Cebola and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 693
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 693
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/28
GENERAL ADMINISTRATIVE DIVISION ) Re
Monique Ramos Cebola
Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date30 June 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) of the Migration Act 1958 should be exercised in favour of Luiz Fernando Damasco.
..............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa – subclass 309 (provisional) spouse visa – character test – Visa Applicant fails the character test on the basis of his past and present general conduct – discretion that the Tribunal may exercise where the Visa Applicant fails the character test – examination of the Visa Applicant’s immigration history – necessity to balance the expectations and protection of the Australian community against the hardship to the Applicant and Visa Applicant – found that the Visa Applicant did overstay his visa and worked illegally – held discretion should be exercised in favour of Visa Applicant on compassionate grounds – the decision under review is set aside with a direction that the discretion to not refuse the grant of a visa under s 501(1) should be exercised in favour of the Visa Applicant.
Migration Act 1958 ss 499, 501, 501(6)(c)(ii)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
30 June 2004 Mr RP Handley, Deputy President Summary
1. The Visa Applicant, Luiz Fernando Damasco, came to Australia on 8 December 1999 on a visitor visa granted with a no-work condition, valid for three months. On 6 March 2000, he was granted a further visa subject to a no-work condition, which was cancelled on 5 July 2000 when he admitted working illegally in Australia. Mr Damasco was subsequently granted a bridging visa valid until 19 July 2000. However, he did not leave Australia on the expiry of that visa, but remained in Australia illegally until 7 November 2002, during which time he also continued to work unlawfully. He departed Australia on 20 November 2002 pursuant to the conditions of a bridging visa.
2. The Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refused Mr Damasco’s subclass 309 spouse (provisional) visa application on the basis of his past and present general conduct including remaining in Australia illegally for approximately two years, making false and misleading statements in his visa applications, working in contravention of his visitor visas and working illegally for over two years. This is the decision to be reviewed by the Tribunal.
Background
3. The Applicant, Monique Ramos Cebola, was born in Sydney, on 20 June 1979 and is aged 25. Ms Cebola is a Medical Practitioner, currently employed as a Resident Medical Officer by the Bankstown Health Service. Ms Cebola’s parents, sisters, grandparents and immediate family all live in Sydney.
4. Mr Damasco was born in Florianopolis, Brazil, on 4 September 1974 and is aged 29. On 17 November 1999, Mr Damasco was granted a visitor visa to come to Australia, valid for three months, subject to a no-work condition. He arrived in Australia on 8 December 1999 and, in late February 2000, commenced working unlawfully in contravention of his no-work visa condition. On 6 March 2000, Mr Damasco applied for an extension to his visitor visa, which was granted subject to a no-work condition, valid until 6 July 2000 (T p40). On 5 July 2000, he applied for a long stay visitor visa (T41 p322). At an interview on that day, Mr Damasco admitted that he had been working without permission fixing surfboards and was notified of a decision to cancel his visitor visa as he had worked in contravention of his visa conditions (T42 p324). He therefore applied for a bridging visa E which was granted until 20 July 2000 for the purpose of allowing him to depart Australia (T43 pp329-330). Mr Damasco did not depart Australia by that date, but remained in Australia illegally and continued working unlawfully.
5. On 28 October 2000, Mr Damasco met Ms Cebola at a café near Bronte Beach, where he was working (T p113). They commenced their relationship on 17 November 2000 (T p46 and T p113).
6. On 7 November 2002, Mr Damacso was located by Compliance Officers at his then place of employment, the Pool Café in Maroubra (T pp332-333). He was detained at the Villawood Detention Centre until his release on 12 November 2002 on a bridging visa E valid until 20 November 2002, being his proposed date of departure from Australia (T p9 and T50 p343).
7. On 16 November 2002, Mr Damasco and Ms Cebola were married in a civil ceremony in Sydney (T p65) and, on 20 November 2002, Mr Damasco departed Australia (T51 p345), having paid all outstanding fees and charges to the Commonwealth (T p6).
