Bourakov and Minister for Immigration and Citizenship
[2007] AATA 1093
•1 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1093
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/887
GENERAL ADMINISTRATIVE DIVISION ) Re ALEXSANDRE BOURAKOV Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President Block Date1 March 2007
PlaceSydney
Decision The decision under review is affirmed. ....................[sgd]......................
Mr Julian Block
Deputy President
CATCHWORDS
Prospective marriage visa - character test - false and misleading statements and conduct - not of good character –-whether discretion should be exercised in Applicant's favour - primary considerations (and particularly interests of minor child) - protection of Australian community - seriousness and nature of conduct - risk of recidivism - general deterrence - expectations of Australian community - other considerations- decision under review affirmed.
Migration Act 1958; s.234
Ministerial Direction No. 21
Carini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 90
Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976
Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438
Alwi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 442
Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Cai Lian Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107
Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575
Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029
Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897
Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148
Phuoc Tuong Tran (AAT 12357, 30 October 1997)
REASONS FOR DECISION
1 March 2007 Deputy President Block PART A - background and preliminary
1. The decision under review is the refusal by notice dated 16 June 2004 of an application for a Prospective Marriage (subclass 300) Visa (“PMV”) applied for by Tatiana Sokolova (the “Visa Applicant”) on 21 July 2003; that application was sponsored by Mr Alexsandre Bourakov (the “Applicant”) who was, or is, the Visa Applicant’s husband. As will be noted, the Applicant and the Visa Applicant were divorced in 1999. The Visa Applicant married Mr Andrei Sokolov in 2000 and divorced him two years later. There is evidence before the Tribunal that the Applicant and the Visa Applicant were then remarried in 2003 and there is also evidence that there is doubt, at least in the mind of the Applicant, as to whether the church ceremony resulted in a valid marriage.
2. The Applicant was represented by Mr Ivan Rados of I Rados & Associates. The Respondent was represented on the first four hearing days (14, 15 June and 15, 16 September 2005) by Ms Gretchen Bennett of Clayton Utz, solicitors; Mr Avinesh Chand of Clayton Utz, solicitors, represented the Respondent on 3 April 2006 (the fifth hearing day) and 25 January 2007 (the final hearing day).
3. The Respondent’s Statement of Facts and Contentions dated 10 May 2005 contains under the head of “Facts” the usual, helpful chronological list of relevant events (the “Chronology”) which is included in these reasons as follows:
RESPONDENT'S STATEMENT OF FACTS AND CONTENTIONS
….
FACTS
4 October 1955
The visa applicant, Ms Tatiana Sokolova born.
18 June 1961
The AAT applicant, Mr Alexsandre Bourakov born.
30 December 1983
Ms Sokolova married Mr Bourakov.
1 February 1985
Ms Sokolova and Mr Bourakov's daughter, Anna born.
2 March 1991
Ms Sokolova and Mr Bourakov's daughter, Anatasia [sic], born.
2 December 1999
Ms Sokolova divorces Mr Bourakov.
1 February 2000
Mr Bourakov applies for a visitor visa (subclass 676) at the Australian Embassy in Moscow.
9 February 2000
Mr Bourakov's visitor visa is granted.
18 February 2000
Mr Bourakov and his daughter Anna arrive in Australia.
17 March 2000
Mr Bourakov and his daughter Anna apply for Protection Visas.
27 March 2000
Mr Bourakov and his daughter Anna Protection Visa applications were refused.
19 April 2000
Mr Bourakov and his daughter Anna apply for review of the decision to refuse their Protection Visa applications.
6 October 2000
Ms Sokolova marries Mr Andrei Sokolv.
16 November 2000
Ms Sokolova applies for a visitor visa (subclass 676) at the Australian Embassy in Moscow.
25 November 2000
Ms Sokolova's visitor visa application was refused.
30 May 2002
The Refugee Review Tribunal sets aside the delegate's decision to refuse Mr Bourakov and Anna's Protection Visa application.
4 November 2002
Mr Bourakov and Anna granted Protection Visas.
18 November 2002
Ms Sokolova divorces Mr Andrei Sokolv (see pages 722-723 T documents).
19 December 2002
Ms Sokolova applies for a Humanitarian Entry visa (subclass 202.)
March 2003
Mr Bourakov travels to Belarus for a month.
7 March 2003
Ms Sokolova remarried Mr Bourakov in church service.
8 April 2003
Ms Sokolova was interviewed in relation to her Humanitarian Entry visa application at the Australian Embassy at Moscow and a Notice of Intention to Consider Refusing her Visa Application under section 501 of the Act ("the first Notice") was issued. (T21 pp 616-630.)
11 April 2003
Ms Sokolova's application for a Humanitarian Entry visa was refused on the basis that she was not genuinely a member of family unit of Mr Bourakov. (T22 pp 631-636.)
17 April 2003
Ms Sokolova's agent responds to the first Notice. (T19 pp 324-609.)
21 July 2003
Ms Sokolova applied for Prospective Marriage (subclass 300) Visa ("visa") (T18 pages 231-323).
11 September 2003
Ms Sokolova was interviewed in relation to her Prospective Marriage visa application at the Australian Embassy at Moscow. (T10 pp 210-213.)
5 December 2003
Ms Sokolova was sent a letter from DIMIA setting out DIMIA's intention to consider refusing her visa application under section 501 of the Act ("the second Notice") (T7 pages 203-206).
6 May 2004
Ms Sokolova's agent provides submissions in response to the second Notice.
16 June 2004
Decision to refuse Ms Sokolova's visa application under section 501 of the Act (T2).
15 July 2004
Mr Bourakov lodged Application for Review of Decision with the Administrative Appeals Tribunal (T1).
…
4. The Applicant also filed a Statement of Facts and Contentions dated 26 April 2005, and which also contains a chronological list of relevant events. Although not as detailed as the Chronology, it contains some of the same information; to include it would constitute unnecessary duplication and it is thus not included in these reasons.
5. The Tribunal had before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; they consist of approximately 750 pages. The T documents contain a number of witness statements by the Applicant, the Visa Applicant and others. References, in this decision, to “T” followed by a page number, refer to documents within the T documents.
6. This matter was listed to be heard on 14 and 15 June 2005 and two days is normally sufficient for the hearing of a spouse visa case; this is so in particular having regard to the fact that Mr Rados at the commencement of the hearing indicated that he intended to call the Applicant, the Visa Applicant and one character witness only. Although the T documents include a very lengthy witness statement by the Applicant, his evidence took nearly the whole of the first two hearing days, and of that period most of it was taken up by his evidence-in-chief. Much of his evidence- in-chief was contained in the Applicant’s witness statement; as to why Mr Rados felt it necessary to repeat that content in evidence-in-chief is not easy to comprehend.
7. The matter was then re-listed for hearing on two further hearing days, 15 and 16 September 2005. That period was taken up by evidence by the Visa Applicant. It was at that time that Mr Rados said that he intended to call many more witnesses than he had previously indicated. The evidence of the Visa Applicant was not completed during the third and fourth hearing days.
8. The matter was then re-listed for hearing for three days in February 2006. Prior to those dates, Mr Rados applied for their vacation on the basis that it was necessary for him to travel to Hong Kong to attend certain immigration interviews. His application was not opposed by Mr Chand; in consequence these dates were vacated and the matter was then re-listed for hearing on three days commencing 3 April 2006. By the end of the fifth hearing day, the evidence of the Visa Applicant had been completed and the evidence of four character witnesses had been taken. In the meantime, the Applicant’s younger daughter, Anastasia, had come to Australia having received a Child Migrant visa entitling her to do so. It may be noted that the Applicant and his older daughter Anna had arrived in Australia on 18 February 2000. The Applicant was not then accompanied by the Visa Applicant, from whom he was then divorced, or Anastasia. Mr Rados at the end of the fifth hearing day asked for yet another adjournment in order to procure psychiatric evidence in respect of Anastasia. That application was granted on the basis that the Respondent would be entitled, if he thought it necessary to do so, to examine the practitioner concerned.
9. In a matter such as this, the Tribunal must always be concerned to ensure that the rules of natural justice are observed. It is for this reason that the Tribunal is generally reluctant to limit the extent of evidence or the number of witnesses, which may be altered, and even where it might be thought that there is unnecessary repetition, or in the case of character witnesses, repetition of much the same evidence. The Tribunal considers that in this case it may have allowed more latitude than was desirable and so that this case took longer than it should have done.
10. In respect of the first two hearing days, the transcript pages are numbered sequentially from one to 167; TS references preceded by the number “1” refer to the transcript for the first two hearing days, 14 and 15 June 2005. Similarly, the pages of the transcript for the third, fourth, and fifth hearing days are numbered sequentially from one to 170. References to TS preceded by the number ”2” refer to the transcript for the third, fourth and fifth hearing days. In all instances, the number or numbers immediately following TS references refer to the transcript page number or numbers. On the sixth hearing day, oral submissions only were taken.
11. To deal with all of the evidence taken during the hearing days would have the effect that these reasons are even lengthier than they already are. It is for this reason that I intend, in respect of much of the evidence, to deal with it in brief terms only. In other cases the nature of the evidence is in my view best indicated by excerpts from the transcript itself.
12. T21 (pp 616-630) is the record of an interview of the Visa Applicant, which took place in Moscow on 11 April 2003. It proved to be of such relevance and importance in this matter that it is included in full and verbatim (except for the removal of personal information) in these reasons.
Sokolova 2002100592
202 i/v 8/4/03
Present Meredith Byron and Irina Novozhilova
Intro
Warning letter signed
DOB?
4/10/1955
Full name?
Tatiana Andravina Sokolova
Any other names?
Maiden name Druchan
Married name Bourakova
Where do you live?
Belarus
Full address?
[address provided] It is not my permanent registration that's why I need to do something about it. I need to apply for residency status in Belarus but have problems with residence in B as well, If I apply I need to provide all documents including divorce certificate with husband and although daughter has name Sokolova now but in name of birth certificate has bio father's name. Might have problems bec my husband and father of daughter currently in A/a. And that is why I am afraid bec then authorities would know he went to A/a and didn't come back.
Why problem?
I don't know, B is v close to R and I am afraid questions why is he in A/a and I here, husband on PV and I have already previous H, not a real marriage.
What is current status in B is don't have residency there?
I don't have anything at the moment, I can get residency for 1 year. Can apply for residence, processing time v long, they need a lot of documents, now I can see some progress with application to A/a, I would prefer to wait for outcome to A/a.
Do you currently have residency for 1 year?
Yes, I had residence for 1 year but this year expires.
When expire?
It expired in March. I continued to live there, it is allowed to live there for 1 month. My husband visited me in B and he advised me not to start this process. During his visit we had a church wedding, didn't want to have reg bec scared of authorities.
When visit?
1 March and left on 2 April.
Belarus?
Yes, I brought photocopy of ppt.
You are a Russian citizen?
Yes
What is your Husband?
A/an citz, but before that R.
What visa get to Bel?
Visitor.
Where are you currently registered?
Nowhere, I don't have permanent residence. In order to get reg in B, need to get permanent res in B. Without it can get reg.
