Dezoller and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 141
•9 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 141
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/511
GENERAL ADMINISTRATIVE DIVISION ) Re FLORDELIZA DEZOLLER Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date9 February 2005
PlaceMelbourne
Decision The decision under review is set aside and in lieu thereof the matter is remitted to the respondent with a direction that for the purposes of further consideration of his spouse visa the visa applicant is not a person who is not of good character within the meaning of s501 of the Migration Act 1958.
[The Hon C R Wright QC].
Deputy President
CATCHWORDS
Migration - spouse visa - periods of visa overstay - belief of continued lawful residency - false or incorrect answers to questions in visa application - caused by stupid error rather than intent to mislead - character test - decision set aside.
Migration Act 1958 – s501
REASONS FOR DECISION
9 February 2005 The Hon C R Wright QC., (Deputy President) 1. This is an application to review the decision of the respondent’s delegate dated 4 March 2004, made pursuant to s501 of the Migration Act 1958 (“the Act”), to refuse the application of Rodney Dezoller (the visa applicant) for a subclass 309 spouse (provisional) and subclass 100 spouse (migrant) visa.
2. The visa applicant, a national and resident of the Philippines, was born on 20.5.1965. He first entered Australia on 14 April 1986 as the holder of a visa valid for six months. On 16 September 1986 the visa applicant lodged an application for a further entry permit. The application was refused the same day and, on 13 October 1986, the visa applicant applied for review of the refusal to the Immigration Review Panel (IRP). In December 1986 the IRP recommended that the visa refusal be maintained. The visa applicant was notified of the refusal by letter dated 6 January 1987 and departed Australia on 30 January 1987.
3. The visa applicant re-entered Australia on 22 May 1989 with a visa valid for six months.
4. On 17 November 1989 the visa applicant lodged an application for a visa on the basis of his marriage to Toni Kim Slade, as well as on compassionate and humanitarian grounds.
5. On 22 November 1989 the visa applicant’s visa (valid for six months from 22 May 1989) ceased.
6. On 11 April 1990 the visa applicant’s solicitors (Barlow & Co) wrote to DIMIA advising that the applicant’s “marriage relationship has broken down and that the parties are no longer co-habitating” and stating that the applicant would be lodging a further visa application within 10 days.
7. On 30 April 1990, the visa applicant lodged an application for an extended eligibility temporary entry permit as a “remaining relative”.
8. On 29 Mary 1990 the Minister’s delegate refused the visa applications made on spouse, humanitarian and compassionate grounds, and as a remaining relative. The visa applicant was advised of these refusals by letters dated 27 June 1990. Both letters advised the visa applicant that, “[a]s your temporary entry permit is no longer in force you are now an illegal entrant and therefore required to depart Australia”.
9. On 23 August 1990 the visa applicant applied to the IRP for review. On 28 March 1991 DIMIA advised the applicant that DIMIA accepted the recommendation of the IRP that the visa applicant’s application be refused. The letter to the visa applicant advised him that “[y]ou are now required to depart Australia”.
10. By application dated 4 May 1991 the visa applicant applied for a December 1989 (temporary) entry permit. On 24 February 1992 the application was refused.
11. On 13 July 1992 the Immigration Review Tribunal (IRT) affirmed the decision to refuse the applicant a December 1989 (temporary) entry permit.
12. On 28 July 1992 the Migration Internal Review Office (MIRO) wrote to the visa applicant (c/- his solicitors), noting that the IRT had affirmed the refusal to grant the visa applicant a December 1989 (temporary) entry permit. It advised the visa applicant that “your temporary entry permit has now expired and as such you are an illegal entrant” and “you should make immediate arrangements to depart Australia”.
13. On 4 August 1992 the visa applicant made an application for refugee status and the associated domestic protection (temporary) entry permit. On the same date the visa applicant also sought permission to engage in employment. On 19 August 1992 DIMIA advised the visa applicant that he was refused permission to work. On 29 August 1992 the visa applicant married Nightingale Dezoller. On 31 August 1992 the delegate advised the visa applicant that his application for refugee status had been refused.
14. On 21 September 1992 the applicant applied to the Refugee Status Review Committee for review of the refusal to grant him refugee status.
15. On 25 May 1993 Ms Flordeliza Dezoller (“the review applicant”) became an Australian citizen. At that time she was the wife of Antony John Lee.
