Cenaj and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1317
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1317
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/132
GENERAL ADMINISTRATIVE DIVISION ) Re TARA CENAJ Applicant
And
MINISTER for IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date22 December 2005
PlaceCanberra
Decision The decision under review is set aside. The Tribunal remits the matter to the Respondent with a direction that Valentin Cenaj passes the requirements of the character test and his application for a Subclass 309 Spouse (Provisional) visa should not be refused pursuant to subsection 501(6) of the Migration Act 1958.
..............................................
Mr S. Webb, Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)A2005/132
GENERAL ADMINISTRATIVE DIVISION ) Re TARA CENAJ Applicant
And
MINISTER for IMMIGRATION AND MULTICUTURAL AND INDIGENOUS AFFAIRS
Respondent
DIRECTION [2006] AATA 1317
Tribunal Mr S Webb, Member Date30 January 2006
PlaceCanberra
Direction The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:
1. at page one of the decision delete the phrase: “subsection 501(6)” and insert in lieu: “section 501”.
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MemberCATCHWORDS
MIGRATION – Subclass 309 Spouse (Provisional) Visa - refusal - character test - past and present general conduct - use of false name when seeking protection in Belgium - issue of criminal association for purposes of travelling to Australia - meaning of "association" - use of false or bogus documents to enter Australia - evidence of countervailing factors - recent good conduct and rehabilitation – decision set aside
Migration Act 1958 ss 233, 234, 499, 501
Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308
Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038
Re Zhu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1103
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142
Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148)
Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192
Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648
REASONS FOR DECISION
22 December 2005 Mr S. Webb, Member 1. By this application Tara Cenaj (nee Colledge) is seeking review of the decision of a delegate of the Respondent Minister to refuse to grant her husband, Valentin Cenaj (“the visa applicant”), a Subclass 309 Spouse (Provisional) visa. The decision by the Minister’s delegate was made on the basis that the visa applicant did not pass the “character test” as a result of his association with criminal elements and deficiencies in his past general conduct, and he had failed to persuade the Minister to exercise her residual discretion pursuant to s 501 of the Migration Act 1958 (“the Act”).
issues for determination
2. There are two issues arising for determination by the Tribunal:
(a)Does the visa applicant pass the character test set out at subs 501(6) of the Act? And if not
(b)Are there sufficient grounds to justify exercising the residual discretion that is conferred on the decision maker under subs 501(1) in the visa applicant’s favour?
legislation, ministerial direction and legal principles
3. The applicable statutory provisions are:
“Section 501
(1) 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’.
…
Character test
(6) For the purposes of this section, a person does not pass the ‘character test’ if:
…
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) 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; or
…
Otherwise, the person passes the ‘character test’.
…”
4. “Ministerial Direction – Visa Refusal and Cancellation under Section 501 – No.21” (“the Minister’s Direction”) given under subs 499(1) sets out directions that must be complied with pursuant to subs 499(2A).
factual background and chronology
5. The following chronology and facts are not in dispute and can be briefly noted.
6. On 24 May 1980 the visa applicant was born in Zhub-Gjakove, Kosovo. He is of Albanian ethnicity and is of the Catholic faith.
7. In or about 1997 the visa applicant moved with his parents and only sibling, Franko Cenaj (“Franko”), to Bujanovac in the Preshevo Valley, Southern Serbia.
8. In 1999 the visa applicant and Franko fled from Bujanovac at the urging of their parents in order to escape persecution at the hands of the Serbian military. They travelled by truck to Belgium without their parents but in the company of other persons fleeing from Bujanovac and surrounding regions, arriving 3 days later or thereabouts. On the evidence it is unclear precisely when the visa applicant and Franko entered Belgium.
9. On 30 September 1999 the visa applicant was issued with a certificate in the name of ‘Syla Bujar’ by the Belgian authorities. The certificate states that the visa applicant entered Belgium on 25 September 1999 and was permitted to remain in Belgium until 10 April 2000 (BT39 folios 203 -- 206). On the same day, Franko was issued with a certificate in the name of ‘Albert Shuti’, stating that he entered Belgium on 25 September 1999 and was permitted to remain in that territory until 10 April 2000 (AT32 folios 179 and 180).