Are you currently registered anywhere in R?
No, I had registration for 3 months in Hbarovsk that was the last. Before I lived with my husband and daughters in Irkusk.
When reg end?
End of March 2000.
How long planning to stay in Moscow?
I am going back to Belarus.
How will enter is [if] don't have residency?
Don't need any visas, not a problem for R citz to enter B.
Where lived for past 10 years?
My current situation, I left Irkutsk in 2000. Start from 1983, married husband and we lived together in B for 7 years.
What was residency status?
We were residence, citizens of Belarus (USSR) and we were registered in B, Glosky district. In 1989 moved to Irkusk.
Where you registered there?
Yes [address provided]
How long live there for?
1989 to 2000, eleven years. First my husband left than [then] I did.
2000 where move?
I moved to Hbarovsk.
What timeframe, were you registered there?
Registered in September, Moved there in July 2000.
How long stay there for?
Left Hvabarosk in Nov 2000. I registered my marriage, contrived marriage, got ppt.
Have B citz?
No but possible for me to obtain. They advised me to apply for citz but husband advised me not to.
Why would h advise not to?
Bec now R and B are in process of becoming same country, same laws. It will be one country.
Moved in 2000, where, were you registered?
Zhambula St Belarus, house 34, flat 91. I need to look at ppt. I was registered there for Sept to Dec 2000.
But didn't you leave R in Nov 2000?
I left in Nov but left power of A with friend and sent her ppt.
Where move after that?
Belarus.
Where and when?
May we have a look at your internal ppt?
Yes
When issued?
2000
What happened to old one?
I gave it back when issued with new one.
Is all information I [in] it correct?
Yes, absolutely.
No mistakes?
No
All information consistent between ppts?
Yes
Are you satisfied that all the information you have provided in this and previous apps is true and correct.
Yes
Where lived in Belarus?
[address provided]
How long there for?
6 months
From December 2000?
From 12, clearly that until August 2001. From 16 August 2001 for 6 months. Before that I stayed in Moscow area, I had registration, Ladazhinsky area, village Lotozhono,[address provided] From 15 Feb 2001 until 15 Aug 2001.
Where did you live after that?
In Dogshetse.
After that?
[address provided]
How long live there for?
1 year.
When stop living there?
I continue to live there however I am not registered there, my daughter goes to school there now need to make decision about what to do.
Inconsistencies in application forms identified? Do you have any comments.
It is not correct we lived in Poselok. We went first to Moscow area, I think it is the wrong area.
When arrive in Moscow area?
From 15 Feb 2001.
Where stay from Nov 2000 until Feb 2001?
Just a second. I lived with my sister temporarily in Belarus. Did not give this address bec have no docs, not registered there. I am not a criminal and have no sense to mislead. I just want to explain, I want ti [to] stay in R, however it was not easy to get registration in R, I have only brother living in Moscow but could not get R because he has a small flat. The same in B.
Can you explain why provided inconsistent information in application form and at i/v today?
No I give you full information, maybe different order.
Names? Have you heard the name Oreshenko?
I know this name, I have heard it but never had this name. This name was invented, after my husband left and I had to change name from B to Sokolova I was advised to try to join h in A/a bec of different name. So I lodged my application as Sokolova and I was advised if I provided info about my maiden name T, my application would be refused bec my husband didn't return. That I would not be able to travel until he had PR. Friends helped me with this, I didn't forge anything, I know they forged photocopies, not the originals. They helped me with everything.
What were their names?
I only know their names. Andrei, Alexandre.
How do you know them?
I have seen them before then my husband asked me to seek their assistance.
Where do they live?
Irkusk and Hbarovsk.
Addresses?
I had telephone number and I called and visited them but I don't remember now.
When visit?
In 2000.
How husband know them?
Because of his work.
Did they work at the same place?
Yes but then Alexandre moved to H. I know that his parents live in H. I have seen them only one.
If we contact husband's ex work we will be able to speak to Andrei.
Probably.
Previously advised that all information in this and previous applications was true and correct?
Information about residence and addresses could be mistakes, I clearly remember where I lived.
You have just admitted that doc were forged with previous applications and used a false name?
It was not me, I was given this, I haven't seen these documents, that's it. They said that it was nothing serious.
What doc did they alter?
Photocopy of my birth certificate because when I asked this photocopy. It has nothing to do with my current application, then with my employment they gave different information. At that time I was thinking of going straight away, then with husband Sokolov was as if going for a long time. My husband was aware of this and I was collecting documents. "Tried to use all means to get a visa. And I wanted to be reunited with daughter."
He did not know I changed my name but that I was applying for v/v with assistance of friends.
Husband didn't know changed name re visa?
No he didn't know about maiden name, he knew about maiden name, difficult to explain by phone. He didn't know details. I told him it could be a problem bec application could be refused. But about my contrived marriage he knew.
He knew about fraud docs?
I personally didn't forge any docs.
H know about submitting forged docs?
I didn't tell him details but I explained. I can say he knew.
Did H know you were submitting altered docs?
Yes he knew. Actually I was not submitting these docs, I was just looking and gave them back. I was told I needed a different surname to get to A/a.
Confirm you were aware that you submitted fraudulent docs with application with this office?
Yes it was my only way out.
Can you confirm that this (internal ppt) was one of the docs that was altered?
Yes that is not true.
Can you confirm workbook issued in invented name is fraudulent?
I don't know details.
Tell me whether correct or not?
Of course not, I never worked there.
Work certificate?
Also false.
Is this your signature (on vv application form)?
Yes.
Previously stated have 2 daughters, any other children?
No
On v/v app state have son?
I knew in this application have son, easier to get visa is half of family stay. I was instructed on what to do to get visa.
Who instructed you?
Acquaintances who worked in the system and my husband.
What do you mean who worked in the system?
Work in Ministry of Internal Affairs. They knew it would be dangerous for me to stay.
Who?
Alexandre and Andrei. Don't know surnames.
What positions and where exactly do they work?
Andrei Lieutenant and Alexandre I don't know similar.
Husband went to A/a, how maintain contact?
Corro and telephone, I used to call him but not often bec too expensive. He helped me financially.
You stated that you entered into a contrived marriage, was it always the plan that you would divorce when h obtained PR?
Yes, planned this from the beginning.
Always your intention to lodge an application when he obtained PR?
Yes
This was discussed prior to your husband leaving?
Yes
How often in contact with husband?
Every week, usually he calls me.
Any evidence of the calls?
We don't have phone bills here. They send us a bill to pay, I'm sure he can confirm his calls.
What numbers?
[phone number provided] and I asked him why he didn't provide telephone no with application.
What was his explanation?
I don't know, maybe he didn't remember it by heart, but now no problem daughter calls and he calls.
You stated that you asked him why he didn't provide phone number what was his actual response?
He said he forgot or didn't remember, I forget. But I know his telephone number.
What is husband currently doing?
Work
Where?
Car mechanic. Forgot the name
How long working there?
First time worked as a builder. I don't remember now, they are 3 years in A/a now, can remember exact.
Some of colleagues names?
He mentioned Dima and Igor. Dima also boss. He mentioned some other names, not R names, that's why I can't remember. We spoke about his friends but difficult for me to remember when not R. He mentioned Michael but I don't know how they know one another.
What does he do with Michael?
They both like hard rock. There was a concert there. Pink Ffloyd, Deep Purple.
Where is work located?
I know that he lives in Liverpool.
How does he get to work?
Drives.
What does he own?
Honda.
You said he supports you financially, how much?
100 or 200 dollars.
USD?
Yes
Per month?
Yes
Did he continue to send you money when in A/a with outstanding PV application?
Yes
Evidence?
First time used name Luidmilla Cherbiava. She lived in Sydney from Odessa, and she visited Odessa in 2000, 2001. Travelled to O specially to meet with her, sending things to daughter.
When stop using her?
Only last year after obtained PR.
How know Luidmilla?
I went to O to meet her.
How did she become involved?
I don't know, my husband, they probably discussed.
You haven't discussed?
He told me they are friends and she became a 2nd mother for my daughter and they helped a lot.
Any other communication sent through L?
No, just money.
No letters?
No... Sorry, actually I wrote my letters to Liverpool addressed to Luidmilla but made not for my daughter or husband, until they got status.
Where make note?
I think the flat where they live is Luidmilla's flat and they know my handwriting.
Said you wrote a note for daughter or husband?
Maybe on envelope I don't remember now, they know my handwriting.
Clarify sent docs through Luidmilla because concerned about security?
Yes
If concerned about security why write daughter's and h's names on envelopes?
I didn't use full name.
You have provided letters sent to your daughters sent in 2000 and 2001 that are addressed to your daughter?
My husband provided them as evidenced.
We have more addressed to your husband in 2000?
But it is in English.
Letter to Luidmilla in 6/02?
I know in the beginning I didn't know which address to use.
Brings into question your claims re sending letters through L for security, any comments?
I don't know maybe I didn't know another name, tried to use all means to keep in contact.
Sender address discrepancies identified?
Yes, my brothers address.
Why using this address for correspondence when living in B?
Maybe I didn't have at this time my own address in B, and quicker to get letters to A/a from R than B. Used my brothers address. That is what my husband was sending.
Have you ever been to A/a?
No.
You mentioned several times that marriage to Andrei Sokolov contrived, what evidence to confirm?
I don't have any docs but if you call he will confirm.
[address and phone number provided]
Did you pay money to him?
Pause, how can I say, I personally didn't pay, but maybe someone.
Who else could pay?
Maybe friends, but I think it was his will
Did you know him before?
No
Why would he do it then?
Maybe my friends asked him.
So you didn't pay any money?
No
If claimed contrived marriage, what was the purpose?
My husband asked me to do this for our security, I actually asked him.
Your idea or husband's?
Our joint decision.
Who offered first?
I think me
So you?
Yes
How could this marriage solve your problems?
We were contacted several times after h left.
How could marriage solve problems? In your situation.
To make it more difficult to find us.
For whom to find you?
For people from Ministry of internal Affairs.
Do you think it was a problem for them to find out your new name?
I think so.
Any other reasons for entering into contrived marriage?
No
If you claim that this marriage was contrived, why didn't you divorce him immediately after you changed your name?
I tried to, I thought about it but then it would be very clear that the marriage was false.
For whom?
Those who were interested.
So you wanted for people to think marriage with S was genuine?
Yes, not for A/a but for R and B. However S is not aware of all this, he was just aware of my wish to reunite with my family.
Did you offer S any assistance to go to A/a as well?
No.
How could daughter change name, on what basis?
Because of my change of name, he didn't adopt my daughter.
What was sense in changing name is real father still on birth certificate?
I need it only for school. They never asked me to provide birth certificate bec she is in ppt.
Were you ever registered at same address as S?
I know that in the docs submitted here it is written that I lived with S for 3 months in H, however I never lived with him I was renting a flat.
Why incorrect information provided with this application?
They misunderstood, they thought that Zhumbula was S's address.
Anything else that you want to add to show that marriage to S was contrived?
My daughter hasn't seen him.
Any doc evidence?
I don't know how I can provide docs showing marriage was contrived.