8. On 29 January 2003, Mr Damasco lodged an application for a subclass 309 spouse (provisional) visa with the Australian Embassy in Brazil. On 15 September 2003, Mr Damacso was interviewed by a Senior Migration Officer at the Australian Embassy (T17 p197). At that interview, Mr Damasco admitted that by February 2000 he was working without permission and continued to do so whilst in Australia, that he had lied when he applied for the grant of a subclass 686 visa on 6 March 2000 and, that when he was granted his bridging visa in July 2000, he had no intention of departing the country (T pp198-199). On 15 September 2001, the Senior Migration Officer advised Mr Damasco that she was considering refusing his application and inviting him to comment or provide further information by 4 November 2003 (T18 p200). Mr Damasco’s solicitor responded by letter of 28 October 2003 (T p208).
9. On 12 December 2003, a delegate of the Respondent decided to refuse the grant of a spouse visa to Mr Damasco on the ground that he is not of good character because of his past and present general conduct and having refused to exercise the discretion under s 501(1) of the Migration Act 1958 (“the Act”) to not refuse the grant of a visa (T p16). On 8 January 2004, Ms Cebola lodged an application for a review of this decision with the Tribunal.
10. At the hearing, the Applicant was represented by Ron Kessels, Solicitor, of Kessels Goddard & Ajuria, Solicitors, and the Respondent was represented by Ishan Muthalib, Solicitor, of Blake Dawson Waldron, Solicitors. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with a volume of supplementary documents (also referred to as T Documents) and evidence tendered by both parties at the hearing. At the hearing, Ms Cebola and her mother, Mrs Odilia Cebola, gave evidence in person and Mr Damasco gave evidence by conference telephone from Brazil.
Relevant Law and Policy
11. 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 is met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
…
(ii) the person’s past and present general conduct;
the person is not of good character; …
12. 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”.
13. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the Direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act. The Direction provides guidance on the application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.
14. The issue for the Tribunal to determine in this case is, therefore, whether Mr Damasco is not of good character having regard to his past and present general conduct. If the Tribunal decides he is not of good character, it must decide whether, nevertheless, to exercise the residual discretion under s 501(1) to not refuse the grant of a visa.
Evidence
15. Ms Cebola was born in Sydney and is aged 25. Her parents migrated to Australia from Portugal. Her mother, Ms Odelia Cebola, arrived in Australia at the age of six with her family. Her husband arrived at the age of 16. They are both Australian citizens. Mrs Cebola has been employed by the National Australia Bank for the past 18 years and currently holds the position of Personal Banker. Mr Cebola is a chef. Mr and Mrs Cebola have three daughters: Vivienne who is 30 and a doctor, currently working for Medicin Sans Frontier in Angola until September 2004; Monique; and Michelle who is 23 and a Graphic Designer.
16. Mrs Cebola said they are a close family and, being of Portuguese background, quite old fashioned in the sense that their family is very important to them. Ms Cebola said her parents are loving, caring and supportive. She is very close to her parents and sisters and also to her grandparents who live near her parents’ house in Randwick.
17. Ms Cebola is employed as a Resident Medical Officer by Bankstown Health Service. She completed a degree in medicine at Newcastle University, for which she has a HECS debt of approximately $20,000. She said she hopes to specialise in Obstetrics and Gynaecology, a field of medicine in which there is presently a shortage of specialists, and her present position has reinforced that desire. However, before commencing her specialist training, she must work for at least one year as a medical officer. Then, if accepted into the College, a further six years of training is required before she qualifies as a specialist.
18. Mr Damasco was born in Florianopolis, Brazil, and is aged 29. He comes from a middle class family in Florianopolis where all his immediate family lives, together with his mother’s parents, her brother, a cousin, and his father’s brothers and cousins. His brother is married with a daughter. Mr Damasco said he studied to Year 11 at High School and has worked since 1989: from 1989 to 1998 in a graphics company, and then from August 1991 to 1999, he had a second job working in a jewellery business in the city. Since returning to Brazil, Mr Damasco has worked as a chef. He also helps his brother in the family business which operates two shops selling women’s accessories, but it is now low season and he is looking for another job. Before coming to Australia, he travelled extensively through Brazil, Paraguay, Costa Rica, Peru, Portugal, Spain and France. In cross-examination, Mr Damasco acknowledged that his life in Brazil is “OK” but said he has been mugged there a number of times.
