Brooks and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 546

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 546

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2002/1173

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Graham Brooks

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs 

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date13 June 2003

PlaceSydney

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Carlos Alberto Jaramillo-Veloza passes the character test pursuant to s 501(6) of the Migration Act 1958.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – subclass 457 Temporary (Long Stay) Business visa – refusal on character grounds – character test – general conduct – examination of the Visa Applicant’s immigration history – whether the Visa Applicant made a false or misleading statement on the Incoming Passenger Card - held the Tribunal is not satisfied on the evidence that the Visa Applicant is not of good character – decision of the Respondent set aside with a direction that the Visa Applicant passes the character test.

Migration Act 1958 ss 499(1)(2), 501(1), 501(6)

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

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192

REASONS FOR DECISION

13 June 2003 Mr RP Handley, Deputy President          

1.      This is an application by Graham Brooks (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 23 July 2002 to refuse the grant of a subclass 457 Temporary (Long Stay) Business visa to the sponsored person, Carlos Alberto Jaramillo-Veloza (“the Visa Applicant”), on the ground that he did not pass the character test because of his past and present general conduct.

2. At the hearing, the Applicant was represented by Christopher Levingston, Solicitor, of Christopher Levingston and Associates, and the Respondent was represented by Ishan Muthalib, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), including supplementary T documents (“the S Documents”), together with the other documents tendered by the parties. The Visa Applicant gave evidence by conference telephone.

Background

3.      The Applicant, Graham Brooks, is the Managing Director of Graham Brooks and Associates, Architects Planners and Heritage Consultants, of Sydney.  The firm is a leader in the field of architectural heritage conservation within Australia.

4.      The Visa Applicant, Carlos Alberto Jaramillo-Veloza, was born in Bogata, Colombia, on 10 May 1964 and is aged 39.  He is a qualified architect, having graduated from the Pontificia Javeriana University, Bogata, with a Bachelor of Architecture in 1988 (S p44).   He has worked extensively in the area of heritage architecture, including as Head Professor of the School of Architecture at Pontificia Javeriana University.

5.      Mr Jaramillo-Veloza came to Australia on 27 February 2000 on a short stay one month visitor visa (T p62) issued in Santiago, Chile, on 6 April 1999.   He did not leave Australia when his visa expired.  On 6 March 2000, Mr Jaramillo-Veloza applied for a protection visa (T5) which was refused on 21 March 2000.  On that day, he was granted a bridging visa (T9).  On 20 April 2000, Mr Jaramillo-Veloza applied to the Refugee Review Tribunal (RRT) for a review of the decision to refuse his application for a protection visa.   In October 2000, he commenced working for Graham Brooks and Associates.

6.      On 17 January 2002, the decision to refuse Mr Jaramillo-Veloza a protection visa was affirmed by the RRT (T12).  He departed Australia on 29 January 2002 (T p101).

7.      On 20 December 2001, Graham Brooks and Associates lodged an application to be a Standard Business Sponsor for the position of Senior Architectural Heritage Consultant for a four year period, with the nominee being Mr Jaramillo-Veloza (S p20).  On 8 January 2002, the Applicant was advised that the application had been approved (S p16) and that the person to be sponsored should lodge an application for a subclass 457 Temporary (Long Stay) Business visa (S p18).

8.      On 25 January 2002, Mr Jaramillo-Veloza lodged an application for a subclass 457 Temporary (Long Stay) Business visa (S p3) at the Australian Embassy in Washington.   On 20 February 2002, he was issued with a Notice of Intention to Refuse Visa (S p55).  On 23 July 2002, a delegate of the Respondent decided to refuse the grant of the visa to Mr Jaramillo-Veloza on the ground that he is not of good character because of his past and present general conduct.   On 13 August 2002, the Applicant lodged an application for a review of this decision by the Tribunal.  On 12 March 2003, the Respondent’s solicitors wrote to the Applicant’s solicitors in the following terms:

We are instructed not to contend that the applicant made any false statements in his visitor visa application or false statements and declarations in his protection visa application.  However, we will contend that his statement and declaration as to the main purpose of his visit to Australia in his incoming passenger card was false, given in particular the fact that he applied for a protection visa seven days after arriving in Australia.