The only reason for you not divorcing him is that you didn't want R and B to think it was contrived?
Yes, and the only purpose was to change name.
Say didn't want to divorce bec didn't want people to think contrived, wouldn't people suspect that bec not living together?
For example if he was asked he would say I was away. I was not registered.
What kind of marriage? Registry
Yes, normal wedding application, but we wanted to get it done v quickly.
The fact that had normal wedding with registration means authorities have access to new name, therefore if married if trying to change name what achieve?
But not in ppt, that is the main doc, no one asking for marriage certificate.
If people from Internal Affairs trying to track you down, presumably no difficulty?
Do don't know, I was told to do this.
I thought it was your idea?
Yes it was, had fear inside asked his advice.
S didn't know the purpose of the marriage?
Said the purpose was for reuniting with family, separated from husband.
He didn't ask you any questions?
I can say no, I told him that h and d in Sydney and I needed to change name to reunite and I think he trusted me.
Were you placing him in a dangerous situation?
I think no.
Take time before answering. Have you changed your name in your v/v application so that we will not identify you?
No, what's the purpose the final result must be that I must be together with H, that must be final outcome. Marriage for S was not for purposes of v/v application.
[S501 notice of intention to refuse. A/n given 10 minutes to respond.]
Anything you would like to say?
I regret about all docs provided with v/v application, I didn't think it would be so serious in future. It was all done for security of daughter, family. As mother do everything so daughter would not have feel, bec I was threatened and threats against children, saying they knew which school she attended. I was also responsible for providing info to husband, I could be imprisoned. I want to confirm that all documents provided with migration application are genuine and not fabricated. So everything is true and correct. What about my children, I think that human rights of my children would be a break of human rights if refuse application. Children from one side don't have mother and children on other side don't have father.
If he cannot come back and we can not go there what to do. I was not thinking of doing any bad things. I never had any criminal records in my country and will show that I am of good character if you allow me to go to A/a. About Geneva Convention. I don't know what will happen to me in A/a. Already explained to you that I had to get permanent registration. For 3 years have not had family, daughter lives without mother. For me family most important thing in life. I regret again everything that has happened I was told it was not serious. I regret that I didn't bring original docs and was known by 3 names and in fact my real husband is B and I know that de facto relationship are recognised. If these docs are not enough, he can provide telephone docs to prove still in contact. We love each other.
And my younger daughter is praying for me to join her sister and father. I wanted to bring her with us so she wouldn't lie to you.
I am very sorry and I want to apologise, you are my only hope. The situation in the world is so bad that it is only family who can support. So I hope you will understand me and I want to assure you that all docs provided with the current application are genuine. Please don't refuse my application. I know that the eco situation is much better in A/a, however this is not my motivation. I am not interested in all the exotics, I want to be with my family to live with them and I will try to contribute to prosperity of A/a. My daughters are v smart, Anna gets perfect marks in school. And my daughter also has good results and wants to have normal civilised rights without fear. If you refuse I don't know the only purpose of us living here is to reunite, I can't stand separation, and both daughters too. Please believe me I am v sincere. I don't need anything for myself, just family and to see daughters together. Where can we go now here we have changed addresses so many things. I have no home, no family, so if refuse will be tragedy. This fear again, I have no hope here, I don't see any future for myself or daughter is [if] refuse application.
I am v sincere.
Anything else you wish to say in relation to s501?
I don't find myself to be not of good character. It wasn't the original docs that were altered it was the photocopies. I didn't know it was so serious, I promise not to do it again. I know it is v difficult to address compelling circumstances but my situation was v difficult. I can't claim now that if you don't give us visa that they will bout us somewhere and torture us but it may happen. If we didn't go away they wanted to search our house we didn't want this so we left.
End of interview, your application will need to be assessed.
Where will you be located?
[phone number provided] (brothers)
Until when?
Today go back to V but can give any information to him
A/n asked to sign authority for office to deal with brother re application.
A/n decided not to write authority and changed her mind.
A/n - no I don't want you to discuss this with him
If we don't have authority we cannot call him we will not call him.
A/n - ok, call me.
A/n provided 3 photos of sp's recent trip to Bel.
How come to Belarus?
Minsk, Airport.
Assessment
The applicant has a history of providing false and misleading information to this office. In November 2000, she lodged a visitor visa application, in which she provided a false patronymic name, she also identified a son as remaining (the applicant only has 2 daughters). In addition, she provided a fraudulent work certificate and copies of a fraudulently altered workbook and internal passport. When asked at interview on 8/4/03, whether all information provided with current and previous passports was true and correct, she stated it was. Only when it was directly put to a/n that she had provided false and misleading information with her visitor visa application did she admit to this fact.
Indeed, having admitted that she had knowingly provided fraudulent information and documentation, the applicant failed to take responsibility for her actions, stating that the actual documents themselves were not altered, only the photocopies and that she personally did not alter the documents.
The applicant's lack of personal responsibility for the fact that she has previously provided fraudulent documentation for the sole purpose of securing entry into Australia and her continued provision of false and misleading information in relation to this matter at interview on 8/4/03 raise serious concerns about her character and credibility.
When asked to explain her ‘contrived marriage’, the applicant was not convincing, and based on her responses, I am not satisfied that her marriage to Sokolov was contrived as claimed. Further, when asked about her continuing contact and correspondence with Bourakov, she provided confused and conflicting information.
Based on all of the evidence before me, I do not find the applicant credible. I do not accept her claims that her marriage to Sokolov was contrived and I do not accept that she continues to be a member of the family unit of Bourakov, a person who, having, satisfied the primary is the holder of a Subclass 202 visa.
As a/n fails to meet the criteria of subclass 202 dependent she has been refused under this criteria. Should a/n apply for future visas it may be appropriate to consider her under s501.
13. The interview referred to in the preceding paragraph was not the only interview; the Visa Applicant was again interviewed on 11 September 2003. That interview was comparatively short at least by comparison with the previous interview. I do not consider it necessary to include that record because to do so would unnecessarily lengthen an already lengthy decision. It indicated in clear terms that the church ceremony at which the Visa Applicant and the Applicant were remarried was attended by relatives and that the ceremony was followed by a celebration meal at a restaurant. The Visa Applicant at that interview said that more people would have attended but for the fact that it took place at Dokshetsy and their friends lived in Minsk. She said that the distance between these two places (and it is relevant to note that the former place is spelled in different fashion in various parts of the T documents) some 200 km, that the marriage took place on a Friday (a working day) and that it could not take place later because Lent commenced “on the 9th”. When asked why the wedding could not take place during the weekend she said, “Lent from 8th”. That Lent was so relevant a factor indicates that the parties at least regarded the ceremony as a marriage ceremony; as will be seen, though Mr. Rados contended otherwise.
14. Dr Alexandra Vrjosseck, a consultant psychiatrist in Sydney provided a psychiatric report dated 23 March 2006 in respect of Anastasia (Nastya). This report was received in April 2006 and it reads as follows:
Dear Mr Rados,
Re: Anastasia SOKOLOVA
Date of Birth: 2 March 1991
I saw Ms Anastasia Sokolova on two occasions on 8 and 15 March 2006, both alone, and with her father, for the purposes of assessing the child’s best interests in the matter of the application by her mother for migration to Australia.
At interview Anastasia presented as a smiling, warm, pleasant teenager, neatly and fashionably dressed and well groomed.
She explained that she loved being in Australia and enjoyed living with her father, Alexsandre, a hard-working loving, caring man.
Tearfully she recalled a happy childhood in Russia with her mother, father and older sister, Anna, sadly grieving the absence of her mother.
Nastya stated that on 14 February 1999 [sic] her father and sister had left Russia and that she had been told by her mother that they bad [had] gone to Byelorussia and that she and her mother would meet up with then [them] in two to three weeks’ time. Subsequently she and her mother had travelled to Moscow to stay with her mother’s brother and there Nastya had learnt that her father had gone to Australia with her sister. She described profound sadness at the news and subsequent distress at moving homes and changing schools many times in Byelorussia avoiding authorities who may have been pursuing them as a result of her father’s desertion form the Army. She had nevertheless adapted well to her various schools and schoolmates, socialising easily and performing well academically. She had studied languages at school and had enrolled in an English speaking school.
Throughout their separation from Mr Bourakov, Nastya and her mother had maintained regular phone and mail contact with her father and she had been delighted to see him when he had visited them on two occasions in 2003 and 2005.
In Byelorussia they had maintained contact with friends, her mother’s sister and brother and her father’s parents. Her mother, however, had been unable to work, and they had relied on her father for financial support. Nastya reminisced about happy childhood days when her mother had worked in a boutique and had taken the girls on a business trip to China on one occasion when Nastya was about seven years old.
In January 2006, Nastya had come to Australia to join her father and sister. Since her arrival here she has settled well and easily into Australian life. She enjoyed attending high school and had established a circle of close supportive friends with whom she enjoyed regular social activities, especially shopping and chatting. She explained that as her father worked long hours she was the prime housekeeper attending to cooking and cleaning. She enjoyed a close relationship with her sister who worked in the local neighbourhood and who had moved out of their father’s home to live with a friend.
Nastya stated that she loved her parents equally but if her mother was refused entry to Australia she would return to live with her, stressing that she feared that she (her mother) would be quite unable to live alone in Byelorussia. She further stated that she believed that Anna would not go with her as she was well entrenched in her life in Australia.
From my observation of them, Nastya and her father enjoy a close and comfortable relationship in a rented apartment with each maintaining a complementary role to the other. Mr Bourakov presented as a caring, loving, hard working, supportive parent doing his best to maintain a close family unit in the absence of his wife, Nastya’s mother,[sic] Whilst Nastya described a close relationship with her sister, the age difference of six years, the years of separation and the different cultural environments of the last six years have clearly led to a less intimate and dependent relationship between the siblings. From her description, Nastya and her mother enjoy a warm, close and intimate relationship.
It seemed evident to me that Nastya was extremely keen to remain in Australia, having acclimatised quickly to Australian culture and life, and happily looked forward to living, studying and working here and establishing roots here, believing in a much more gratifying and rewarding life here. She was adamant however, that she was prepared to return to Byelorussia to support and care for her mother were she to be refused entry to Australia.
I believe that refusal of her mother’s visa to Australia would adversely affect Nastya by either denying her the opportunities that Australia has to offer, or denying her the love, care and nurture of her mother.
Although I believe that Nastya’s strength and resilience have stood her in good stead, the ongoing separation from her parent, with its denial of role modelling and support could well lay the foundations for future psychological dysfunction with the possible development of depression and anxiety.
In summary I believe that on the balance of probabilities, being reunited in Australia with her mother would clearly be in the best interests of this vulnerable young woman.
Yours Sincerely
15. The Respondent did not consider it necessary to examine Dr Vrjosseck; written submissions were received from both parties (in the case of the Applicant, only after a very long delay) and oral submissions were taken as previously noted on 25 January 2007, which was the final hearing day.
