Davie and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 698
•22 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 698
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/625
GENERAL ADMINISTRATIVE DIVISION ) Re WAYNE DAVIE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date22 July 005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that Yaowalux Davie passes the character test provided for in section 501 of the Migration Act 1958.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – Spouse Visa – visa applicant entered Australia on false passport – remained in Australia and worked in Australia – married to Australian – stable marriage – significant changes to wife’s character in past three years - decision to refuse spouse visa set aside
Migration Act 1958: s501
REASONS FOR DECISION
Deputy President Don Muller 1. Wayne Davie, the Review Applicant, is an Australian citizen, having been born in Brisbane on 21 November 1966. He is married to Yaowalux Davie, the Visa Applicant, who is a citizen of Thailand having been born in Prachin Buri, Thailand on 17 October 1979.
2. On 10 January 2003, Yaowalux Davie applied for a Subclass 309 provisional spouse visa, sponsored by her husband, Wayne Davie.
3. On 12 July 2004, a delegate of the Respondent refused to grant Yaowalux Davie a Subclass 309 Provisional Spouse Visa on the ground that she did not pass the “character test” as defined in subsection 501(6)(c)(ii) of the Migration Act 1958, and further that the discretion allowed for under s.501(1) of the Act should be exercised to refuse to grant the Spouse Visa.
4. Wayne Davie seeks a review of the decision to refuse the grant of the Provisional Spouse Visa to his wife, Yaowalux Davie.
5. At the hearing the Applicants were represented by their solicitor, Ms. Tate. The Respondent was represented by Mr. Lo, solicitor.
6. Wayne Davie gave evidence by way of a Statutory Declaration plus oral evidence.
7. Yaowalux Davie gave evidence by way of a Statutory Declaration plus oral evidence by telephone from Thailand.
8. The T-documents contained, among other things, the following documents:
(a)The application for spouse visa plus supporting documents such as birth certificates, passports, marriage certificate, bank statements, medical reports and references from business associates of Mr. Davie.
(b)The decision by the delegate of the Respondent.
(c)Air travel movement details.
(d)A record of interview conducted at the Australian Embassy, Bangkok on 27 November 2003, between Yaowalux Davie and a representative of the Respondent.
(e)Another record of interview conducted in Bangkok on 3 May 2004, between Wayne Davie, Yaowalux Davie and a representative of the Respondent.
9. It is common ground between the parties that:
(a)Yaowalux Davie (nee Nomlakon) entered Australia on 28 May 2001.
(b)Her travel documents, passport and visa, were false in that they bore the name of a person called Kanda Sophie.
(c)She remained in Australia for approximately nine months.
(d)She was arrested on 15 February 2002 whilst working as a prostitute in a brothel in Melbourne.
(e)She was put into immigration detention and subsequently had a “supervised departure” from Australia on 13 March 2002.
10. The questions for determination by the Tribunal are whether the circumstances under which Yaowalux Davie entered and remained unlawfully in Australia are such that she should be held to not pass the “character test”; and whether, if that be the case, there are other factors which satisfy the Tribunal that the discretion allowed for in s.501(1) of the Act should be exercised in her favour.
11. The relevant subsections of the Act for the purposes of this review are contained in s.501 and provide:
“501 Refusal of cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(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.
Note: Character test is defined by subsection (6).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) ....
(b) …
(c) having regard to either or both of the following:
(i) …
(ii) the person’s past and present general conduct;
the person is not of good character;
Otherwise, the person passes the character test.”
12. There is no dispute about the facts in this case. Both Yaowalux and Wayne Davie have been remarkably frank with the officers of the Respondent and with the Tribunal. It has not been suggested that anything in their records of interview is false, nor that there is any inherent contradiction or unexplained fact in their statements.
13. The Tribunal accepts the evidence of the Applicants as truthful and reliable and finds as follows:
Re: Yaowalux Davie:
(a)She was born in Thailand on 17 October 1979.
(b)In 1992, when she was thirteen years of age, her father died from cancer. Her family was left in a parlous financial state. They had medical bills to pay and a low income.
(c)They sold their belongings and moved to Bangkok where she and her mother obtained work cooking and cleaning houses for other people.
(d)She had a step sister who was about 12 months older than she was. She had a sister who was five years younger and a step brother who was ten years younger than she was.
(e)When she was 16 years of age she obtained a job as a sales representative and she also began a defacto relationship with a man who was about six years older than she was.
(f)She gave birth to a daughter on 2 July 1997. Her defacto partner was the father of the child.
(g)Her de facto husband gave her no support at all and she ended the relationship in October 1998.
(h)She handed her daughter over to the parents of her former partner because she could not support her child. The child has lived with her grandparents ever since. (The grandmother died recently but the grandfather still looks after the child.)
(i)In 1998 she obtained work in Hong Kong as a maid. She was employed in the home of a Chinese family, cooking and cleaning. She had a valid Thai passport and a valid work permit for Hong Kong.
