Bocko and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 734
•1 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1986
GENERAL ADMINISTRATIVE DIVISION ) Re Miroslav Bocko Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date1 August 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 Yolanda Margarita Jaramillo Luzuriaga.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – Subclass 309 Partner (Provisional) (Class UF) visa – character test – whether the Visa Applicant passes the character test – held that the Visa Applicant fails the character test - discretion that the Tribunal may apply where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration history – necessity to balance the expectations and protection of the Australian community against the hardship to the Applicant – held decision of the Respondent set aside – discretion not to refuse a visa should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 501, 506, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba 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
1 August 2003 Mr RP Handley, Deputy President 1. This is an application by Miroslav Bocko (“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 9 December 2002 to refuse the grant of a subclass 309 Partner (Provisional) (Class UF) visa to the Applicant’s spouse, Yolanda Margarita Jaramillo Luzuriaga (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Andre Benjamin, Migration Agent, of Interlink Professional Migration Services, and the Respondent was represented by Kiran Grewal, 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 tendered by the parties. The Applicant gave evidence in person and the Visa Applicant gave evidence by conference telephone from Ecuador.
Background
3. The Applicant, Miroslav Bocko, was born in Bratislava, Slovakian Republic, on 17 April 1972 and is aged 31. Mr Bocko came to Australia on 20 June 1980 and was granted Australian citizenship on 5 January 1987. He is employed as a motor vehicle spray painter with MediCar Smash Repairs.
4. The Visa Applicant, Yolanda Margarita Jaramillo Luzuriaga (who is known as Margarita Jaramillo), was born in Quito, Ecuador on 15 October 1970 and is aged 32. On 3 June 1994, Ms Jaramillo married Luis Homberto Cardenas Jimenez. She stated that they separated after about six months after he had mistreated and “bashed” her. The marriage ended in divorce on 15 December 1998. There were no children of the marriage. In late 1996/early 1997, Ms Jaramillo entered into a de facto relationship with Marcelo Bolivar Vallejo Aguirre.
5. On 13 December 1997, Ms Jaramillo came to Australia, in the company of Mr Aguirre, on a visitor visa valid for three months. On 24 February 1998, Ms Jaramillo lodged an application for a subclass 806 Family (Residence) visa on the grounds of being a special need relative to her nephew, Byron Pazminio, aged 17, who suffers from drug dependency (T p40). She was nominated in the application by her sister, Carmen Jaramillo, who is Mr Pasminio’s mother.
6. In about April 1998, Ms Jaramillo’s relationship with Mr Aguirre ended after he mistreated her. In December 1998, Ms Jaramillo and Mr Bocko met in Sydney and commenced their relationship shortly afterwards.
7. On 3 June 1999, the Department refused Ms Jaramillo’s application for a subclass 806 Family (Residence) visa (T7 p73). The letter notifying Ms Jaramillo of this decision was apparently returned to the Department marked “Left Address” on 7 June 1999. As a consequence, the Department initiated compliance action to locate Ms Jaramillo (T9 p91).
8. On 30 July 1999, Ms Jaramillo was granted a bridging visa E on the condition that she depart Australia before 6 August 1999 (T p95). When she had difficulty obtaining an appropriate flight, she was granted a further bridging visa E requiring that she depart Australia by 13 August 1999 (T p96). Ms Jaramillo departed Australia on 13 August 1999 (T p104).
9. On 10 October 1999, Mr Bocko flew to Ecuador to visit Ms Jaramillo staying for about a month (T p133). During this visit, Mr Bocko and Ms Jaramillo decided to marry. On 9 June 2001, Mr Bocko again went to Ecuador and on 18 July 2001, Mr Bocko and Ms Jaramillo were married in Quito, Ecuador (T p133). Mr Bocko subsequently returned to Sydney.
10. On 12 September 2001, Ms Jaramillo lodged an application for a subclass 309 Partner (Provisional) (Class UF) visa at the Australian Embassy in Santiago, Chile. On 17 June 2002, she was interviewed by a Senior Migration Officer of the Department in Quito, Ecuador (T p146). On 9 December 2002, a delegate of the Respondent decided to refuse the grant of a visa to Ms Jaramillo on the ground that she did not pass the character test because of her past general conduct, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”) (T p16).