PART B - the evidence of the applicant
16. As I have noted, the evidence of the Applicant took nearly two days and nearly all in evidence-in-chief. Attempts to limit the extent of the Applicant’s evidence-in-chief were only partially successful but the Tribunal did manage to stop Mr Rados from asking questions of the Applicant as to the truthfulness and good character of the Visa Applicant. It may also be noted that many of the questions asked by Mr Rados were leading, to the extent that on occasion there were (presumably) unintended consequences as the witness answered in the manner indicated by the question rather than giving the true or correct answer.
17. The Applicant said (1TS8) that he is divorced and that he lives with his older daughter. He is a citizen of Australia. He said that he was previously married to Tatiana Andrejevma Truchan on 30 December 1983 (1TS10). The Visa Applicant and the Applicant were divorced in December 1999 and they have two daughters, Anna and Anastasia.
18. (The Tribunal here notes that the Applicant’s description of himself as divorced, and as to which he was not cross-examined, is odd in that both parties in their Statements of Facts and Contentions stated that on 7 March 2003, that the Applicant and the Visa Applicant were remarried in a church service. There was no suggestion at any time that the church service was not a genuine service, and indeed the evidence as a whole suggests the contrary.)
19. The Applicant arrived in Australia on 18 February 2000 accompanied by Anna. They came to Australia on visitor visas. After his arrival in Australia, the Applicant made an application for a protection visa; that application was denied, but was subsequently and on review granted by the Refugee Review Tribunal (RRT). He obtained a protection visa by this means in November 2002 (1TS13).
20. The Applicant said that he found out in October 1999 that he was going to be sent to Chechnya. He said that he was to be sent to Chechnya as an officer in the army (1TS12). (As later evidence revealed he was in fact a policeman having left the army and taken up a post with the police.) He was asked whether he was afraid to be sent to Chechnya and he answered at 1TS12 as follows:
…
MR RADOS: And you were afraid to be sent to Chechnya, is that right?
THE INTERPRETER: Yes, that's right. Actually you know I didn't want to go to Chechnya, not because I was scared, but it was because I was against this war as a whole because I disagreed with how it was - with how it was all happening, how they were organising directions and everything, how just the citizens they were killing the citizens and how it was all going.
MR RADOS: Yes.
THE INTERPRETER: That's why just I didn't want to go back. I didn't want to participate in this.
…
21. The Applicant said that he came to Australia as a tourist. When asked why he chose Australia, he said at 1TS13:
…
THE INTERPRETER: Actually for me it didn't matter where to go, but when I turn to the travel agency, they just suggested to me to go to Australia.
…
22. When it was put to him that Australia is far from Russia and that it would have been cheaper to go another country, he answered (1TS13) as follows:
…
THE D.PRESIDENT: But Australia is very very far from Russia, there would have been cheaper tickets available to say England or France or Germany.
THE INTERPRETER: You know, I lived in Siberia, Siberia is much closer to Australia than England.
…
23. The Applicant’s evidence was that he left for Australia from Siberia, which is of course in Russia. He had been seconded to Siberia prior to his departure. Mr Rados asked the Applicant how his application for refugee status affected the Visa Applicant who was then in Belarus. He answered that she was happy as to the fact that he and Anna were safe.
24. The Applicant’s evidence was that after he left Russia, the Visa Applicant was put under pressure as to his whereabouts; see 1TS15-17 as follows:
…
MR RADOS:Were you afraid for your ex-wife and your daughter in Belarus?
THE INTERPRETER: Yes, I was afraid.
MR RADOS: Can you describe how or why you were afraid?
…
THE INTERPRETER: … When I left the country, the authorities started to call my wife and they were asking about my whereabouts. They were putting pressure not only on my wife, but on my - - -
…
THE INTERPRETER: The authorities were trying to figure out my whereabouts, where I was. They didn't know that I had left the country, so they were putting pressure on my wife and on my daughter. They were making inquiries about me and they were asking not only my wife, they were asking my daughter as well. They were threatening my family. They were threatening my wife and they were threatening my daughter and they were even telling my wife that something can happen to my daughter if she wouldn't tell them the truth, so the pressure was put on them, on both of them.
THE D.PRESIDENT: When he says his wife, he means his ex-wife doesn't he?
THE INTERPRETER: Actually for me she has never been an ex-wife. She was my wife and she is my wife and she will be my wife.
THE D.PRESIDENT: All right. Now, we've jumped rather fast and we're rather ahead of the game. How does it come about that you're in Australia with one daughter while your wife is in Russia with another daughter? How did they come to be separated?
THE INTERPRETER: Actually, we made this decision to get divorced, you know, that to put her in safer position, you know, to put her - - -
THE D.PRESIDENT: "We made the decision?"
THE INTERPRETER: Yes, to get divorced in order to put her and my younger daughter into safer position, just to protect them from all this pressure that was coming from the authorities. That's why we decided to go that far and to get divorced.
THE D.PRESIDENT: It's your case that it's not a true divorce?
THE INTERPRETER: No, it's not a truth - it's not a true divorce.
MR RADOS:These threats that you speak of, they were - would you say they were a once off or they occurred often?
THE INTERPRETER: No, there was constant threats.
MR RADOS: Yes, yes. Were there any visits to your ex-wife's home?
THE INTERPRETER: Yes, there were visits.
MR RADOS: Yes. One visit? More than one?
THE INTERPRETER: More than one.
MR RADOS: Yes. How many would you say?
THE INTERPRETER: You know, I'm not in the position to give you the number, how many visits there were, but initially they were coming almost every day and then after that it was at random.
…
25. When it was put to the Applicant that references to his wife should be construed as references to his ex-wife, he answered (1TS16):
…
THE INTERPRETER: Actually for me she has never been an ex-wife. She was my wife and she is my wife and she will be my wife.
…
26. The Applicant said that there were constant threats and constant visits. The following exchange is taken from 1TS17 as follows:
…
MR RADOS:Can I ask which branch of police? Would you say state police or would you classify them as the military police or would you classify them as – can I use the word "secret" police?
THE INTERPRETER: You know at first they were coming in their uniform, and then they started coming just wearing civil clothes, so I think they were from secret agencies.
…
27. The Applicant went to school in Slutsk; he started in 1968 and finished in 1978. After school he worked for the Automobile Base in Slutsk as a mechanic; he was trained as a mechanic and working as a mechanic at the same time. He went into the army as part of his compulsory military service in 1980.
28. Considerable evidence as to what then ensued can be dealt with briefly. He joined the army in the air defence forces, by which is meant defence against aircraft and rockets. He finished his compulsory service in 1982. He then went back to Automobile Base and worked for them. He met the Visa Applicant in 1983 and moved with her to her city, Ptich, which is in Belarus, and where he worked as a driver. In 1987, he returned to the military in Kotovsk in the Ukraine to be trained as a rocket technician and where he achieved junior officer rank. The evidence thereafter as to the Applicant’s subsequent career was at times confused but nonetheless, lengthy. In 1996, he transferred from the military to the police. He said that it was a special police department but not a part of the military. He described the function of his new department at 1TS30 as follows:
…
THE INTERPRETER: Actually, the main task of this department or this unit was to help the State Police just to - for example, if the criminal organisation attacked the bank or some kind of state structure, our task was just to help the state and to help this bank or to help this organisation, to help with the hostages, not only to attack but to help the State Police to get rid of these criminal structures in the buildings.
…
29. At 1TS31, however, the Applicant explained that his job in the police related to the training of young people:
…
THE INTERPRETER: Actually, you know, when I'm talking about skills and about experience I am talking about how I was training young people, how I worked as a supervisor, and they were actually requiring my skills in this field. And when I worked with the rockets it was just - I was using my technician skills in order to operate the equipment, and in the police they wanted my skills to operate the guns and the machine guns and just to manage the young people, to supervise the young people, so that's why they suggested for me this kind of transformation, this kind of new position.
…
(It will be noted, as set out previously, that when the Applicant left Russia in 2000, he was not a junior officer in the military; he was in fact a policeman.)
30. The Applicant was asked how it was that Australia was chosen. He said it was the travel agency which chose Australia because they had better connections with Australia than with other centres. He said that (1TS33): “You know, actually I knew almost nothing because it’s very limited information about Australia even in our geography textbooks”.
31. In 1988, the Applicant was relocated to Siberia and the travel agency which chose Australia for him was in Siberia. He said that he did not remember the name of the travel agency.
32. The Applicant said that his skills were important to the authorities. When asked when the war in Chechnya began, he answered that it had first started in 1991.
33. The Applicant said that he did not receive a written order to go to Chechnya; it was an oral order but “it would be a natural order to go and participate in the war” (1TS39).
34. The Applicant applied for a visitor visa to Australia for himself and Anna. He said that it was not possible for all of the family to come to Australia because they could not afford tickets for all of them.
35. The Applicant said that it was he who initiated the divorce proceedings. He said that he did not want to endanger his wife and his daughter. During that period, he moved around to friend’s homes to “show that this divorce was real”.
36. The Applicant said that the Visa Applicant graduated from the Moscow Institute as an engineer technician in food production and was working in a liquor factory in Irkutsk. After he and Anna left Siberia, the Visa Applicant and Anastasia moved to Belarus and where she did not obtain employment.
37. The Applicant’s evidence was that it was not difficult to procure a divorce.
38. The Applicant was taken back to his decision to leave Russia so as to avoid going to Chechnya; see 1TS48 as follows:
…
THE INTERPRETER: As soon as I found out about our department being sent to Chechnya, they were going to send our unit to Chechnya. I didn't do it until I was one hundred per cent sure that it's really going to happen. But it's not a mistake, but it was inevitable, but they going to send us to Chechnya.
…
39. The Applicant was asked on the basis that he was travelling to Australia purely by chance, how he knew that he could come as a tourist and then apply in Australia for a refugee visa; see 1TS49-50 as follows:
…
THE INTERPRETER: Actually, when I was flying to Australia, when I was on board of the plane, I met two other ladies and they enlightened me, they actually told me that in Australia there is a possibility to find a migration agent and turn to him and he would be able to help to apply for the protection visa.
…
THE INTERPRETER: Yes, I met two ladies and they just informed me, they gave me information that in Australia you can find a migration agent and ask him to help you with the application for the protection visa.
THE D.PRESIDENT: Did they give you the name of an agent?
THE INTERPRETER: Yes, they did.
THE D.PRESIDENT: And who was that?
THE INTERPRETER: It was Yevgeni Kiselov.
THE D.PRESIDENT: They gave you the name of Yevgeni?
THE INTERPRETER: Kiselov.
…
MR RADOS:When you applied through, I think you said before, your travel agent in Siberia for a travel visa, what were your thoughts - what motivated you to apply for this visa?
THE INTERPRETER: Actually when I was talking with the travel agent, of course I was telling him that I would just like to go and have some rest, to go as a tourist.
THE D.PRESIDENT: What's the name of this travel agent?
THE INTERPRETER: You know, I can't really remember now.
THE D.PRESIDENT: The name of the firm?
THE INTERPRETER: I can't remember.
THE D.PRESIDENT: And what was the cost of the tickets?
THE INTERPRETER: I was paying in Russian currency, it was roubles and as far as I remember, it was sold then for roubles but I can't remember precisely, unfortunately.