Relevant Law and Policy

9. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:

Having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)the person’s past and present general conduct;

the person is not of good character;…

10.     Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 457 visa.   Clause 457.325 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including relevantly, clause 4001 which provides:

Either

(a)the applicant satisfied the Minister that the applicant passes the character test; or

(b)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.

11.     Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  This includes the Tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”..

12.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The Direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

13. The issue for the Tribunal to determine in this case is, therefore, whether Mr Jaramillo-Veloza is not of good character having regard to his past and present general conduct so as to be precluded from the grant of a subclass 457 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.

Evidence

The Incoming Passenger Card

14.     On the Incoming Passenger Card completed by Mr Jaramillo-Veloza on entry into Australia on 27 February 2000, at Part B, the incoming passenger who crosses the box “Visitor or temporary entrant”, as Mr Jaramillo-Veloza did, is asked “Your main reason for coming to Australia „ one only”.  The passenger is presented with eight options against which to place a X:

·     Convention/conference

·     Business

·     Visiting friends or relatives

·     Employment

·     Education

·     Exhibition

·     Holiday

·     Other

15.     Mr Jaramillo-Veloza placed an X against the option “Visiting friends or relatives”.  He also stated his intended length of stay in Australia as being 19 days and provided an “intended address in Australia” of “7 Henderson Road Bexley 2207 Sydney”.

Carlos Alberto Jaramillo-Veloza (the Visa Applicant)

16.     Mr Jaramillo-Veloza provided an affidavit dated 14 December 2002 (A1).  In the affidavit he stated:

At the time of the making of the application, I intended to travel to Australia for the purposes of visiting that country and to further assess whether there might be opportunities for me to apply for permission to work in Australia.

17.     Mr Jaramillo-Veloza said he would probably have lodged his application for a visitor visa about a month before it was granted on 6 April 1999, that is in early March 1999.  His problems in Colombia came to a head in April 1999 when he was shot at and told to leave the country.  At that time, he had held a multiple entry visa for the USA for some years, most recently renewed on 7 January 1999.  This entitled him to enter and remain in the USA for up to six months on each visit to the USA over the next five year period.  When the threat was made to his life in April 1999, he flew to New York because this was closer to home than Australia, even though he by then held a valid Australian visitor visa.  At that time, he was not intending not to return to Colombia.  His intention was to allow time for “things to settle down and see if I could return”.

18.     Mr Jaramillo-Veloza returned to Colombia to see his sick father in August 1999.  On arriving, he discovered that his friend Jaime Garzon had been assassinated.  Mr Jaramillo-Veloza realised that he would not be able to return to Colombia to live permanently.  He therefore went back to New York after about four weeks and did not attend his father’s funeral when he subsequently died.

19.     Mr Jaramillo-Veloza said when he arrived in Australia on 27 February 2000, his main purpose was to visit friends but he also wanted to see if there was a possibility of getting work in Australia.  He had already made inquiries about refugee status in the USA and had learned that temporary protection visas were not granted to Colombians.  He was not then aware of any other refugee claim he could make in the USA.  On arriving in Australia his intention at that time was not to stay permanently.  He had a return ticket to New York.

20.     Mr Jaramillo-Veloza said when he inquired about working in Australia, he found that as a visitor he could not work.  He went to the Immigration Office at Rockdale to find out about refugee applications in Australia – genuinely believing himself to be a refugee – and was given a protection visa application form.  He lodged this on 6 March 2000 in the belief that he was under an obligation to bring his claim to refugee status before the relevant authorities as soon as practicable.  When he was granted a bridging visa entitling him to work, he first obtained work as a carer at Hurstville prior to his getting a job with Graham Brooks in October 2000.