19. Mr Damasco surfed in Brazil and said he had dreamed of visiting Australia, particularly because of the surfing, and at the end of 1997 decided to come for a holiday. He applied for a visitor visa in September/October 1999, having obtained the form from a travel agent. He was granted a visa for three months. He knew that this did not give him permission to work. Initially, his plan was to stay for five or six months and he hoped to be able to extend his initial three months visa for this purpose. He did not then know that he could have applied for a longer visa. He had little information about Australia and the travel agent told him he could apply for an extension of his visitor visa while in Australia.
20. Mr Damasco was asked about the Incoming Passenger Card which he completed on 8 December 1999. He acknowledged that he lied when stating that he intended to stay for two months for a holiday and gave the address of the Hotel Quality Inn, Canberra as his address during his stay. He said that a person on the plane told him this address and he wrote this on the Card because he did not know the address of the friend who was collecting him at the airport. Mr Damasco said he arrived with two surfboards and was going to stay with a friend of his from Florianopolis who was living at a house in Centennial Park with another friend. At the time of his arrival, Mr Damasco bought US$2,000 with him.
21. After arriving on 8 December 1999, Mr Damasco said he travelled around on short trips, for example to Ulladulla and the Blue Mountains. Then in late February/early March 2000, he started working for a friend in Maroubra helping him repair surfboards, and he also worked one day a week cleaning windows in the city with another friend. He was earning about $180 to $200 per week cash in hand.
22. Mr Damasco said that he applied for the first extension of his visitor visa on 6 March 2000 because he was enjoying his stay and wanted to stay longer. He recalled going to the Department of Immigration to apply for the extension and having to stand in line for a while. Mr Damasco does not remember filling out the application form although recalls it only took about five minutes to extend the visa. He does not now remember for how many months his visa was extended, but knew then that it did not give him permission to work. He did not tell the Department he was working casually.
23. In late April/early May, Mr Damasco decided that he wanted to stay for the Olympic Games. By then, he had started working in a kitchen in Bondi. On 5 July 2000, he went to the Department to apply for a further extension to his visa. He was interviewed by an officer who asked him a lot of questions, particularly about working. Mr Damasco admitted that he lied when he told the officer he had a girlfriend and was living in a van. However, during the interview, he told the officer that he had been working – repairing surfboards and doing other odd jobs. The officer cancelled his visa with immediate effect and told him that he had to leave Australia by 20 July 2000. He was released on a bridging visa E, the application for which he cannot remember filling out, to enable him to buy his ticket, which he had to show to the Department within a week or ten days. Mr Damasco said that at the time, his English was very bad. The bridging visa was not put in his passport. Mr Damasco purchased his ticket and took this to show the Department.
24. Mr Damasco said he knew he should leave, but did not intend to do so. His plan was to stay for the Olympics and leave at the end of December 2000, when he would go back and help his brother in the family business in Florianopolis. Therefore, he did not leave by 20 July 2000 as required by his bridging visa, and did nothing to regularise his status in Australia. During the Olympics, he went to the cycling, handball, volleyball and to a concert. He said that he recognises now that he did the wrong thing and made a big mistake.
25. Mr Damasco said when he first met Monique Cebola in November 2000 and they started going out together, he was not very serious about the relationship because he was about to leave Australia. He was very happy to see her and she was very kind to him. Ms Cebola said they were interested in each other from their first meeting but, whilst they started dating, his lack of permanency in Australia made developing a relationship difficult even though she felt they had a lot in common and a might have a future together. On their first “official” date around November 2000, Mr Damasco told her of his status – that he did not have a valid visa as his tourist visa had expired, and was planning to leave Australia around December 2000.