10. On or about 15 November 1999 the visa applicant and Franko entered Australia at Sydney International Airport using bogus documents. They were assisted to do so by a third person, known only as ‘Arif’. On arrival they took a train to Brisbane and were accommodated by members of the Albanian community in that city.
11. On 3 December 1999 the visa applicant lodged an application for a protection visa in his real name (BT4 and BT5).
12. On 9 March 2000 the visa applicant was granted a Subclass 050 (Bridging E) visa applying ‘no work’ conditions. On 16 October 2000 the ‘no work’ visa conditions were removed.
13. On 22 November 2000 the visa applicant’s application for a protection visa was refused (BT11). The visa applicant sought review of that decision by the Refugee Review Tribunal.
14. On 5 January 2001 the visa applicant moved from Brisbane to Adelaide with Franko.
15. On 29 June 2001 the visa applicant married the applicant, an Australian citizen.
16. On 26 November 2001 the Refugee Review Tribunal decided to affirm the decision to refuse the visa applicant a protection visa on the basis that the situation in Kosovo had “radically changed [for the better]” since the visa applicant’s departure in 1999 (BT14). On 23 December 2002 the application by the visa applicant for review of the Refugee Review Tribunal’s decision was dismissed by the Federal Magistrates Court. The visa applicant appealed to the Minister.
17. On 7 February 2003 and periodically thereafter until he departed Australia the visa applicant was granted a Subclass 050 (Bridging E) visa applying ‘no work’ conditions.
18. In May 2002 Franko met Ms Claudia Priori. On or about 1 March 2003 Ms Priori moved in with Franko in the house he occupied with the applicant and the visa applicant. Franko and Ms Priori were engaged to be married on 24 November 2004.
19. On 12 February 2004 the Minister wrote to inform the visa applicant that she had decided not to exercise her power under s 417 of the Act (BT19).
20. On 23 March 2004 the visa applicant departed Australia (BT2) on an UNMIK passport (BT20) and travelled to Italy with the applicant in the company of Franko and Ms Priori. On 25 March 2004 the visa applicant lodged an application for a Subclass 309 Spouse (Provisional) visa in Rome. However, as the visa applicant was not permitted to remain in Italy that application was transferred to Athens (BT21). Soon thereafter the visa applicant and Franko travelled to Albania, where they remain.
21. On 27 October 2004 written notice of intention to consider refusal of the visa application under s 501 of the Act was sent to the visa applicant (BT34). The visa applicant responded to that letter through Clarke Radin Lawyers (BT39). In a letter dated 5 May 2005 the visa applicant was notified that a delegate of the Minister had decided to refuse the visa application (BT2). On 25 May 2005 an application was lodged for review of that decision by the Tribunal.
22. At the time of his entry to Australia in November 1999 the visa applicant did not speak English.
23. The visa applicant has no criminal record in Australia or Albania.
consideration
24. Making this decision I have carefully considered all of the material placed before me, including the oral evidence of the applicant, the visa applicant, Franko, Ms Priori and Arben Shyti, the submissions made by the parties, the relevant caselaw and legislation. When taking the evidence of the visa applicant and Franko by telephone, the Tribunal was assisted by an interpreter (who was sworn) in the Albanian language.
25. The onus is on the applicant to establish to the reasonable satisfaction standard that the visa applicant passes the character test.
26. Both parties informed me during the hearing that each would be relying on the contents of their respective statements of facts and contentions as amended and filed. I note that the Respondent’s statement does not contend that the visa applicant failed to pass the character test on the basis that he had an association with a person whom the Minister reasonably suspects was involved in criminal conduct pursuant to paragraph 501(6)(b) of the Act, relying instead on subparagraph 501(6)(c)(ii) concerning his past and present general conduct. Nevertheless, the issue of association was plainly in issue and was addressed in the Applicant’s statement of facts and contentions. Both parties addressed that issue in oral submissions. It is to that issue I now turn.
association
27. The ‘association’ in issue concerns the dealings and relationship between the visa applicant and a person known only as ‘Arif’ who, it is alleged, arranged for he and Franko to travel to Australia using false passports. The Minister’s Direction provides at paragraph 1.5 that the word ‘association’ “encompasses a very wide range of relationships including having an “alliance” or a “link” or “connection” and regard may be had to the degree and frequency, duration and nature of the association when determining whether criminal association has occurred.