Submissions

Applicant

21.     Mr Levingston, for the Applicant, said it is only the Incoming Passenger Card which is in contention.  The Respondent contends that Mr Jaramillo-Veloza’s stated main reason for coming to Australia was false.  Mr Jaramillo-Veloza has given evidence that his main purpose on entry was to visit friends.  This is consistent with the main reason for his making his visitor visa application.  It was only after entry that he learned about protection visa applications from the Department’s Rockdale office where he went to inquire about working in Australia.  Although Mr Jaramillo-Veloza held a multiple entry visa for the USA, this was for temporary entry only and did not entitle him to work.

22. Mr Levingston submitted that Mr Jaramillo-Veloza had not made any false statement and had not breached s 234(1)(c) of the Act. In particular, he contended that the Incoming Passenger Card did not contain a statement or information which was false or misleading in a material particular. The Card required that Mr Jaramillo-Veloza state the main reason for his visit to Australia. He complied with this requirement by stating that his main reason was to visit friends. Thus, Mr Levingston submitted that Mr Jaramillo-Veloza did not fail the character test by reason of s 501(6)(c).

Respondent

23. Mr Muthalib, for the Respondent, contended that Mr Jaramillo-Veloza’s statement in his affidavit that after he left Colombia in September 1999, he realised he needed a safe place to live outside his own country and intended to lodge an application for a protection visa, showed that this was his main reason for coming to Australia. Mr Muthalib submitted that Mr Jaramillo-Veloza made a false statement when completing the Incoming Passenger Card and should, therefore, fail the character test. Moreover, there was insufficient evidence to warrant the exercise of the Minister’s residual discretion under s 501(1) not to refuse the grant of a visa.

Application of the Law and Findings

24. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Jaramillo-Veloza passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:

The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.  The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry …

In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:

The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431).  However, this does not require the Applicant to meet the highest standards of integrity.  The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).

25. Secondly, the Tribunal must have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If the Tribunal decides that, in its view, the Visa Applicant, Mr Jaramillo-Veloza, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

26.     Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test.  Of relevance in the present case is paragraph 1.9(b) which direct the decision-maker to consider whether the non-citizen has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement.

27.     The material facts in contention in this case are limited to whether Mr Jaramillo-Veloza made a false or misleading statement in completing his Incoming Passenger Card on entry into Australia on 27 February 2000.  Having heard Mr Jaramillo-Veloza’s oral evidence and considered his affidavit the Tribunal finds that his main purpose in visiting Australia, as he stated on the Card, was to visit friends.  His secondary purpose was to see whether there was a possibility of his working in Australia.  At that time, he believed he could not return to Columbia because of threats to his life and would, therefore, need to find out about seeking refugee status elsewhere.

28.     The Tribunal accepts Mr Jaramillo-Veloza’s evidence – on which he was unshaken after extensive cross-examination – that his intention on arrival in Australia was not to stay permanently and for this reason he had a return ticket to New York.  The Tribunal notes that he stated on his Incoming Passenger Card his intended address in Australia and that his intended length of stay in Australia was 19 days.  The Tribunal also accepts Mr Jaramillo-Veloza’s evidence that it was after a visit to the Department’s Rockdale office to inquire about refugee applications, when he was given a protection visa application, that he decided to lodge an application.  He did so on 6 March 2000, believing he had obligation to lodge his application “as soon as is practicable”.

29. Having made these findings, there is no evidence before the Tribunal to support a determination that Mr Jaramillo-Veloza is not of good character because of his past and present general conduct and thus, pursuant to s 501(6), he passes the character test.

30. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that Mr Jaramillo-Veloza passes the character test pursuant to s 501(6) of the Act.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date of Hearing  3 June 2003
Date of Decision  13 June 2003
Solicitor for the Applicant          Mr C Levingston
Solicitor for the Respondent     Mr I Muthalib