Chavez and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 925

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 925

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/212

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CESAR CHAVEZ

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date19 September 2003

PlaceSydney

Decision The decision under review is set aside and the matter remitted to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.

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

R N J Purvis
  Deputy President

CATCHWORDS

IMMIGRATION – Columbian national married to Australian resident - application for section 309 spouse visa - character test – whether statements on Visa Applicant’s entry card intentionally misleading – alleged false and misleading statements – no indication of intention to seek permanent residence – inconsistencies made in Protection Visa application – interpreter involved in filling in application form – belief as to valid claim – relevant children – husband having obligations in Australia – hardship on husband – decision set aside

LEGISLATION

Migration Act 1958 sections 234, 501

Ministerial Direction No. 21

CASELAW

Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422

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

Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244;

Re Lachmaiya and Department of Immigration and Ethnic Affairs. [AAT 9295, 8 February 1994) 

REASONS FOR DECISION

19 September 2003             The Hon R N J Purvis Q.C., Deputy President   

THE APPLICATION

1.      By his application dated 7 February 2003 Mr Cesar Chavez ("the Applicant") seeks review of a decision made by the Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent') on 21 January 2003.  The decision was one whereby Mrs Blanca Nubia Jaramillo de Chavez ("the Visa Applicant") was refused the grant of a subclass section 309 visa enabling her to migrate to Australia as a partner.

2.      The decision record for refusal of 21 January 2003 (T2) recited inter alia:

"…

·     The applicant was granted a short stay visitor's visa and forty-four days after arriving in Australia she applied for a protection visa seeking a permanent stay in Australia. The applicant mislead the Department in her application for a visitor visa in that her action of applying for a permanent stay after arrival meant that she did not intend a genuine visit;

·      Her conduct in relation to the Department indicated that she was prepared to mislead the [Respondent], the Australian Protection Visa system and the Australian community's generosity for genuine refugees.

…

The applicant provided false and misleading information in relation to her application for a visitor visa for Australia. It is this matter that draws the applicant's character into question.

…

The applicant provided false and misleading information in relation to her true intentions of travel to Australia. …

This is further reinforced where the applicant has declared her marital status as married in her passenger card on arrival yet she was separated from husband. She declared in her visitor visa application that her marital status was married. The passenger card also has a declaration, which must be signed, that states married. A criterion for the visitor visa is that the decision maker must be satisfied that an applicant intends a genuine visit. Visitor policy rests on a careful and balanced assessment of risk.

…

The applicant departed Australia after a period of three and a half years on what was supposed to be a 3-month visit.

Whilst the spouse application is obviously a fresh application to be assessed separately on its merits, I consider the current application to be the next "link in the chain" of the applicant's overall plan to obtain a visa to remain in Australia permanently. There is nothing presented to me that suggests otherwise.

…

From the interview it became very clear that the applicant was being selective over where she would go and what she would do. It was also very clear that the applicant had absolutely no intention of going to Australia temporarily.

…

I have my reservations as to the genuineness and continuing nature of the relationship [that is, the relationship between the Applicant and the visa Applicant]. I do not consider that there are compelling and compassionate reasons for me to grant the visa in order for the applicant to migrate to Australia solely on the basis of her relationship with an Australian citizen.

The sponsor is a native Spanish speaker, an Australian citizen born in Peru and possibly has other family living in Peru and other parts of the America's. The Sponsor and applicant could live in Colombia or any one of several Latin American countries of their choosing. I accept this as a genuine option, although, the sponsor may not want to.

It must be noted, however, that there are claims that the Sponsor should not be held responsible for any indiscretions of [the Visa Applicant]. I consider the sponsor was aware that there was a high likelihood that [the Visa Applicant] application for a migration visa to Australia would be refused considering her past conduct. Therefore the sponsor must accept a degree of responsibility for the current situation.

…

… In my view, [the Visa Applicant] poses a minor threat in sending the wrong signals on acceptable behaviour to the Australian community or members of the community. As noted above, I consider that the Australian community would expect that she not be granted a visa. While the best interests of [the Applicant's] children are obviously of great importance, given the circumstances and, in particular, that what is at stake here is a permanent visa, I conclude that the protection and expectations of the Australian community should, in this instance, be given greater weight. …"

3.      In the present proceedings the Respondent contends:

·     the Visa Applicant is a person who does not pass the character test because she is not a person of good character having regard to her past and present general conduct;

· the decision of the Respondent to refuse the grant of the visa to the Visa Applicant should be affirmed under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

THE HEARING

4.      At the hearing of this application the Applicant was represented by Dr Charles Sinclair, Manager Migration Division of Messrs Tzovaras Legal and the Respondent by Mr Murray Allatt, Senior Lawyer Australian Government Solicitor.

