Dib and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 978
•30 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 978
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/7
GENERAL ADMINISTRATIVE DIVISION, SYDNEY REGISTRY ) Re ANDREA ALEJANDRA DIB Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J Block, Deputy President Date30 September 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr J Block, Deputy President
CATCHWORDS
IMMIGRATION –Visa Applicant granted tourist visa to Australia in June 1997 – soon after arrival in Australia Visa Applicant applied for protection visa – application for protection visa refused in February 1998 – Visa Applicant sought review of decision with the RRT – RRT affirmed the refusal of the protection visa – Visa Applicant worked in Australia for periods both legally and illegally in breach of section 235 of the Migration Act 1958 - Visa Applicant met Applicant in May 2001 – Visa Applicant and Applicant married in November 2001 – Visa Applicant applied for a Partner (Provisional) (Class UF) (Subclass SUF) Subclass 309 Visa –Visa Applicant refused on the basis of not of ‘good character’ – decision affirmed
LEGISLATION
Migration Act 1958, section 234, 235 and 501
Ministerial Direction 21
REASONS FOR DECISION
30 September 2003 MR J BLOCK, DEPUTY PRESIDENT PART A: INTRODUCTION AND PRELIMINARY
1. The decision under review is the refusal, on 19 November 2002, by a delegate of the Minister of Immigration and Multicultural and Indigenous Affairs (“the Respondent”) of an application for a Partner (Provisional) (Class UF) (Subclass SUF) Subclass 309 Visa dated 7 January 2002 by Mr Juan Carlos Barona Pena (“the Visa Applicant”). The application was sponsored by Ms Andrea Alejandra Dib (“the Applicant”), the Visa Applicant’s wife.
2. The Applicant was self-represented while the Respondent was represented by Mr Ishan Muthalib of Blake Dawson Waldron solicitors. The Tribunal had before it the T-documents and the supplementary T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with exhibits as follows:
· Exhibit A1 is a batch of documents consisting in the main, but not entirely, of references, some in respect of the Applicant, some in respect of the Visa Applicant and some in respect of both of them. Exhibit A1 also includes a number of letters, some addressed to the Respondent, and some by members of the Applicant’s family. I intend to refer to documents included in Exhibit A1 to the extent that they became relevant during the hearing.
· Exhibit R1 is the Visa Applicant’s landing card when he first arrived in Australia dated 25 July 1997.
· Exhibit R2 is the Visa Applicant’s application for review by the Refugee Review Tribunal (“RRT”) of the refusal by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) of the Visa Applicant’s application for a refugee visa, dated 27 March 1998.
· Exhibit R3 is a batch of documents including the Visa Applicant’s Refugee application, a copy of the Visa Applicant’s membership card of an organisation in Colombia styled Alianza Democratica M-19 ( “M-19”) and documents concerning the Visa Applicant’s proposed wedding to Liliana Murillo. Here too I intend to refer to those documents, which became relevant during the course of the hearing.
In this instance the T-documents and the supplementary T-documents were numbered consecutively, and so that a page reference refers collectively to both the T-documents and the supplementary T-documents; nevertheless any page reference which is preceded by “T” or “S” means that that page is contained in the T-documents or the supplementary T-documents, as the case may be.
3. Oral evidence was given by each of the Applicant, the Visa Applicant and Mrs Josefa Sanchez, whose brief statement forms part of Exhibit A1.
4. The Respondent’s Statement of Facts and Contentions dated 8 April 2003 contains a helpful chronology. I include only clause 4 (under the heading ‘Facts’) and clauses 8 to 12 inclusive (under the heading ‘Contentions’):
(4) FACTS
Date
Event
Reference
1.12.1964
Visa Applicant born in Colombia.
T8, T71, T199
11.05.1967
Review Applicant born in Argentina.
T74
12.06.1997
Visa Applicant lodged application for 3 month visitor visa at the Australian Embassy in Caracas. The visa was granted.
T10
25.07.1997
Visa Applicant arrived in Australia.
T10
09.09.1997
Visa Applicant applied for protection visa
T10
25.02.1998
Protection visa application refused by the Department.
T10
27.03.1998
Visa Applicant lodged application fore (sic) review of Department's decision to refuse the protection visa with the Refugee Review Tribunal ("RRT").
T10
16.02.2000
RRT affirms decision of the Department to refuse visa applicant's protection visa application.
T54
8.03.2000
Visa Applicant applied for Ministerial Intervention under s417 of the Act.
T39
1.06.2000
Visa Applicant's application for Ministerial intervention refused.
T10
14.07.2000
Visa Applicant became an unlawful non citizen in Australia.
T48, S216
05.2001/ 06.2001
Applicants met in Sydney.
T201
17.11.2001
Applicants married.
T94, T71
14.12.2001
Visa Applicant granted bridging visa
S216
24.12.2001
Visa Applicant departed Australia.
S216
7.01.2002
Visa Applicant lodged an application for a spouse visa with the Australian Embassy in Chile ..
T69
19.11.2002
Visa Applicant's application for a spouse visa refused on the basis that the visa applicant fails to satisfy the delegate of the Respondent that he passes the character test in accordance with section 501 of the Act”.
T8
CONTENTIONS
“False and Misleading Statements
8.The Respondent contends that the Visa Applicant made a false and misleading statement in both his application for a visitor visa and at his interview with a delegate of the Department on 28 October 2002 (T202) that he did not intend to remain permanently in Australia when he applied for the visitor visa.
9.Alternatively, if the Visa Applicant contends that this was not a false statement, the Respondent contends that the Visa Applicant made a false and misleading statement in his submission to the RRT where he stated that he had obtained a visa to come to Australia looking for residency on the basis of political refuge(S210).
10.The Respondent contends that the Visa Applicant made an unfounded protection visa application based upon a false and misleading claim of persecution. These false and misleading statements were:
(i)That he had sold his bulldozer and business in 1996 and gone into hiding (T57). The Visa Applicant later admitted to the RRT at the hearing that this was not the case and he had in fact only sold the bulldozer in July 1997, immediately before he left Colombia to come to Australia (T62).
(ii)That his brother had been murdered by the paramilitary (S215). The Visa Applicant admitted at the RRT hearing that this claim was without foundation (T63).
11.The Respondent contends the RRT also expressed doubt as to the Visa Applicant's honesty and credibility. The RRT noted the following inconsistencies in the Visa Applicant's evidence at the RRT hearing:
(i)The Visa Applicant claimed to be an active member of the political party M-19 but was unable to demonstrate any level of knowledge about the organisation beyond what had been reported in the media and could not name the major event (the armed takeover of the Palace of Justice in November 1995) in which the organisation had been involved during the time he claimed to be a member. (T60)
(ii)The Visa Applicant provided two inconsistent stories in relation to a letter he had provided to the RRT as evidence of his involvement in M-19. He admitted at the hearing that the first response he gave was false. (T61)
12. The RRT stated in its decision (T63):
"There were a number of difficulties with the Applicant's evidence...These included claims in the Applicant's written statements which do not accurately reflect the Applicant's experiences as set out by him in his evidence at hearing before the Tribunal...