16. On 27 May 1993 the visa applicant’s daughter, Rica Jenzen Dezoller, was born. She was the daughter of the visa applicant’s then wife, Nightingale.
17. On 15 July 1994 the visa applicant lodged an application for a class 816 special entry permit. On 6 September 1994 the visa applicant was granted a subclass 830 processing visa. The subclass 830 visa remained valid until the applicant was notified in writing of the decision on his class 816 application.
18. On 19 January 1995 the Refugee Review Tribunal (RRT) affirmed the decision not to grant the visa applicant refugee status. The visa applicant, who had declined to be interviewed by DIMIA concerning his claims, also declined to attend a hearing before the RRT.
19. On 17 October 1995 the Minister’s delegate refused the visa applicant’s application for a class 816 visa. The visa applicant’s subclass 830 visa expired the same day. On 3 November 1995 the visa applicant applied to MIRO for review of the delegate’s decision. On 7 February 1996 MIRO affirmed the refusal of the class 816 visa. On 30 August 1996 the IRT affirmed the decision to refuse the subclass 816 visa application.
20. On 10 October 1996 the visa applicant applied for a change in circumstance visa on the basis of his relationship to his daughter, Rica Jenzen Dezoller, and his sister. On 31 July 1997 the delegate refused the application. On 20 August 1997 the applicant applied to the IRT for review of the delegate’s decision. On 28 November 1998 the IRT affirmed the decision to refuse the grant of a change in circumstance visa.
21. On 18 November 1997 the decree nisi of dissolution of the marriage of the review applicant and Antony John Lee became absolute.
22. On 5 March 1999 the decree nisi of dissolution of the marriage of the visa applicant and Nightingale Dezoller became absolute.
23. The visa applicant and the review applicant married on 24 April 1999.
24. In the early part of 2000 the visa applicant commenced work as a part-time employee with Fishers Latrobe Valley Pty Ltd at Morell. In June 2000 the visa applicant became a full-time employee of Fishers.
25. On 11 November 2000 the visa applicant departed Australia for Manila pursuant to monitored departure arrangements.
26. By application dated 23 October 2000, but lodged in Manila on 20 December 2000, the visa applicant applied for a subclass 309 spouse (provisional) and a subclass 100 spouse (migrant visa). The review applicant sponsored the visa applicant’s application.
27. On 24 September 2001 the Minister’s delegate refused the visa applicant’s spouse visa application on the basis that the visa applicant was not the spouse of Ms Dezoller, within the meaning of the Migration Regulations 1994. On 8 January 2003 the Migration Review Tribunal set aside the delegate’s decision, finding that the visa applicant was the spouse of Ms Dezoller.
28. On 27 November 2003, the Assistant Director of the Character and Cancellation Section of DIMIA at the Australian Embassy in Manila advised the visa applicant by letter (Exhibit R1, page 130-131) that consideration was being given to refusal of his spouse visa application under s501 of the Act.
29. The principal issue specified was “that you stayed in Australia unlawfully for a significant period after having been refused a protection visa (including associated reviews) and a special need relative visa”. A secondary issue raised was “whether or not your relationship with your sponsor is genuine and continuing”. The visa applicant responded to the departmental letter on 5 January 2004 (See Exhibit R1, page 141).
30. Both these letters were referred to in the decision of the Embassy’s Senior Migration Officer which was notified to the visa applicant on or about 4 March 2004 (see paragraphs 22, 33, 34 and 42 of T documents T20 page 8, Exhibit R1). The decision was that the visa applicant did not pass the character test and that the decision-maker’s discretion would not be exercised in the visa applicant’s favour. Accordingly, the visa applicant’s application was refused.
31. In reaching this decision the decision-maker took into account issues which had not been referred to in the DIMIA letter of 27 November 2003 and which, consequently the visa applicant had no opportunity to deal with in his letter of 5 January 2004. Chief among these issues was the contention (and finding) that on 20 December 2000 the visa applicant had included 5 false declarations in his spouse visa application. These are specified in paragraphs 19 and 38 at pages 7 and 9 respectively of exhibit R1 as follows:
(a)that he had never had a visa refused (Question 6);
(b)that he had never held a visa for Australia (Question 9);
(c)that the dates of his previous relationships were erroneous (Question 22)
(d)that he had never been asked to leave any country including Australia (Question 69)
(e)that he had permission to work in Australia from 28 March 1996 to 5 October 2000 (Question 72).
