Czasak and Minister for Immigration and Multicultural and Indigen Ous Affairs
[2003] AATA 420
•7 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 420
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1468
GENERAL ADMINISTRATIVE DIVISION ) Re Krystyna Czasak Applicant
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date7 May 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Roman Polak passes the character test pursuant to s 501(b) of the Migration Act 1958.
...............................................
RP Handley
Deputy President
CATCHWORDS
IMMIGRATION – spouse visa –subclass 309 spouse (provisional) visa – character test – examination of the Visa Applicant’s immigration history – whether the Visa Applicant passes the character test – discretion that the Tribunal may apply if the Visa Applicant fails the character test – held that the Visa Applicant passes the character test – decision under review set aside.
Migration Act 1948 ss 501, 501(6)(c)(ii)
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Alwan and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 435
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Re Msumba and Department of Immigration and Multicultural Affairs (2000) AAR 192
REASONS FOR DECISION
7 May 2003 Mr RP Handley, Deputy President 1. This is an application by Krystyna Czasak (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 12 July 2002 to refuse the grant of a subclass 309 spouse (provisional) visa to the Applicant’s spouse, Roman Polak (“the Visa Applicant”).
2. At the hearing, the Applicant was represented by Ray Turner, Solicitor, of Yandell Wright Stell, Solicitors, and the Respondent was represented by Kiran Grewal, 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 the documents tendered by the parties. At the hearing, Ms Czasak gave evidence in person and Mr Polak gave evidence by conference telephone.
Background
3. The Applicant, Krystyna Czasak, was born in Warsaw, Poland, on 2 September 1949 and is aged 53. She is a Polish citizen. Ms Czasak came to Australia on 1 May 1987 and is a Civil Engineer with Blacktown City Council. On 14 March 1980, Ms Czasak married Charles Van Dalen. This relationship was dissolved by divorce on 18 August 1982. There are no children of the relationship. On 18 August 1990, Ms Czasak married Ross Petersen. This relationship was dissolved by divorce on 8 March 1997. There were no children of the relationship. Ms Czasak has one child, Michael Luczyc-Whyowski, born 9 October 1975, from an earlier relationship.
4. The Visa Applicant, Roman Polak, was born in Ziebice, Poland, on 6 February 1953 and is aged 50. He is a Polish citizen and is currently residing in Poland. On 15 May 1991, Mr Polak married Iwona Dabrowska, a German citizen. That relationship broke down and ended in divorce in 1994. Mr Polak remained in Germany after the marriage broke down.
5. On 4 March 1994, Mr Polak arrived in Australia on a visitor visa which permitted him to remain in Australia for six months (T p139). On 5 March 1994, he commenced living in a de facto relationship with Elizabeth Praglowska. On 10 November 1994, Mr Polak applied for a subclass 820 (de facto) spouse visa, which was refused on 2 May 1995 because Mr Polak no longer held a substantive visa, his visitor visa having expired. This decision was affirmed by an Migration Internal Review Officer on 20 July 1995 and by the Immigration Review Tribunal (“IRT”) on 31 May 1996. In June 1996, Mr Polak lodged an appeal with the Federal Court. On 11 July 1996, Ms Praglowska advised the Department that she and Mr Polak had separated (S3). Mr Polak subsequently withdrew his application to the Federal Court on 28 September 1996.
6. On 3 August 1996, Mr Polak married Jadwiga Budko, an Australian resident. On 9 January 1997, Ms Budko advised the Department that Mr Polak had left the relationship the day after the wedding on 4 August 1996 and had not been in contact with her since that day (S4).
7. On the 28 August 1996, Mr Polak lodged an application for a protection visa (T7) on the basis he had been called up for service in the Army Reserve and that he was fearful of being imprisoned for refusing to comply (T p202). On 14 March 1997, Mr Polak’s protection visa application was refused. This decision was affirmed by the Refugee Review Tribunal (“RRT”) on 27 November 1997.
8. In October 1997, Mr Polak and Ms Csazak met at Plumpton in Sydney. In December 1997, they commenced living together in Ms Csazak’s home at Dean Park, where she lived with her son Michael. On 21 February 2000, Mr Polak and Ms Budko were divorced. On 22 October 2000, Mr Polak and Ms Csazak were married at Ms Czasak’s home in Dean Park. On 14 January 2002, Mr Polak was located by the Department and detained at Villawood Detention Centre. He left Australia on 9 February 2002.
