De Nitto and Minister for Immigration
[2007] AATA 2009
•21 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2009
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2934
GENERAL ADMINISTRATIVE DIVISION ) Re GIOVANNA DE NITTO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date21 November 2007
PlaceAdelaide
Decision The Tribunal:
(a) affirms the decision under review insofar as it was decided that the visa applicant fails the character test under s 501 of the Migration Act 1958 (Cth);
(b) sets aside of the decision under review insofar as it relates to the exercise of discretion; and
(c) remits the matter to the respondent for further consideration,
and directs that the discretion to refuse to grant a Partner (Provisional) (class UF sub-class 309) visa to the applicant not be exercised.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – Partner (Provisional) (class UF sub-class 309) visa and Partner (Migrant) (class BC visa, sub-class 100) – visa applicant fails character test – discretion to refuse to grant visa – Ministerial Direction No. 21 – primary and other considerations – visa applicant provided false documents and made false statements in application for protection visa and in further dealings with the respondent and other authorities – belated attempt to confess transgressions – decision under review affirmed insofar as it relates to character test but set aside insofar as it relates to the exercise of discretion – tribunal remits matter to respondent for further consideration with a direction that the discretion to refuse the visa not be exercised.
Migration Act 1958 (Cth), s 501(1)
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
Jackamarra v Krakouer (1998) 195 CLR 516
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Mottaghi and Migration Agents Registration Authority (2007) 45 AAR 37
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
REASONS FOR ORAL DECISION
21 November 2007 Deputy President D G Jarvis 1. This matter arises from a decision made by a delegate of the respondent on 12 June 2007 to refuse the visa applicant, Mr Julian Luka, a combined application for a Partner (Provisional) (class UF sub-class 309) visa and a Partner (Migrant) (class BC sub-class 100) visa. He was sponsored in this application by the applicant in these proceedings, his wife, Giovanna De Nitto.
2. The issues that have arisen before me are first, whether Mr Luka has satisfied me that he passes the character test and if he does not satisfy me of that, whether I should exercise my discretion to refuse to grant the visa. I have concluded that Mr Luka has not satisfied me that he passes the character test, but that I should not exercise my discretion to refuse to grant the visa.
Background
3. The following reasons are an edited version of the reasons for my decision that I delivered orally at the conclusion of the hearing. However, in order to put my conclusions and findings in context, I will now supplement my oral reasons by referring to certain background facts which were not in contention, and which are derived from the statement of Mr Luka (exhibit A7) and from information included in the T documents (exhibit R1). I will also outline below the legislative scheme governing the above issues.
4. Mr Luka was born in Shkoder, Albania, on 28 October 1980, and was brought up in a farming area. Life in Albania was very difficult, because the country was very poor, and opportunities for work and education were very limited.
5. Using a false passport, which he had obtained in Albania, Mr Luka entered Australia on 20 May 2001. He then submitted an application for a protection visa, falsely asserting that his family was involved in a blood feud and that his father had been killed. He also provided other false information and documents in support of his application.
6. In February 1999 and in December 2000 Mr Luka had applied unsuccessfully for two short stay visas. Each application was made in the name of Julian Lisi, being a surname that his family members had used during the period of Communist rule in Albania, because the surname “Luka” was identified as a Catholic name. Later, family members, including Mr Luka, changed their surnames back to their original family surname of Luka.
7. Before Mr Luka left Albania for Australia it was common place for people to talk about leaving Albania, and about the best countries to go to, and what needed to be done to secure residency in those other countries. These discussions included talk about illegal means of securing residency in countries in Europe, the United States of America and Australia.
8. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application for a protection visa. Mr Luka then applied to the Refugee Review Tribunal (RRT) for review of that decision. On 23 December 2003, the RRT affirmed the decision not to grant the protection visa.