32. The decision-maker also took into account findings to the effect:
(a)that the visa applicant overstayed in Australia after expiration of his visitor visa from November 1989 until August 1992;
(b)that he also overstayed unlawfully for about 1 year in 1994;
(c)that he overstayed unlawfully from 5 September 1997 to 5 October 2000.
33. It is also reasonable to infer that the decision-maker found that the visa applicant knew that his application was without merit which he authorised his solicitor to lodge a protection visa application on his behalf on 4 August 1992.
34. The decision-maker considered that, viewed collectively, the visa applicant’s conduct was serious and should be accorded “great weight” under the guidelines provided by paragraph 1.9 of the Minister’s Direction No 21 (see paragraphs 64-66 at page 13 of Exhibit R).
35. The application to review the departmental decision-maker’s decision requires the Tribunal to consider the merits of the case presented to the Tribunal and to reach the correct or preferable decision called for as a consequence of that review process. The case presented on review to the Tribunal frequently differs substantially from that considered at departmental level and therefore the findings made by the primary decision-maker are often very different from those made at Tribunal level.
36. I have taken the slightly unusual step of discussing the primary decision-maker’s findings, express or implied in the present case because it seems to me that, either as a result of concessions made by the respondent’s counsel at the Tribunal hearing or findings which I propose to make on the basis of the evidence taken at the hearing, some of the important findings made adversely to the visa applicant cannot be sustained and some of the findings of fact, as a consequence of explanations provided, do not support the adverse implications drawn as to the visa applicant’s character.
37. That said, it needs to be acknowledged at the outset that the visa applicant was a very poor witness. His answers to questions were frequently unresponsive and he was hopelessly unreliable as to dates and factual chronologies. Indeed, his performance was so dismal that, having now read the transcript of his evidence, I have been confirmed in the tentative view I formed at the hearing that his apparent evasiveness and apparent incapacity to give direct or consistent answers to questions arises from a basic lack of intelligence rather than deceitfulness or mendacity. Nonetheless, there are core elements of his evidence, principally where his evidence was confirmed by that of his wife (the review applicant) and his aunt, Denia Delos Santos Vella, upon which findings favourable to his case can, and should, be made.
38. It will be apparent from the chronology of events given in the earlier paragraphs of this decision that the visa applicant has had a long and extensive history of making migration applications with the aim of securing his permanent residency in Australia. In many respects the visa applicant’s utilization of various applications and review proceedings has been quite remarkable, and no doubt, very expensive. For the greater part of his ongoing contest with the department he was represented by the legal firm, Barlow & Co (“Barlows”). He estimates that he paid Barlows a total of $8,000 to $10,000 to make and lodge his various applications over the years.
39. Whilst all such applications to date have been found to be unmeritorious for differing reasons of law or fact, it has not been maintained before this Tribunal that he has abused available procedures so as to adversely reflect upon his character (See concession by respondent’s counsel at page 12 and 13 of Transcript). Accordingly, the adverse inferences apparently drawn by the primary decision-maker on this issue, cannot be supported in my view.
40. At the time of making his protection visa application the visa applicant was being advised and guided by Barlows and he was entitled to defer to his solicitor’s professional advice that such an application should be made. It was not alleged, either in respect of that application, or indeed, any other application that he made (up until his current spouse visa application, the subject of this review) that he had fraudulently misstated relevant facts either orally or in writing.
41. I have not the slightest doubt that the applicant’s numerous applications and the complex web of intricate facts which has materialised from them is, and has been, a source of exasperation to those who have to grapple with the issues each time he has made a fresh sortie in an attempt to gain legitimate Australian residency. I must confess to certain feelings of frustration myself as I have tried to assess the relevancy of the plethora of circumstances revealed by the T documents (Exhibits R1 and R2), but it must be borne steadfastly in mind that a multiplicity of manoeuvres does not necessarily point to defective character.