11. On 19 December 2002, the Applicant lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
12. 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;…
13. 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.
14. 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”..
15. 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 the 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.
16. The issue for the Tribunal to determine in this case is, therefore, whether Ms Jaramillo is not of good character having regard to her past and present general conduct so as to be precluded from the grant of a subclass 309 Partner (Provisional) visa. If the Tribunal decides she 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
Miroslav Bocko (the Applicant)
17. Mr Bocko said he was born in what was then Czechoslovakia and he and his mother and sister escaped from the Communist regime arriving in Australia on 20 June 1980. His family in Australia comprises his mother, who is single, and his sister who is married with two children. Mr Bocko returned to Slovakia for visits in 1998 and 2001. Mr Bocko works as a spray painter for MediCar Smash Repairs and lives alone in a rented flat. He used to live with his sister but rented a flat in the hope that his wife would be able to join him in Australia.
18. Mr Bocko said he and Ms Jaramillo first met in mid December 1998 when she was living with her sister Maria in Canterbury. His wife has three sisters living in Australia. In completing his wife’s spouse visa application, he advised her to include a wrong answer to the question asking when their relationship commenced in order to suggest that they had been together longer. Ms Jaramillo therefore stated their relationship commenced in March 1998 when it had in fact commenced in December 1998. Mr Bocko said he takes full responsibility for this. He did not know much about Australian immigration law at the time that he did this. He was advised by his former migration lawyer, Stirling Henry, that if he explained what he had done in a Statutory Declaration, there was no need for Ms Jaramillo to provide a similar Statutory Declaration. Mr Bocko said he made the Statutory Declaration with regard to the commencement of their relationship because he wanted to make sure that all the facts related to her situation was correct.
19. Mr Bocko said at the time he first met his wife and while she was in Australia, he was not aware that she had been married previously nor of her previous de facto relationship with Mr Aguirre. Ms Jaramillo told him of these relationships when he went to Ecuador in October 1999.. Mr Bocko said when they first met in December 1998, he saw her passport and the visa which stated that it was valid until further notification.
20. Mr Bocko said that after living with her sister Carmen until March 1998, Ms Jaramillo and her then de facto, Mr Aguirre, lived at her sister Fabiola’s house at Pyrmont until Ms Jaramillo’s relationship with Mr Aguirre broke down. Ms Jaramillo then moved to live with her sister Maria at Canterbury. At the time Ms Jaramillo lodged her application for a subclass 806 visa on 24 February 1998, she was living with her sister Carmen at Bonnyrigg. She and Mr Aguirre moved from Carmen’s house because her sister could not afford the additional expenses to support them financially. In July 1999, Carmen contacted Ms Jaramillo to tell her that the Department were looking for her. On that same day, Ms Jaramillo told Mr Bocko of this and they went to see the Department the next morning, on 30 July 1999. It was then that Ms Jaramillo was granted her first bridging visa E.
21. Mr Bocko said he and his wife maintain contact by telephone and email and via relatives who can take things to his wife when visiting Ecuador. Mr Bocko said that he has been supporting his wife for the past two years and generally sends her between $400 and $500 per month because she is unable to get a job. He finds it very difficult financially supporting both her and himself. He also finds it hard to cope and is very depressed. He needs his wife. Having spoken about his problems to his general practitioner, he was referred to see a psychiatrist, Dr O Thomas Stanley. He first saw Dr Stanley about three months ago and has seen him once since. Dr Stanley prescribed Restavit for Mr Bocko, a relaxant which calms him and helps him sleep better.
22. Mr Bocko said he could not live in Ecuador. It is a poor third world country with a lot of crime and high unemployment. His Spanish is very limited and crash repairs are organised differently to those in Australia requiring multi-skilling involving mechanical, panel beating and spray painting skills. Mr Bocko said he is only qualified as a spray painter and does not think he would be able to get a job there.
23. Mr Bocko said he did the wrong thing by advising his wife to insert an earlier date for the commencement of their relationship in her spouse visa application because he believed this would be of benefit to them. He deserved to be punished and this has occurred. His wife has never done anything wrong except in relation to her immigration visa applications. If she is permitted to come to Australia, they both intend to work and then hope to start a family as soon as possible.