(j)Her remuneration in Hong Kong was poor, but she was able to send money home to her mother and daughter to help with their upkeep.
(k)She did not have a holiday for three years. In April 2001 she returned to Thailand to see her family. She had intended to remain in Thailand for about one week and then return to Hong Kong. However, she was unhappy about the low wages in Hong Kong and rang the Chinese family for whom she had been working to tell them that she did not wish to return to Hong Kong.
(l)A member of the Chinese family suggested that she contact some business people in Thailand with a view to working in England or Australia where, it was suggested, she would be able to earn more money.
(m)She was contacted by some Chinese business people who put the idea into her head that she could earn a lot of money overseas by working as a prostitute. She believed that she would be able to earn a lot of money in a short time and then return to Thailand to take care of her family.
(n)She was told by the people she was dealing with that it was not easy to get a work permit for England or Australia and that she would have to get a tourist visa. She was also told that it was only “rich people” who were able to get tourist visas. Consequently, she would have to use the travel documents of a rich person.
(o)She was told that if she wanted to travel immediately, there was an opportunity to travel to Australia. If she wanted to go to England she may have to wait longer. She accepted the offer to travel to Australia.
(p)She was told that the whole deal would cost her $AUD40,000 and that she would have to pay that amount out of her earnings once she got to Australia.
(q)She knew before she left Thailand that she would have to work as a prostitute when she arrived in Australia. She had never worked as a prostitute before she arrived in Australia.
(r)She knew that people who entered Australia on a tourist visa were not permitted to work for remuneration while they were in Australia.
(s)She left Thailand on or about 25 May 2001. She had handed her Thai passport to the people organising the trip. She travelled from Bangkok to Hong Kong by plane apparently on her valid Thai passport. She was escorted from Thailand by a Thai woman she did not know. She changed planes at Hong Kong and then flew to Sydney. Before arriving at Sydney airport the Thai woman who was escorting her, handed her the Kanda Sophi passport. She thinks that it contained a visa for three months. She saw her photo on the Kanda Sophi passport but she does not know how it got there. She did not get her valid Thai passport back.
(t)When she arrived in Australia she immediately went to work as a prostitute. She was held as a prisoner until she repaid the debt of $40,000. She was then allowed to go free. Her supervisor then returned to her the Kanda Sophi passport.
(u)Approximately three months after she arrived in Australia she was taken to see a Chinese woman, whom she believed was a lawyer. She did not understand English well enough to know exactly what she was signing but she believed that an application was being made on her behalf for an extension of the previous tourist visa.
(v)In September or October 2001, she travelled to Brisbane as a tourist. She met Wayne Davie in Brisbane. Eventually their relationship blossomed into a love affair.
(w)When she came to Australia she did not do so for the purpose of finding a husband. She wanted to earn as much money as she could and then return to her family in Thailand.
(x)She believes that meeting and marrying Wayne Davie has completely changed her life. He has been good for her.
Re: Wayne Davie
(a)Wayne Davie was born in Brisbane on 21 November 1966. He is now 38 years of age.
(b)He is a self-employed cabinet-maker.
(c)He has been married twice before marrying Yaowalux. He has two children from his first marriage, a boy 12 and a girl 10. He has one child from his second marriage, a girl 5. The two eldest children live with their mother but he has liberal access to them. His five year old daughter lives with him.
(d)He met Yaowalux at Southbank Parklands in Brisbane. They initially went on a few dates and chatted to each other on the telephone. Eventually a romance blossomed between them. Wayne was the person who actively pursued the relationship. He was the one who initiated the telephone calls and subsequent meetings.
(e)In December 2001, Yaowalux told him that she had come to Australia on false documents and that she had been working as a prostitute in Australia.
(f)She told him about her poor background and explained that she needed money to support her family back in Thailand.
(g)In January 2002, he had a knee reconstruction which eventually required him to undergo nine months of rehabilitation.
(h)Yaowalux travelled to Sydney to sort out her affairs there. She then returned to Brisbane to look after Wayne and assist with the care of his daughter in the initial stages of his recovery from his knee operation.
Re: Yaowalux and Wayne Davie
(a)They discussed the problem of Yaowalux being in Australia illegally, and without possession of her valid passport.
(b)Yaowalux made up her mind to return to Thailand but she did not have the money for the fare. Neither did Wayne.
(c)Yaowalux decided to travel to Melbourne to work as a prostitute for as long as it took to get enough money to return to Thailand. She had also decided to “turn herself in” to the Thai Embassy. They had no plans to marry at that stage.
(d)On 15 February 2002, Yaowalux was found by immigration officers working at a brothel in Melbourne and arrested. She was working under the name of Yaowalux Nomlakan (her maiden name).
(e)Yaowalux rang Wayne to tell him that she had been arrested and was being held in immigration detention. He wanted to travel to Melbourne to see her but she did not want him to see her “like that”.