The Tribunal did not find the Applicant at hearing to be a satisfactory or reliable witness and having regard to the difficulties encountered, found itself unable to simply rely upon his evidence at face value where it was inconsistent, uncorroborated or otherwise implausible."
5. The Applicant did not file a written Statement of Facts and Contentions; nor for that matter was there anything before the Tribunal which could be described as a witness statement by the Visa Applicant, although the written material before the Tribunal did include a number of letters by him. Mr Muthalib did not insist on the production of these documents.
6. The RRT, in a lengthy decision, affirmed the Respondent’s refusal of the Visa Applicant’s Refugee Visa application. In that decision dated 16 February 2000, Member Mr J C Blount, stated: (T11, p60 and p66)
“The Applicant explored these issues with the Applicant at hearing in January 2000.
The Applicant's passport (sighted at hearing) was issued in May 1997 but contained a notation that it replaced a previous passport issued on 28 January 1997. The Applicant stated that he had lost the previous passport while travelling on a bus in about February 1997 and that it had recorded a refused French visa. The Applicant's Australian visitor visa was issued on 12 June 1997 and he departed Colombia on 22 July 1997.
The Applicant was questioned about the M‑19 but his level of knowledge was only what might have been recalled from media coverage at the time. He could, say nothing about its structure or organisation (even at the level of an urban cell). When asked what major event involving M‑19 had occurred in November 1985 (the armed takeover of the Palace of Justice, during the period he claimed to be an active member) he was unable to say. Asked later when the assault on the Palace of Justice had taken place, the Applicant replied that it had been in 1981 or 1982, before he became an active member. When the Tribunal put to the Applicant that it had occurred three years later, the Applicant stated that he could not be precise about the date. The Tribunal put to the Applicant that it was implausible that he could not recall whether it had occurred before he became a member or while he was an active M‑19 member.
The Applicant stated that in 1982 he was influenced by two other students at his night school classes and he helped them by giving out pamphlets which they provided and talking to people at school and they had discussions. The Applicant stated that his activity ceased after the M‑19 became a recognised political party in 1989 and he stopped being part of the group.
The Tribunal asked the Applicant about the photocopy of an undated M‑19 membership card in his name. The Applicant stated that he could not remember when he had been issued the card but it had been between 1982 and 1989. The Tribunal put to the Applicant that the photograph of himself on that card was very similar to those appearing in later documents such as his passport and that it appeared to be much more recent than 1989.
The Tribunal also drew the attention of the Applicant to the undated letter concerning his M‑19 membership and asked when it had been issued to him and by whom and under what circumstances. The Applicant replied that it had been issued to him between 1982 and 1989 at the time he was an active M‑19 member. The Tribunal then pointed out that the letter referred to him having formerly been a member and being an "ex‑militant". The Applicant pleaded confusion and stated that be was amenable to the hearing not continuing. The Tribunal advised the Applicant that terminating the hearing when matters remained unresolved might not be in his own best interests. The Applicant then provided a quite different answer to the question about the M‑19 document. He now stated that the letter had been provided to him by an ex‑member of the M‑19 who had some kind of mandate. He could not remember when he had obtained the letter but it was after 1989. The Applicant acknowledged that his previous answer had not been correct.
When asked what had happened to him after 1989, the Applicant stated that he had problems with the police because of an incident which had occurred in about 1986/1987. The Applicant stated that an M‑19 colleague had shown him a bomb or grenade. Later, there had been an incident at a bridge involving this colleague when a bomb or grenade had exploded (he believed it was the same one) and a policeman and two M‑19 members had been killed. The Applicant claimed that although he did not know the two boys who were killed there had been some suspicion of him and the police had come to his house. However, the Applicant stated that he had never been detained or arrested by the police. Twice pressed as to the precise nature of any continuing problems or difficulties with the police the Applicant did not answer. The Applicant was unable to explain satisfactorily why this incident was not referred to in his previous statements to the Department and the Tribunal.
The Tribunal asked the Applicant about the death threats referred to in his statements. The Applicant stated that there had been several but that he did not know who they were from. The last one had been shortly after he left Colombia in 1997. The Applicant was at first unable to remember over what period he had received the threats or to say in what year he had first received a threat. After being pressed several times, the Applicant then stated that the first threat had been about four years before he left Colombia (that is, in about 1993).
The Tribunal asked the Applicant when he had decided to leave Colombia. The Applicant stated that he had wanted to go overseas since he was a teenager. The Tribunal then asked the Applicant when he had decided to do something about it and to seek a passport and visa. The Applicant stated that he applied unsuccessfully for a French visa in 1994/95, but when it was put to him that his passport with the record of the failed French visa application had been issued to him only in January 1997, he acknowledged this to be so.
The Tribunal questioned the Applicant about the claim in his earlier statement to have sold his tractor in 1996 and to have been in hiding since then. The Applicant admitted that he had continued with his bulldozer business and had only sold the bulldozer immediately before he left Colombia in July 1997, The Applicant stated that he had always been living at the same place, in the family home, from childhood up to his departure from Colombia, and that being careful when going out is the same as being in hiding. The Applicant stated that when he worked with his bulldozer it was in the countryside where he was not in as much danger.
The Tribunal asked the Applicant how it was that he had been finalising preparations to leave Colombia, and had then left, soon before his planned wedding for which invitations had already been issued. The Applicant stated that he had an agreement with his fiancee that if he got his Australia visa the wedding would be postponed and he would travel overseas, but that if he did not get the visa the wedding would proceed. The Tribunal put to the Applicant that his Australian visa had been issued in early June 1997 and that from then up to his departure (six weeks later) he had proceeded with arrangements for his travel and to sell the bulldozer but that at the same time arrangements had also gone ahead for his wedding with invitations going out immediately before his departure for the wedding (scheduled for 9 August 1997, about two weeks later). The Tribunal put to the Applicant that, having regard to the alleged agreement with his fiancee, it seemed highly implausible that after early June 1997 detailed arrangements would have proceeded for the wedding including the issuing of invitations if it had been agreed that it would not proceed; this could only have been humiliating for his fiancee and her family. The Applicant stated that they had an agreement and that it was possible.
The Tribunal noted that the Applicant had travelled through Argentina when he left Colombia and put to the Applicant that if he had been in fear of immediate harm he might reasonably have been expected to seek protection in Argentina or another neighbouring country in the first place rather than to engage in the lengthy process (over a period of at least six months) of seeking visas to France and then Australia. The Applicant stated that this had not occurred to him.
The Tribunal asked the Applicant about the reference in his statement to two colleagues having been killed. The Applicant stated that he had been informed about this by his family in a letter (that of 29 September 1997 already referred to, referring to rumours that two former friends of the Applicant had been killed). He did not have any additional information about the circumstances of their deaths (and therefore could not say certainly why they had been killed). The Applicant stated that these were the two friends who had introduced him to M‑19 in 1982. The Applicant stated that they also had ceased their M‑19 activity in 1982 and had not been involved with the continuing armed struggle. The Applicant volunteered that the two men were "bad people" who liked to get into fights, even with their friends, and who had since been involved in some "bad business".