THE D.PRESIDENT: So you did have enough money to buy tickets for four of you?
THE INTERPRETER: Yes.
…
40. The Applicant said that he moved out of the joint home before the divorce and that Anna moved out with him (1TS52). When it was put to him that in that event Anna would have moved around with him, he said at 1TS52 that she did not. (As appears from Dr. Vrjosseck’s report (and see clause 14) Anastasia told him that Anna did move out of the family home. The probabilities strongly favour the view that neither Anna nor the Applicant did so.)
41. The Applicant said at 1TS53 that he knew what the cost of travel would be and when it was put to him that only two could travel, he answered at 1TS53 as follows:
…
MR RADOS:And you decided only two of you would travel and what was the reason for that?
THE INTERPRETER: You know, the main reason was that we were thinking it would be easier for my wife to take care of one child. Of course I just - I could go by myself, but for my wife, it would be easier that way. …
…
42. Subsequent evidence indicated that when the Applicant came to Australia, he and Anna lived at the Koala Hotel, the booking having been pre-arranged. He subsequently found assistance in the Russian community and a job with Ideal Smash Repairs.
43. In the meantime, the Visa Applicant and Anastasia had been left behind in Siberia. They stayed in the same city only for about a year and then moved to Khabarovsk, also in Siberia. She had not arranged employment in Khabarovsk and after arrival, tried to find employment but could not do so. She thereafter moved to a place near Moscow; the Applicant could not remember the precise name of that place. Here too she could not obtain employment. He said at 1TS60, “she was looking for a job”.
44. The Applicant then gave evidence at some length as to the fact that the Visa Applicant could obtain employment only if she obtained registration and for which a person had to furnish numerous documents and wait for half a year. The confused nature of this evidence is indicated by the following extract form 1TS61-63:
…
THE D.PRESIDENT: She wanted a job but she didn't have registration. So even though she was pretty highly qualified with a - sounds like a degree, from the Moscow Tech, she couldn't get a job?
THE INTERPRETER: You know, yes, she was highly qualified and specialised but the problem was it was very narrow specialisation and she had a degree in working with alcoholic drinks production, liquor production, so it wasn't so easy for her, even with such a good level of qualification, to find something.
THE D.PRESIDENT: And what do you mean by registration? Not something familiar to me.
THE INTERPRETER: Registration, you know that registration, you should be registered at a certain address. Especially it is required in Russia. Without being registered you can't find a job and you can have problems with the authorities and the police.
THE D.PRESIDENT: So does that mean you can't move from one place to another in Russia?
THE INTERPRETER: You can move but you should just cancel your registration, current registration, when you move to another place, and you get registered again. You need to have this registration in your passport. This is a stamp in your passport, and on this stamp your address is written. Without that no luck with a job.
THE D.PRESIDENT: And why couldn't she get that?
THE INTERPRETER: In order to get this registration you need to apply for it and you need to provide different kinds of documents, so it's a long story with lots of paperwork. You need to wait for a long time, for half a year, while they're processing all these papers, and only after that you can get it.
THE D.PRESIDENT: But your wife had a good job in Siberia in Irkutsk where she was working for the state organisation producing presumably Vodka, and what else would she be producing in Russia?
THE INTERPRETER: Vodka.
THE D.PRESIDENT: So why would she move to another city in Siberia where she didn't have registration, and then on to a place near Moscow, again without registration, and thus putting herself out of the running for a job? Do you follow?
THE INTERPRETER: You know, she had no other way out because she had problems in Irkutsk, they were calling her, they were threatening her, the soldiers were coming and interrogating her, they were following her and my daughter, they were trying to find my whereabouts, so she had to do it, she had to leave Irkutsk.
THE D.PRESIDENT: But why couldn't she then, while in Irkutsk, apply for registration in the other city, Kabarosk, and then she could work in Kabarosk?
THE INTERPRETER: Actually, in Kabarosk, in the second city after Irkutsk, she applied for registration and she even got married there in Kabarosk. And by doing so she got registration - - -
THE D.PRESIDENT: All right. She applied for registration and she even got married there, right?
THE INTERPRETER: She got married in order to get registration, so she got it. And she got married not only in order to obtain registration but to get her family name changed not to attract so much attention from the authorities and to minimise the risk.
THE D.PRESIDENT: So she married to change her name?
THE INTERPRETER: That's right.
THE D.PRESIDENT: Is it so difficult to change your name in Russia?
THE INTERPRETER: It's impossible without getting married.
THE D.PRESIDENT: But you explained to me earlier that registration may take time but it's a formality. Right?
THE INTERPRETER: Yes.
THE D.PRESIDENT: So she got registered in Kabarosk?
THE INTERPRETER: Yes.
THE D.PRESIDENT: And why couldn't she also get registration in the city up near - or the town near Moscow?
THE INTERPRETER: She got only temporary registration there. It's even more difficult to get registration in Moscow because it's the capital of the country and everybody would like to live there.
…
45. The nature of the Applicant’s evidence at this point can be summed up in this fashion. The Visa Applicant was living in Irkutsk, the city from which the Applicant and Anna departed. The Applicant was at that time a junior officer in the police and involved in the training of juniors. He heard, but received no notification, that he would be sent to Chechnya. He therefore deserted, and with Anna, travelled on visitor visas to Australia. There was not sufficient money to buy tickets for all four members of the family and there was nobody from whom they could borrow. (There was evidence also that there was sufficient money). Because of his desertion, the Visa Applicant was harassed continually in that she was followed and interrogated by soldiers. It was for this reason that she was obliged to leave Irkutsk. Before the Applicant left Irkutsk, the Applicant and the Visa Applicant were divorced. The Visa Applicant having left Irkutsk had difficulties in obtaining registration and therefore moved not only to obtain registration, but also to change her name and so as to ensure she attracted less attention and thus minimise the risk. It was moreover, so the Applicant said, impossible for her to change to her name unless she married. All of this was so despite the fact that the Applicant had said that registration was a formality. (There was also evidence that a change of name is easily accomplished). She obtained registration in Khabarovsk but could obtain temporary registration only in Moscow because “it’s the capital of the country and everybody would like to live there” (1TS63). He had said previously that she lived somewhere near Moscow.
46. The Visa Applicant lived in the small place near Moscow for half a year (1TS67). She then moved to Belarus where she obtained permanent residence in the city of Vitebsk. However, the Applicant said that even in Belarus the Visa Applicant did not feel safe (see 1TS70 where he said, “Actually, she can’t sleep at night and she is scared even now”).
47. The Applicant described Anastasia as “very closed”. He went on to say that Anastasia was being victimised because she did not have a father (At this stage Anastasia had not yet come to Australia on the Child Migrant visa). See 1TS71-74 as follows:
…
MR RADOS:How would you describe your daughter's feelings at the moment? Does she feel upset? Does she feel down? Is she happy?
THE INTERPRETER: Actually she feels - actually she feels very down and she's very upset and she is asking me one and the same question, "When are we going to be together? When are you going to come home?"
MR RADOS:When did you first notice that she was - she had these feelings?
THE INTERPRETER: You know, actually it started when she was younger, but it seems to me when it started, she couldn't fully understand what was going on, but now when she's 15 years old, she can explain herself in her own words her feelings and her situation.
MR RADOS:Does she have many friends?
THE INTERPRETER: No. Actually, she is very closed, she's inside.
MR RADOS:Does she get on well with her classmates at school?
THE INTERPRETER: It's so-so, you know, not too good, not too bad.
MR RADOS:Does she have trouble at school?
THE INTERPRETER: Actually, you know, her classmates and teachers, they are aware of the fact that she doesn't have a father and so the kids call her names and last week there was an incident near her home, she was beated [sic] by one of her classmates and my wife was very upset, she wanted to then to submit an application to the police, but the boy's parents talked her out of it.
MR RADOS:What was the reason for that beating, to your knowledge?
THE INTERPRETER: You know, the boy actually started to call her names and she was trying to protect herself, she was trying to talk back and then he hit her with his leg into her stomach and she fell down and he continue to kick her.
THE D.PRESIDENT: So a boy called her names and she fell down? So she's the only one in her whole class who lives with a single parent?
THE INTERPRETER: Yes, she is. That's why she feels very odd and very out of the place. There is nobody to protect her, nobody there for her and lots of kids, they just offend her and call her names.
MR RADOS:What kinds of names did they call her?
THE INTERPRETER: You know, they're just calling her different kinds of names and they're calling her ugly and fat and they are calling her an orphan.
MR RADOS:An orphan?
THE INTERPRETER: Orphan, yes.
MR RADOS:How often did these name calling incidents occur would you say?
THE INTERPRETER: You know, actually it is happening on constant basis because it's happening on constant basis, it's happening constantly, that instant, this kind of bullying that happens all the time and she feels herself humiliated and you know, at schools and in the surroundings like that when they found somebody, they continue to do it all the time, they're targeting at one person.
MR RADOS:Have you thought about changing schools for your daughter?
THE INTERPRETER: Yes, we've been thinking about that. You know, just we were considering this issue, thinking about that, but the problem is there are few schools, but they are very close to each other, they're specialised in different subjects. For example, one school is mathematical school, another one is more humanitarian, they study French there for example, or another one they start a different language, but they're all very close to each other and we think, together with my wife, that she's going to experience the same kind of problems and it's very hard to move to a different district. And you know, the kids who live in the same district, they know each other pretty well.
MR RADOS:Yes. Has she been beaten before?
THE INTERPRETER: Yes, actually it happened, but no so often. You know, because when they move - they were moving from place to place, there were times when she didn't attend school at all.
MR RADOS:Yes. When you refer to bullying, do you mean verbal abuse, is that what you were saying or do you also mean any physical pushing or assault?
THE INTERPRETER: Actually, not only calling names, but physical abuse as well because they were pushing her or they were just beating her with the books, the kids were beating her with the books or with their bags, with their school bags.
THE D.PRESIDENT: So what you are asking us to believe is that a little girl who goes to school, who has a mother in evidence and not a father, is going to be victimised in a country where the divorce rate is very high.
THE INTERPRETER: You know, it's just a normal public school, it's not an orphanage or some kind of specialised school, just a normal average public school. That's what I'm trying to explain.
MR RADOS:Are there many people in your ex-wife's neighbourhood that are divorced?
THE INTERPRETER: Of course, I agree that there are some other people who are divorced or who were killed or who murder them live here, there were some other people like that, but it happens so that in your class she is the one who has a single mum and she was targeted.
MR RADOS:Is there any other reason why she might be targeted by school kids, race?
THE INTERPRETER: You know, my daughter is very kind and it seems to me she was targeted maybe because she didn't want to contact with classmates whom she didn't like, personalities as people, maybe that's why as well she was targeted, but - - -
THE D.PRESIDENT: She may have been targeted because there were people she didn't like?
THE INTERPRETER: Yes, because she didn't like them and she didn't want to contact with them, she didn't want to communicate with them and that's why they - and she maybe couldn't stand for herself, she couldn't defend herself.
MR RADOS:Is your daughter seeing a doctor or a psychiatrist about her problems?
THE INTERPRETER: Yes, you know my wife, she just took her to see the psychiatrist because she was very concerned.