26. Mr Damasco also told Ms Cebola that despite his working as a chef, he did not have permission to work. Ms Cebola said she realised from what he told her that he could not stay in Australia but, at that time, she did not understand the full implications, including that he could be detained for being “illegal”, a word she did not realise applied to Mr Damasco. She believed that if their relationship was genuine, “things would sort themselves out”. She never considered that he would not be able to stay in Australia.
27. Ms Cebola said that when she told her family about Mr Damasco not having a valid visa, they were very unhappy and Ms Cebola’s father tried to prevent the relationship continuing. Her parents also warned her about the difficulties of a relationship with a person who was not Australian. However, once they met Mr Damasco, they liked him. Ms Cebola said although she worried about his status, she was then studying in Newcastle and travelling back and forth, and time just passed.
28. Mr Damasco said that he did not really have any plans about his immigration situation at the beginning and Ms Cebola did not really understand the implications of his situation when he told her. He said that it was only in about early 2001 that she began to understand.
29. Mr Damasco said Ms Cebola wanted him to stay in Australia and did not want him to leave. After he met her family, their relationship became serious and he really liked her. Her family did not like him at first because of his situation. In fact, her father warned him to stay away at one stage when he spoke to Mr Damasco on the telephone. Mrs Cebola confirmed this. She said her husband warned Mr Damasco off the first time he phoned, but all Mr Damasco said was that he was sorry and that he understood. At the time, she wanted nothing to do with him. However, her daughter was very upset and crying, and Mrs Cebola relented and said that she could bring him over. She first met Mr Damasco in early 2001 and she liked him: he came across as nice, caring, honest and polite.
30. Mr Damasco said that after a few months, just before Ms Cebola’s birthday in June 2001, when they were already in love, they decided to stay together. After this, they often spoke of his situation. He said that they got advice and information from friends, but not professional advice. In mid 2002, after they became engaged, Ms Cebola and Mr Damasco went to see a migration lawyer/agent, Ms Cebola having previously telephoned the Department to find out what it meant not to have a visa. The migration lawyer advised them to collect evidence to establish the genuineness of their relationship; then Mr Damasco should leave Australia and apply for a visa from Brazil. Mr Damasco learned at this time that he could be detained, although he previously knew that he could be arrested. He said that Ms Cebola was worried about her situation and her family. Mr Damasco admitted in cross-examination that he chose to stay in Australia illegally because he did not want to be separated from her. He said Ms Cebola also wanted to meet his family and friends in Brazil and they planned for her to go with him when he returned there.
31. Mr Damasco admitted in cross-examination that he worked at the Pavilion Café at Bondi for about 14 months. He then commenced working part-time at the Pool Café at Maroubra before finishing at the Pavilion Café and commencing work full-time at the Pool Café. He said his employers knew that he did not have permission to work and they paid him in cash.
32. On 7 November 2002, Mr Damasco was detained while working at the Pool Café in Maroubra. He said he hid in the freezer of the café and, when he came out, he gave a false name to the Compliance Officers because he was very scared. However, after some discussion with the officers, he admitted his real identity. He said, at the time, Ms Cebola was away and he did not know what to do. He is very sorry for what he did, but it was the first thing that crossed his mind. Ms Cebola confirmed that, at the time, she was at Groote Eylandt, an island in the Gulf of Carpentaria which is part of the Northern Territory, where she had been for five weeks studying and working as part of an elective subject for her degree. When she heard of Mr Damasco’s detention, she returned to Sydney immediately. As they had already filed their notice of intention to marry on 8 October 2002, they decided to bring the date of the wedding forward so that they could be married before Mr Damasco had to leave Australia. They were married on 16 November 2002 and she then went to Brazil with him on 20 November 2002. Ms Cebola said that her elective subject required that she work for a period of eight weeks, so when she was in Brazil, she undertook the remaining three weeks in a private paediatric clinic, arranged through a family friend of Mr Damasco’s. This enabled her to complete her degree.