28. The Applicant submitted that the visa applicant did not have an ‘association’ within the meaning of the Act as any association he may have had with ‘Arif’ was neither frequent, permanent nor of an abiding nature nor for profit, being a ‘one off’ contact for the purpose of procuring travel documents. In the Respondent’s submission the association between the visa applicant and ‘Arif’ may have been for the sole purpose of travelling illegally to Australia but it involved a degree of planning and decision making over a period of weeks in 1999 on the part of the visa applicant that places the association within the meaning ascribed by the Minister’s Direction.
29. No evidence was adduced by the Respondent in relation to the alleged activities of ‘Arif’. Nonetheless, I accept that ‘Arif’ visited the camp in which the visa applicant was resident in Belgium in 1999 soliciting for people seeking ‘safe’ refuge in another place. I accept the evidence of the visa applicant that he met ‘Arif’ in the camp in or about October 1999 in relation to ‘Arif’s’ offer of travel to “a safer place” and informed ‘Arif’ that he and Franko were interested but had no money. He asserted that he informed ‘Arif’ of their circumstances and of the existence of the land in Bujanovac that was owned by his parents, who he assumed were dead. The visa applicant’s evidence was that ‘Arif’ departed and return approximately one month later with a document concerning the transfer of the land in Bujanovac for him to sign, which he did, on the basis that ‘Arif’ would arrange for he and Franko to travel to Australia. Subsequently, ‘Arif’ arranged their destination, bogus passports, flights and all other arrangements for the visa applicant and Franko to travel to and enter Australia. On that basis I am persuaded to conclude that ‘Arif’ was a person reasonably suspected of involvement in criminal conduct.
30. The visa applicant asserted that neither he nor Franko had any knowledge of Australia and had no prior intention to travel to Australia and knew nothing of international travel or Australian laws at that time, having only very limited education and having never previously travelled outside the region in which they lived with their parents. The visa applicant stated that neither he nor Franko had any knowledge of the travel arrangements prior to their departure. ‘Arif’ made all the arrangements and accompanied them on the aeroplane. They did not know what their destination was in Australia and they did not know the ports they transited en route to Australia. They did not know and were not given information about the visas or passports that were used for entry into Australia. They did not recall the names in which those documents were issued, and did not complete Passenger Arrival forms en route to Australia – that task was completed by ‘Arif’. Prior to arrival in Sydney ‘Arif’ handed them the passports used for entry and took these back following completion of the immigration procedures, whereupon he left them in the company of another man who arranged for them to travel to Brisbane by train. They did not meet or have any further dealings with ‘Arif’. That evidence was not challenged by the Respondent and I accept it.
31. The oral evidence given by the visa applicant in relation to the circumstances of his travel to Australia in 1999 is consistent with evidence given before the Refugee Review Tribunal. The visa applicant was 19 years old in October and November 1999. He stated that he was fearful in the refugee camp in Belgium following the reported destruction of his home in Bujanovac and the disappearance, and presumed violent death, of his parents. His evidence was that it was he who dealt with ‘Arif’ and signed the document transferring his interest in his parents’ land to ‘Arif’. At the time, following the death of his parents, the visa applicant was responsible for Franko, who was 15 years old at the time. His evidence was that he relied on the advice of older people from the Bujanovac region in the camp and he was attracted by ‘Arif’s’ offer because he and Franko were fearful of being returned to Kosovo when their Belgian temporary visas expired. I accept that evidence, which was not seriously challenged by the Respondent, and so find.
32. It is plain enough that there was an arrangement between the visa applicant and ‘Arif’ to the extent that ‘Arif’ arranged documents and travel to Australia for the visa applicant and Franko, and accompanied them during that travel. The question is whether that arrangement constitutes a criminal association for the purposes of the Minister’s Direction and s 501 of the Act. For such an association to exist there must be a relationship between the visa applicant and ‘Arif’ that is within the “very wide range of relationships” contemplated by the Minister’s Direction. That relationship and those contemplated by the Minister’s Direction must be considered in relation to the test set out at subs 501(6) of the Act and the purpose of that test within the scheme of the Act.