5. The documents lodged on behalf of the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T10 and S1 to S10.  Written material tendered on behalf of the parties was also admitted into evidence, namely:

Exhibit No	Description	Date
A	Statutory declaration Mr Cesar Chavez	28 August 2003
1	Bundle of documents pertaining to the application of Ana Beiba Jaramillo for a protection visa

6.      The Applicant and the Visa Applicant, the latter by telephone connection with Colombia, each gave oral evidence on which they were cross-examined.

LEGISLATIVE PROVISIONS AND MINISTERIAL DIRECTION

7. Section 234(1) of the Migration Act 1958 (“the Act”) provides:

"234 False Papers etc.

(1)     A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:

(a)present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;

(b)make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or

(c)deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.

…

Penalty:     Imprisonment for 10 years or 1,000 penalty units, or both."

8. The Act was amended effective from 22 July 1999, the prescribed penalty for a breach of section 234 of the Act being increased. Prior to that date the maximum term of imprisonment on being found guilty of such an offence was two years. The Tribunal notes that the amendment underscores the perceived seriousness of the offence.

9. By section 501(1) of the Act the Minister may refuse to grant a visa to a person if that person does not satisfy the Minister that he or she passes the character test.

"501 Refusal or cancellation of visa on character grounds

…

(6)       For the purposes of this section, a person does not pass the character test if:

…

(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

…"

10. The words "good character" used in section 501 of the Act refer to the "enduring moral qualities of a person". Such moral qualities necessitate an objective assessment being made and are to be established as a matter of fact (Irvine v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 64 FCR 422 at 431-432). In Goldie v Minister for Immigration & Multicultural Affairs  (1999) 56 ALD 321 at 324 it was 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."

11.     As more particularly relevant to the present application the Tribunal is mindful of statements by it in reasons for decision in other applications see Tremlett and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1244; Re Lachmaiya and Department of Immigration and Ethnic Affairs. [AAT 9295, 8 February 1994)

12. A determination as to whether a person is or is not of good character is assisted by consideration of the various matters detailed in the Ministerial Direction issued pursuant to section 499(1)(a) of the Act. The Direction provides guidance to the Tribunal in making a decision as to whether there should be the grant of a visa under the Act. It is to be given due consideration.

13.     Direction 21 as here relevant provides:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ... 

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).

…

Paragraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

…

§  Subparagraph 501 (6)(c)(ii) - past and present general conduct

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:

…

(b) 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 or misleading statement;

…

PART 2 - EXERCISING THE DISCRETION

2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, 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.

PRIMARY CONSIDERATIONS

2.3 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.

Protection of the Australian Community

….

2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a) the seriousness and nature of the conduct;

(b) the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:

…

(c) … providing certain false or misleading information about a marital, de-facto or interdependency relationship, … or presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia;

…

b. likelihood that the conduct may be repeated (including any risk of recidivism)

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.

…

c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

…

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.

…

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that 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 may include:

…

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …

·in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c)  the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens); …"

CHRONOLOGY OF RELEVANT EVENTS

1943, 14 September           Applicant born in Peru

1957, 15 August                 Visa Applicant born in Colombia

1976, 12 June  Visa Applicant's first marriage

1978, 25 August                 Applicant granted Australian citizenship

1987, 17 January                Applicant's first marriage

1989, 23 July  Applicant's marriage dissolved

1991, 5 April  Applicant's second marriage

1998, 4 March  Visa Applicant arrives in Australia with sister on tourist visa

1998, 25 February              Applicant's second marriage dissolved

1998, 17 April  Visa Applicant lodges application for protection visa

1998, 16 May  Protection visa application refused

1998, 16 June  Visa Applicant lodges application for review with Refugee Review Tribunal

1999, 21 July  Visa Applicant's first marriage dissolved by decree in Colombia

1999, 12 September          Applicant and Visa Applicant marry

2000, 31 October                Visa Applicant applies for bridging visa to allow departure from Australia to visit son and mother and return