9. On 28 February 2002, Mr Polak lodged an application for a subclass 309 spouse (provisional) visa at the Australian Embassy in Warsaw, Poland (T7), where he was interviewed on 18 April 2002. On 15 July 2002, a delegate of the Respondent decided to refuse the grant of a visa to Mr Polak on the ground that he is not of good character because of his past general conduct in committing similar breaches of immigration law, and having declined to exercise the Respondent’s discretion under s 501(1) of the Migration Act 1958 (“the Act”). On 16 October 2002, Ms Czasak lodged an application for a review of this decision with the Tribunal.
Relevant Law and Policy
10. Under s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds are met. The relevant ground in the current matter is paragraph (c), as follows:
Having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character;…
11. Schedule 2 of the Migration Regulations describes the criteria relevant for the grant of a subclass 309 visa. Clause 309.225 requires that, at the time of the decision, the visa applicant satisfied public interest criteria set out in Schedule 4 of the Regulations, including, relevantly, clause 4001 which provides:
either
(a)the applicant satisfied the Minister that the applicant passes the character test; or
(d)the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test.
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 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 Polak is not of good character having regard to his past and present general conduct, so as to be precluded from the grant of a subclass 309 visa. If the Tribunal decides he is not of good character, it must exercise the residual discretion under s 501(1) to decide whether, nevertheless, not to refuse the grant of a visa.
Evidence
Krystyna Czasak (the Applicant)
15. Ms Czasak is a Civil Engineer who has worked for Blacktown City Council for about 15 years where she specialises in drainage design. She said she came to Australia in 1987 because Poland was not a free country. Initially, her son was unable to accompany her but he did so subsequently. In Australia she remarried, but her marriage to her second husband broke down after about four years, largely because of his depression. She continued to see him for a couple of years after their divorce. A few years later, he committed suicide.
16. Mr Czasak met Mr Polak while she was working at the Polonis Sports Club in 1987. She fell in love and wanted to be with him. She was aware that he had problems over his immigration status but she thought these could be sorted out. He had done some silly things because he did not know how else to arrange things in order to stay in Australia. Ms Czasak said she does not know what she will do if her husband is refused a visa. She may have to give up everything she has worked for all her life. Her life is in Australia – her son, her friends, her work, the house which she and her husband built and for which she is still paying the mortgage. She has lived in the west of Sydney for over 16 years. She used to be the Secretary of the Polonis Sports Club.
17. Ms Czasak said she last visited Poland in 1999. She has a sister there to whom she is close. But she has no friends there and is not in touch with recent changes. It would be very difficult for her to live there. Her only other friends outside Australia are in Holland. One of her Dutch friends recently visited Sydney.
18. Ms Czasak said she met Mr Polak shortly before the hearing of his application by the RRT. She accompanied him to the hearing. After the RRT decision, she was aware that he did not have a visa to remain in Australia but thought he could apply to regularise his status from within Australia. As it turned out, Mr Polak had to wait a specified time before he could get divorced and they could marry. His intention was to finish the new house they were building, return to Poland and apply for a visa from there. But he was detained by the Department before this had happened and returned to Poland on 9 February 2002.
Roman Polak (the Visa Applicant)
19. Mr Polak said he arrived in Australia in March 1994. He commenced a relationship with Elizabeth Praglowska in about July 1994 which lasted until about June 1996 when they separated. She left him because she did not need him any more. He said she got everything out of him that she could. By letter dated 11 July 1996 (S3), she informed the Department that she withdrew her support for his visa application.
20. Mr Polak met Jagwiga Budko while he was working in Brisbane about two months before they were married. He said she wanted to get married after only a fairly short acquaintance. It was a big mistake. She just wanted to use him. She demanded certain sexual activities that were outside his framework. He only stayed for three days. Mr Polak said it is not true that he married Ms Budko in order to get permanent residence. If he had, he would have made a spouse visa application. But he just wanted to forget her as soon as possible.
21. Mr Polak said after he left Ms Budko, he went to see a migration agent in Parramatta opposite the Department of Immigration Offices, to whom he paid a few thousand dollars. The agent advised Mr Polak to lodge a protection visa application. Mr Polak said he did not properly understand then what a protection visa is and he still does not understand. He knew nothing about such visas when he came to Australia. He could not remember who filled out the protection visa application.