33. The meaning of ‘association’ provided by the Minister’s Direction includes “having an “alliance”, or a “link” or “connection” with a person involved in criminal activities, whereby a “criminal association” may be established when regard is had to the degree, frequency, duration and nature of the association. When regard is had to the ordinary dictionary meanings of the words ‘alliance’, ‘link’ and ‘connection’ as set out in the Macquarie Dictionary, it can be understood that what is required by the relevant association is a relationship, whether active or passive, by the visa applicant with the person. Plainly enough, the nature of the relationship and the extent and purpose of the visa applicant’s involvement are matters to which regard may be had when determining whether a ‘criminal association’ is established.
34. Is the relationship between the visa applicant and ‘Arif’ within the meaning of ‘association’ for the purposes of the Minister’s Direction and subparagraph 501(6)(b) of the Act? I am satisfied that it is not. Plainly, there is a direct relationship between the visa applicant and ‘Arif’ that is described by the arrangement that was made and the activity that ensued. However, having regard to the degree, frequency, duration and nature of the visa applicant’s involvement with ‘Arif’ I am satisfied that he did not have an alliance, link or connection with ‘Arif’ that constitutes a ‘criminal association’ for present purposes. It is clear that the Minister’s Direction contemplates the possibility of a visa applicant having a relationship, presently or at some point in the past, with a person involved in criminal activity where the degree, frequency, duration or nature of the relationship is not sufficient to constitute an ‘association’ for the purposes of s 501(6)(b) of the Act.
35. I am reasonably satisfied that when regard is had to the degree, frequency, duration and nature of the visa applicant’s relationship with ‘Arif’, that relationship is not sufficient to establish a ‘criminal association’ for present purposes. I accept the visa applicant’s evidence that he had no knowledge of international travel or the migration laws of Australia or any other country for that matter. The visa applicant did not possess knowledge sufficient to comprehend, at that time, that ‘Arif’s’ offer of travel to a safe haven involved criminal activity and the committing of serious offences against Australian migration laws. I am satisfied that the visa applicant did not intend to commit a crime by his involvement with ‘Arif’, even though that was the result. Nor is the visa applicant’s involvement with ‘Arif’ characterised by the exercise of free will or choice in the circumstances. In effect he was a naïve and ignorant party who was taken in by ‘Arif’s’ soliciting for persons interested in travelling to a safe haven at a time of significant psychological trauma and vulnerability. The visa applicant was 19 years old at the time. He had not previously travelled outside his home region and had extremely limited education.
36. The visa applicant’s case is to be distinguished from recent cases in the Tribunal in which visa applicant’s have been found to have an ‘association’ with criminal elements involved in people smuggling with whom they have conspired, with knowledge and intent, to enter Australia illegally (see Re Qiu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1308, Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1038, and Re Zhu and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1103). In this case, I accept that the visa applicant made a judgement about the arrangement offered by ‘Arif’ without knowledge of international law or Australian immigration laws and offences therein, and in dire circumstances in which he was vulnerable, fearful and traumatised, and responsible for the welfare of his young brother following the death of their parents. In those circumstances, I am satisfied that the visa applicant was the victim of a predatory people smuggler who preyed upon his vulnerability.
37. I am satisfied that the degree of the visa applicant’s involvement in the illegal obtaining and presenting of bogus documents and false information was negligible. The evidence is that he did not have any involvement in the obtaining of bogus passports and that he did not have any involvement in the planning or arranging of travel to Australia. The evidence is that the visa applicant met with ‘Arif’ on two occasions before departing Belgium. His evidence, which I accept, was that he did not have knowledge of the offences being perpetrated as a result of his arrangement with ‘Arif’ nor the details of travel plans set in place by ‘Arif’. I accept that the visa applicant only temporarily handled the bogus documents when dealing with immigration authorities, but otherwise those documents were in the possession of ‘Arif’. I accept the evidence of the visa applicant and Franko that ‘Arif’ completed the passenger arrival cards for Australian immigration and customs purposes. The evidence before me is that ‘Arif’ obtained the bogus documents and ‘Arif’ planned and delivered the destination, itinerary, tickets and immigration arrival documentation necessary for the visa applicant and Franko to enter Australia. It was ‘Arif’ who managed the visa applicant’s travel and entry to Australia, and accompanied him for that purpose. As can be seen, the degree of the visa applicant’s involvement is minimal. I am satisfied that the nature of his involvement was that of a willing participant in an exploitative criminal activity that he did not understand of which he and Franko were the unwitting victims.