The Tribunal also asked the Applicant about any relevant difficulties which his brothers had encountered. The Applicant stated that his brothers had not had any relevant difficulties. One brother had been injured by a bullet once but that had nothing to do with left‑wing groups. The Applicant confirmed, when it was put to him, that it was not correct (as claimed in his most recent statement) that a brother had been killed by the paramilitary,
The Tribunal put to the Applicant that Colombia is a large populous country and that he might reasonably avoid any particular difficulties in his home city or district by going to live elsewhere within Colombia. The Applicant then stated that in about 1995 he had gone to work for about four months in coal mines at La Guajira, a district at the far end of Colombia, where he was almost killed. It was a very violent area. He had been swimming in a river with two workmates one day when two young men had pointed a gun at him before they realised he was not the person they wanted and let him go. He had returned to his own city after this.
All of the evidence and submissions were taken into consideration by the Tribunal in reaching this decision.
Credibility/evidence
There were a number of difficulties with the Applicant's evidence which are addressed as they arise in this decision. These included claims in the Applicant's written statements which do not accurately reflect the Applicant's experiences as set out by him in his evidence at hearing before the Tribunal. For example, the Applicant claimed that he had sold his tractor and gone into hiding in 1996 when it was clear that he had done no such thing, while the claim about his brother's murder by the paramilitary was admitted to be without foundation. There were also issues which arose at the hearing, as flagged in the summary above.
The Tribunal did not find the Applicant at hearing to be a satisfactory or reliable witness and having regard to the difficulties encountered, found itself unable to simply rely upon his evidence at face value where it was inconsistent, uncorroborated or otherwise implausable.
Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of an applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451. The mere fact that a person claims fear of persecution for a particular Convention reason does not establish either the genuineness of the asserted fear or that it is well‑founded or that it is for the reasons claimed. It is for the Tribunal to be satisfied that all of the statutory elements are made out. (Guo's case at 596).
It was also stated in Chan (per McHugh J. at 428) that under the 1951 Convention "It was unlikely ... that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality."
Argentina provides visa‑free entry for Colombian nationals (for tourism) [Travel Information Manual (TIM), IATA December 1999, pp. 37‑38] and as a signatory to the Refugees Convention provides protection to refugees. See for example the US State Department Country Reports on Human Rights Practices in 1998, Argentina:
"A committee composed of representatives of the Ministries of Justice, Foreign Relations, and the Interior determines grants of refugee status, using the criteria of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol. A representative of the U.N. High Commissioner for Refugees may participate in committee hearings, but may not vote. The Government has granted refugee status to numerous persons and accepted them for resettlement ... There were no reports of the forced return of persons to a country where they feared persecution."
Under the circumstances, the failure of the Applicant (in the face of claimed repeated threats over a period of years) to seek protection in Argentina, including when he visited that country on 23/24 July 1997 after he left Colombia, gives rise to serious doubts as to the genuineness of his stated subjective fear. The response of the Applicant when these matters were put to him at hearing, that seeking protection in Argentina or other neighbouring countries had not occurred to him, is not credible. Taken together with the other circumstances discussed below, the Tribunal is not satisfied that the Applicant's claims are genuine or that he does have a genuine subjective fear of persecution for a Convention reason on return to Colombia.
FINDINGS AND REASONS
Having questioned the Applicant about the M‑19 movement and his own activities at the relevant time, the Tribunal is not satisfied that the Applicant was a member of the M‑19, between 1982 and 1989 as claimed or at any other time. The Tribunal accepts that the Applicant may have had some peripheral involvement, assisting two friends who may have been involved, but nothing more. The Tribunal was not satisfied that the undated, photocopied documents submitted by the Applicant in support of his claim to have been an M‑19 member were genuine, and his evidence at hearing in this regard did little to reassure the Tribunal. Also, the undated letter referred to ongoing persecution of the Applicant for political activities against the regime, when there was in fact no claim of any continuing activities after 1989.
Notwithstanding the Applicant's belated claim at hearing to have come under suspicion in relation to an incident in 1986/87, he was unable to explain in what way he had subsequently encountered problems with the police and stated that he was never detained or arrested, including after 1989. The Applicant's evidence about this claim was most unsatisfactory.
Although the Applicant's claims rest primarily upon alleged death threats from both former M‑19 members and paramilitaries, the Applicant's evidence at hearing about them was vague and uncertain. According to the Applicant's own (eventual) evidence at hearing, the first of the threats was not received until about 1993 (four years after he had ceased all activity and contact in relation to the M‑19); there were only "several" threats rather than the continuous or constant threats originally claimed; and the last one occurred shortly after he left Colombia in July 1997. The Applicant stated at hearing that he did not know who the threats were from. It appears most implausible that these kinds of threats should occur having regard to the actual degree of involvement by the Applicant and then only some four years later. In any event, notwithstanding these claimed threats, the Applicant openly operated a business from mid 1994 onwards and remained throughout living in his family home but does not claim to have ever been directly approached or attacked or harmed. The Tribunal is satisfied on the basis of the Applicant's evidence at hearing that his earlier claims to have sold his tractor (his principal business asset) and gone into hiding is 1996 were untrue. The Applicant continued with his business until he sold his tractor immediately before leaving Colombia in July 1997.
Nor was there evident any urgency or apprehension of immediate danger in the Applicant's preparations to leave Colombia. Although the threats allegedly commenced in about 1993, the Applicant only obtained a passport and applied for an overseas (French) visa at the beginning of 1997. He subsequently obtained an Australian visa in early June 1997 before leaving Colombia some six weeks later. As already noted, the Applicant gave evidence that it did not occur to him to avoid any immediate danger by entering and seeking protection in Argentina or another neighbouring country.
However, notwithstanding this apparent lack of urgency, the Applicant in the end left Colombia in the middle of preparations for his wedding, to which invitations were sent out shortly before his departure and some time.after he had received his Australian visa and commenced his preparations for departure. The Applicant has not claimed that this was because of some new threat or danger at that time but has sought to explain it by claiming that he and his fiancee had previously agreed that if he obtained his Australian visa he would travel overseas and the wedding would be postponed. This attempted explanation is inconsistent with the timing: as the Tribunal put to the Applicant at hearing (and he did not deny) the arrangements for the wedding continued after the visa was issued and in particular the wedding invitations were set out very shortly before the Applicant's departure. It is inconceivable that the fiancee's family would have sent out invitations to a wedding under such circumstances, knowing that the Applicant planned to leave Colombia before the wedding date. The Tribunal found all of this most unsatisfactory and implausible, although the Applicant denied that he had left Colombia in order to avoid the wedding.
The written submissions had referred to two colleagues having been killed and to the Applicant's brother having been killed by the paramilitary, suggesting that the Applicant was at risk of the same fate. However, the Tribunal was satisfied on the basis of the evidence before it at hearing that the circumstances of the two former friends allegedly found murdered in 1997 were not comparable with those of the Applicant. The Applicant stated that the two men had not been involved with the M‑19 or any left‑wing groups after 1989 and evidently had no additional information about the circumstances of their deaths which might provide reasonable grounds for believing that they were related to circumstances eight years earlier. The Applicant also volunteered that they were violent men involved in bad business. The evidence does not satisfy the Tribunal that these deaths carry significance for the Applicant's own situation.