22. Mr Polak said at the time he lodged his protection visa application he had read widely about being a Jehovah’s Witness and although he had not been baptised, he had “leanings” towards the religion and had become a pacifist. He completed normal military service in Poland in the 1970s at a time when he was not aware that he could protest. Later, in Australia, his sister contacted him to tell him he had been required to report for duty in the Army Reserve. It was this that he was referring to in his protection visa application. Mr Polak said he told the truth in his application. It was not long after lodging the application that he met Ms Czasak.
23. Mr Polak said that on making his visa application, he was given permission to work. He worked for the Traditional Stonemasonary Company; he had a Tax File Number and always paid tax. When his bridging visa expired in January 1998 after his RRT application was unsuccessful, Mr Polak remained in Australia illegally and continued to work. Then when he was detained by the Department, he was given two months to make arrangements to leave.
24. Mr Polak said he is living with his family in Poland. He has a brother and sister and is currently living with his sister. His family are supporting him financially and he is not working. It is very difficult to find work and he has not tried – he has been hoping to return to Australia and be reunited with his wife. If he is not granted a visa, he does not know what he will do. He and his wife love each other but he does not think they could live together in Poland. He would not expect her to return to Poland to live with him – she would be sacrificing too much. They maintain contact mainly by phone: sometimes every few days; sometimes every few weeks.
Submissions
Applicant
25. Mr Turner, for the Applicant submitted that Mr Polak passes the character test. There is no evidence that the de facto relationship on which his first application was based was not genuine. The application was rejected because it was lodged out of time – outside 28 days after the expiry of Mr Polak’s visa. Mr Polak’s evidence is that the relationship was still ongoing at the date of the IRT decision on 31 May 1996. Ms Praglowska’s letter to the Department informing it of the end of the relationship is dated 11July 1996.
26. Mr Turner said there is no evidence to corrobate Ms Budko’s claim stated in her letter of 9 January 1997, that Mr Polak only wanted to get married in order to obtain permanent residence. That Mr Polak should leave Ms Budko so soon after the wedding is not consistent with his alleged object of using the marriage to obtain permanent residence. In any event, he never applied. To do so, he would have had to leave Australia and apply externally.
27. With regard to Mr Polak’s protection visa application, Mr Turner contended that Mr Polak acted on the advice of a migration agent. He did not and does not now understand what a protection visa is. There is no evidence that Mr Polak falsified any claims in the application. The claims may have been clumsily expressed but that does not mean they are not true. He revealed his compulsory military service previously in his November 1994 application for permanent residence (T19 p122).
28. Mr Turner referred the Tribunal to the preamble to Direction No 21 which speaks of protecting the Australian community from abhorrent conduct. Mr Polak’s conduct was not of this kind. Mr Polak’s only breach of Australia’s immigration law was to remain in Australia and work without permission after his visa had expired. Mr Turner drew a parallel with the facts of Re Alwan and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 435.
29. Referring to paragraph 1.9 of Direction No 21, Mr Turner contended that Mr Polak’s misconduct falls far short of abhorrent breaches of immigration law which would warrant a finding that Mr Polack does not pass the character test. Moreover, he has not provided any bogus document or made a false or misleading statement or declaration – he states he told the truth. However, he did leave Australia after being detected by Departmental officers on 14 January 2002. Mr Turner said there is nothing to suggest that Mr Polak would not comply with the law if granted a visa – for example, he continued to pay tax throughout the time he was working.
30. With regard to the exercise of the Minister’s discretion under s 501(1) and the guidance provided by Direction No 21, Mr Turner submitted that the Australian community does not require protection against Mr Polak. His misconduct does not fall within the category of that mentioned in paragraph 2.4 against which protection is required. Similarly, the Australian community would take a humane view of Ms Czasak’s and Mr Polak’s situation, especially of the significant hardship which would be caused to Ms Czasak by the denial of a visa to her husband. Her home and most of her friends and family are in Australia. Her work, in a responsible position, is here and she has only five years to go until retirement. She is currently undergoing counselling and would be devasted if her husband is not granted a visa. Mr Turner said it is not a matter of rewarding Mr Polak but of not punishing Ms Czasak.