38. Nonetheless, it is plain enough that this is a borderline case. The Minister’s Direction casts a wide net in terms of the relationships that are within the meaning of ‘association’. I am mindful of the purpose of the character test in the scheme of the Act and of the need to protect the Australian community from conduct that is criminal or reprehensible, whereby it is necessary to test deficiencies in the enduring moral qualities of a visa applicant against the level of harm to the public good (Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84).
39. In the circumstances I am reasonably satisfied that the visa applicant’s relationship with ‘Arif’ is not within the wide range of relationships contemplated by the meaning of ‘association’ within the Minister’s Direction. I am satisfied that his relationship with ‘Arif’ and the single act of judgement he made to accept ‘Arif’s’ offer of escape to a safe haven does not lay his “character bare very tellingly” (Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 142). That act reveals no more than the traumatised mind of a young person attempting to flee from perceived harm and persecution in ignorance of rather than disregard for the law. For that reason I am persuaded to find that the visa applicant does not fail the character test on the basis of an association with a person involved in criminal conduct pursuant to paragraph 501(6)(b) of the Act and so find.
past and present general conduct
40. In the Respondent’s submission the visa applicant fails to pass the character test as a result of his past general conduct as follows:
(a)The visa applicant entered Australia using a false passport (an offence under s 234 of the Act);
(b)He obtained a false passport and entered Australia with the assistance of a people smuggler (s 233 of the Act sets out offences in relation to people smuggling); and
(c)He obtained permission to remain in Belgium on the basis of a false identity provided to Belgian authorities.
41. The Minister’s Direction states at paragraph 1.7 that “decision-makers must take into account all the relevant circumstances of a particular case, including rehabilitation and recent good conduct” when determining whether a non-citizen is not of good character pursuant to paragraph 501(6)(c) of the Act. The Minister’s Direction relevantly states:
“1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a) whether the non-citizen has been involved in activities indicating contempt, or disregard for the law or for human rights. This could include…
Involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or
...
1.11 General conduct also includes recent good conduct. Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed. Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character…”
42. In the Applicant’s submission the dire circumstances in which the visa applicant entered Belgium and Australia and his age, lack of education and enduring fear of persecution or forced return to Kosovo at the time demonstrate strong countervailing factors that are sufficient to offset the Respondent’s contention that his past general conduct constitutes a failure to pass the character test. For reasons that will appear, I accept that submission.
43. It is accepted that the visa applicant provided the Belgian authorities with a false identity when registering for certification in that territory in 1999. He claims that he did so following the advice of older persons from Bujanovac and the surrounding region in whose company he fled to Belgium. He was 19 years old at that time. He was fleeing a war zone with Franko (who was 15 years old at the time) having been sent away by his parents who remained in Bujanovac. In the Applicant’s submission the use of false identities by persons in such dire circumstances is widely recognised and persons seeking asylum in good faith are recognised as being in a special situation as regards the use of false documents. Reference was made to a paper by Dr Guy Goodwin-Gill entitled “Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protection” and summary conclusions of the Geneva Expert Round Table dated 8-9 November 2001.
44. I am satisfied that the dire circumstances in which the visa applicant fled from his home in Bujanovac without the benefit of parental accompaniment, are factors that led him to follow the advice he was given by those in whose company he found himself prior to registering with the Belgian authorities concerning the use of a false identity. Those are strong countervailing factors against which his provision of false identity details to Belgian authorities must be considered. If that conduct reveals anything about the character of the visa applicant, it is that he did what many persons could be expected to do in such traumatic and frightening circumstances: he deferred to his elders and, naïvely, followed their advice. Considering all of the circumstances I am persuaded to conclude that the visa applicant’s provision of false identity details to the Belgian authorities is not conduct that points to any deficiency of good character.
