuasive evidence before me that the two children are in any danger, that they are in needy circumstances or that they cannot access reasonable health and other support services in Colombia.

(d) If the visa applicant is unsuccessful in his application presumably the visa applicant will continue to reside in Colombia with his children.  He and his children would continue to have access to other family members.

30. Paragraph 2.17 of Direction 21 details “other considerations” which may be taken into account, if relevant, in deciding how to exercise the discretion in Section 501 of the Act. These “other considerations” are generally to be given less weight than the “primary considerations “ referred to above.

31. Of the “other considerations” set out in Direction 21 the most significant in this case is the compassionate claim of the review applicant. She appears to be in a genuine relationship with the visa applicant and, of course, she is an Australian citizen. It is relevant in assessing the weight of this particular consideration that the review applicant became aware of the visa applicants doubtful migration status in the course of 2001 and well before her marriage to the visa applicant in April 2002 (see 2.17(b) of Direction 21). It is recognised that if the visa applicant is not granted a visa it will cause her great distress and anxiety. She can, of course, travel to Colombia to be with her husband if she considers that to be appropriate from her personal and family point of view. The Tribunal appreciates such a move would involve financial disadvantages and a range of difficult personal considerations.

32.      It is also necessary under “other considerations” to consider the non-citizens ties to the Australian community.  The visa applicant has made friends in Australia including within the Victorian Colombian community and with the review applicants family and others.  None of these relationships is sufficiently significant to displace other factors which the Tribunal must take into account.

CONCLUSION

33.      After giving careful consideration to all aspects of this matter including the visa applicant’s various explanations, and fully recognising that the legislation must be interpreted fairly and humanely, I conclude that the seriousness and nature of the visa applicant’s migration misconduct, the need for deterrence from such misconduct and the expectation of the Australian community outweigh all other considerations.

34.      I find that there is not sufficient justification for the exercise of the Tribunal’s discretion in favour of the visa applicant.

35.      The decision under review is therefore affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  R. Hunt (Administrative Assistant)

Date/s of Hearing  28 October 2004
Date of Decision  24 January 2005
Counsel for the Applicant         Mr Andrew Fraatz
Solicitor for the Applicant          Mr Justin Wilson, Calhaem Wilson & Co.
Counsel for the Respondent     Mr Steven Small
Solicitor for the Respondent     Australian Government Solicitor