Respondent
31. Ms Grewal said the Respondent contends that Mr Polak does not pass the character test by reason of his past and present general conduct (s 501(6)(c)(ii)), because of his breaches of Australia’s immigration law. In particular, she referred to Mr Polak’s entering into relationships with Australian residents in order to obtain residence in Australia. For example, he married Ms Budko within about a month of his relationship with Ms Praglowska ending and then left that relationship a day after the wedding. This indicates the lengths to which Mr Polak would go to try and stay in Australia. Moreover, by working in Australia without permission, he was committing an offence under s235 of the Act.
32. With regard to the exercise of the s 501(1) discretion and the guidance provided by Direction No 21, Ms Grewal submitted that Mr Polak’s breaches of Australia’s immigration law should be regarded as serious (paragraph 2.6(c)), noting that he has made false claims and declarations. The RRT found Mr Polak’s evidence to be “highly unreliable” and his claims to refugee status not credible. He is not a Jehovah’s Witness and had already completed military service in the 1970s. Ms Grewal submitted that Mr Polak made false claims in his protection visa application and before the RRT which indicates he is prepared to continue to make false claims where he perceives this will benefit him.
33. With regard to the protection of the Australian community, Ms Grewal submitted that Mr Polak’s making false and misleading claims and arranging contrived marriages should be regarded as serious misconduct. He made various attempts to remain in Australia from 1994. Then, when these failed, he remarried in Australia and worked illegally. He showed a disregard for Australian law over a significant period and the Australian community would not expect that he be granted a visa.
34. With regard to other considerations, Ms Grewal submitted that any hardship to Ms Czasak should be offset by her knowledge of her husband’s status in Australia from early in their relationship. He did nothing to regularise his status until he was detained. Ms Grewal also noted that Ms Czasak has a sister in Poland to whom she is close. Thus, any other considerations are outweighed by the primary considerations of the protection and expectations of the Australian community.
Application of the Law and Findings
35. As stated above, the first issue for the Tribunal to decide is whether, pursuant to s 501(6)(c)(ii), Mr Polak passes the “character test” having regard to his past and present general conduct. The application of the “character test” is by reference, firstly, to a discussion of what is meant by good character. For example, in Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, at paragraph 8, the Full Federal Court said:
The concept of “good character” in section 501 is not concerned with whether an Applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within section 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry…
In ReMsumba and Department of Immigration and Multicultural Affairs (2000) AAR 192, the Tribunal said, at paragraph 37:
The character test, therefore, requires an objective consideration of the Applicant’s “enduring moral qualities” (Irving 68 FCR 422 at 431). However, this does not require the Applicant to meet the highest standards of integrity. The issue rather is whether any deficiencies in his character are such that it is in the public good to refuse the visa (Godly 1999 FCA 1277).
36. 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 Polak, does not pass the character test, the Tribunal will proceed to consider the exercise of the discretion in s 501(1) not to refuse to grant a visa, notwithstanding that the Visa Applicant does not pass the character test. In so doing, the Tribunal must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
37. Paragraph 1.9 of Part 1 of Direction No 21 states that decision-makers, when considering whether a non-citizen is not of good character because of their past and present general conduct, should have regard to certain matters, where relevant to the facts of the particular case, where those matters would, in the absence of any countervailing factors, constitute a failure to pass the character test. Of relevance in the present case are paragraphs 1.9(a), 1.9(b) and 1.9(c), which direct the decision-maker to consider whether the non-citizen has been involved in activities such as breaches of immigration law (paragraph 1.9(a)), or has, in connection with any application for the grant of a visa or any kind of government benefit, provided a bogus document or made a false and misleading statement (paragraph 1.9(b)), or has ever made a false and misleading declaration on an approved form about the non-citizen’s character or conduct or both (paragraph 1.9(c)).
38. Before making a determination on the application of the character test, it is appropriate that the Tribunal set out its findings. Mr Polak arrived in Australia on 4 March 1994 on a visitor visa valid until 4 September 1994. On 5 March 1994, he commenced living in a defacto relationship with Elizabeth Praglowska. On 10 November 1994, Mr Polak applied for a subclass 820 visa on the basis of his relationship with Ms Praglowska. On 2 May 1995, that application was refused for failure to meet a criterion in the Migration Regulations requiring the application to be made within 28 days after the expiry of his substantive (visitor) visa. The decision was affirmed by the Migration Internal Review Office on 20 July 1995 and by the IRT on 31 May 1996.