9. On 27 February 2004, Mr Luka married Ms De Nitto, whom he had met in Adelaide in December 2001.
10. On 22 June 2004, Mr Luka, through his solicitors, applied for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) (the “Act”). The application was supported by submissions that Mr Luka was married to Ms De Nitto, that their marriage was very strong, and that Mr Luka could not return to Albania because of the alleged blood feud. The Minister refused to exercise her discretion in favour of Mr Luka on 10 November 2004.
11. On 5 February 2005, Mr Luka and Ms De Nitto left Australia and went to Albania, and shortly afterwards lodged the partner visa applications, the subject of these proceedings, with the Australian Embassy in Athens, Greece.
12. Mr Luka attended interviews concerning the applications at the Australian Embassy in Athens in March and September 2005.
13. Ms De Nitto completed an interior design course at TAFE at the end of 2004, having previously studied an interior architecture course for two years. Ms De Nitto found life in Albania extremely boring, lonely, difficult and frustrating. When she was in Albania she became ill with ongoing gastric problems, and this resulted in her being hospitalised during a stay in Italy with family members. After that, she had a nervous breakdown and was hospitalised in Albania in September 2005 for more than a week. She then return to Australia for medical treatment, but returned to Albania in December 2005 to be with Mr Luka.
14. Ms De Nitto remained in Albania until October 2006, when she learned that her father had been operated on for bowel cancer, and needed to undergo a course of chemotherapy. She was very close to her father and decided to return to Australia to support him during his treatment. She obtained employment in Adelaide, and has continued to live in Adelaide since returning. She has continued to communicate on a daily basis with Mr Luka, and they remain committed to their marriage notwithstanding their separation since October 2006.
Legislation
15. Under s 45 of the Act, a non citizen who wants a visa must apply for a visa of a particular class. Under s 65(1), after considering a valid application for a visa, the Minister is to grant the visa if the Minister is satisfied as to various matters, including that criteria prescribed for it by the Act or Regulations under the Act have been satisfied.
16. In the present matter, the Minister’s delegate was not satisfied that the public interest criteria had been satisfied. The public interest criteria are provided for in Schedule 4 of the Migration Regulations 1994. These criteria entail examining whether the applicant passes the character test. The criterion which I find is relevant to my decision in this matter is criterion 4001(d), which provides that “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.”
17. 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.
18. The provision in issue in these proceedings is s 501(6). This provides relevantly that for the purposes of s 501, a person does not pass the character test if, having regard to the person’s past and present general conduct, the person is not of good character.
19. By virtue of s 499(2A) of the Act, in considering whether to exercise the discretion to refuse or cancel a visa under s 501 of the Act, decision-makers must take into account, as a guide to making their decision, Ministerial Direction No. 21 (the “Direction”). Part 1 of the Direction provides directions on the application of the character test. Part 2 of the Direction applies where the non-citizen does not pass the character test, and it provides guidance to the exercise of the discretion to refuse or cancel a visa, taking into account primary and other considerations.
Consideration
20. I will not in these reasons narrate in detail the evidence given by the various witnesses, but rather I will refer to that evidence as it is relevant to the issues that arise. It will be apparent from my reference to the evidence, and I now record, that I accept the evidence given by Mr Luka and Ms De Nitto.
Does the visa applicant pass the character test?
21. Under s 501(6) it is necessary for me to have regard to Mr Luka’s past and present general conduct. In doing so I take into account the dictum which is usually referred to in these matters, namely Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324, as well as the helpful decision, which counsel for the respondent, Mr d’Assumpcao referred me to this morning, namely Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195, which indicates that misconduct on only one or two occasions could be sufficient to say that a person is not of good character. I approach this aspect of the matter in accordance with those authorities.
22. I also take into account the relevant provision of the Direction. The relevant paragraphs of the Direction, so far as this issue is concerned, are paragraphs 1.7, 1.9(a), (b) and (c), and 1.11. Mr Luka has admitted that he engaged in a course of conduct which amounted to providing untruthful information and forged or bogus documents to the Department of Immigration. This conduct falls within the fourth dot point of paragraph 1.9(a) of the Direction. It also falls within the conduct referred to in paragraph 1.9(b), although probably not within paragraph 1.9(c); while there was a false or misleading declaration on an approved form and the conduct is of the type referred to in paragraph 1.9(c), it probably does not relate to Mr Luka’s character or conduct.