2000, 26 November            Visa Applicant departs Australia returning on 14 December 2000

2001, October  Applicant and Visa Applicant apply for housing loan

2001, 5 November              Visa Applicant withdraws application to Refugee Review Tribunal

2001, 8 December              Visa Applicant departs Australia

2001, 21 December            Visa Applicant lodges spouse visa application

2002, 23 July  Visa Applicant interviewed in Bogota, Colombia

2003, 21 January               Respondent refuses spouse visa on character grounds

ADDITIONAL FACTUAL CONSIDERATIONS

14.     The Visa Applicant was born in Colombia on 15 August 1957. She first married on 12 June 1976 and had one child of that marriage.  She was by occupation a clothing manufacturer and teacher and in the 1990s had involved herself in activities which entailed assisting less privileged members of her society. She gave advice to women who had been abused personally and financially.  She attracted the unfavourable attention of the authorities.  She says that threats were made to herself and against her son, who she sent to New York to live with a sister. She was then separated from her husband.

15.     In early 1998 she made application for a visa to enter Australia.  She says she did this through a local travel agent who told her that once in Australia she could then apply for permanent residence.  She says she believed what she was told and acted on the advice given to her.  A sister, Ana de Sierra, also went to the agent and is said to have been given the same information.  The Visa Applicant and her sister travelled together to Australia.

16.     It was about four weeks after her arrival that she and her sister prepared applications for protection visas.  They had the assistance of an interpreter in filling in, in English, the required forms.  Neither of the ladies was fluent, or had the ability to converse, in the English language. The applications for protection visas were lodged on 17 April 1998.  In her application and in answer to the question asked in it as to "why did you leave that country?", the following appears:

"In October 1994, I was approached by some of my classmates at the Sena and asked if I would be interested in giving free classes to residents of poor suburbs and rural districts. I said I would be glad to and started giving classes in February, 1995, on dress-making, floristry and bread and cakemaking. I was told by the President of the Community Association in several places that my collaboration was very much appreciated and a great help to their residents. I became very popular with the people, who also thanked me and said how much my work was appreciated. I had joined the Union Patriotica (UP) in 1988 and was also very popular there, working hard during election campaigns, and even entertaining Senators and other high party officials at my house, so I was very surprised when one of the Liberal Party Leaders, in Villa Santana, came into my classroom after the class had finished and we had a conversation which went something like: "Good afternoon, Mrs Blanca Nubia, how are things?" I replied "Everything’s fine, and I like this work I am doing, especially with single mothers and mistreated wives". He replied, "But why do you do it, nobody appreciates it." I said, "But they do appreciate it, and everybody thanks me". He said "You should leave and not come back, because nobody appreciates your efforts". I said, "I like it and will keep doing it". Then, he left. This happened at the beginning of the classes for 1997, in February.*

At the beginning of March, 1997, I received a threatening note under the door of my workshop and warehouse, which was next door to where I lived. It said, "Blanca Nubia, do not go back to the suburbs or rural districts, or you will suffer the consequences. Read this, and burn it immediately". It was not signed, just said "attentively" and this was followed by a drawing of a skeleton. This was the first of a constant barrage of notes and telephone calls, all threatening my life and my son's life (he was 18 at the time) if I did not stop giving classes. I can only assume, and still do to this day, that these threats came from the Liberal Party, which was in government at the time, and which did not want me to help people it suspected of having links with the subversive organisations operating in Colombia. I couldn't mention any thing about this to anyone, or lodge a complaint with the authorities, because the threats specifically stated that I should keep my mouth shut or suffer the consequences. Naturally, being very worried, particularly about my son, because they were targeting him a lot, damaging his car on several occasions, and on one occasion, two men on a motorcycle cut him off, forcing him stop. One of them came to window of his car and said, "Tell your mother what happened, and that this is a warning", and they drove away at high speed. The final straw was that I received a note, which said "This is the last warning" and attached to it was a 20cm plastic skeleton. I left Pereira and went to Bogota.

*I refused to be intimidated, and carried on giving classes right up until I left Pereira for Bogota in October, 1997.

In Bogota, I thought they would not bother me, but just in case, I arranged my passport and a visa for Australia, because I knew that they were serious about killing me. It took me from October, 1997 to March, 1998 to get together enough money for my trip to Australia, and when I finally had it, I left Colombia, knowing that I could never return, because I had been targeted for death."