With regard to the claimed murder of the Applicant's brother, the Applicant acknowledged at hearing that this claim was not true.
The Tribunal does not accept that the Applicant was an M‑19 member although he many have had some contact with members as a student in the 1980s. The Tribunal is not satisfied that the Applicant therefore received death threats from 1993 onwards or that he left Colombia for that reason. The Tribunal is not satisfied that the Applicant faced a real chance of harm for a Convention reason at the time he left Colombia.
…The Applicant owned and ran his own business in Colombia and is not tied to a particular place of employment or employers. He has also previously lived elsewhere in Colombia”.
7. The Visa Applicant was interviewed in Bogota, Colombia at the offices of the Australian Honorary Consul by Mr Richard Ross, Second Secretary Immigration and Senior Migration Officer, on 28 October 2002. I include an extract from the record of that interview, as follows (T30, pp202- 203):
· “When you got married were any of her family present? (Yes, sisters and aunts and uncles)
· Was any of your family present? (No. just friends and a Chilean Friend was best man)
· When you applied for your visitor visa application you did not plan to visit Australia, you were planning to remain in Australia permanently? (at first no, I was not planning to stay in Australia but then I wanted to stay)
…
· I don't believe that? (1 applied after 47 days in Australia, I told my family that I wanted to stay and I applied in Australia for political asylum. I told my family here that I wanted to stay and I they told me to contact a lawyer here in Colombia, which I did.)
· Who then told you about applying for PV? (When I called my family my brother here in Colombia gave me the name of someone in Colombia that could help me to stay in Australia)
· Who was that person in Colombia? (My brother called me and gave me the current situation here in Colombia and informed me about calling an attorney's assistant here in Colombia and I can not remember the name of the person)
· Who in Australia helped you fill out the application? (In Melbourne I can not recall)
· So the attorney he, your brother, referred you to then referred you to someone in Melbourne? (No. It was a translator in Sydney who translated the documents.)
· What did the attorney here do? (The attorney's assistant just told me to complete the application for a refugee. I was not fully in contact with the MI9. The attorney's assistant told me to complete the application for refugee in Australia.)
· So you went to a translator in Sydney? (Yes with the papers that need to be filled out)
· So what was this person in Melbourne? (No there was not a person in Melbourne it was Malvern, Bellwood something like that, a suburb in Sydney [applicant's pronunciation sounded a lot like Melbourne but I accept that it was not Melbourne that he said] )
· Why not state that you were engaged when you applied for a Tourist visa? (I did not want to have any problems. I had problems in Colombia and did not want any further problems I thought that if I said that I was engaged then that would cause further problems.)
· Looking at your application you arrived in Australia 25/07/1997 as holder of subclass 676‑visitor visa with permission to stay for only 3 months, You lodged an application for a Protection on 0910911997. This application was refused on 25/02/1998. You then lodged an application for review with the Refugee Review tribunal (RRT) on 2710311998. You then enter a relationship with an Australian citizen. It appears that you married her after all of the other processes had finished? (No I was not marrying her to stay in A/a. I was marrying her as she had stability and she is a person who is a good person. She is now my wife)
[I explained the process of Section 501 and the fact that he had been issued a Section 501 NOIR and that he had responded via his agent and that his agent had provided a two‑page response, which I showed him. I explained what happens if he is refused and the review right. I also explained that I would now look at his application in line with the section 501 Direction and make a decision on whether the application should be refused or whether we will continue with the processing. Folio 74 response to NOIR by PA]
· What should happen if your application is refused? (I don't know. Well sometimes you have to put your hand on your heart and ask why is my country so violent. I have done this maybe because I am now married [Applicant was very teary] )
[Had to clarify that this was a question asked of all Visa Applicants.]
· Have you and your wife considered or discussed what would happen if the application is refused? (I would have no choice but to stay here and she would have to stay. But it would be selfish of me to ask her to stay and live here as all of her family live in Australia. She has all of her support and her job there in Australia.)
· But you have discussed it? (Yes, however I would be very song that she would have to make that decision.)
· DO YOU HAVE ANY FURTHER INFORMATION AND DOCUMENTATION THAT YOU WOULD LIKE TO PUT FORWARD? (l want to thank you for what you have to done I want to write to you I want to appeal to your heart and when my wife and I are apart we missed each other. At the moment she is here but she is not well she has the flu. She is here to pick him up)
· Well I will be writing to you via your agent. (She has maternity leave the agent.)
· Well if you wish me to correspond directly with you then you will have to give me that permission in writing, stating your name and date of birth and also an address and an e‑mail if you wish communication by e‑mall. This will also apply to your wife, you understand this? (Yes 1 will do it here before 1 leave)
· Thank you for attending.
I believe that the Applicant and sponsor have entered a genuine and continuing relationship even though one can not be entirely sure given the misleading information that he has provided in the past. 1 have informed the Applicant that I would look at his case and make a decision on the section 501 by mid November and let him know.”
8. I note by way of preface that because the Applicant was self-represented, a very considerable degree of latitude was allowed to her and to the Visa Applicant. In particular I allowed interruptions by her and by her friends and family seated at the back of the Tribunal. I allowed the Visa Applicant to make speeches. After the hearing had been completed and adjourned, and after I had reserved my decision, I re-opened the hearing (with the consent of Mr Muthalib) so as to allow the Applicant to make further submissions as to hardship. An interpreter in the Spanish language assisted the Visa Applicant, although he does have some English, having spent a number of years in this country. On a few occasions the Visa Applicant answered questions in English without waiting for the assistance of the interpreter. At the commencement of the hearings, a suggestion by the Tribunal that legal representation might be desirable was declined. It should be noted, however, that it is unlikely that legal representation would have resulted in a different decision. In conclusion as to these preliminary matters, I record that I took careful notes, and that, especially in relation to the evidence of the Visa Applicant, I intend to quote my notes as to what he actually said, in respect of some aspects of his evidence.
PART B – THE EVIDENCE OF THE APPLICANT
9. The Applicant came to Australia from Argentina in August 1990, having been sponsored into Australia by her uncle, and pursuant to a last remaining relative visa. She has two sisters living in Australia. She completed high school in Buenos Aires in 1985 and then worked as a supervisor in an administrative department in Argentina.
10. Having come to Australia, she at first worked casually in the main library of Sydney University. In 1992 she achieved a permanent position in the library and holds that position at present.
11. The Applicant met the Visa Applicant in May 2001 in a Spanish restaurant at Kingsford. She had recently returned from a holiday in Argentina. A friendship developed; that friendship deepened and resulted in marriage on 17 November 2001.
12. From the outset the Visa Applicant knew that the Applicant was then illegally in Australia and that his refugee visa applications had failed. The Visa Applicant and the Applicant tried to leave Australia for Colombia on 14 December 2001 but there were difficulties as to a transit visa in New Zealand. They subsequently left Australia for Colombia on 24 December 2001.