39. Mr Polak’s evidence is that he was still living with Ms Praglowska at the time of the IRT decision, but she subsequently left him, telling him that “she did not need him anymore”. After she left him, he met Jadwiga Budko while working in Brisbane. His evidence is that Ms Budko wanted to marry after a fairly short acquaintance – of about two months. But “it was a big mistake” and he left after only three days. Mr Polak denied that he married Ms Budko in order to obtain permanent residence. He said if this was true, he would have made a spouse visa application although, as Mr Turner pointed out, this would have required that Mr Polak leave Australia and apply externally. On this basis, the Tribunal is not satisfied that this was an arranged marriage for the purpose of Mr Polak obtaining permanent residence even though this was claimed by Ms Budko in a letter to the Department dated 9 January 1997 (S4), presumably in relation to Mr Polak’s application for a protection visa.
40. On 28 August 1996, Mr Polak applied for a protection visa on the advice of a migration agent, Chato Zadourian of Parramatta Immigration Services. The Tribunal accepts Mr Polak’s evidence that he did not then and does not now understand the basis on which a claim for refugee status can be made. Mr Polak said the claims in his protection visa were true. While he had completed his compulsory military service in the 1970s (in his November 1994 spouse visa application, he stated that he served in the Navy from October 1973 to September 1976 (T19 p122)), in 1988 he was “nominated to go to the Reserve Force” which was compulsory. In the protection visa application he stated “Because of my religious beliefs which forbids me to carry and use any weapons or use violence against others I didn’t want to go to Army”.. He stated his religion as “Witness of Jehovah” (T44 p198). In evidence, Mr Polak said that by 1988 he had become a pacifist, with leanings towards the religion of Jehovah’s Witness, although he had not been baptised as such. So he left Poland and went to Germany. In his protection visa application, he said if he had refused to join the Army Reserve, he feared arrest and imprisonment.
41. On 14 March 1997, Mr Polak’s protection visa application was refused. The Tribunal notes that the delegate while finding that the Applicant’s claims did not amount to Refugee Convention - related persecution, noted that the Applicant would face prosecution for failure to complete compulsory military service in Poland. The delegate rejected Mr Polak’s claim “that he would face additional difficulties for refusing to do military service because he is a Jehovah’s Witness” (T44 p236).
42. On 27 November 1997, the RRT affirmed the decision to refuse Mr Polak’s application for a protection visa. In the reasons for its decision, the RRT records that Mr Polak stated that “he is not a Jehovah’s Witness but merely a sympathiser, having moved in with a family of Jehovah’s Witnesses for some time before 1988” (T46 p244). The RRT considered Mr Polak to be exaggerating his claims about service in the Reserve and found his evidence “highly unreliable”.
43. Mr Polak first met Ms Czasak in October 1997 and they started living together in December 1997. She said she accompanied him to the RRT hearing on 26 November 1997. His bridging visa expired 28 days after notification of the RRT decision dated 27 November 1997. The Tribunal finds that Mr Polak remained in Australia unlawfully and continued working, without permission, until detected by officers of the Department on 14 January 2002. Ms Czasak was aware of Mr Polak’s status in Australia from early on in their relationship. They married on 22 October 2000.
44. Mr Polak returned to Poland on 9 February 2002. He is currently living with his sister and unemployed. He said it is difficult to find employment. In Australia, he was employed as a stonemason.. In 2000, he registered a business name and obtained Australian Business Number (ABN) registration with the Australian Taxation Office to enable him to conduct business as a stonemason on his own account. There are letters from the Traditional Stonemasonary Co Pty Ltd (T7 pp79, 80) as to his employment in 1995/1996 and as to his work as a subcontractor for the five years prior to 6 February 2002. The letters attest to “the excellence of his work” and to him being “a reliable and trustworthy person who takes particular pride in his workmanship”.. Ms Czasak spoke, in her statement of 6 February 2002 (T7 p57), of Mr Polak doing voluntary work at the Polonia Sports Club where they met in October 1997 and of his working with her on their houses and gardens.
45. Ms Czasak continues to live at their jointly owned house at Stanhope Gardens. She has been employed as a civil engineer by Blacktown Council for about 15 years specialising in drainage design. She is due to retire in five years. Her only other immediate family, her son, who is aged 27, also lives in Australia. She has a sister to whom she is close in Poland and friends in Holland. The Tribunal accepts that her life is in Australia, that she and Mr Polak have a genuine marital relationship and that she is suffering significant stress as a result of their separation. She has been seeing a Workplace Counsellor, Russel Avery, for counselling (A1).