MR RADOS:Yes.
THE INTERPRETER: Because when my daughter was coming home after school, she was crying a lot, she couldn't stop, she couldn't calm down and she was becoming hysterical.
…
48. At 1TS76, the Applicant explained that it was hard even to buy two tickets as follows:
…
THE INTERPRETER: Actually, you know, it was very hard even to get money for these two tickets because we don't have the relatives from who we can borrow money because they were all struggling themselves. And the people who were surrounding us, they were living from the salary to the salary, they were having just enough money to pay for their bills, to pay for their apartments, and so it wasn't so easy just to find that money. It was a problem to find the money for two tickets. I'm not talking about the four of them.
…
49. The Applicant had previously said that he came to Australia as a tourist knowing nothing whatever of Australia, Australia being selected at random by his travel agents. He had said that two Russian-speaking ladies told him on the aircraft coming to Australia that he could apply for refugee status and they gave him the name of a migration agent who would make the protection visa application for him. At this stage however, his evidence changed. He said that he did not obtain the name of the migration agent while on the aircraft at all. He obtained the name of the migration agent from the Russian community after arriving in Sydney.
50. The migration agent’s fee was “about $1,000”. This was paid with money he had brought with him amounting to about US$3,000, equivalent to about AUD$5,000.
51. The Applicant said that the price of an air ticket was about US$1,500. This involved a stopover in Korea. Mr Rados asked him whether he had enough money for four tickets and accommodation. He answered (at 1TS84) that he could not get one-way tickets because only return tickets were being sold and that he didn’t have enough money for four.
52. The Applicant then spoke of the Visa Applicant’s marriage to Sokolov. He said that the marriage was discussed with him beforehand and that he approved. He went on to say that the Visa Applicant married purely in order to change her family name. Neighbours who wanted to help her introduced her to Sokolov. When it was put to him that such a stratagem was hardly likely to deceive the Russian authorities, his answer was that it reduced the risk. He said also that although she was under surveillance in Irkutsk, this was not so in Khabarovsk. The Applicant insisted that this was done in order to ensure safety for the Visa Applicant and also Anastasia whose name was also changed. The Applicant said that where a woman divorces and remarries she changes her name and so does her daughter, even though the daughter is the child of a previous marriage. (There was no legal evidence before the Tribunal of any kind that this evidence correctly reflects the legal position in Russia and its truthfulness is doubtful).
53. The Applicant’s evidence was that the Visa Applicant married Sokolov in Khabarovsk. As to whether she moved to Belarus with or without Sokolov is unclear.
PART C - the evidence of the applicant continued on the 2nd hearing day
54. The Applicant said that he divorced the Visa Applicant to put her in a safer position and she married Sokolov to get a new family name (see 1TS94) as follows:
…
MR RADOS:… Now, Mr Bourakov, just to re-cap very quickly, what was the purpose in gaining a divorce from your ex-wife, Mrs Sokolova?
THE INTERPRETER: What I wanted, I wanted to divorce my wife in order to put her in the safer position.
MR RADOS:And what was the purpose in her marrying Mr Sokolov?
THE INTERPRETER: She was marrying Mr Sokolov in order to aim in order to get two things. To get a new family name and to get registration and by doing so she was putting herself in a safer position again. And you know I would like to mention that during that time, the computer network wasn't so well spread as it is now. That's why, because of all this bureaucracy and paperwork, it wasn't so easy to find the whereabouts of a person just through the papers, through the paperwork, because it wasn't on a computer system.
MR RADOS:Did you or to your knowledge your ex-wife get advice about how she could change her name?
THE WITNESS: No.
…
55. At 1TS95, the Applicant agreed that it was also possible to change ones name simply by deed poll.
56. The following extract is taken from 1TS97-98:
…
MR RADOS:… During that period after you had left Russia which was in February 2000 you just said, she was the victim of surveillance, was she not, from the authorities?
THE INTERPRETER: Yes. It was taking place when she was staying in the city of Irkutsk.
MR RADOS:Because she was still in Irkutsk at that time, wasn't she?
THE INTERPRETER: Till the time, till the time she got married in the city of Khabarovsk she lived in the city of Irkutsk and then she moved to the city Khabarovsk where, in order to change her family name, she got married.
MR RADOS:Yes. Now, to your knowledge was there risk in her approaching the authorities to change her name in the way described, approaching that passport issuing department?
THE INTERPRETER: You know, she was taking a risk and she was aware of that by taking into account the level of bureaucracy, especially in paperwork processing. She just took this risk and it was a different region, different city, that's why it worked out.
MR RADOS:You mentioned before that the other reason for marrying Sokolov was to gain registration in the city of Khabarovsk.
THE INTERPRETER: Khabarovsk.
MR RADOS:Is that right?
THE INTERPRETER: Yes.
MR RADOS:Could she have gained a registration without marrying Sokolov and approaching the special passport issuing department?
THE INTERPRETER: You know, it was possible but it would take much longer period of time and they would be checking your papers more thoroughly.
MR RADOS:Yes, so it was possible for her to undertake another procedure to change her name and not marry Sokolov; is that right?
THE INTERPRETER: Actually you know that's not 100 per cent true because there was a possibility for her to change her family name to get back her maiden name. There was a possibility to do so but it would again take her a very long period of time and it wouldn't put her into the safer position.
MR RADOS:So do you consider then that your ex-wife had a real choice; she could freely choose to either marry to change her name or freely choose to approach this special passport issuing department to change her name?
THE INTERPRETER: No, I don't think that she had such ground of a choice.
MR RADOS:And why do you say that?
THE INTERPRETER: You know, if you want to change your name you need to give a reason why you're doing so, but when you're getting married it's just natural to change your name and nobody will pay attention to that, so it was much less risk to just get married and changing your name than launching the application for changing your name and putting down some kind of objective reason for doing so.
MR RADOS:Yes. Changing names for marriage, the paperwork was done through the police or through another department?
THE INTERPRETER: You know, they're checking the papers at the police department only if previous that this person was breaking a law, only if she was charged or convicted or had problems with the law, with the legal system, but if everything is fine and all the papers are fine, if there is a certificate of the previous registration from the previous and the previous address, then it's just usually done in the same passport issuing organisation.
…
57. I do not think that it is necessary for me to deal in any further detail with the confused and confusing evidence about change of name formalities. Nor is it necessary for me to deal with the evidence that followed at considerable length as to Anastasia’s difficulties at home and at school in Belarus. (Anastasia does not appear to have spoken of them to Dr. Vrjosseck).
58. An examination of the transcript will indicate in the clearest possible terms that Mr Rados was allowed very considerable latitude, both as to the length of his examination-in-chief and also, to the nature of his questions, many of which were, in the highest degree, leading. At 1TS104, Mr Rados began asking questions as to whether the Visa Applicant had ever committed crimes or been involved in deception. He submitted, at 1TS106, that one of the best sources of evidence as to the Visa Applicant’s character would be her husband who had known her for 20 years. The Tribunal notes that this might be so, but this is hardly, particularly in these circumstances, the best evidence.
59. The remainder of this Part C relates to the cross-examination (and re-examination) of the Applicant.
60. The Applicant agreed that three months after the divorce from the Visa Applicant, he and Anna applied for visitor visas. He was asked whether he planned that the Visa Applicant and Anastasia would join them. His answer at 1TS113 is as follows:
…
MS BENNETT: Did you plan for your wife and child to join you as soon as possible?
THE INTERPRETER: I was thinking about that. I couldn't call it a plan. I wanted it very much, but it wasn't planned. I wanted them to join me as soon as possible, but I didn't know what was going to happen.
MS BENNETT: It seems a very odd decision to separate two siblings for an indefinite period of time, what do you say about that?
THE INTERPRETER: You know I couldn't take the younger daughter with me because she was very attached to her mum and so my older daughter, she was pretty independent. She was 15 at that period of time, that's why the decision was made like that, to take my older daughter with me.
…
61. The Applicant admitted that he knew that Australia was a signatory to the International Convention on Refugees (Convention). He agreed that he knew that refugees could apply to live in Australia permanently “… but I didn’t know the details”.
62. The Applicant agreed that in November 2000, a month after her marriage to Sokolov, the Visa Applicant applied for a visitor’s visa to Australia. He agreed also that this took place nine months after he came to Australia. He agreed that Mrs Sokolova was not employed after she left Vitebsk. He agreed that he had said that he could not buy four tickets because he could not afford it. When asked how then and so soon thereafter she could afford tickets to Australia, he answered (1TS115) as follows:
…
MS BENNETT: How is it that nine months later during which you ex wife was unemployed for at least a month could [sic] suddenly afford two tickets to Australia?
THE INTERPRETER: Actually she borrowed the money from the relatives and from the friends but at the time when I was leaving the country we didn't have such possibility to borrow some money.
MS BENNETT: Why?
THE INTERPRETER: You know, during the period of time when I was leaving the economic situation is very difficult and people were actually surviving from salary to salary and I was asking friends and relatives to borrow me some money. I borrowed some but I couldn't borrow enough for four tickets.
…
THE INTERPRETER: But since it was a contrived marriage, I would have divorced him anyway.
THE D.PRESIDENT: That's Sokolova.
THE INTERPRETER: Sokolova, yes. Now, the point is that the embassy staff did not regard the marriage as being contrived. They considered the marriage as being a genuine one and the refusal that I got was not all the things you were saying about it today, but the refusal was based on the marriage being valid.
MR CHAND: Yes, but you now accept that the marriage was contrived.
THE INTERPRETER: Yes, I accept that, but the embassy at the interview didn't accept that.
MR CHAND: Ms Sokolova, when did you divorce Mr Sokolova?
THE INTERPRETER: In 2002.
MR CHAND: That was on 18 November 2002, was it?
THE INTERPRETER: Yes, approximately, yes.
…
151. To deal in detail with the Visa Applicant’s further examination as regards the interview record and her answers at that interview and the conflict between those answers and the evidence before the Tribunal would be both tedious, time consuming and in the end, unnecessary. Suffice it to say that the Visa Applicant, when confronted with the fact that her evidence before the Tribunal could not possibly be true, resorted to a suggestion that the interview process was somehow unfair and that the interview interpreter was antagonistic to her.
152. Mr Rados subsequently sought to suggest that the interview record, while its content was correct, might not have included the whole of the interview and so that in other words it was edited. It was put to him that the interview record read in a fashion that indicated a flow of questions and answers and without any suggestion of gaps, and that he should consider whether it was proper for him without a proper basis for doing so to launch into an attack of this nature. Mr Rados did not pursue the matter. I will refer to this aspect later in these reasons.
PART I - the character witnesses
153. Mr Rados called four character witnesses. They were Father Giorgiy Meleshko, Mrs Lyudmila Stepanova, Ms Lyudmila Kadilenko and Mr Viktor Kadilenko. All four of these witnesses had furnished brief written statements attesting to the good moral character of the Visa Applicant. Not one of these statements made any reference to the factors that gave rise to the Respondent’s findings as to character.