Yolanda Margarita Jaramillo Luzuriaga (the Visa Applicant)
24. Ms Jaramillo has six siblings: two brothers and a sister who are married and live in Ecuador and three sisters living in Australia, two of whom are married and one who is divorced. Ms Jaramillo said her mother died when she was eight years old and so she was brought up by her siblings because their father had left them. She was married in 1994 but separated six months later after her husband had mistreated and “bashed” her. She started living in a de facto relationship with Mr Aguirre in late 1996 or early 1997. Mr Aguirre accompanied her to Australia and they lived together until about April 1998 when they separated after Mr Aguirre mistreated her.
25. Ms Jaramillo said she graduated from school as an accountant and then studied at University for a while but gave up because of lack of money. Before she came to Australia, Ms Jaramillo was working in a restaurant.
26. Ms Jaramillo said when she came to Australia in December 1997, her sister Carmen, with whom she and Mr Aguirre initially stayed, was pregnant and her sister’s son, Byron Pazminio, had a drug problem and was dependant on heroin. She spent time talking with Byron at her sister’s home and gradually they became good friends. She convinced him to go to a rehabilitation clinic where he started on a methadone program. It was because of his situation and that of her sister, who was then single and pregnant again at the age of 42 and with little energy to devote to her older son, that Ms Jaramillo applied for a subclass 806 visa. Ms Jaramillo acknowledged that she moved from living with her sister Carmen about a month after lodging the visa application but said she continued to maintain contact with her nephew Byron and provide him with support.
27. Ms Jaramillo acknowledged that she moved in March 1998 without informing the Department. She did not then know that she had to inform them and the fact that her English is not good was probably a contributing factor to this. When she lodged her subclass 806 visa application and was issued with a bridging visa, the conditions were not explained to her in Spanish, and because her English is not very good, she may not have fully understood what she was being told.
28. In July 1999, her sister Carmen contacted Ms Jaramillo to tell her that the Department was looking for her. She spoke to Mr Bocko and they went together to the Immigration office the next morning. She was told that she had to leave Australia but could not arrange a flight by the first date that she was given, 6 August 1999, which was a week later, and so she was granted a further bridging visa up until the date of her flight on 13 August 1999.
29. Ms Jaramillo said that since she has been back in Ecuador, she has been supported by Mr Bocko. She has been able to get casual work now and then but has otherwise been unemployed. For almost three months, she has been studying to be a paramedic with the Red Cross in the evenings from 6.00 pm to 8.30 pm. When she completes the course, she hopes to get a job with the Red Cross dealing with emergencies. She was living with her brother but is currently living at her aunt’s house. Ms Jaramillo said she does not have a criminal record and is basically honest and a good person. In the long term, she would like to study to become a nurse and even perhaps a doctor. If she is able to come to come to Australia, she and her husband want to have children.
30. Ms Jaramillo was asked about the incoming passenger card which she completed on entering Australia on 13 December 1997 (T p101). She acknowledged that she made a mistake when completing the card in ticking the box “never married”.. It had been a long time since she had separated from her husband and, prior to coming to Australia, which was for a holiday, she had been living with Mr Aguirre in Ecuador. On arrival in Australia, she had a return air ticket valid for one year.
31. Ms Jaramillo was asked about the interview with the Senior Migration Officer, Richard Ross, in Quito on 17 June 2002 (T p146). In Mr Ross’ record of interview, he records Ms Jaramillo as telling him that she and Mr Aguirre decided to lodge the subclass 806 visa application to give them more time to stay in Australia because they did not have sufficient money to return. Ms Jaramillo said she could not recall saying this. Mr Ross also records her telling him that she and Mr Aguirre split up in about July 1999. Ms Jaramillo said she could not recall having told Mr Ross that and it was not correct. She apologised. She was very nervous at the interview and felt so stressed that she could hardly talk. With regard to the subclass 806 visa application, she said that it was out of ignorance that she did not tell the Department that she and Mr Aguirre had split up. She was not aware that she had to tell them - in the same way that she did not know that she had to inform them of a change of address. She thought the visa application would take a while to process and so did not inquire about its progress. Nobody told her how long the processing of the application would take. It was her husband who followed up on the processing of the spouse visa application.