23. I also must take into account any evidence of rehabilitation or recent good conduct, both under paragraph 1.7 and also under paragraph 1.11. I have done so. In particular I have taken into account the fax that was sent by Mr Luka, in January 2006 to Ms McGrath, in which Mr Luka referred to the untruthful matters that he had told the Australian government. In particular, he said that he had told the government that he had had blood feud problems regarding his father and said that those statements were false, and he sought Ms McGrath’s advice as to the best way to inform the Embassy of the position. I take those matters into account in assessing the relevance of the conduct in which Mr Luka had engaged.
24. In the events that happened Ms McGrath advised Mr Luka not to pass on his confession to the Embassy or to the Department, for reasons she has explained in her statement (exhibit A6). I must comment that it is most unfortunate that she did not promptly pass on the confession to the Department or (as she should have done) advise Mr Luka to do so, and certainly, as I have said, Mr Luka was prepared to confess those matters to the Embassy at that time. However, I also consider that Mr Luka should not be prejudiced by Ms McGrath’s advice not to pass on those matters to the government. I refer by way of analogy to the decision of the High Court of Australia in Jackamarra v Krakouer (1998) 195 CLR 516, for the proposition that if a relevant default is that of a party’s legal representative then that should not necessarily prejudice the party’s legal position. That case, of course, related to different circumstances, but I think the same principle applies in the present case.
25. I also mention in passing my decision in a case of Re Mottaghi and Migration Agents Registration Authority (2007) 45 AAR 37, where I drew attention to the duty that applies to migration agents in their relationship with the Australian government. I think that the relevant obligations apply equally to lawyers who provide migration advice.
26. However, the potential confession by Mr Luka to the Embassy at that time is not sufficient to persuade me that Mr Luka should pass the character test. He had persisted in maintaining an untruthful position, both in his original application for his protection visa, in his application to the RRT, in the application to the Minister for intervention, and in his application to the Federal Court (although this was later withdrawn, and I note that according to paragraph 62 of Mr Luka’s statement, one of the reasons for his deciding to withdraw that application was that he did not want to continue to maintain his untruthful position, but there is no evidence that he confessed his untruthful conduct to his lawyers at that time). Mr Luka also included untruthful statements in his application for review of the decision which is the subject of these proceedings and, furthermore, he did not correct the position at the time of either of the two interviews he had with the Australian Embassy in Greece.
27. I therefore find that Mr Luka’s fax to Ms McGrath was a very belated confession on his part, at least to Ms McGrath. It came after all those other events had happened and, in those circumstances, I am not “fully persuaded” (to use the language in the Direction but without considering whether that aspect of the Direction is validly expressed), that Mr Luka has reformed and, therefore, notwithstanding his belated desire to confess, I find that he has not satisfied me that he has passed the character test.
28. I emphasise, as appears from Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, that it is essential that people dealing with migration authorities in Australia provide truthful information as to their background and personal circumstances. Mr Luka did not do that.
Should the discretion to refuse the visa be exercised?
29. It is then necessary for me under the Act to consider whether I should exercise the discretion to refuse to grant the visa to Mr Luka. That again involves a consideration of the relevant paragraphs of the Direction, and it involves, in accordance with the Direction, balancing the criteria that are set out in the Direction, including in particular the three primary considerations and the final consideration which relates more generally to other matters.
First primary consideration – protection of the Australian Community
30. The first primary consideration is the protection of the Australian community, and counsel has referred in particular to the relevant paragraphs in the Direction. The first paragraph that is relevant, I think, is paragraph 2.6(c), which refers to the government’s view as to the seriousness and nature of the conduct that is in question in this case. That paragraph of the Direction expressly refers to a person presenting false or forged documents, or making a false or misleading statement, in connection with entry or stay in Australia. That is a matter that the government regards as a very serious offence and that was emphasised, as I say, in the matter of Lachmaiya, where Deputy President McMahon referred to the importance of people making correct disclosure to migration authorities.