13. The Visa Applicant’s family live in Cali, which is the third largest city in Colombia, after Bogota and Medellin. The Visa Applicant is one of eight siblings (originally nine) his parents having died when he was young. They stayed with his two unmarried brothers and an unmarried sister, Mariella who was, according to the Applicant, “like a mother to me”.. The Applicant stayed in Colombia for two months on that occasion and later for another two months around the time of the interview in October 2002, referred to later in these reasons.
14. The Applicant described Colombia as a nice country, but where the situation is bad. She referred in particular to the presence of beggars everywhere. She said that Argentina is also a poor country but not as lawless.
15. Since returning to Australia, in January 2003, she communicates regularly with the Applicant by phone using phone cards. She said that the Applicant works for his brother in a small business, which makes T-shirts.
16. The Applicant was cross-examined at some length as to what she knew of the Visa Applicant and his activities prior to meeting him. I do not think it necessary to record her evidence in this context, which was in the main of a hearsay nature.
17. In a letter to Mr Richard Ross, dated 14 May 2002; the Applicant said: (T15, 139)
“My relationship with Juan Carlos started with clear views, we have spoken about his situation before we got married and decided to put things in order. He was earnest from the beginning. Our relationship was not fruit of a decision to allow Juan Carlos to have another opportunity to stay, He could have done this long before he met me and he did not do it. We have fallen in love and that is why he made things clear to me before marriage, which it is genuine until today that we are apart. There is no doubt that our union is based in respect for each other, full of love and strengths. Many people around us can confirm this; they have witnessed our relationship from the beginning, here in Australia and following in Colombia”.
18. The Applicant explained that paragraph on the basis that the Visa Applicant could have married someone else.
The final paragraph of that letter reads as follows (T15, 140):
“I plead you to consider this letter and again, my husband had not intention to bridged or disobeyed any rules or conditions of this Country. He was desperate to change and find a better life, he tried and he was wrongly advised. The most important thing for us now is to be together, I can affirm that we love each other very much and he has come into my life in the most correct way. Please, with all my respect I ask you again to consider our case. Thank you for your time and consideration.”
The Applicant said that she knew that the Visa Applicant “was desperate to change his life and get a better life”.
19. She was also asked about the Visa Applicant’s membership of M-19 and her reply was that she did not know much about it. She agreed that she had read the RRT decision and was asked what she knew about the Visa Applicant’s relationship with Ms Murillo. She said that he did not tell her much about that relationship.
20. The Applicant said that when she met the Visa Applicant in May 2001, he was working casually in order to earn sufficient money to pay for rent and food. She said that he had finished high school and then had gone on to a technical course at an institution, which would be equivalent in Australian terms to a TAFE. She said that he had told her that he had sold his bulldozer in order to pay for a ticket to Australia.
21. The Applicant’s evidence was, in general terms, entirely credible. She is a pleasant and reasonably intelligent young woman of 36 who has achieved a good position in Australia. She is a member of a devoted and close knit family; her uncle and two sisters were present throughout the hearing.
PART C – THE VISA APPLICANT’S EVIDENCE
22. The Visa Applicant gave evidence for the best part of two days and most of that time was taken by his cross-examination. Mr Muthalib’s cross-examination was understandably enough, careful and searching, more particularly in that he was required to put considerable quantities of written material to the Visa Applicant. The examination-in-chief of the Visa Applicant was conducted by the Applicant and by the Tribunal more or less in combination. The Applicant found it difficult to conduct his examination-in-chief; often enough she found herself asking him questions in Spanish rather than in English.
23. The Visa Applicant’s evidence was, as will be seen, quite extraordinarily convoluted and at times quite remarkably inconsistent. On numerous occasions he furnished ‘answers’ which bore little or no relation to the questions asked. He repeatedly asked for the relevant question to be put again. He sometimes answered questions with a question, or made a brief speech. There were times when it was difficult to understand his answers. This is best illustrated by including quotes from my notes. It will be seen that at times his answers approached the surreal. Most importantly of all, the Visa Applicant’s evidence was in a large number of important aspects entirely untruthful. His problem was that, as the RRT found, his application for a protection visa was false in a number of important respects. On a number of occasions, when the English translation of a letter or other document was put to him, he answered that it was in English, which he does not understand, and that the translation could or would have been erroneous.
24. A long time was taken in relation to the Visa Applicant’s initial evidence as to what educational training he has had. His evidence was so extraordinarily convoluted on what should have been a simple area that it was necessary to commence afresh on two occasions. His evidence, as recounted in this clause, constitutes in effect a distillation of what the Tribunal eventually understood, although to obtain it was extremely difficult.
25. The Visa Applicant was born in Colombia on 1 December 1964. He commenced primary school in 1971 and finished in 1978. There was a break in his primary school education, for economic reasons, between 1974 and 1976.
26. In 1982, the Visa Applicant started working for a company with Japanese connections, which was referred to as SAJA. His work involved the use of heavy machinery. From that time onwards he also attended high school at night, but not regularly, and there were again breaks for economic reasons. He said that he finally finished high school in 1992. There was some evidence before me to the effect that the reference to “high school” might be more aptly characterised as technical training at night funded by SAJA. As to whether he matriculated, in the sense understood in Australia, is altogether uncertain.
27. Nothing in all of his evidence was quite as convoluted as that related to his acquisition of a bulldozer. SAJA became bankrupt in either 1990 or 1992. The Visa Applicant’s evidence was that SAJA’s liquidator distributed machinery to employees, but not including the Visa Applicant, who said that he bought a half share in a bulldozer from Carlos Arturo who, with one other person, acquired the bulldozer, in the first instance from SAJA’s liquidator. He also referred to Carlos Rivera, as a man involved in the bulldozer partnership. It eventually emerged that Carlos Arturo and Carlos Rivera are (probably) the same person.
28. The Visa Applicant purchased his half share of the bulldozer for seven million pesos (roughly equivalent to six thousand Australian dollars). He said that he was always saving and that in his spare time he sold machinery. That at least was his original evidence.. Subsequently he said that he bought a half share in the bulldozer from Carlos Rivera or Carlos Artura and in consequence became its sole owner. He said that he sold the bulldozer before coming to Australia for 7.3 million pesos. He could not remember at that time, what he paid for his air ticket to Australia, but said that he had money left over.
29. It will be necessary, in order to ensure that the Visa Applicant’s evidence is set out in the order in which it was given, to revert to the bulldozer later in these reasons.
30. In March 1997, the Visa Applicant sought a tourist visa to France. It was declined. He then applied for a tourist visa to Australia in May 1997, and it was granted, valid for three months, in June 1997. Having arrived in Australia on 25 July 1997 he stayed at first at the Civic Hotel. He was asked why he then and soon after arrival applied for a protection visa. He said that some friends told him he must apply within 45 days of arrival. He consulted his first immigration agent to whom he referred as “David” or “Davis” in “Burwood”.. (David or Davis is in fact David Harries;). The Visa Applicant was referred to David by a person, in Australia, named William. He asked David what he should do in order to stay in Australia. David said that the Visa Applicant should apply for a protection visa, and for which purpose he would need some necessary papers. He said that “I received some calls and that caused me to aspire to stay in Australia”.