45. In the Respondent’s submission the fact that the visa applicant failed to inform Australian authorities of his use of a false identity in Belgium during the processing of his application for a protection visa, and related proceedings, indicates a disregard for the importance of truthfulness in his dealings with Australian officials, whereby the visa applicant placed his personal interests above those of the Australian community he seeks to join. The fact is the visa applicant informed Australian authorities on 12 November 2004, five years after arriving in Australia, that he used a false identity in Belgium (BT35). The visa applicant explained that deficiency by saying that he did not know that he was required to provide that information, as he was never asked directly about it. Consideration of the documents, especially documents in BT9 and BT10, indicates that the visa applicant informed his (then) lawyer, Mr Consentino, and Australian authorities that he provided his real name to the Belgian authorities. Plainly, that was not the case and the visa applicant attempted to conceal the falsehood that he had employed in Belgium.
46. The applicant gave evidence that after receiving notice of the intention to refuse his visa application on character grounds the visa applicant informed her that he remembered using a false identity in Belgium, but neither he nor Franko could recall the false name or details that had been used. He had been unable, therefore, to provide that information to Australian authorities. She stated that the visa applicant and Franko were afraid of giving wrong information about the false identities they had used in Belgium to the Australian authorities on the basis that it may hurt their applications for protection visas. That evidence is consistent with evidence given by Ms Priori, and I accept that it was truthfully given.
47. The need for non-citizens to demonstrate a high degree of honesty and integrity in their dealings with Australian immigration authorities has been the subject of comment in decided cases to which the parties have made reference (see Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984, Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148). However, in Goldie v Minister for Immigration and Multicultural Affairs (supra) the Full Court of the Federal Court said:
“The concept of ‘good character’ in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.”
That decision has been applied in subsequent decisions of the Tribunal (see Re Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192, for example). Nonetheless, the Tribunal has frequently emphasised the importance of honesty and truthfulness when dealing with migration authorities and officials, especially where the truth is known only to the visa applicant (see Re Grigorian and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 648 at paragraph 18, for example).
48. The applicant and the visa applicant in these proceedings concede that he entered Australia using bogus documents with the assistance of ‘Arif’. I have found that the visa applicant did not have a criminal association with ‘Arif’. Nonetheless, the fact is that he was provided with a false passport and entered Australia using that document. It can be inferred that he provided false information in forms and to Commonwealth officials on arrival in Australia. Those are serious offences under s 234 of the Act that carry penalties of up to 10 years imprisonment. The majority of the Australian community would consider such conduct to be reprehensible. It is not clear, however, that the visa applicant knew of the falsehood before embarking upon his journey to Australia. The evidence is that ‘Arif’ provided him with the passport by which he entered Australia during that flight and it was ‘Arif’ who completed the passenger arrival form for presentation on arrival, and ‘Arif’ accompanied him on arrival and took back the bogus document immediately thereafter. The visa applicant and Franko gave evidence that they cannot recall the names on the travel documents they used to enter Australia. That may be so, but it does not address the falsity of the travel documents they used. Of that, both the visa applicant and Franko must have had knowledge.
49. Thus it can be seen that the visa applicant engaged in ‘bad conduct’ (obtaining and entering Australia using bogus documents, providing false information to immigration officials on arrival in Australia and seeking to conceal his use of a false identity in Belgium). In the Respondent’s submission that ‘bad conduct’ constitutes very serious offences against the migration laws of Australia. However, in order to determine whether the visa applicant fails the character test on the basis of that past general conduct in compliance with the Minister’s Direction it is necessary to consider any countervailing factors relevant to the ‘bad conduct’ and any recent ‘good conduct’ of the visa applicant.
50. I accept that a person who claims to be in fear for their life and safety and lies in an effort to advance a claim for protection, may lie out of fear without necessarily laying bare any enduring deficiency of integrity or character. In this case, that is the most powerful and persuasive countervailing factor against which the visa applicant’s ‘bad conduct’ must be considered. At the time the visa applicant obtained assistance from ‘Arif’ to enter Australia using bogus documents in November 1999 he was 19 years old. To the best of his knowledge at that time his home had been destroyed and his parents killed. The visa applicant understood that he would not be permitted to remain in Belgium once his temporary visa expired, whereupon he feared that he would be forced to return to Kosovo. I accept that that fear was a significant and powerful vulnerability that left the visa applicant open to exploitation by ‘Arif’.