42. The visa applicant complains that Barlows failed to secure that which they had promised him viz, permanent residency, and I have no doubt his feelings of betrayal were magnified when the principal of the firm became bankrupt in August 1999 and consequently the firm closed down. He also claims that Barlows owed him money at that time (presumably security for costs paid in advance) which he has been unable to recover. It is difficult for me to form an accurate assessment of the complaints made by the visa applicant and his wife, the essence of which was that Barlows had led them on without producing any helpful result. I can only say that the Barlow applications seem to have been made competently insofar as written records thereof are to be found in the T documents (R1 and R2), but it is manifest that nothing done by Barlows led to a beneficial outcome for the visa applicant.
43. This however is not the central issue so far as Barlows is concerned. The visa applicant says that he was always led to believe that he was protected by a bridging visa or similar permit giving him lawful residence status while he was pursuing his various claims through that firm.
44. He said in evidence that he left everything up to his solicitors – he was even in the habit of signing the various applications in blank and leaving it to his solicitors to fill them in for him. Of course, if they had made errors or filled in the papers fraudulently or incorrectly, this would not have absolved him from the consequences of his misplaced trust, but this is not the present issue. He claims that he relied on Barlows’ assurances that he had the relevant permission to continue residing in Australia while his applications were being processed and, on occasions, reviewed. Based on my assessment of him as a witness I am inclined to believe him.
45. It is not without significance that he continued spending what was for him, a large sum of money, for the purpose of securing lawful long term residency rather than simply being content to remain unlawfully in Australia in the hope that he would remain undetected.
46. Similar considerations also apply to his engagement of an individual by the name of Noor Dean to further pursue his quest for residential legitimacy once he became aware of Barlows professional demise. The visa applicant borrowed $2,000 from his aunt and paid it into this gentleman’s bank account, believing him to be a lawyer who was capable of bringing his quest to a satisfactory conclusion. There is no need to go into the full story of his dealings with Noor Dean. It suffices to say that it is almost certain that Dean was neither a lawyer nor a migration agent and that his sole talent seems to have been separating gullible people like the visa applicant from their money.
47. I find that when he was consulted by the visa applicant he assured him that he could stay legitimately in Australia and work while he, Dean, made a further residency application on the visa applicant’s behalf. I also find that Dean proved exceedingly elusive when pursued by the visa applicant and his wife to find out now the application was progressing and that, in fact, he made no application on the visa applicant’s behalf and effectively obtained the $2,000 by false pretences. The visa applicant has not taken up the matter with the police, but he should certainly do so. He has received no refund from Dean.
48. However, once again I return to the critical issue. The visa applicant was seeking to remain in Australia by lawful process and was misled and defrauded by an avaricious rogue. Indeed I think it quite likely that it was Dean who tipped off the immigration compliance officers who took the visa applicant into detention 2 or 3 days after their last confrontation simply because the visa applicant was making too much of a nuisance of himself trying to get some action or satisfaction from Dean.
49. Lightning rarely strikes twice, but I think on this occasion the visa applicant has been very badly served by both of his advisers at considerable financial cost to himself and also, indirectly, to the Australian taxpayer.
50. As mentioned previously the primary decision-maker took the view that the visa applicant had unlawfully overstayed after the expiration of visa periods on 3 separate occasions between November 1989 and October 2000 – about 7 years in total. In the respondent’s Statement of Facts and Contentions, 3 slightly different overstay periods were alleged in paragraph 38, but at the Tribunal hearing the first 2 of these periods (28 November 1989 to 5 September 1994 and 18 October 1995 (or thereabouts) to 9 October 1996) were abandoned on the basis that it was “probable that the visa applicant had temporary entry permits over these periods or if unlawful at all it was probably for only a short period”. In my opinion this concession was properly and fairly made by counsel for the respondent. This left the respondent with reliance upon the contention that the visa applicant overstayed unlawfully between 5 September 1997 and 4 October 2000. As to this period the visa applicant’s advocate said “we do not dispute the fact that in strict accordance with the Migration Act, section 501, Direction 21 that Mr Dezoller became unlawful between 1998 to 2000”.
51. The issue relating to this period of unlawful residence (whether for 2 or 3 years is scarcely material) so far as it relates to the visa applicant’s character therefore seems to me to come down to a question of whether this was a deliberate flouting of Australian immigration law or whether it was a period during which the visa applicant genuinely believed that he was legitimately entitled to remain here pending the resolution of his tenacious struggle for long term residential status. On the whole of the evidence I tend to the conclusion that the visa applicant had such a genuine belief, except perhaps for a short period between his being cast adrift by Barlows and engaging the elusive Noor Dean. So much then for the applicant’s status as an unlawful non-citizen.