33. With regard to good conduct, Mr Damasco said that on Christmas Day in December 1999, he rescued a Japanese man from the surf at Garie Beach when the man got caught in a rip near the rocks and was pulled out to sea. Mr Damasco said he paddled over to the man and managed to pull him back to the beach. He also said that while he was working as a cleaner at a pub in Surry Hills, he saw a man attacking a girl in order to get her purse. He chased the man, caught him and then detained him until the police arrived.
34. Ms Cebola said that if Mr Damasco is permitted to re-enter Australia, they plan to establish a home, work and have a family. Mr Damasco wants to study and obtain an apprenticeship to become a chef and she wants to undertake her specialist training and would like to continue with her work in Aboriginal health which she undertook as an elective for her degree. Her Uncle Mario has offered Mr Damasco a job at the Penfolds Warehouse that he manages to tide him over, and Mr Damasco has spoken to him about this and is happy to do this work. Mr Damasco said the job would be casual at first becoming full-time after three months. He would be happy to start with this.
35. Ms Cebola said if Mr Damasco’s visa application is refused, she will move to Brazil where they will live in his home town of Florianopolis, which is south of San Paolo on the Coast. Florianopolis has a population currently of around 200,000 but is growing. However, Ms Cebola said she wants to stay in Australia – she is an Australian.
36. Ms Cebola said she spent seven months in Brazil with her husband in 2003. While there, she made enquiries regarding her admission to practice medicine in Brazil. She would have to pass a Portuguese language proficiency examination and then, over the course of a year, would have to undergo examinations to validate her medical degree because it is not recognised in Brazil. While in Brazil, she spoke Portuguese except with Mr Damasco with whom she spoke English. She said that although she can speak Portuguese, she would have to study a lot to be sufficiently proficient, particularly in medical terminology. Ms Cebola said she was also advised that it would be difficult to find employment in the area where they would want to live.
37. Mrs Cebola said she never thought her daughter would have to leave Australia. She said her children are everything to her and her husband. Mrs Cebola said Mr Damasco’s parents came for a visit to Australia because they care and wanted to meet their son’s fiancé and her family. Mrs Cebola said on meeting them, she liked them and this strengthened her feelings for Mr Damasco.
36. Mrs Cebola said her daughter and Mr Damasco are very committed and love one another. They speak to each other on the phone twice a day. It would “wreck” her and her husband’s family if Monique had to leave Australia. She said her husband came to Australia at the age of 16 and lost the connection with his family in Portugal as a result. She does not want this to happen with their daughter. Moreover, Monique has wanted to be a doctor since she was a very small girl and has worked very hard to achieve this. She should be permitted to pursue her career in Australia.
38. Mrs Cebola said she put up the $20,000 bond to enable Mr Damasco to obtain his bridging visa because she trusts him. She said in cross-examination that she could go to Brazil to see Monique if she was living there but she said she has commitments in Australia and does not want to go there.
37. In her Statutory Declaration dated 23 October 2003 (T23), Ms Cebola said she loves her job for which she has worked very hard, and wants to specialise in Obstetrics and Gynaecology. She loves Australia, her life here, her friends and her family in Sydney to whom she is very close. She wants her children to grow up here and to contribute to the Australian community. She does not want to live in Brazil with all the attendant difficulties in terms of the language, her qualifications and employment.
38. Ms Cebola said she is suffering “emotionally, physically and mentally” as a result of the separation from her husband. She is depressed and often tearful, and is concerned that this is affecting her work. Mr Damasco also described the pain of their separation (T22) and asked for forgiveness for his mistakes.
Application of the Law and Findings
39. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c), Mr Damasco 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 Goldiev 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…
40. In Re Msumba 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 (Goldie 1999 FCA 1277).
41. 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 Damasco, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) to not 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.
42. In relation to s 501(6)(c)(ii), the person’s past and present general conduct, paragraph 1.9 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a) and 1.9(b) which direct the decision-maker to consider whether the non-citizen has been involved in activities indicating a contempt or disregard for the law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit made a false or misleading statement (paragraph 1.9(b)).