31. I also take into account paragraph 2.8(a) of the Direction, that is, mitigating factors, and under that heading it is relevant to take into account the fax sent by Mr Luka to Ms McGrath in January 2006, in which he indicated a willingness to confess his untruthful conduct to the Embassy, and that is a mitigating factor in his favour.
32. I also take into account, in considering the seriousness of his conduct, that Mr Luka is not a person who has committed any other offences in Australia of any sort, or in Albania. There is no evidence of any course of criminal conduct and, in that respect, his application is very unlike a number of matters that come before this tribunal where people have engaged in a very serious course of misconduct, often as a result of addiction to illicit drugs. That is not the case in this matter at all.
33. I also consider the likelihood of a repetition of the misconduct and the risk of recidivism. Of course, if the provisional visa is granted to Mr Luka, it will still be necessary for the Department to consider the grant of the permanent partner visa. That is a matter that will have to be considered by the Department in two years’ time. It will be essential for Mr Luka to provide a truthful account of the state of his relationship and matters relevant to a consideration of whether that permanent visa should be granted.
34. It is clear to me, however, from the evidence Mr Luka has given to this tribunal that he now has a very good understanding of the type of conduct that is expected of him in dealing with the Australian government. I take into account that he first embarked on his dishonest course of conduct at a time when he was relatively young – only of the age of 20 or thereabouts. Even though he maintained his course of dishonest conduct for a number of years after that, he was, in a sense, as Ms McGrath has said, in a position where he thought, quite incorrectly, that he was obliged to maintain the untruthful position that he had adopted with the Department.
35. It is, however, to his credit that he reached a point where he realised that he could not, and should not, maintain that position and indicated to his lawyer that he was prepared to confess the true position. I think it is fair to say that he learned his lesson from what happened. He saw the effect on his wife, Ms De Nitto, and the effect on her health, and as he said, the fact that he had engaged in this untruthful conduct for so long had weighed heavily on him, and he felt a great sense of relief when he decided that he would confess to his untruthful conduct. I think all of those matters are relevant to the risk of recidivism, and I find that although there may, perhaps, be some risk of further untruthful statements, that risk is very low in the circumstances.
36. I was also impressed with the evidence of Ms De Nitto, and I am sure she fully understands the difficulties that Mr Luka’s initial course of conduct, and his persisting in that course of conduct, have caused both to him and to her. I am sure she will be completely honest in her relationship with the government, and that her relationship with Mr Luka, and the strong commitment they have to each other, will make it very unlikely that they will engage in similar misconduct in the future. I am not unmindful, as counsel for the respondent, Mr d’Assumpcao has pointed out, that they will, of course, have dealings with the Australian government, not only in migration matters but also in other matters. These may include relations with Centrelink and other similar relations.
37. I am confident that Mr Luka now understands his obligations to deal truthfully with the Australian government, and that he will do so in other matters also, and in my assessment the risk of him not doing so, again, is very low.
38. I attach some weight to the fact that a refusal of the application would have resulted in other people being deterred by similar misconduct and, indeed, the evidence that Mr Luka has given would suggest that the outcome of these proceedings may become known in Albania to his friends and relatives. However, presumably it has also become known that the application was refused initially by the Department, and that resulted in great hardship to Mr Luka and his Australian wife to the point where Ms De Nitto had a very serious nervous breakdown in Albania.
39. Although, ultimately, my position is to exercise my discretion in favour of the grant of the visa, I have only done so with considerable thought because of the very special circumstances that apply in this case, to which I have referred above.
Second primary consideration – expectations of the Australian Community
40. The next matter is the expectations in the Australian community, and this is the second primary consideration. As far as that aspect is concerned, I think the Australian community would take into account the comparatively young age of both Mr Luka and Ms De Nitto. In this matter, there is absolutely no suggestion that the marriage was not totally bona fide and genuine. There is no suggestion that the marriage was contrived by Mr Luka as a device to obtain a visa to remain permanently in Australia.