52. The respondent’s Statement of Facts and Contentions makes it quite clear that the contention that the visa applicant is not of good character is based upon his past general conduct with reliance being placed on the Migration Act s501(6)(c)(ii). The two components of the relevant conduct are alleged to consist of –
“(a) the applicant’s periods of unlawful residence in Australia; and
(b)the applicant’s false answers in his spouse application dated 23 October 2000.”
53. I have already dealt with allegation (a). As to allegation (b) I have already set out in paragraph 31 of these reasons the false answers or declarations alleged to be present in his spouse visa application of 23 October 2000. The answer to question 6 is indeed erroneous. The answer to question 9 is also wrong. So too are the answers given to questions 22, 69 and 72.
54. The respondent’s case is that these answers were deliberately false “to conceal information of the applicant’s previous immigration malpractice in Australia” (see respondent’s Statement of Facts and Contentions, paragraph 44).
55. The visa applicant’s case, supported by his evidence and also his wife’s, is that she filled out the form for him and in doing so unwittingly provided information which would have been correct if it related to her. In short she made the mistake of answering for herself and not for her husband. He, in his usual fashion, simply signed the form presented to him by his wife.
56. It must be said that if the applicants were intending to conceal the fact that the visa applicant had been to Australia previously and had been obliged to leave (Questions 9 and 69), the answer to Question 72 would immediately have given the game away by indicating that the visa applicant had worked in Australia between 1996 and 2000. On the face of the form the answer to Question 72 was inconsistent with the answers to Questions 9 and 69.
57. The review applicant said that the spouse visa application form was filled out in Australia by her on the night before her husband was due to fly back to the Philippines in accordance with the supervised departure arrangements made after his detention. She said that she filled it out herself because he “might make a mistake, because … he is a very weak person”. However, it is plain enough to even the untrained eye, that there are 2 different styles of writing on the document and I am left with the clear impression and am driven to conclude that the visa applicant himself probably filled out the answers to those 5 questions which are the subject of present discussion.
58. This conclusion refutes the attempted explanation given for the erroneous answers given. I do not accept that they were completed as the review applicant alleges. Her explanation about answering as though the questions related to her rather than her husband is, in my opinion, disingenuous and highly improbable.
59. The visa applicant gave evidence supportive of his wife’s evidence, but I have already commented generally on his unreliability and, on this issue, I simply do not believe either of them. I do not accept that the erroneous answers to questions 9 and 69 occurred in the manner they described. Even if the form was filled out before the visa applicant left Australia to return to the Philippines, it is difficult, if not impossible, to see how the answers given can be explained as the genuine responses of a person relating his or her current geographical position to Australia rather than the Philippines – the visa applicant had “previously been to Australia” in 1986 before returning in 1989.
60. I find on the evidence that this visa applicant provided the erroneous answers to all 5 questions referred to by the respondent, but what still puzzles me is what, if anything, he hoped to gain by do so. He was very well known to the Migration Department. He had provided inconsistent answers in his visa application and it should have been very plain to anyone of even average intelligence that the information provided by him would be checked and the false information exposed. It is also fair to comment that the incorrect dates of his 2 previous marriages (Question 22) were plainly inconsistent with each other and would excite further enquiry, but in any event it is difficult to see how those particular matters would have helped him hoodwink the Department in any useful way.
61. In paragraph 53, I have made findings as to the erroneous nature of the answers to questions 6, 9, 22, 69 and 72, but in considering whether or not these were deliberate attempts by the visa applicant to secure a migration advantage a little closer scrutiny is necessary. I think that there is a latent ambiguity to Question 6. The first part reads: “Have you or any other person included in this application ever been refused an entry permit or visa in Australia?” Whilst a literal interpretation clearly embraces the need to answer “yes” in respect of any visa refusal to either enter into or remain in the country, I think the question could suggest that it is aimed at finding out whether the applicant has applied for entry outside Australia and been refused before actually arriving on our shores. The remaining 2 sub parts of the question (not copied) may tend to reinforce this perception. I am not convinced that a “No” answer by the visa applicant is indicative of the motive alleged by the respondent.