31. The Visa Applicant was asked about the calls referred to by him. His answer was that “shortly after I arrived in Australia, I received a call from my sister saying that another threat had been received when two young men doing propaganda had been found dead”. He said that it was in consequence of this news that he applied for a refugee visa.
32. The Visa Applicant was asked why he had selected Australia as a holiday destination when it was so far away, and having regard to the fact that an air ticket to Australia from Colombia was so expensive. He said that he did not have any friends in Australia and “I didn’t even know how far away Australia is but I was interested in getting to know Australia”.. He went on to say that the sister who called him was Evelyn, and that it was after that call that he sought an interview with the man in Burwood. He was advised, as I have noted, that he should apply for a protection visa. The Visa Applicant said also that he could have been advised to take out another kind of visa although he did not refer to any other type for which he might have qualified. He was then asked why after the application failed, he sought it’s review by the RRT; in particular he was asked to specify the reason for the appeal. His answer was “there was an appeal – at this very moment I am doing another appeal”. He then went on to say “I appealed because in the short time I was in Australia I realised a big difference between that country and this one. I saw you could live here peacefully besides the opportunity offered me. From every point of view, Australia offered the security I was looking for”.
33. He was then asked if he appeared at the RRT hearing. His answer was “no, I think the papers were handed in by the Immigration agent who was in charge of my case. Her name is Jenny from Strathfield. She took the case because she was recommended to me as cheaper. The only hearing I had was with someone called Bloom”.
34. The Visa Applicant said that he met the Applicant in May 1997. This was quickly corrected so as to refer to May 2001 and was in my view no more than a slip of the tongue. He married her in November 2001. He said that while in Australia he worked for a construction company while it was legal for him to do so. When it became illegal he worked casually, “just to keep myself”, for a Chilean man called Carlos and a Spanish man whose name he did not remember. At present he is working for his brother in Colombia. He said that he uses the little he earns to pay for calls to the Applicant in Australia. He also said that he told the Applicant of his situation when he first met her.
35. The Visa Applicant gave evidence about Ms Murillo which , considered in the light of subsequent evidence, was particularly incredible. When the Visa Applicant left for Australia he had made plans to marry Ms Murillo. He went on to say:
“I’m sorry to say – when I left for Australia she was barely 17. Due to that she had not finished her studies. She was not very mature and I saw no future next to her. There was disagreement by both families. During the time I was with that girl I didn’t touch her. My brother who owns a taxi saw her coming out of a motel when she was 17 years old. That is why there was a motive for postponing it until I returned. And while I was in Australia her mother told me that she had gone to live with another person”.
When asked whether Ms Murillo’s mother had phoned him, he replied that they didn’t have money for calls. The Visa Applicant said he had called her family, and Ms Murillo’s father gave him the sad news. This happened, so he said, after he had been in Australia for one and a half or two years.
36. He was next asked about the papers given to David for the purpose of his protection visa application. His answer was that “the translator has them”. And “I sent him the papers of M-19, letters and also a card of the place where I worked and family letters of the problem I was having”.
37. When asked what problem he was referring to he replied that the problem related to M-19, and went on to say “a movement at which I met some young men who informed me about it – I met them when I was studying at night school. They were a part of urban cells”.
38. It was put to him that the RRT had not believed him and his answer was simply “why?”
PART D – THE VISA APPLICANT’S CROSS-EXAMINATION
39. Mr Muthalib commenced by asking the Visa Applicant about his education. I do not need to go into detail as to his answers, which have been set out previously.
40. Reverting to the issue of the bulldozer, the Visa Applicant said that it belonged to Carlos Arturo or Carlos Riveras and a partner. The Visa Applicant paid seven million pesos to the partner for a half share in the bulldozer. He said that the “price for the machine was fourteen million pesos”. He also said that the amount paid was between six and seven million pesos and that it was paid in instalments in 1992.
41. The Visa Applicant then went on to say that in either 1994 or 1995 he bought the remaining half of the bulldozer from Carlos Riveras/Arturo. The price was not specified but the financial transactions involved were complex. He gave the seller a motorcycle in part payment; the value of the motorcycle was about 1.3 million pesos. He said that four million pesos was still due to the seller. He said that this was so because the machine was in bad condition. However his seller owned him money, (and being two million pesos), which left a balance of five hundred thousand pesos still owing. When he was asked how the seller came to be in his debt for two million dollars he said “I lent him the money; you don’t ask a person why he needs the money and you are getting interest”..
42. Further cross-examination as to the bulldozer resulted in different figures but ending up, nevertheless, with a balance still due to the seller, Arturo/Riveras of five hundred thousand pesos. As to why the seller has been prepared to wait so long for his money was unclear and never explained. Nor, for that matter, did the Visa Applicant explain how he came to accumulate monies of this magnitude for all of these purposes. Nor was it in any way possible to reconcile all of the conflicting figures.
43. The Visa Applicant then said that he sold the bulldozer on the very day on which he left Colombia. He decided to sell, so he said, two days before he was due to fly to Australia and completed the transaction on the day upon which he left. He was asked how, in these circumstances, he had paid for his air ticket. His answer was that “I had made a down payment and with the remainder I paid more and also some money I owed". The Visa Applicant then said that out of the proceeds of the bulldozer sale he paid the balance of his air ticket and some debts.
44. The Visa Applicant was asked what he obtained for the bulldozer. He said that he sold it for 7.3 million pesos, receiving only seven million pesos. When asked whether his purchaser still owed him three hundred thousand pesos he answered that no amount was outstanding because “the purchaser asked for a rebate of three hundred thousand pesos because some parts were missing in the machine, which I had not told him about”.
45. He was then asked the cost of the ticket. He said that he could not remember although it was one of only two tickets he had ever bought, the other being for a trip within his own country.
46. He was then asked about his application for a visa to France. He said that he had applied for a visa to France because he had a friend there who “would receive me”. When asked whether he wanted to go to France on holiday his answer was “because I wanted to go to France for the same reason I wanted to go to Australia and being the reason my sister told me”.
47. While in Australia the Visa Applicant applied for a visa to the US, which was rejected (“because of the situation I was in”). He also said that he had problems with a visa to New Zealand.
48. The Visa Applicant said that he applied for his visa to Australia on 12 June 1997 and that he came to Australia on 22 June 1997, he insisted that it was June but finally and after being pressed repeatedly, agreed that it was July. (This could have resulted from the fact that the words in Spanish for June and July are similar).
PART E – THE VISA APPLICANT’S CROSS-EXAMINATION CONTINUED ON 16 SEPTEMBER 2003
49. The Visa Applicant said at the beginning of his resumed cross-examination that he came to Australia on 25 July 1997 and applied for a protection visa on 9 September 1997. (This answer was given in English). He said, at first, that he received a permit to remain in Australia for three months but this answer was presumably a reference to his tourist visa. He agreed that he applied for and obtained permission to work.
50. He agreed that DIMIA would have refused his protection visa application in February 1998.
51. He agreed also that he sought a review of the refusal to the RRT. He said that he consulted with Melanie Ramos and that she said he could do so. When asked if he was sure about this he said that he was sure that it was indeed a Melanie Ramos of Strathfield. He said also that he did not have a hearing before the RRT but only a hearing before a Mr Bloom.