154. In each case, Mr Chand cross-examined the witness in brief terms. He asked a question to this effect: Do you consider that entry into a contrived marriage, reliance on forged records, and making of false statements have a bearing on character? Father Meleshko answered the question at 2TS150 as follows:
…
THE INTERPRETER: Of course I agree with you about that. But you have to understand her position that she was in a difficult situation, she wanted to reunite herself with her family and she wanted to do it somehow and I guess a lot of people would be willing to do such a sort of a thing. Of course I don't support such activities but one has to understand what she was going through.
MR CHAND: Yes. My question, I'll repeat it again, was: you do consider, don't you, that entry into a contrived marriage, reliance on forged documents and making of false statement of serious consequence and is indicative of character?
THE INTERPRETER: Of course as far as good character is concerned, yes, one has to understand that she wanted to reunite herself with her family but of course, yes, I agree with you that it's not good for one's character.
…
155. In the case of Mrs Stepanova, the answer at 2TS154 was:
…
THE INTERPRETER: No, as far as the contrived marriage is concerned, look she probably had to do it, she probably had no choice in that matter. But one can't reproach her for her sort of being faithful to her husband, she was always faithful to her husband.
MR CHAND: Mrs Stephanova [sic], I'm not asking you whether she was faithful to her husband, I'm asking you whether you consider entry into a contrived marriage, reliance on forged documents and making of false statements in relation to official dealings to be honest conduct?
THE INTERPRETER: No, I don't agree with you, situations may be such that a person may have no choice, so I disagree with you that she is of bad character or that she is dishonest.
MR CHAND: So you consider that Ms Sokolova's situation was such that it was appropriate for her to enter into a contrived marriage, rely on forged documents and make false statements and that in itself does not indicate her character?
THE INTERPRETER: Yes, that's what I am saying. I am sure of that.
…
156. In the case of Ms Kadilenko the answer at 2TS158 was:
…
THE INTERPRETER: No, she is very decent person, a person of good character. How you can you say such a thing about some little nuance? [The word “nuance” was plainly intended to read “nuisance”].
…
And Mr Kadilenko answered in somewhat greater detail at 2TS161-162 as follows:
…
THE INTERPRETER: Well, I'm sorry, there was just a mistake.
MR CHAND: I have no further questions, Deputy President.
THE D.PRESIDENT: I think we could take this one a little further. Sir, Mr Chand has put to you that this lady entered into a contrived marriage, made false statements and procured false documents. Accept for the moment that everyone of those things was done deliberately. Now do you want to again say it was a mistake?
THE INTERPRETER: Well, at the time I didn't know her. She told us about this. I didn't know her at the time. She told me about this afterwards and she didn't do it by herself. Somebody as it were inclined her towards it.
…
157. It is my view that the evidence of the character witnesses is of little assistance and in the case of Mr. Kadilenko, if anything, counter-productive.
PART J - analysis of the evidence
158. It is clear to me that much of the evidence given before me was false and this is so both in respect of the Applicant and also the Visa Applicant.
159. I commence with the Applicant himself. He served in the military and where he achieved (eventually) the rank of a junior officer. He then left the military and joined the police where he was involved in training. According to the Visa Applicant, he was not transferred from the army to the police service.
160. His evidence was that he knew nothing of Australia. Australia was chosen at random by the travel agency. On the aircraft, two total strangers told him that he could apply for a protection visa. That evidence changed markedly during the course of the hearing. He found a migration agent through the Russian community after landing in Australia. Moreover, he knew something about the protection visa system before he left Russia.
161. Money was available for two tickets only and not for four. There was no capacity to borrow from anyone. Return tickets were necessary because single tickets could not be purchased. (It may be that it is unlikely that visitor visas would have been issued unless return tickets could be produced.) That money was available was demonstrated by the fact that he had a substantial sum with him when he came to Australia. And the Visa Applicant was able to borrow from family and friends (altered later in evidence to refer to her sister) for the purpose of a trip to Australia and soon afterwards.
162. The Respondent did not accept that the Applicant was a refugee but the RRT did. It is unnecessary for me to say anything other than that there must be considerable doubt as to whether he was ever a refugee. It is possible that the RRT did not have before it evidence as detailed as was furnished to this Tribunal.
163. As to Chechnya, it is possible that the Applicant did not wish to serve; it is also equally possible that it was highly unlikely that he would have been called upon to do so. It must be remembered that at the time when the Applicant left Russia he was a junior police officer involved in training juniors and in Siberia. There was no evidence before the Tribunal that the Russian authorities were transferring or likely to transfer policeman all the way from Siberia to enable them to serve in Chechnya. To send a policeman involved in training juniors from Siberia to serve must be inherently unlikely.
164. The probabilities on the evidence before me favour the view that Chechnya was used as a flag of convenience only. It is all too easy in respect of a troubled situation to utilise it in this fashion. I refer by way of one example only to Carini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 90. The Visa Applicant in that case attempted to contend that he was a refugee because of anti-Syrian activities in Lebanon. The evidence revealed that his activities in this context were minimal only.
165. Even in respect of matters of a comparatively minor nature, the Applicant was not truthful. He said that at the time of the divorce, he and Anna left home and moved around from place to place. It then transpired that Anna did not do so and it is highly unlikely that he did so either.
166. His evidence as to the manner in which he came to apply for protection visa status was totally untruthful. All of the probabilities favour the view that the whole scheme was from its inception, planned. Moreover, he was a party to all of the attempts by the Visa Applicant to obtain visas; he and the Visa Applicant acted together and in consort from the outset.
167. It is likely that the Applicant came to Australia with Anna alone simply because visitor visas were likely to be granted if a family member was left behind. The evidence establishes in clear terms that money was not the problem.
168. There were references during the case to my decision in Shmarakova and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 976. That case also involved a contrived divorce and much false evidence. My decision in that case in favour of the Visa Applicant was based on the view that the Visa Applicant in that case might not have a been a party to the overall plan. Leaving aside the fact that my decision in Shmarakova (supra) may have been incorrect, (and I understand that the Respondent exercised a right to overrule it) I do not make any such finding in this case.
169. It seems that knowledge of Australia’s protection visa system is now well known. It is also clear that it is known that visitor visas are obtainable where family members are left behind. See in particular Shmarakova (supra); I refer also and more particularly to Piechowicz and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 438, which also involved false documentation as to non-existent relatives.
170. On the evidence before me, the Applicant was never a refugee and his evidence to the contrary (and as to how he came to Australia) in the first place was false.
171. The false nature of the Applicant’s evidence pales when confronted with that of the Visa Applicant; it was untruthful almost in its entirety.
172. Let me assume for a moment that the Applicant did leave Russia in order to avoid service in Chechnya. The Tribunal is asked to believe that for months and even years afterwards, the authorities harassed the Visa Applicant from city to city, from place to place and from country to country all over the desertion of one junior policeman. Even assuming that this might have occurred in the times of Stalin, it is unlikely in the extreme that it would occur in current times. The fact that the Applicant travelled to Belarus in 2003 without any suggestion of a problem makes it likely that this is so. There was no evidence by any Russian authority as to any of these assertions.
173. All of the evidence regarding Valantina was fictitious. The false visitor visa application supported by false documents was included and organised by the Visa Applicant and the Applicant and assisted most probably by Alexandre and Andrei. Here too the inclusion of a (fictitious) son was necessary because a visitor visa would not have been issued without leaving close relatives behind. The evidence of the Visa Applicant regarding Valantina, Alexandre and Andrei and the visitor visa application (especially when compared with what she said at interview) can only be described as ludicrous.
174. The evidence as to obtaining a different name is hard to follow. In Russia, as in many countries, names can be changed by deed poll and women are not obliged to take their husband’s names. On this basis the surreal marriage to and divorce from Sokolov is extremely hard to understand. What did it achieve? Is the Tribunal seriously asked to believe that the authorities constantly searching for their deserting junior police would have been defeated by something as simple as a remarriage?
175. Both the Applicant and the Visa Applicant gave evidence as to Anastasia’s persecution because she did not have a father. In a country where divorce is common (and this has long been the case in Russia), there must be a large number of single-parent children. The evidence in this context was not credible.
176. I do not for one moment believe the evidence as to persecution of the Visa Applicant or of Anastasia. I need hardly say that I draw an adverse inference from the fact that evidence by Valantina (assuming that she exists, and which is doubtful), Alexandre and Andrei was not called. The failure to call the daughters in evidence falls into the same category.
177. The manner in which this case was handled by Mr Rados was, it must be said, distinctly idiosyncratic. He remained cheerful and pleasant throughout. At the same time, he does not appear to have ever devised any plan as to how to establish what was on any basis a difficult case. He started by saying that he would call three witnesses, the Applicant, the Visa Applicant and the priest. That changed later so as to relate to a long list of witnesses and including Anna. The four character witnesses called by him gave evidence which can only be described, and this is putting it kindly, as (at least in some respects) counter-productive. Throughout the case he asked the Tribunal if it desired specified evidence; as often as he did so he was advised that it was for him to make this decision. Putting it at its very kindest, his attack on the Respondent’s interview record was ill-advised. The fact that his examination-in-chief of the Applicant lasted for nearly two days, is in my view regrettable. A Tribunal such as this is always reluctant, as I have said, for fear of breach of the rules of natural justice. to limit evidence. In February 2006, Mr Rados sought a postponement in respect of dates previously arranged to suit his convenience in order to attend immigration meetings scheduled subsequently. In April, after the first of three scheduled hearing days he sought yet another postponement to obtain psychiatric evidence. Why, it might be wondered, was this course taken only at that very late stage?
178. The Visa Applicant made three visa applications. The visitor visa application was characterised by falsity. Having admitted that falsity at the interview, the Visa Applicant then sought at the hearing to give different evidence and contradicting her statements at the interview.
179. It is possible (and even likely) that the Visa Applicant was directed throughout by the Applicant but even if this is so, she is an educated woman. Her differing evidence as to how the visitor visa application came to be made was unacceptable. If Valantina was invented in substitution for Alexandre and Andrei, who may well have been involved, that substitution was stupid in the extreme. During the course of the hearing I asked Mr Rados for a map describing the Visa Applicant’s peregrination; it was never delivered. I also indicated the desirability of legal evidence as to some of the matters of law referred to in the evidence, but no such evidence was made available and it should not have been difficult to procure it. Sokolov too remains a mystery and it might be said that his role was simply bizarre.
180. As is often the case in matters such as this, the financial evidence was difficult to follow. The Visa Applicant worked as an engineer/technician in Irkutsk, but never thereafter. Why not? Liquor factories in Russia would be prevalent throughout the country as they always have been. If she did not work, how did she live? The Visa Applicant breached section 234 of the Migration Act 1958 (the Act) in many respects and in a manner that was extremely serious.
PART K - the final hearing day and submissions
181. On the final hearing day, Mr Rados commenced by conceding that the Visa Applicant could not pass the character test and that this was so because of the false visa application, thus causing her to be obliged to rely on the exercise of the discretion in Part 2 of Direction No 21. He said also that although the Visa Applicant’s original visa application contained falsities, there were no such falsities thereafter. That contention was disingenuous in the extreme; it ignores the fact that her evidence before the Tribunal contained so much that was untruthful. It must be remembered that this Visa Applicant is an educated woman and that she should at so late a stage have persisted in what was so plainly an untruthful line is all the more reprehensible.