32. Ms Jaramillo apologised for the mistake regarding the commencement date of the relationship with her husband stated in her spouse visa application lodged on 12 September 2001. She said she was confused about the date and they thought that by inserting an earlier commencement date, things would be better for them in making the visa application. In fact, her relationship with Mr Bocko started in December 1998. Thereafter, he helped her a lot with her English. Ms Jaramillo could not explain why she did not include mention of her first husband in her February 1998 subclass 806 visa application and did not include mention of her de facto relationship with Mr Aguirre in her spouse visa application. [The Tribunal deduced from what she said that in each case some years had past since those relationships had ended and she did not consider providing details of them necessary or important.]
Submissions
Applicant
33. Mr Benjamin, for the Applicant, said the Applicant does not dispute that Ms Jaramillo has in some instances given misleading information, which is a serious matter. However, he contended that there is no pattern of deceit and where she gave misleading information this was of a kind that had no real impact on the end decision. In terms of the seriousness of the misconduct, this is at the lower end of the spectrum. Ms Jaramillo had no understanding of the law or of the migration requirements. Nothing was concocted here except relatively minor details which were unlikely to have any effect on the end decision.
34. With regard to the bridging visas E issued to Ms Jaramillo in July and August 1999, Mr Benjamin noted that the second bridging visa issued on 6 August 1999 was issued at Ms Jaramillo’s request because she was unable to get a flight back to Ecuador within the time frame set out by the Department in the first bridging visa. Mr Benjamin noted that Ms Jaramillo had presented herself to the Department as soon as she became aware that the Department was looking for her in July 1999. Her failure to notify the Department of a change of address and of her separation from Mr Aguirre were as a result of her lack of knowledge of the immigration system and her limited English.
35. Mr Benjamin doubted that there would be any deterrent effect as a result of the refusal of a visa to Ms Jaramillo given the lack of any community awareness of this matter. Moreover, he submitted that the Australian community would not expect that a visa would be refused in such a case where an Australian citizen and his wife have been separated for nearly two years since their marriage, as a result of which both are suffering greatly.
Respondent
36. Ms Grewal, for the Respondent, contended that Ms Jaramillo does not pass the character test by reason of her past general conduct. Ms Grewal contended that Ms Jaramillo made false and misleading statements on the following occasions:
· On her incoming passenger card on entering Australia on 13 December 1997, she failed to mention either her marriage or her de facto relationship.
· On her subclass 806 Special Need visa application, she failed to mention her husband in Ecuador although she did include her de facto spouse, Mr Aguirre. Ms Grewal noted that Ms Jaramillo said she could no longer remember what she told Mr Ross at the interview in Quito on 17 June 2002 concerning her previous relationships. Mr Ross recorded that she told him that her relationship with Mr Aguirre had finished by March 1998, although they were still living in the same house. This statement was later retracted in submissions made on her behalf by Stirling Henry on 29 August 2002 (T p158). Ms Grewal noted that Ms Jaramillo did not notify the Department that approximately a month after her visa application, she had changed her address from that of the person needing care, nor did she notify the Department of her separation from her de facto.
· In her spouse visa application lodged on 12 September 2001, Ms Jaramillo gave a false commencement date in respect of her relationship with Mr Bocko. Mr Bocko has lodged a Statutory Declaration in respect of this but Ms Grewal noted that Ms Jaramillo had made no such declaration. Ms Grewal also noted that Ms Jaramillo did not declare her de facto relationship in her spouse visa application.
37. Ms Grewal submitted that such misconduct should be regarded as serious and sufficient to constitute a failure to pass the character test in line with the guidance provided in paragraph 1.9 of Direction No 21: in particular, by reason of the breaches of immigration law and making of false or misleading statements. Such false or misleading statements would also constitute offences under s 234 of the Act.
38. With regard to the exercise of the Minister’s discretion under s 501(1), Ms Grewal submitted that the provision of false or misleading statements in connection with entry or stay in Australia is regarded by the Government as very serious pursuant to paragraph 2.6(c) of Direction No 21. There is a risk of Ms Jaramillo making further false and misleading statements if she perceives this to be for her benefit. To refuse a visa in such circumstances would send a clear message to others that such behaviour will not be rewarded with a grant of a visa, which is in line with the expectations of the Australian community.