41. I am satisfied that Ms De Nitto and Mr Luka have a very strong commitment to each other, and a strong relationship. They are, in my assessment, totally devoted to each other. That has been demonstrated, certainly on Ms De Nitto’s part, by her going to Albania to be with Mr Luka, notwithstanding the hardship that has caused her. As far as Mr Luka is concerned, it is apparent that he has done everything he can to support Ms De Nitto in the difficult time she had when she was in Albania when she became very unwell. I refer, in particular, to Mr Luka’s steps to contact a doctor who would be able to treat Ms De Nitto, and his attempts to obtain assistance through the Australian Embassy in Greece when she was obviously so unwell.
42. Furthermore, Mr Luka had indicated that he did not require her to go to Albania. He had left it to her to make her own decision about that. I think, on the evidence, he encouraged her to return to Australia when her father had become so unwell. All those matters, I think, indicate the love and strong relationship that Mr Luka has for Ms De Nitto.
43. I also take into account, as I have said before, that Mr Luka now has a very good understanding of what is expected of him in his dealings with the Australian government. However, he came from a culture where things were quite different in Albania, where people were encouraged to try to leave Albania and, apparently, there was a culture of older people in Albania encouraging young people to provide false information to authorities in other countries in order to assist their attempts to leave Albania.
44. It was in that culture and those circumstances that Mr Luka first proceeded down the path of making untruthful statements to the Australian authorities. As Mr d’Assumpcao said, this was not confined to an isolated single course of misconduct because Mr Luka also took steps to obtain further documents, having lodged the original application, but nevertheless that happened early on in the piece and at a time when, as I say, he was still, no doubt, affected by the attitude of people in Albania and the apparent ease with which people could obtain false documents.
45. I think the Australian community would take into account all of the matters I have mentioned, as well as Mr Luka’s willingness to confess his untruthful conduct at a time before the Australian authorities had exposed his untruthful conduct. I am referring, again, to the fax to Ms McGrath in January 2006.
46. I also take into account that Mr Luka disclosed to Ms De Nitto relatively early in their relationship the fact that his migration status was uncertain and based on untruthful information. Again, that shows that Mr Luka was being honest with Ms De Nitto. However, I also find that that happened at a time when their relationship had become very close and at a time when, effectively, they realised they had each fallen in love with each other.
47. The next primary consideration is the question of the best interests of children, but that is not an issue in this matter.
Other considerations
48. The final consideration is the relevance of other matters, and these matters are referred to in paragraph 2.17 of the Direction. Paragraph 2.17 contains a number of subparagraphs, many of which are not relevant to the present matter. The matters expressly referred to in those subparagraphs are included in matters that can be taken into account and, therefore, further matters may also be taken into account.
49. The first of the matters that are expressly referred to is the extent of disruption to the non‑citizen’s family, business, and other ties to the Australian community. That is not a matter that I give any weight to in this matter because there is no evidence that Mr Luka’s coming to Australia will cause any undue disruption to his family or to ties that exist to the Australian community. That criteria is relevant to a cancellation matter, rather than a new application.
50. The next one is paragraph (b), which talks about a genuine marriage to an Australian citizen. I have already said a lot about the relationship between Ms De Nitto and Mr Luka, and I do not think I need to say more than what I have already said about that.
51. The next matter is the degree of hardship that would be caused to immediate family members lawfully resident in Australia. As far as that is concerned, I have received very helpful evidence from Mrs De Nitto, and from Ms De Nitto’s sister and brother, and there is also included in the tribunal documents a lengthy statutory declaration by Mr De Nitto, who unfortunately has not been well, and the family decided that it would not be appropriate for him to give evidence in these proceedings because of his medical condition.