51. I do not accept the Respondent’s submission that the visa applicant, by his actions, demonstrated a disregard for law. I am satisfied that his actions were those of a person in fear for his life and safety clutching at the offer of safe haven in a country about which he had little knowledge and without knowledge of the offences that would be committed in pursuit of that end.
52. With regard to ‘good conduct’, the visa applicant applied for a protection visa in his real name on 3 December 1999, approximately two weeks after arriving in Australia (BT4 and BT5). In doing so he did not attempt to conceal the fact that he had entered Australia using bogus documents with the assistance of other parties. I am satisfied that he complied with conditions attaching to his Bridging E visa. When his application for protection was refused and all avenues of appeal had been exhausted, he followed the advice he was given by a Departmental Compliance Officer and left Australia in order to apply for a visa that would permit him to return to live and build a life in Australia with his wife, the applicant in these proceedings.
53. During the time the visa applicant spent in Australia he formed strong attachments within the Albanian community in Brisbane and Adelaide, as indicated by the statements tendered in Exhibit A1 in his favour. He also established a strong matrimonial bond with the applicant and was accepted by members of her family (Exhibit A6).
54. The visa applicant’s case is not one in which there is evidence that he has engaged in a stratagem to deliberately deceive migration officials once in Australia. He has provided a reasonable explanation for attempting to conceal his use of a false identity in Belgium. In the circumstances of this case the importance attaching to that concealment is not as great as in other cases in which attempts to conceal the truth are accompanied by a pattern of lies and deceit for personal gain. In this case there is no such pattern of dishonest conduct. The visa applicant’s failure to reveal the truth about his use of a false name can be understood in part by his fear of being sent back to Kosovo and also by the difficulty attaching to his inability to recall the false name or details that he had used. In the face of evidence that no records existed in Belgium to support the visa applicant’s account of having registered in that country as a refugee, it could be expected that he would have obtained those records if he had knowledge sufficient for that purpose. Such a course would plainly have been in his best interest. The fact is he did not.
55. The evidence before me is that the details of the identities used by the visa applicant and Franko were only revealed as a result of the significant efforts of the applicant and Ms Priori, with assistance from Belgian officials, in Antwerp to find the truth. It can be inferred from their evidence, which I accept, that neither the visa applicant nor Franko recalled the particular details that they had used, had they done so it would have obviated the need for the applicant and Ms Priori to travel to Belgium and undertake the searches they did, the result of which was the information provided to Australian authorities on 15 February 2005 (BT 39).
56. The weight of the evidence persuades me to conclude that the countervailing factors and ‘good conduct’ of the visa applicant out-weigh his ‘bad conduct’. I am satisfied that the visa applicant’s dealings with migration officials, his compliance with visa conditions, his lawful conduct in Australia and his actions to voluntarily leave Australia in order to apply for a Subclass 309 Spouse (Provisional) visa in the proper way demonstrate that his transgression of Australian migration laws was a single event that was precipitated by dire and traumatic circumstances, compounded by ignorance and exploitation at the hands of an unscrupulous people smuggler, that is unlikely to be repeated. To the extent that his previous reprehensible conduct revealed any deficiency in his enduring moral qualities or character, I am satisfied that his recent ‘good conduct’ equally reveals that his character has reformed. In those circumstances I am reasonably satisfied that the visa applicant does not present deficiencies in his character, in terms of disregard for law or lack of integrity and truthfulness, to the extent that it is for the public good to refuse his visa application on character grounds.
57. That conclusion, I am satisfied, is consistent with what the Australian community would expect in the circumstances and the balance that is required in applying the principles in the authorities to which I have been referred. I am persuaded to conclude that the visa applicant does not fail the character test on the basis of his past general conduct and so find.
58. That being so, the decision under review is set aside and the matter is remitted to the Respondent with the direction that the visa applicant does not fail to pass the character test under s 501 of the Act.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed:
AssociateDates of Hearing 12 – 13 December 2005
Date of Decision 22 December 2005
Representative for the Applicant Marion Lê
Marion Lê Consultancy
Solicitor for the Respondent Neil Arora
Clayton Utz
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