39. With regard to the other considerations to which decision makers are referred by paragraph 2.17 of Direction No 21, Ms Grewal noted that Mr Bocko is an Australian citizen and has said that he would not relocate to Ecuador to live with his wife. However, the Respondent contends that he encouraged Ms Jaramillo to provide false and misleading information to the Department in her spouse visa application concerning the commencement date of their relationship, a matter which should be taken into account in considering any hardship that he might suffer. Ms Grewal submitted that the primary considerations outweigh the other considerations in favour of not refusing Ms Jaramillo a visa and, therefore, the s 501(1) discretion should not be exercised in her favour.
Application of the Law and Findings
40. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Ms Jaramillo passes the “character test” having regard to her 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 …
41. 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).
42. 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, Ms Jaramillo, 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.
43. 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)).
44. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. There is no dispute that Mr Bocko and Ms Jaramillo are in a genuine marital relationship and that their separation for a period of nearly two years since shortly after their wedding on 18 July 2001 is causing both of them significant hardship. The Tribunal finds that Mr Bocko is suffering from depression for which he is receiving treatment from a psychiatrist, Dr O Thomas Stanley (report dated 26 May 2003).
45. Ms Jaramillo first arrived in Australia on 13 December 1997 on a visitor visa valid for three months. She and Mr Aguirre stayed with her sister, Carmen, who was separated from her husband but pregnant (at the age of 42) and who had a son aged 17 who was dependent on heroin. On 24 February 1998, Ms Jaramillo lodged a subclass 806 Special Need relative visa naming Mr Aguirre as her de facto spouse but failing to mention her husband, Luis Humberto Cardenas Jimenesz. The Tribunal accepts Ms Jaramillo’s evidence that she separated from Mr Jimenesz about six months after they were married in 1994. They were divorced on 15 December 1998 (T p105). Ms Jaramillo has given no reason for this omission from her subclass 806 application although she seemed to imply that she did not declare this because some years had passed. There was no apparent benefit to her from this omission in terms of any likely end decision.
46. Ms Jaramillo also made a false statement on her incoming passenger card on arrival in Australia when she declared that she was “never married” rather than “separated but not divorced” or “common law/de facto”. The Tribunal accepts that her English was very limited. Ms Jaramillo said merely that she made a mistake for which she is sorry.
47. The Tribunal finds that Ms Jaramillo’s nephew was drug dependent and commenced a methadone program on 18 January 2002 (T p165). Ms Jaramillo’s sister, Carmen, gave birth to a son on 23 June 1998 (T p166). The Tribunal accepts that Ms Jaramillo provided them with emotional support during 1998.
48. The Tribunal finds that Ms Jaramillo did not inform the Department of her change of address when she and Mr Aguirre moved from her sister Carmen’s house to her sister Fabiola’s house in March 1998. The Tribunal accepts that she was not aware of the need to do so. When departmental officers visited Carmen’s house in July 1999 looking for Ms Jaramillo and Carmen informed Ms Jaramillo of this, she went in to see the Department the next day accompanied by Mr Bocko. She then purchased an air ticket for Ecuador but was not able to obtain a flight within the seven days permitted by the first bridging visa E. At her request, the Department therefore issued her with a second bridging visa E to accommodate the flight she had arranged for 13 August 1999. She departed Australia on that day.
49. The Tribunal finds Ms Jaramillo made a false statement in her spouse visa application when she said her relationship with Mr Bocko commenced in March 1998 when, in fact, it commenced in December 1998. The Tribunal finds that she did this at the suggestion of Mr Bocko who, at the hearing, said he accepted responsibility for this earlier date – which he had believed would be of benefit to them in establishing a greater duration for their relationship. The spouse visa application also does not record Ms Jaramillo’s de facto relationship with Mr Aguirre. No specific reason was provided for this omission although Ms Jaramillo seemed to imply that this was merely a mistake because she did not think it important.
50. The Tribunal finds that Ms Jaramillo’s relationship with Mr Aguirre ended in about May 1998 as a result of Mr Aguirre mistreating her. Ms Jaramillo said she could not remember what she told Mr Ross, the Senior Migration Officer who interviewed her on 17 June 2002, about this. Mr Ross records that the relationship ended in July 1999 (T p148) which the Tribunal accepts is incorrect. Ms Jaramillo said she was very nervous at the interview.