52. When asked when that occurred he said, after a long silence, that he thought it was in February 2000 and that it took place in the city but that Melanie did not accompany him. He then said that he had made a mistake because he was confused and that it was “the other lady I had before her”.. (Jenny Perez appeared for him before the RRT). He said that he knew that the RRT affirmed the refusal and knew also that this occurred because the RRT did not believe that there was a basis for his application. The Visa Applicant said that he himself did not agree with the RRT decision.
53. It is sufficient to note that the Visa Applicant worked for a construction company in Australia when it was legal for him to do so and casually when it was not. It is relevant to note, however, that he at first said that he started work for the construction company in April 1998 and did not work at all from July 1997 when he first arrived in Australia until April 1998. He then contradicted himself and said that during the first period he worked for a man who spoke Spanish and who introduced him eventually to the construction company. He started work for the Spanish speaking man about a month after arrival. He met him in Ashfield at a place where it is common for Colombians to meet.
54. When he first came to Australia in July, he first stayed at Kings Cross and for a period of about two weeks. He then moved to Croydon after seeing an advertisement for a room and stayed there for a lengthy period.
55. Subsequent evidence made it clear that the Visa Applicant worked from about one month after his arrival until one month before his eventual departure. There were at least two periods, one short and the other much longer, when he worked in Australia illegally and in breach of section 235 of the Migration Act 1958 (“the Act”). He knew that he was not allowed to work but insisted that he had no option. He said also that while working casually there were periods when he could not find casual work.
56. This is the text of one of the Visa Applicant’s speeches referred to previously in these reasons:-
“I wish to take a minute of your time to tell you something. When a person like in my case, a migrant, you come to a country where a different language is spoken there are many things you don’t know about it. You get letters in English and in some cases you throw them out. These are things you have to understand. There are many people working illegally. We have to pay rent and eat but while I worked at Testicio, he paid me everything in relation to the security of a worker. That made me think I was here legally. Thank you for listening to me”.
57. The Visa Applicant was asked again whether he gave evidence before the RRT. He said that he only had one interview and that was with a Mr J C Bloom. (The Tribunal considers that this must be a reference to Mr Blount who was the member who presided at the RRT hearing).
58. The Visa Applicant said that his family knew that he had applied to France for a visa and also of the Australian application and that they all came to the airport to say goodbye. He bought his ticket from a travel agent and paid for it two weeks before he left; (he had said previously that he paid the balance of the cost of the ticket on the day of his departure). He then said that he had talked to his mother who reminded him that the cost of the ticket was between two point six and two point eight million pesos. (At the time his reference to his mother was not picked up; in fact his mother had died many years previously, and he was perhaps intending to refer to his sister). It will be noted that the Visa Applicant’s evidence, as to when he paid for his ticket, was not consistent with his earlier evidence. The Tribunal does not believe that a person such as the Visa Applicant could have been issued with a ticket on the basis that he paid for it, or the balance of the cost of it, on the very day of his departure.
59. It was put to the Visa Applicant that to come to Australia for a holiday was very expensive indeed. At first he did not reply but then he said “I would agree but when you are there you have to see how you are going to move”. When asked how long he was going to be on holiday he answered “three months”. And then he said that it all depended on “how things come out”.
60. The Visa Applicant was then asked how much money he had and at first refused to answer but said that after selling the bulldozer he had two thousand US dollars in cash, and that he had no debts. The Tribunal notes that the Visa Applicant had previously said that he did have debts, which he paid with the proceeds of sale of the bulldozer.
61. As to his landing card (Exhibit R1), he had completed “lengths of stay” with 30 days having deleted the original entry of three months. He said that three months was the duration of the Visa. When asked whether it was not true that he always intended to stay as long as he could his answer was “I just took into account what the lady told me and the lady gave 28 days”.
62. He was then referred to the interview record (T30, p198 – p202) where he answered much the same question with “no, I was not planning to stay in Australia but I decided to stay”. He said, “when a person comes he decides whether to leave or to stay.
63. The Visa Applicant was then referred to a statement submitted by him to the RRT and which accompanied his application (S1, p210). The third paragraph reads as follows:-
“”I started to receive continuous threats in the way of telephone calls that said they would kill me if I did not join them, meaning the former members of M19. Since I did not want to join them and because I was scared of the paramilitary for myself and my family, I decided to leave the country and arranged to obtain a visa for Australia and I came here looking for residency on the basis of political refuge”.
64. The Visa Applicant responded with reference to this extract that if the letter is in English he did not write it. When put to him that it was a translation his answer was that in translation some of it may have changed. He was then referred to his application for review by the RRT (Exhibit R2) in which he specifically said that he came to Australia to seek protection. He was also referred to the RRT decision (T11, p55) which sets out that the Visa Applicant requested political asylum a few days after his arrival and the fact that he sought the assistance of someone recommended by his brother. (It will be remembered that he had previously said that he consulted David at the suggestion of William in Australia). Notwithstanding all of this, the Visa Applicant insisted that he did not come to Australia to seek political asylum and that he made a decision to stay in Australia only after arrival.
65. It was pointed out to the Visa Applicant that he was represented at the RRT hearing. He was referred an extract of the RRT decision which reads (T11, pp58-59):-
“There was also submitted a handwritten undated statement by the Applicant together with a translation. The Applicant sated that he had been harassed and forced to abandon his country, family, friends “and my fiancee whom I was on the point of marrying”, for the safety of all concerned.
66. He agreed that these facts were correct. When he was again asked if he could now agree that he did not come to Australia on holiday his answer was that he did come with that purpose. And he maintained his position despite an extract from the RRT decision which reads as follows (T11, p59):-
“The Applicant stated that in 1982 he decided to resume his secondary studies part-time and became an active urban member of M-19, helping to arrange meetings, distribute pamphlets and subversive propaganda. The Applicant stated that M-19 was reintegrated into society when a peace pact was signed in 1989 and arms handed in. However in 1990, with the assassination of its presidential candidate, Carlos Pizarro Leon Gomez, many of those rehabilitated went to join other groups such as FARC and ELN. The Applicant stated that he and many companions had been threatened with death for not agreeing to join them. All of this, and “the few guarantees offered to us by the Government in these cases and its very involvement (in such cases of assassination)” led him to abstain from making a complaint and he decided to seek protection in Australia”.
The Visa Applicant insisted that “faced with that problem I went to Australia and I decided a few days after to make the petition”.
67. But there were some points in the written evidence which the Visa Applicant could not dispute. Question 34 of his protection visa application (Exhibit R3) related to his past employment. He had answered that in June 1996 he sold his bulldozer and went into hiding because of death threats; the Visa Applicant said that those statements were not true. Mr Muthalib put it to him that this is what you said and the following exchange took place “would you mind repeating the question?, would you mind repeating what I said” and after it was repeated he said in English “that’s very strange because at no time was I in hiding. I have to admit that the job and the machine offered me a great deal of security, it was for financial reasons and I had no debts”..The exchange then proceeded:
“Q. If you did say that you sold your bulldozer it wouldn’t be true?”