(f)Yaowalux had to wait in Australia until a valid passport was sent to her from Bangkok. Wayne borrowed $3,766 from his mother to pay for Yaowalux’s detention for the month and for the expenses associated with her deportation.
(g)Yaowalux made a supervised departure from Australia on 13 March 2002.
(h)Yaowalux and Wayne have continued their relationship by means of numerous phone calls and by Wayne visiting Thailand from time to time.
(i)They were married in Thailand on 17 September 2002.
(j)Wayne has been to Thailand nine times. He has attempted to divide his time between Australia and Thailand. However, this has put an enormous strain on his earning capacity in Australia and his financial resources in general.
(k)Wayne has taken his youngest daughter with him to Thailand on four occasions. The mother of the other two children will not allow them to travel to Thailand.
(l)Wayne has considered re-locating to Thailand but he has discovered that his earning capacity in Thailand is virtually nil. He has also discovered that appropriate schooling for his five year old daughter would be prohibitively expensive. He would also lose contact with his other two children.
(m)Wayne has invested a significant amount of money in his wife’s family. He bought her mother and stepfather a farm. He bought a house in Bangkok for his wife and her sisters to live in. He makes repayments on a car for his wife. He sends his wife an allowance of about $700 to $900 per month. He took out a loan of about $30,000 to finance the Thai purchases.
(n)Yaowalux is now working in a watch factory.
14. I find further that the records of interview, mentioned above, indicate that Yaowalux co-operated with the Thai and Australian immigration officers in the identification of the people involved in the prostitution racket and their “modus operandi”.
15. Yaowalux has no criminal record in either Australia or Thailand.
16. Yaowalux gave evidence that she deeply regrets having come to Australia in the manner in which she did. She said that it did not occur to her at the time that what she was doing was so wrong that it could affect her future so deeply. She said that she was just interested in earning money to support her family.
17. It was submitted on behalf of the Minister that Yaowalux Davie does not pass the character test set out in s.501 of the Act because:
(a)She obtained a false passport and false visa to facilitate her entry into Australia, in disregard of the Australian laws relating to the entry of non-Australians into Australia;
(b)She intended at all times to work in Australia when she knew that she was not permitted to do so;
(c)She overstayed her time in Australia.
18. It was also submitted on behalf of the Minister that the Tribunal should use the discretion allowed for under s.501 of the Act to affirm the delegate’s decision to refuse Yaowalux Davie a spouse visa on the grounds that:
(a)Yaowalux’s conduct constituted a serious breach of Australian laws;
(b)It is important to set a precedent to dissuade other persons who might be tempted to try to enter Australia illegally;
(c)Wayne Davie knew, when he married Yaowalux, that an application by his wife for a spouse visa may not be granted.
19. It was submitted by Ms. Tate, for the Applicants, that although Yaowalux may not have passed the character test when she was in Australia in 2001/2002, she has put her life back in order and has reformed to such an extent that by the time she married Wayne Davie, and certainly by now, she passes the character test.
20. It was also submitted on behalf of the Applicants that it is not financially practical for Wayne Davie to move to Thailand, and that even if it were, his three children would then suffer as a result of such a move. Consequently, it was submitted that on compassionate grounds, at least, a spouse visa should be granted to Yaowalux Davie.
21. I am aware that it is almost automatic in immigration cases for a person who has circumvented the Australian immigration laws for the purpose of entering Australia, to be deemed to be a person who does not pass the character test. In the case of Yaowalux Davie she has been judged by the delegate as not passing the character test because of the method she used to enter Australia, and for working after she arrived here.
22. I am satisfied that Yaowalux Davie would not have passed the character test provided for in s.501 at the time she was escorted from Australia in March 2002.
23. However, more than three years have passed since the time Yaowalux Davie left Australia, and there have been significant changes to her life since then. I believe that a re-assessment of her character should be made and that the following matters should be taken into account:
·In the year 2000, she was a naïve, unsophisticated, young woman with a background of poverty and an uncertain financial future. Her desperation, and her desire to survive, was exploited by unscrupulous, amoral and immoral people who prey on the weak and the desperate to lure them into the abhorrent prostitution business.
·Since then she has been rescued by Wayne Davie, who seems to be a decent, honest, hard-working man who has fallen in love with her. It also seems that she has fallen in love with him.
·As a result of the relationship with Wayne Davie her life has been transformed. She now has a home to live in. She has a respectable job. She is able to provide assistance to her family.
·She assisted the immigration authorities in their investigations into the people responsible for organising her trip to Australia.
24. I find that Yaowalux Davie has been rehabilitated and that during the more than three years since she left Australia, her character has changed to such an extent that she now passes the character test in s.501 of the Act.
25. Consequently, I set the decision under review aside and remit the matter to the Respondent for re-assessment with the direction that Yaowalux Davie passes the character test.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
B. Hitchcock, Personal AsstDate/s of Hearing 7 March 2005
Date of Decision 22 July 2005
Solicitor for the Applicant Drakopolous Black
Solicitor for the Respondent Clayton Utz
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