51. Ms Jaramillo has not given an explanation for Mr Ross’ record of her answer at the interview that she and Mr Aguirre decided to lodge the Special Need relative visa in order “to give us more time to stay in Australia longer. We didn’t have money to return” (T p148). However, she told the Tribunal that on arrival in Australia she had a return ticket to Ecuador valid for 12 months. Moreover, the Tribunal has found that Ms Jaramillo did provide support to her sister Carmen and her nephew during 1998.
52. The Tribunal deduces from the above that Ms Jaramillo was somewhat cavalier in her earlier dealings with the Department and did not attend to providing the proper level of detail that was required of her. It is clear that she had little understanding of the immigration process and of her responsibilities, to which her poor English skills undoubtedly contributed. In retrospect, the false and misleading statements she made would, if undetected, have been of little or no benefit to her and the Tribunal is unable to find any broader pattern of deceit or intention to deceive the Department.
53. Nevertheless, having regard to paragraph 1.9 of Part I of Direction No 21, such false and misleading statements, involving a breach of Australia’s immigration law, are considered to be of a very serious nature sufficient to warrant a finding that Ms Jaramillo does not pass the character test.
54. Having decided that Ms Jaramillo 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 Ms Jaramillo. 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.
55. 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.
56. 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…
57. 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).
58. 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.
59. 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”.
60. With regard to the first primary consideration, while the Tribunal recognises that the making of false or misleading statements in connection with entry or stay in Australia should be regarded as serious misconduct, the nature of the false or misleading statements in this matter was not such as to make any significant difference to the end decision. It is at the low end of the spectrum of misconduct. Ms Jaramillo has apologised for that misconduct, some of which, in the Tribunal’s view, was due to a lack of understanding of the immigration process and to Ms Jaramillo’s limited English skills. Given Ms Jaramillo’s experience with the immigration process in the recent past, the Tribunal considers the risk of her repeating this conduct is minimal and that she is no threat to the Australian community.
61. While the refusal of a visa in a case of immigration misconduct will generally have a deterrent effect, given the nature of the false or misleading statements in this case, the Tribunal doubts there will be any significant deterrent effect.
62. 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 Ms Jaramillo’s situation and would not expect that a visa would be refused: Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054. Ms Jaramillo and Mr Bocko have now been separated for almost two years with consequent hardship to both.
63. The third of the primary considerations, the Best interests of the Child, is not relevant in this case.
64. 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.
65. Mr Bocko is an Australian citizen whose immediate family – his mother and sister and her family, are in Australia, which he regards as his home. He has a job in Sydney and having visited Ecuador and made his own assessment of the situation does not want to live there. He does not speak Spanish and thinks it unlikely that he would be able to obtain employment there.
66. Ms Jaramillo has three sisters in Australia and two brothers and a sister in Ecuador. Her father left the family when she was a child and her mother died when she was eight years old. Ms Jaramillo is not currently employed but is supported by her husband from Australia.
67. The Tribunal finds Mr Bocko was not aware of problems with his wife’s immigration status at the time their relationship commenced. He did not know about her previous marital and de facto relationships until after Ms Jaramillo left Australia. He did, however, exacerbate her problem by encouraging her to make a false statement in her spouse visa application saying that their relationship had commenced in March 1998 rather than December 1998.
68. As stated above, the Tribunal finds that Ms Jaramillo’s and Mr Bocko’s separation of nearly two years is causing both of them significant hardship. Mr Bocko is suffering from depression for which he is receiving treatment from a psychiatrist. They both gave evidence of their wish to start a family and both have apologised for the false and misleading statements.
69. Weighing up the primary and other considerations, the Tribunal finds that Ms Jaramillo is no risk to the Australian community and that the Australian community would take a humane view of Ms Jaramillo’s and Mr Bocko’s situation and would not expect that Ms Jaramillo 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) of the Act should be exercised in the case of Ms Jaramillo.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 7 July 2003
Date of Decision 1 August 2003
Representative for the Applicant Mr A Benjamin, Migration Agent
Representative for the Respondent Ms K Grewal, Solicitor
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