17.     In her oral evidence before the Tribunal, the Visa Applicant repeated a lot of what she had earlier stated in her protection visa application. She said that she decided to leave Pereira in Colombia because she had been threatened with death on account of her activities, more particularly with the women, that she sold her house and sent her son to live with her sister in New York.  Her decision to travel to Australia was governed partly by an interest in visiting the country and also by what had been said to her by a travel agent.  When she applied for the tourist visa it was her intention to visit Australia but having been already threatened, according to her, she "did not mind what country would accept her". She said she could not remain in Colombia.  She did have an intention at that time to possibly live in Spain, where there would be no trouble in obtaining a visa.  The change in her intention occurred significantly as a result of her meeting the Applicant.  As earlier mentioned, her son had been threatened and his move to New York entailed his leaving university in Colombia when he was only 18 years of age.  As mentioned in the protection visa application, the son had been told that he should put his mother on notice of having been warned.  He himself had been threatened with a knife, stabbed and required hospital attention.  It was put to the Visa Applicant, at the present hearing, and by the Respondent's representative, that she had "made up the story" as it appeared in the Protection Visa application.  This the Visa Applicant denied.  She said that after what she had been through all she could do was to tell the interpreter in summary form what had happened.  She believed that he accurately "translated what she told him, she did not know any English and she trusted him".

18.     A local parish priest and a business adviser in Pereira, Colombia, partly corroborate the narrative given by the Visa Applicant.  Her application for a protection visa was refused on the 16 May 1998.

19.     Five days after her arrival in Australia, the Visa Applicant met the Applicant at the Spanish Club in Sydney.  A friendship developed.  In mid May 1998 they began to live together and were married on 12 September 1999.

20.     An issue arose during the currency of the hearing, before the Tribunal, as to the date on which the Visa Applicant obtained dissolution of her first marriage. She maintained in her evidence that this marriage was dissolved by degree of a Colombian Court on 21 July 1999.  In her protection visa application it was stated that she was divorced on 15 April 1994.  The evidence of the dissolution having occurred in 1999 was consequent upon an "Official Memorandum No 665" under date 21 July 1999 reciting:

"THE FIRST NOTRARY OF THE CIRCUIT

Pereira

Enclosed you will find true copies of the judgement whereby the DIVORCE of Mr LUIS AICARDO CARDONA JARAMILLO and Ms BLANCA NUBIA JARAMILLO DE CARDONA was decreed, for the purposes of recording of the judgement in the civil registration of the marriage of the above mentioned parties registered in folio Nº 68, volume 31."

21.     As earlier mentioned in her protection visa application of 17 April 1998, it was stated that the Visa Applicant was divorced on 15 April 1994 and that this "occurred four years ago".  The protection visa application is in English, was written by an interpreter and according to the Visa Applicant was not read over to her in Spanish. In her oral evidence, she said that she believed that the interpreter merely translated what she said.  He did not give her advice.  It was an acquaintance who had suggested that she and her sister make protection visa applications.  There was not any evidence before the Tribunal as to the divorce and its date, other than the above and the Visa Applicant stating that her divorce occurred after she left Colombia and inferentially after the time in 1998 when she records in her visa application and entry card that she was “married”..  The Respondent contents that the Visa Applicant should in her visa application and entry card have declared that she was separated and not “married”.

22.     The Tribunal accepts that the divorce occurred in 1999 and that the entry in the protection visa application was in error.  It does not consider that the declaration by the Visa Applicant that she was “married” in the visa application and the entry card were made with the intent of misleading the Respondent.  The Tribunal accepts that the Visa Applicant having her status as “married” noted in her passport merely made entries consistent with that record. 

23.     The Visa Applicant applied for review of the protection visa refusal to the Refugee Review Tribunal.  In November 2001, the Applicant and the Visa Applicant had sought to obtain finance in order to buy a home.  The Applicant says that, on account of the Visa Applicant's claimed refugee status at the time, a loan was declined.  The parties obtained legal advice and were told "the better way to apply would be by way of a spouse visa" and accordingly the Refugee Review Tribunal application was withdrawn.  The Tribunal accepts this evidence as justification for the withdrawal of the review application.