52. I am satisfied that it would cause considerable hardship to Ms De Nitto’s immediate family if this application were to be refused and if the exercise of discretion were to be adverse to Mr Luka. I find that Ms De Nitto, in that event, would carry out her stated intention of going to live in Albania, and that would cause a very severe loss to her immediate family. I take into account that her immediate family is very close, and she also has a very close extended family.
53. Mrs De Nitto has said that she would not be able to afford to travel to Albania to see her daughter more than on an infrequent basis. Ms De Nitto said, and I accept, that she would not be disposed to have children if she were to live in Albania because of the conditions there, and from her parents’ point of view they would therefore be deprived of having grandchildren in those circumstances.
54. Paragraph 2.17(h) refers to evidence of rehabilitation and any recent good conduct. In that connection I refer again to the fax of January 2006 and Mr Luka’s willingness to admit to his dishonest conduct, and that is relevant under that heading.
55. Other matters that are relevant, I think, are the extent to which Mr Luka has been accepted by Ms De Nitto’s family, in part because of their own position as people whose forebears came to Australia. In Mr De Nitto’s case, he came to Australia as a young child and can understand Mr Luka’s desire to come to Australia and live in this country. It is clear that Ms De Nitto’s family have accepted Mr Luka into their family, and that they have a strong regard for him and that to the extent that they can judge his character, they regard him as a person of good character who is unlikely to engage in any further untruthful conduct if he lives in Australia.
56. I have considered Mr d’Assumpcao’s argument that Mr Luka only indicated a willingness to confess to his untruthful conduct because he thought that his character was going to be investigated as a consequence of the second interview with the authorities in Greece. I do not, however, accept that argument. I do not think it follows from what happened at that interview that Mr Luka thought, as a result of that, that he should confess his untruthful behaviour. I accept that by then Mr Luka had come to realise that it was necessary and appropriate for him to confess his untruthful behaviour.
57. I also take into account that Ms De Nitto has been through a very difficult period of ill health, as a result of the refusal of the visa, and I accept the opinion of Ms Martin, a psychologist who gave evidence, as to the effect of those matters on her. I also, in particular, accept Ms Martin’s evidence that Ms De Nitto’s prognosis will be greatly assisted by a favourable exercise of discretion in this matter and, on the contrary, an adverse decision would have potentially very grave effects on her prognosis.
58. A further aspect of my consideration is the potential contribution to the community by Mr Luka. That is a matter that was not referred to by counsel, but Mr Luka has referred to his desire to obtain work as a stone mason, which is the sort of work he has done before. I would expect that if he is granted a visa to remain in Australia, he would use his best endeavours to obtain meaningful work in Australia, and that he would make a meaningful contribution to the Australian community. I am sure that Ms De Nitto will encourage him to do that.
59. Under the Direction I am required to balance the various considerations that I have referred to. I think on balance the first primary consideration points to refusing to exercise my discretion in favour of Mr Luka because of the seriousness of the misconduct, but in view of my findings about the risk of recidivism, I do not think that it points strongly in that direction. I think the second primary consideration, that is the expectations of the Australian community, points in favour of the exercise of my discretion in favour of Mr Luka, taking into account all of the matters I have already referred to, and I think the final consideration – that is the other considerations or other matters – points very strongly in favour of the exercise of my discretion in favour of Mr Luka.
60. For all of those reasons and having balanced the various considerations in the way that I have, I have decided to exercise my discretion in favour of the visa applicant.
Decision
61. The Tribunal:
(a)affirms the decision under review insofar as it was decided that the visa applicant fails the character test under s 501 of the Migration Act 1958 (Cth);
(b)sets aside of the decision under review insofar as it relates to the exercise of discretion; and
(c) remits the matter to the respondent for further consideration,
and directs that the discretion to refuse to grant a Partner (Provisional) (class UF sub-class 309) visa to the applicant not be exercised.
I certify that the 61 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 21 November 2007
Date of Oral Decision 21 November 2007Date of publication of
these written reasons 4 December 2007
Counsel for the Applicant Ms Jane McGrath
Solicitor for the Applicant McDonald Steed McGrath
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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