62. Question 9 reads: “Have you or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?” This has been answered “No”. The visa applicant was here in 1986 for 6 months and he returned on 16 May 1989. He then stayed until taken into detention in October 2000. This question is poorly constructed in a grammatical sense and deals with 6 separate issues:
(a)Have you previously been to Australia?
(b)Has a dependent member of your family previously been to Australia?
(c)Have you previously held a visa to travel to Australia?
(d)Has a dependent member of your family previously held a visa to travel to Australia?
(e)Do you hold a current visa for travel to Australia?
(f)Does a dependent member of your family hold a current visa for travel to Australia?
In respect of issue (a) the visa applicant’s answer was incorrect, but again, I am not convinced that the “No” answer is indicative of the motive alleged by the respondent taking account of the visa applicant’s intellectual limitations. As I have mentioned previously, although he has made several migration applications since 1989 he appears to have left the content and format of these to his former solicitors and has been content to simply sign forms which they placed before him. Furthermore, he is not fluent in English and required the services of an interpreter during this hearing. This was a genuine need in my opinion and not a device resorted to to avoid problems which might otherwise arise from cross-examination.
63. I have already commented on the inconsistency and inaccuracy of his answers to Question 22. I cannot regard this manifest confusion as doing more than indicating the low level of intellectual functioning. It does not suggest to me a fraudulent intent.
64. Question 69 asks ‘Have you, or any other person included in this application, ever:
· “…
· …
· …
· …
· …
· Been excluded from or asked to leave any country (including Australia)?
· …
· ….
· …”
There are 9 dot point answers required. They are not ambiguous or difficult questions. The visa applicant’s “No” answer to the question at dot point 6 was wrong. It is difficult to see how this could be an inadvertent error. The answer given has the potential to support the respondent’s claim as to the visa applicant’s motive.
65. Question 72 asks: “Have you ever been given written permission by the Department of Immigration and Multicultural Affairs to work in Australia?” The answer given is “Yes” and the “date permission given” is from “28.03.96” to “05.10.00”. The visa applicant was not asked why he nominated 28.03.96 as the starting date for such permission or to identify the document containing such permission. The termination date of 5.10.00 appears to coincide with his apprehension by compliance personnel. As previously mentioned this answer confirms that he had “previously” been to Australia and thus tends to refute rather than support the respondent’s contention that he was attempting to conceal such fact. It may also tend to confirm his belief, engendered by the assurances of Barlows and Dean, that he was permitted to work.
66. This analysis of the erroneously answered questions appears to me to provide only slender support for the respondent’s contentions as to the visa applicant’s motives. Of more concern is the unacceptable story by the visa applicant and his wife as to how these erroneous answers came to be included in the spouse visa application form. On the other hand it is plain that the form has been contributed to by two different people. Three years after the event it is possible they genuinely believed that the review applicant filled in the whole form if, as may be the case, having regard to their often clumsy approach to documentation, they failed to check the document before the hearing.
67. My overall impression is that the visa applicant is lazy and unintelligent and that his false answers, rather than being part of a scheme to mislead the Department and secure a migration advantage for himself were, at bottom, the product of ineptitude, stupidity and possible confusion.
68. On the basis of this conclusion and the conclusion I have previously drawn as to the applicant’s overstaying between 1996 (or 1997) and 2000, the question of the applicant’s character assessment becomes interesting. There were certainly grounds for suspecting that he may not be of good character, but the question then arises has he demonstrated that he is a person of good character. There is no need to refer to the numerous decisions of the Federal Court as to the meaning of good character within the Migration Act. There is nothing in any decision to which I have been referred which suggests that carelessness or stupidity resulting in the provision of erroneous information to the Department establishes a proper basis for finding a visa applicant is not of good character. That being so, I do not think the present character assessment should stand.
69. On the whole of the material provided to me for the purpose of this review and on the basis of the reasons set forth above, I have concluded that the decision under review should be set aside and in lieu thereof the matter should be remitted to the respondent with a direction that for the purposes of further consideration of his spouse visa applicant the visa applicant is not a person who is not of good character within s501 of the Migration Act 1958.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 23 November 2004
Date of Decision 9 February 2005
Counsel for the Applicant Ms A Whittall
Solicitor for the Applicant AT Australian Migration Agency
Counsel for the Respondent Ms R Hearn-Mackinnon
Solicitor for the Respondent Blake Dawson & Waldron
0
0
0