24.     During the currency of her stay in Australia and in October 2000, the Visa Applicant had obtained a bridging visa enabling her to travel to Colombia and then return to Australia.  She visited her son in New York and her mother in Colombia. The Respondent says that her visit then to Colombia and the fact of her being presently in that country negates her contentions of fear and of apprehension, as stated in her protection visa application.  But some years have passed since she first left Colombia, added to which she had clearly desisted in her earlier activities and was married to an Australian citizen.  The Tribunal does not see her conduct in this regard as being adverse to her character or standing.

25.     In the interview held on 23 July 2002 at the Australian Consulate in Bogota, the Visa Applicant was asked questions to which she provided answers.  The record of the interview shows that the following occurred:

·     “When you applied for your tourist visa, you applied to go to Australia for a period of three months? (Yes)

·     You never intended to go for three months? (No, I intended to get to Australia and lodge an application in Australia)

·     What made you think that you do [sic] this? (I was told that I could apply for a visa and when I got to Australia I could apply for another visa to stay permanently. It was a Travel Agency)

·     What Travel Agency? (I can not remember the name only the address)

·     You never indicated in your application for a tourist visa that you had plans to apply for another visa? (No)

·     You did not indicate in your application that you were planning to stay more than three months? (No)"

26.     The answers provided by the Visa Applicant during her interview are consistent with the evidence given by her before the Tribunal.  It is true that she did not indicate in her application that she planned to apply for residence or that she intended to stay for more than three months.  As to the former, there was no requirement for her to do so.  As to the latter, the answer is inconsistent with the "20 days" inserted on her entry card.  The Tribunal did not have before it evidence as to the author of the material written on the entry card, but the Visa Applicant was not at that time able to read or write in the English language or converse in that language.  Otherwise, the Tribunal does not see anything contrary to the good character of the Visa Applicant in the answers given by her at the interview.

children

27.     The Visa Applicant has her son presently living in the United States. He is beyond the age of 18 years.

28.     The Applicant has been twice previously married.  There are no children of such marriages and they were dissolved.  However, from his other associations the Applicant has four children, Luz Chavez born 9 September 1988, Victoria Chavez born 30 June 1995, Cesar Chavez born 18 June 1977 and Norma Chavez born 16 April 1973.  All of the children are living in Australia, the two youngest with their mother, the Applicant having contact with them and providing child support.  During the period the Visa Applicant was living with the Applicant in Australia, the children, and more particularly the younger children, frequently visited their father and came to know the Visa Applicant.  A bond developed between them.

29.     The Applicant has frequent contact with his children and the absence of their father from Australia would cause distress to them.  Not only would this be so, but in the event of the Applicant terminating his business activities in Australia and not being able to earn a living in Colombia or elsewhere, the younger children would be deprived of the child support he is now providing.

relationship visa applicant and the applicant

30.     Whilst the delegate of the Respondent raised doubt as to the genuineness of the relationship between the parties, the Applicant by his demeanour left the Tribunal in no doubt as to his affection for and reliance upon the Visa Applicant.  Whilst their relationship was indeed quickly formed, and the Applicant has a number of previous marriages and lady partners, the latter the mothers of his children, the Applicant and Visa Applicant resided together in Australia for nearly four years associating at the time with members of the Spanish speaking community.  The Visa Applicant became well known to the Applicant's children.  She also became close to the Applicant's mother and a frequent visitor to her home.

31.     It is acknowledged by the parties that from early in the relationship the Applicant was aware of the migration status of the Visa Applicant and of her having made a protection visa application.  He indeed acted as her interpreter when, in June 1998, he wrote out her Refugee Review Tribunal appeal application.  He went with her to a community centre at Botany, where she was advised that "she had a strong case" in her refugee application.

32.     The Visa Applicant and the Applicant were regular attendees at their local church.  Friends and parishioners speak of the strength of the relationship.  The Applicant travelled to Colombia in December 2002 and stayed until January 2003, spending four weeks there with his wife.  He says that whilst he was in that country he became very concerned about the circumstances in which the Visa Applicant was living and particularly as to her security.  He arranged for her to move into a secure apartment, guarded by security guards, as he felt this was the only way her safety could be assured.  The accommodation is costing him $2000 per month.  He says that whilst in Colombia he sought to find the travel agent who had advised the Visa Applicant to come to Australia and apply here for residency.  Unfortunately, the agent was no longer in business and the premises from which he had been operating had been demolished.