182. After this application commenced, Anastasia came to Australia. She came to Australia on a Child Migrant visa having applied for it herself. Mr Chand contended, and correctly, that she was entitled to make such an application and that she, Anastasia, was not guilty of any conduct which would justify a refusal and accordingly, that she was entitled to come to Australia. Mr Chand conceded (correctly) that Anastasia’s best interests would be served by her being with both her parents. That in fact is what the psychiatric report says and such a statement is so obvious that it hardly need elaboration. It must be said in respect of the psychiatric report that the psychiatrist inserted statements as to fact, which can only have been furnished to him by the parties and of which he cannot have had any personal knowledge and so that his report must be regarded as flawed to that extent. As just one example that report noted that the Applicant deserted from the army; this was not so. Nor did Anna ever leave the family home except to come to Australia,
183. There can be no doubt that the Visa Applicant’s conduct was extremely serious within clause 2.6(c) of Direction No 21. She submitted a false visa application accompanied by false documents. As I have indicated, it was suggested that her illegal conduct stopped there; it did not. Her evidence before the Tribunal falls into the same category.
184. It is impossible to escape the conclusion that the Applicant was a party to all of the conduct in question. He was granted a refugee visa by the RRT; it is possible as I have said that the RRT did not have the evidence made available to me. It indicates that this couple planned their move to Australia from the outset. All of the convoluted steps fall into one general and overall plan. It started with visitor visas for the Applicant and Anna, leaving the Visa Applicant and Anastasia behind. This was almost certainly thought to be necessary in order to procure visitor visas. That this is so is demonstrated by the falsities in the Visa Applicant’s application and her invention of a fictitious son. To make coherent sense of the divorce, marriage to another man and then the remarriage (not a valid remarriage according to Mr Rados, which is itself doubtful) is extremely difficult. The involvement of Alexandre and Andre is problematical and even more is the involvement of Valantina (assuming that she exists which is itself doubtful).
PART L -
185. In this Part L, references to numbered clauses relate to numbered clauses in Direction No 21.
186. The primary considerations are contained in clause 2.3, which reads as follows:
…
2.3In 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.
…
187. Clause 2.3 must be read together with clause 2.5, which reads as follows:
…
Protection of the Australian Community
2.4…
2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a)the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
…
188. There can be no doubt that the Visa Applicant’s conduct was extremely serious within clause 2.6(c). She submitted a false visa application accompanied by false documents. As I have indicated, it was suggested that her illegal conduct stopped there; it did not. Her evidence before the Tribunal falls into the same (serious) category.
189. As to whether the Visa Applicant constitutes a threat to Australia is difficult to determine. All of her conduct, as serious as it was, was designed to achieve residence in Australia. It might be suggested that with that achieved, there would be no reason for her to offend further. But the fact that she was prepared to give so much false evidence for so long before the Tribunal causes me to have some misgivings. As I have noted she is an educated woman who has a tertiary degree.
190. Deterrence is always a difficult question. In this case devices and stratagems were used in much the same way as they have been before by others coming from Eastern Europe. See again, Piechowicz (supra) and Shmarakova (supra).
191. Recidivism is also and in the same context, difficult to evaluate. In Alwi and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 442, I referred in the context in particular of recidivism and deterrence to a number of decisions of this Tribunal; see paragraph 95 of that decision as follows:
…
In Beale v Minister of Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, per Deputy President Wright:
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“33.In considering whether or not there is likelihood that the conduct may be repeated, it is obvious that if the visa sought were to be granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think, legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community”.
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In Cai Lian Su and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 107, per Deputy President Walker:
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“In my view the community expects that the migration program will be administered in a just and humane manner. That implies that applicants who honestly comply with the law should be preferred over those who do not, and applicants who resort to serious fraud, overstaying or illegal working should not succeed unless there are powerful humanitarian or other reasons pointing in the contrary direction.”
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In Haines and Minister for Immigration and Multicultural Affairs [2000] AATA 575, per Deputy President McMahon:
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“As to the expectations of the Australian community, it is my view that this would include an expectation that no person of any nationality should be rewarded for attempting falsely to obtain an immigration benefit to which that person was not entitled.”
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In Brennan and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1029, per Deputy President Walker:
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“In the Tribunal’s view, [the Applicant’s] conduct indicates that she would be prepared to continue to make false and misleading statements if she perceives this to be for her benefit. The Tribunal recognises that the refusal of a visa in such circumstances is likely to deter others who may be contemplating committing similar misconduct”.
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In Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, per Deputy President Forgie:
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“The fact that I am satisfied that they [the Applicants] are both likely to lead law abiding lives in the future does not, in this case, outweigh the need to deter others from adopting the same course of conduct to gain entry to Australia”.
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In Kaufman and Minister for Immigration and Multicultural Affairs [1998] AATA 897 per Deputy President Chappell:
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“56.The Tribunal acknowledges that Ms Kaufman has suffered considerable hardship as a result of her separation from her husband and the uncertainty of the outcome of these proceedings. However, as the Tribunal has emphasised on a number of occasions in earlier decisions, the dilemma for the decision maker in cases of this type is to seek to balance the competing interests of the individuals involved with those of the Australian community at large.
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57.…this hardship is not of sufficient weight to justify the exercise of the discretion to grant a visa contained in s501 of the Act. The legitimate interests of the Australian community in the maintenance of an ordered immigration system in this case outweigh the competing factors which require consideration. Undue harm would result to that program if Mr Kaufman were to be granted a visa, since it would be tantamount to rewarding him for his deliberate and sustained fraudulent conduct. As Deputy President McMahon stated in Phuoc Tuong Tran (AAT 12357, 30 October 1997):
Such a reward would be inimical to confidence in Australia’s legitimate immigration program. It is in the national interest to preserve faith in the evenness, fairness and good management of a migration program of which many thousands seek to avail themselves. It is important that the Australian government is able to say to other applicants that they will not be permitted to profit from their lack of candour.”
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And in Lachmaiya and Minister for Immigration and Multicultural and Indigenous Affairs (1994) 19 AAR 148 per Deputy President McMahon:
... 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 … Australia can have no confidence that he would not again trangress (sic) in matters where truth and good faith could be deceptively withheld”.”
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192. The interests of Anastasia are primary and must be considered as such. It cannot be doubted that her best interests would be served by her being with both her mother and her father. At the same time it must be remembered that she is now nearly 16 and it must also be remembered that she came to Australia of her own free will, leaving her mother behind, because she wanted to do so. Her application for a Child Migrant visa, which could not be refused, was made long after these proceedings were commenced. There was no obligation on her part to leave her mother. The hardship to Anastasia in being deprived of her mother’s presence must be regarded in that light and more particularly, having regard to the fact that I cannot accept the evidence given by her mother, the Visa Applicant, as to Anastasia’s persecution on the grounds that she did not have a father. It is simply not credible that she was the only child at the school who was a member of a single-parent family.
193. As to the expectations of the Australian community and to which, see clause 2.12 of Direction 21, I would imagine that opinion might be divided. It might be thought by some that the Applicant having succeeded in obtaining residence (and citizenship) in Australia, and the two daughters having similarly so succeeded (although Anastasia has at this stage residence), their mother, the Visa Applicant, should not be refused residence, and regardless of the means by which her close family members achieved their status. At the same time there would undoubtedly be a contrary view in the minds of persons fully aware of all of the facts and circumstances. Mr. Rados in closing submissions referred to case authority to the effect that the discretion should be exercised compassionately. The Tribunal accepts that this is so but at the same time considers that the conduct before it is such that the majority view would be against the grant of the visa.
194. Hardship under 2.17 of Direction No 21 must be regarded in this light. Anna is now a young woman of 22; that she is deprived of her mother’s society will constitute hardship to her. That there will be hardship to Anastasia cannot be doubted. I think that so far as the Applicant is concerned, the hardship must be discounted by the fact that he was party to this entire and unfortunate situation.
195. In the end, what has occurred in this case is a matter of choice. This family could be reunited even if this is not possible in Australia. The Applicant is a motor mechanic and possessed of other skills and he could earn a living anywhere. His answers as to why he would not consider going to Belarus were simply silly. The truth is that having succeeded (very fortunately) in obtaining residence and citizenship in Australia he is not prepared to give it up. The psychiatric report suggests that if this decision is affirmed Anastasia will go back to her mother. Anastasia gave no such evidence. I have little doubt that this family could be reunited in Russia, but it is unnecessary for me to make a finding to that effect. That they could be reunited in Belarus cannot be doubted. The Visa Applicant said that Russia and Belarus may be reunited but there was no concrete evidence before the Tribunal to this effect. And even if this were a likely possibility there are many other countries which could serve for this purpose. There was evidence before the Tribunal of residence by the Applicant in the Ukraine and where the Visa Applicant was born; there was no suggestion that Ukraine too will reunite with Russia. The parties planned their departure in a manner which is very far from unknown in Eastern Europe. The Applicant was fortunate enough to be able to obtain a protection visa, although and as I have said there must be doubt as to whether he was entitled to it. As to why the Visa Applicant found it necessary to be quite so untruthful for quite so long is not clear to me. It is possible that having embarked on a course of action, she could not retreat from it.
196. The interests of Anastasia are primary and as I have said, her best interests would be served by being with both her parents. But it is incumbent on me to weigh up her best interests against the countervailing considerations and the conduct of the Visa Applicant has been serious in the extreme. She has treated the Act as if it were simply an obstacle to be overcome by whatever means were necessary (or thought to be necessary). As to why she thought is desirable at a comparatively late stage to invent Valantina’s participation is hard to understand.
197. This then is in my view a case in which to grant the visa sought would send entirely the wrong message. While it is true that it is highly unlikely that this decision, when published, would be regularly accessed in Eastern Europe, the fact that a visa was granted despite the fraudulent conduct which preceded it, could and indeed would, in my view have an unintended and unfortunate effect. It would produce in the minds of many the belief that if one can procure residence by whatever means for one of the parents then the other should be entitled, where there is a child involved, to follow. Put in this fashion, the fallacy implicit in it is clear. The result is that the hardship factors, particularly in relation to Anastasia, and the primary interests of Anastasia, cannot outweigh the extremely serious misconduct on the part of the Visa Applicant. To grant a visa in these circumstances would be tantamount in my view to riding roughshod over the Act and in particular clause 2.6(c) of Direction No 21. Clause 2.6(c) of the Direction characterises conduct of this nature as extremely serious and the Tribunal must treat it accordingly. In these circumstances, the discretion cannot be exercised in favour of the Visa Applicant and the decision under review must be affirmed.
I certify that the 197 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Block
Signed:........[sgd].......
AssociateDate/s of Hearing 14, 15 June and 15, 16 September 2005, 3 April 2006 and 25 January 2007
Date of Decision 1 March 2007
Solicitor for the Applicant Mr I Rados, I Rados & AssociatesSolicitors for the Respondent Ms G Bennett and Mr A Chand, Clayton Utz Lawyers
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