46. Turning to the application of the character test, the Tribunal finds Mr Polak has breached Australia’s immigration laws by remaining in Australia unlawfully and working without permission from late December 1997 to 14 January 2002. He has also been without a valid visa for short periods, prior to a new visa application being lodged, from 5 September 1994 to 9 November 1994 and from late June 1996 to 27 August 1996.
47. Despite the RRT decision, the language of which the Tribunal finds overstated, the Tribunal is not satisfied that Mr Polak has provided any bogus document or made false and misleading statements or declarations. The Tribunal accepts that in the 1980s Mr Polak was attracted to the religion of Jehovah’s Witnesses and had pacifist beliefs. The Tribunal also accepts that he was called on to join the Army Reserve and could have been exposed to punishment for failure to comply. There is insufficient evidence before the Tribunal to determine whether he exaggerated the claims as to those matters in his protection visa application although the evidence does not support a finding that he had well-founded fear of persecution for the purposes of the Refugees Convention.
48. Thus, Mr Polak’s proven misconduct is his remaining in Australia unlawfully and working without permission for a period totalling about a two and a half years. The Tribunal recognises that such breaches of Australia’s immigration should be regarded seriously. Nevertheless, the Tribunal notes the discussion of what is meant by good character in Goldie (supra) and Re Msumba (supra) which refer the decision-maker to the applicant’s “enduring moral qualities”. As the Tribunal said in Re Msumba at paragraph 37, an applicant is not required to meet the highest standards of integrity. The issue is whether the deficiencies in his or her character are such “that it is in the public good to refuse the visa”.
49. Mr Polack’s misconduct in breaching Australia’s immigration law was serious. Nevertheless, on balance the Tribunal is not satisfied that given other evidence as to Mr Polak’s character, background and situation, his character is so deficient as for it to be for the public good that he should be refused entry. Pursuant to s 501(6), he therefore passes the character test.
50. The Tribunal notes that even if it were to find that Mr Polack does not pass the character test, it would exercise the discretion in s 501(1) to not refuse the grant of a visa. In relation to the primary considerations to which decision-makers are directed by Direction No 21, in the Tribunal’s opinion, neither the protection of nor the expectations of the Australian community require that Mr Polack be excluded from Australia. While Mr Polak was in Australia unlawfully for over two years and worked without permission, the Tribunal also finds that the likelihood of repetition is minimal and while deterrence is always an important consideration in respect of breaches of Australia’s immigration law, in the Tribunal’s view, the Australian community would take a humane view having regard to the other considerations in this case.
51. The other considerations are those to which decision-makers are directed by paragaph 2.17 of Direction No 21. They include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; the non-citizen’s business and other ties to the Australian community; 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; and the family composition of the non-citizen’s family, both in Australia and overseas.
52. The Tribunal has found that the relationship between Mr Polak and Ms Czasak is a genuine marital relationship. The Tribunal found that Ms Czasak was aware from very early in their relationship that Mr Polak did not have permission to remain permanently in Australia although she was hopeful that his status could be resolved.
53. The Tribunal finds that she would suffer significant hardship if her husband is denied a visa. She arrived in Australia in 1987 and has made her life here. Her son lives in Australia, her friends are here, she has a responsible position as a civil engineer which she has held for 15 years, she and her husband have a house here and she is looking forward to retirement here in five years. While she has a sister in Poland and friends in Holland, she is long divorced from life in Poland and, in her words, “would be devasted” if her husband is denied a visa. She is currently receiving counselling due to stress resulting from the separation from her husband.
54. In the Tribunal’s view, weighing up the primary and other considerations, Mr Polak is no threat to the Australian community and the community would take a humane view, particularly having regard to Ms Czasak’s situation. Thus, the Tribunal concludes that the discretion not to refuse the grant of a visa should, if Mr Polak were not to pass the character test, be exercised in his favour.
55. In conclusion, the Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that Roman Polak passes the character test pursuant to s 501(6) of the Act.
I certify that the preceding 55 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 14 and 15 April 2003
Date of Decision 7 May 2003
Solicitor for the Applicant Mr R Turner
Solicitor for the Respondent Ms K Grewal
2
4
0