33.     In the event of the subject application being declined and the decision under review affirmed, the Applicant would find himself in an invidious situation.  His mother is ailing and has Parkinson's disease.  He cares for her.  He has two infant children for whom he is providing child support and with whom he has regular contact.  He has a father, 88 years of age, living alone separated from his mother whom he frequently visits.  He has an established cleaning business from which he derives his income enabling him to provide support for his children and the Visa Applicant.  He is not in a position whereby he could, in any practical sense, leave Australia.  If the Visa Applicant is not able to enter Australia, he will experience immeasurable hardship.

other considerations

34.     As above mentioned, the Applicant's mother has Parkinson's disease and requires a wheelchair for mobility.  The Applicant takes her to her medical adviser, shopping and to visit relatives and church.  When the Visa Applicant was living with the Applicant, she assisted her husband in caring for his mother.  The Applicant says that he is finding it more and more difficult to look after his mother and whilst some assistance is provided by Carers, this is somewhat limited.  If the Visa Applicant should be present in Australia, that need for further assistance and institutionalisation might not be necessary.

35.     As already mentioned, the Applicant would not be able to relocate to Colombia.  He says that on account of the high unemployment in that country he would not be able to find work.  His mother's illness and his obligations to the two young children are, as earlier mentioned, relevant in this regard.

SUBMISSIONS AND DECISION

as to character

36.     The Respondent contends that the Visa Applicant made false or misleading statements in connection with her visitor visa and protection visa applications.  In relation to the application for a visitor visa, it is said that whilst she admitted that her application was made for the purpose of entering Australia and that when there she intended to lodge another application, this time for residence, that intention was not mentioned on the application.  She had indeed sold most of her business interests in Colombia prior to leaving that country with the aim that she would not return.  The Respondent also contends that by stating that she was married on the application form, when in fact she was separated from her husband, she was intending to mislead.

37.     It is true that a purpose of requiring accurate information is to enable an appropriate assessment by the Respondent’s officers to be made on the visa application and to ensure as best as possible that an applicant will comply with the terms of a visa.  It is said that her failure to disclose her true martial status combined with the admission that she had an intention of applying for residence when in Australia were omissions and acts done in order to deceive the Respondent.

38.     It is also maintained that in relation to the protection visa application the Visa Applicant sought to "abuse the refugee system".  It is contended that the situation narrated in the application was false.

39.     As earlier indicated in these reasons, the Tribunal does not consider that the omission by the Visa Applicant to mention in the visa application form that she intended to apply for residence in the circumstances of this matter constitutes an intention to mislead.  Likewise, the Tribunal accepts the evidence of the Visa Applicant in that by stating she was “married” in her application form she was doing no more than being consistent with the entry in her passport.  The absence of any provision for stating that she was separated whilst “married” is also noted.  It is true that in the entry form there is provision for this notation, but for consistency it was appropriate for the “married” item to be affirmed.

40.     The Tribunal does not accept that the Visa Applicant in the protection visa application set forth as facts matters which were false.  It is true, in relation to, for example, the reference to entertaining senators, that the Visa Applicant in her evidence before the Tribunal denied that this ever took place.  She did say that she attended forms of entertainment, but away from her home.  Being mindful of the fact that she and her sister used an interpreter for the purpose of completing the protection visa application forms, and having in mind also the error in relation to the date of her divorce, the Tribunal is satisfied that the Visa Applicant did not by way of her protection visa application seek to mislead or seek to utilise a procedure without a valid reason.

41.     The Respondent contends that the Visa Applicant does not pass the character test in that she sought to come to Australia "by what means she could and remain in Australia".  This situation is evidenced, it is said, by the indication of “married”, her omission to say that she intended to make application for residence and the notation on the entry card.  The Tribunal has already indicated its findings in this regard.  The making of an application for a protection visa was, in the circumstances, a procedure open to the Visa Applicant.  There was not anything at that time improper in her application.  The Tribunal is satisfied that she did experience in Colombia events the like of those set forth in her application.  The Tribunal is not satisfied, as alleged on behalf of the Respondent, that the Visa Applicant "provided false information given in order to advance her application".  Nor does the Tribunal find that the Visa Applicant in her evidence "prevaricated, obfuscated and did not answer questions on the first or second occasion".  It does not find "her story a little bit incredible" and does not reject the contention that the interpreter made errors in his writing and the material set forth in the visa application form.  The suggestion made on behalf of the Respondent that the Visa Applicant was "making it up as she goes along" is not accepted by the Tribunal.  The submission that her "story was made up, events were made up without merit" does not attract the support of the Tribunal.