43. Paragraph 1.11 of Direction No 21 states that general conduct also includes recent good conduct which may be an indication that the non-citizen’s character may have reformed.
44. Before making a decision on whether Mr Damasco passes the character test, it is appropriate that the Tribunal set out its relevant findings of fact. The Tribunal accepts that Mr Damasco came to Australia in December 1999 for the purpose of a holiday, entering on a visitor visa valid for three months from the date of entry. His intention on arrival was to extend his visa for a further period and stay for about six months before returning home. The Tribunal notes that Mr Damasco made a false and misleading statement on his Incoming Passenger Card when he stated his intended length of stay as two months and his intended destination as being the Quality Inn in Northborne Avenue, Canberra (R1). He explained that he did not know his friend’s address in Sydney and put this down at the suggestion of a fellow passenger on the plane. Mr Damasco acknowledged knowing that his visitor visa did not give him permission to work. Nevertheless, in late February/early March 2000, he began working casually for a friend helping him repair surfboards and also started working casually with another friend cleaning windows.
45. Mr Damasco applied for an extension of his three month visitor visa on 6 March 2000 which was granted for a period of three months, subject to a “no work” condition, of which Mr Damasco was aware. Mr Damasco did not inform the Departmental officer that he was working although there is no evidence that he was asked about this.
46. On 5 July 2000, when interviewed by departmental officers about his application for a further visitor visa, Mr Damasco admitted that he was working fixing surfboards. He said nothing about window cleaning. His admission lead to a cancellation of his still valid visa for breach of the “no work” condition. Mr Damasco also told the departmental officers that he was living in a car, that his girlfriend was in Australia but he did not know her name or date of birth. This was not true. Mr Damasco then applied for a bridging visa E.
47. Mr Damasco acknowledged that he made a false and misleading statement when he agreed to the condition on the bridging visa E issued to him on 5 July 2000 that he would depart Australia before 20 July 2000. He had no intention of doing so but planned to stay for the Olympics and return to Brazil in December 2000. Mr Damasco did not depart Australia before 20 July 2000, but remained as an unlawful non-citizen until he was located and detained on 7 November 2002 and taken to Villawood Detention Centre. Initially, on being detained, he pretended to be somebody else but, after a discussion with the Compliance Officers, admitted to his true identity. Mr Damasco said he was scared and did not know what to do.
48. In summary, Mr Damasco’s immigration misconduct comprises his making a false and misleading statement on his Incoming Passenger Card, albeit of a relatively minor nature, false and misleading statements in relation to his bridging visa E application on 5 July 2000, overstaying as an unlawful non-citizen from 20 July 2000 until 7 November 2002, and knowingly working in Australia without permission both in breach of his two visitor visas and after he became an unlawful non-citizen.
49. The Tribunal notes that there are countervailing factors in terms of good conduct in his relations with Ms Cebola’s family, in other instances of truthfulness (for example, his admission that he was working at the interview on 5 July 2000), and in his contribution as a good citizen (the lifesaving incident, apprehending a thief, and voluntary work on Groote Eylandt (T p121)). However, in the Tribunal’s opinion, this good conduct is not sufficient to outweigh Mr Damasco’s misconduct, which is of a serious nature and sufficient to warrant a determination that he does not pass the character test by reason of his past general conduct.
50. Having decided that Mr Damasco does not pass the character test, the Tribunal must then consider the exercise of the residual discretion under s 501(1) to decide whether to not refuse the grant of a visa to Mr Damasco. In exercising this discretion, the Tribunal had regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:
Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
51. Paragraph 2.3 sets out the primary considerations:
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
52. With regard to the protection of the Australian community, paragraph 2.4 states:
The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…
53. Paragraph 2.5 identifies the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen which include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
54. Examples of offences considered by the Government to be serious include serious crimes against the Act, which in turn include “making a false or misleading statement in connection with entry or stay in Australia”. Paragraph 2.8 requires decision-makers, when exercising the discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
55. With regard to paragraph 2.5(b), likelihood that conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.5(c), general deterrence, “aims to deter other people from committing the same or a similar offence”.