42.     The Tribunal is satisfied that the Visa Applicant did not have any immigration advice or relevant assistance at the time she lodged her protection visa application. She based her claims on the experience obtained by her in Colombia.  She believed that she had a valid claim.

43.     At all relevant times there were no legal restrictions on the holder of a tourist visa making a protection visa application.  There was no restriction on the lodging of an application for residence even if an applicant had maintained a contrary intention at the time of obtaining a visitor visa.  It is only in the event of the obtaining of a visa and the making of a protection visa application being a stratagem based on falsities that the statutory sanctions are attracted.

44.     The Tribunal does not find the Visa Applicant to be not of good character.  The matters upon which the Respondent relied have not been substantiated and the Tribunal does not find the matters pertaining to her visa application, entry card and protection visa application to be adverse to her.

as to the discretion

45.     Even be it that the Tribunal is satisfied that the Visa Applicant satisfies the character test, it is still appropriate to make observations in relation to the discretionary considerations, they having been argued extensively before it.

46.     It was maintained on behalf of the Respondent that the nature and conduct of the Visa Applicant was serious and should enliven the matters referred to in the Ministerial Direction.  It is true that if the conduct of the Visa Applicant had been as maintained on behalf of the Respondent that such conduct would have attracted unfavourable attention.  It is true that truth when dealing with officials of the Respondent in migration matters is necessary and essential.  It is true, as the Tribunal has stated in a number of its decisions, that an applicant for a visa is obligated to declare matters relevant to visas being granted in a truthful manner.  If it should be shown that the answers were wrong, but that they were nevertheless not so given with the intention to deceive and/or with knowledge of their inaccuracy then they may, depending upon the circumstances, not attract the consequences which would otherwise be appropriate.  The conduct of the Visa Applicant was not such as to attract the sanction detailed in the direction.  The Tribunal is satisfied that a situation did not arise were the Visa Applicant was using a scheme or system which was intended to defeat the legitimate purpose of the Migration Legislation.  It was said on behalf of the Respondent that the application made to the Refugee Review Tribunal was "bogus".  The Tribunal does not accept this to have been so.  It was said that there has been a "prevalence of such applications and hence the need to deter them".  If an application is validly made and the representations contained in it are believed to be accurate and such as are appropriate to support such application then there is not any legal reason why such application should not be made.  The Australian community would not expect otherwise.

47.     Mention has already been made of the infant children of the Applicant and the extent to which their interests would be adversely affected in the event of the Visa Applicant not being allowed to enter Australia, more particularly if this should result in the Applicant relocating.  They would then suffer measurably.  The children would benefit by the Visa Applicant’s presence. 

48.     There are other matters that warrant consideration.  Hardship would be experienced by the Applicant in the event of his wife not being allowed to join him in Australia.  It is true that at all relevant times he was aware of the migration status of his wife.  However, the Tribunal does not find any fault in the conduct pursued by the Applicant and Visa Applicant with reference to the various applications.

49.     The Tribunal is satisfied on the basis of the evidence before it that, even if the Visa Applicant had been found to be not of good character, and it does not so find, the discretion would have been exercised in favour of the Visa Applicant.  There is a clear hardship that would be experienced by the Applicant.  The conduct of the Visa Applicant was not significantly serious, does not impose a risk to the Australian community and deprivation of a visa would not discourage or prevent conduct of a nature adverse to the interests of the community.  There has not been shown a need to protect the Australian community in a relevant sense.  The Tribunal being satisfied as to the truthfulness of the Visa Applicant, there would not be an expectation on the part of the community that a visa would be withheld.

50.     For the above reasons, the Tribunal is satisfied, and so finds, that the Visa Applicant satisfies the character test and, even if this had not been so, that its discretion would have been exercised in her favour.

51.     Accordingly, the decision under review is set aside and the matter remitted to the Respondent for further consideration with a direction that the application is not to be refused on the ground that the Visa Applicant does not satisfy the character test.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed:         C. Gregson
  Associate

Date/s of Hearing  28 and 29 August 2003
Date of Decision  19 September 2003
Representative for the Applicant    Dr C Sinclair, Tzovaras Legal          
Solicitor for the Respondent          Mr M. Allatt