56. With regard to the first primary consideration, while Mr Damasco has committed serious immigration misconduct, the Tribunal accepts that the early misconduct was to enable him to stay for the Olympics. His intention was not to try and stay permanently. The later overstaying and continuation of his working without permission was a consequence of his relationship with Ms Cebola and their perceived need to delay his return to Brazil until she had completed her medical degree and internship in order to qualify as a doctor and, so that they could provide evidence of their genuine relationship. In the Tribunal’s view, none of this suggests that Mr Damasco poses a threat to the Australian community and, given his consequent experiences, it seems very unlikely that he will repeat such misconduct. Deterrence is, of course, a relevant factor in considering whether to refuse a visa, but it is not in itself conclusive.
57. With regard to the second primary consideration, the expectations of the Australian community, in the Tribunal’s view, the community would take a compassionate view of Mr Damasco’s situation noting his full and frank admission of his past misconduct, but also taking into account his good conduct, the fact that he departed voluntarily, his genuine relationship with Ms Cebola and her wish that she be allowed to live in Australia, maintaining the close contact she has with her family, and be allowed to practice as a doctor, her long desired ambition.
58. The third primary consideration, the Best Interests of the Children, is not relevant to this matter.
59. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent, good conduct; and whether the application is for a temporary visa or permanent visa.
60. The Tribunal has no doubt that the marriage between Mr Damasco and Ms Cebola is a genuine one and that they have a deep and loving relationship. Ms Cebola was aware that Mr Damasco was in Australia unlawfully from early in their relationship although the evidence suggests she had no real understanding of the seriousness of his position until they were committed to one another. The Tribunal accepts that it was always their intention that Mr Damasco would return to Brazil in order to regularise his status by applying for a spouse visa from there. They postponed this to enable Ms Cebola to complete her degree.
61. Mr Damasco’s family live in Florianopolis in Brazil. Mrs Cebola was impressed by the fact that his parents came to Australia to meet their son’s fiancé and her family. She liked them and found them to be caring people. The references supplied for Mr Damasco from Brazil suggest his family is highly regarded and he is well thought of.
62. Ms Cebola’s family live in Sydney. They are undoubtedly a close knit and loving family who have accepted Mr Damasco into their family. Their trust in him is evidenced by Mrs Cebola having put up a $20,000 bond to secure his release from detention and the issue of a bridging visa to enable Ms Cebola’s marriage to Mr Damasco and his lawful departure from Australia. Ms Cebola has provided many letters of support from fellow doctors in Australia who attest to her good character and bright future as a doctor.
63. Ms Cebola and Mr Damasco are presently suffering hardship by reason of their separation since Ms Cebola returned to Australia in mid 2003. Ms Cebola said she is depressed and tearful. She could live with her husband in Brazil but this would obviously be a devastating blow for her family and would significantly undermine her future career.
64. The Tribunal has also been impressed by the evidence of Mr Damasco’s good conduct: of his rescue of a drowning man at Garie Beach, of his apprehending a thief, his voluntary work on Groote Eylandt and the expressions of confidence in him by family members and others. He has been offered employment in Australia until such time as he undertakes his chosen career as a chef. The Tribunal accepts his acknowledgement that he made serious mistakes, which he very much regrets and for which he asks forgiveness. The Tribunal concludes that he is no threat to the Australian community, that the community would treat his situation compassionately and not deny him a visa, and that the other considerations overwhelmingly support such an outcome. The Tribunal therefore sets aside the decision under review and remits the matter to the Respondent with a direction that the discretion to not refuse the grant of a visa under s 501(1) should be exercised in favour of Mr Damasco.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 7 June 2004
Date of Decision 30 June 2004
Solicitor for the Applicant Mr R Kessels, Kessels Goddard & Ajuria
Solicitor for the Respondent Mr I Muthalib, Blake Dawson Waldron
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