“A. I want to make this clear, I sold the bulldozer due to the situation I was in at the time, I have to admit that this was used in the country. I understand that this is different from being in hiding”.
68. The Visa Applicant admitted that his brother had not been killed (S1, p215). He had told the RRT that his brother had been killed. When this point was put to him he said that “some errors were made”.
69. It was put to him that he had made an admission to this effect to Mr Blount at the RRT. He said that “if this has been written down it’s a mistake; when translations are made it’s possible that these errors can be made”.
70. The Visa Applicant’s evidence as to his relationship with Ms Murillo is altogether remarkable. He admitted that he was engaged to Ms Murillo, having been in a relationship with her for three years and commencing in “1993 – something like that”. And then “actually I had a relationship with her for four and a half years”. He then said that they became engaged in around March 1993 and planned to get married in August 1997.
71. It was pointed out to him that wedding invitations were sent in August 1997 for a wedding on 9 August 1997 (Exhibit R3). He was asked why, if the wedding was scheduled to take place in August 1997, he went on holiday to Australia in July 1997. He answered that “the relationship was in extremely bad condition. On the part of her family and mine there were many disagreements. Therefore in common agreement with her I decided to apply for the visa to come to Australia and we decided to postpone the wedding”.
72. When it was put to him that the invitations specified August 1997 for the wedding he replied that he did not know how the invitations came to be sent. The Visa Applicant was then referred to a passage in the RRT decision (T11, p58). He was also referred to his own statement to the RRT (S1, p211) that he was obliged to cancel the wedding because he had to leave the country. His answer was “yes, because of the pressure of what was happening I had to take that decision”. He was again referred to his statement which notes that he had reached an agreement with Ms Murillo to postpone the wedding. He was also referred to the RRT decision (T11, p62) in relation to the wedding arrangements. He replied that in April 1997 or May 1997 he and Ms Murillo decided to discuss the marriage; they made wedding arrangements and he then decided to request a visa “in view of what was happening”.
73. The Visa Applicant then agreed that when he arrived in Australia he was still engaged to Ms Murillo and “so much so that I continued calling her”. He then said that he broke off the engagement about two years after his arrival in Australia “due to problems which her own mother let me know”..
74. The Visa Applicant’s attention was then drawn to question 11, part C of his protection visa application (Exhibit R3) which asked, whether he was engaged. When asked why he did not say that he was his answer was “I don’t know, these are minimal things which you don’t take into account. I don’t carry a photograph of her around with me”.. (At a later part of the hearing Mrs Sanchez said in evidence that the Visa Applicant lived in her boarding house in Croydon and that he broke down and cried when the engagement ended. This occurred, she thought, some time after his arrival at her home in Croydon).
75. The Visa Applicants evidence regarding M-19 was inconsistent and difficult to credit. He agreed that the RRT had found that he knew nothing about M-19 beyond that which one would know from newspapers and television. He agreed that he had known nothing about the organisation and structure of an urban cell. When it was put to him that he had known nothing about a most important event in respect of M-19, he first asked for the question to be repeated and then said that there was several such events. He agreed that when, before the RRT, he did not know of the Palace of Justice incident referred to in the RRT decision. He then said “I want to ask a question” and proceeded to say “I asked Mr Blount to finish that interview because the pressure and environment and question after question – nervousness took over – any person would feel that”.
76. The Visa Applicant was then referred to the M-19 membership card submitted with his protection visa application. Quite lengthy evidence elicited the fact that, although he had ceased to be a member in 1989, he had in 1997, when he received his Colombian passport, taken one of his passport photos and put it on the M-19 card and laminated it. He agreed that he had done this eight years after he had ceased to be a a member and in 1997. When asked why he had done this, his answer was “what can I say – sometimes we have time on our hands and we use it – like when you clean your room or you shave”.
77. It was put to him that the M-19 card is bogus. He said “as I said before this is what they gave me”.. He referred to it as equivalent to a souvenir.
78. He was then asked about death threats and the fact that at the RRT hearing he could not remember any details (T11, p61). He said “there are many things I didn’t remember – when you are nervous your brain becomes a blank”.
79. It was put to him that he gave the RRT a letter claiming to be a member of M‑19 (T11, p61). His answer was that he did not remember the letter.
80. It was then put to him that he had informed the RRT that the card had been issued between 1982 and 1989 when he was a member. His answer was that this is what he said but that he corrected it so as to allege that he received the card after 1989. He agreed that his previous answer had not been correct.
81. As to leaving Colombia, he admitted that he told the RRT that it was always his dream to leave that country.
82. It was put to him that the RRT recorded a refusal of his application for a French visa in January 1997. He agreed that this was so, but maintained that his visa application was rejected in March 1997.
83. The Visa Applicant agreed that he did not seek refuge in Argentina. When asked whether he could contemplate living in Argentina, his answer was that he had never contemplated it and that there were nearer countries. He said also that he did not know what would be required for residence there, but that in any event conditions in Argentina were much worse than they were in Colombia.
84. He was then asked why, with his experience in construction work, he was helping in his brother’s shop. His answer was that he has nothing to offer his wife in Colombia. He went on to say that if he had left Australia in a legal way he could not understand why he should not be given an opportunity to return.
85. It was put to him that he had provided a letter from all of his siblings dated 29 September 1997 (Exhibit R3) reading:-
“Dear Brother: Receive a kiss. We are all very confused about your so unexpected departure but we know the causes and would justify your leaving for a country so far away and secure”.
When he was asked why, if he had told his siblings of his visa applications, his departure was so unexpected. His answer was that “I am a very reserved person and when I told them I was leaving they were very surprised”.
86. It was then put to him that his siblings had said that he was looking for a place to hide. His answer was that this was an expression they used “but I admit that this was due to my behaviour to them lately – it was due to my job which was offering me peace”..
87. It was next put to him that his siblings had collected some money for him because they knew that in Australia he was not permitted to work and when in fact he had already started work. He agreed that this was so.
88. It was then put to him that his siblings had expressed the hope that everything worked out in the way in which he planned it. His answer was that this was their way of wishing him luck.
PART F – THE EVIDENCE OF MRS JOSEFA SANCHEZ
89. Mrs Sanchez ran a boarding house in Croydon; the Visa Applicant lived there from about August 1997 until she sold it in 1999. She said that he is a good person who helped a man in need of money in the boarding house . She said also that he cried a lot when Ms Murillo left him. When asked when this had occurred, she said that she did not know.
90. Mrs Sanchez came to Australia in 1961 under a family reunion visa. She knew that the Visa Applicant was in Australia illegally.
PART G – THE CHARACTER TEST
91. The evidence before me establishes not only on the balance of probabilities but beyond any reasonable doubt that the Visa Applicant came to Australia in order to stay in Australia and notwithstanding that he had only a tourist visa. To come to Australia, he sold his bulldozer, which was his means of earning a livelihood, hardly the action of someone intending to return to Colombia. And in any event a holiday in Australia for someone in Colombia who knew nothing of Australia and whose means were very limited indeed, was never realistic. It should be noted that the Tribunal did not believe all of his convoluted financial evidence and in particular how he came to acquire the bulldozer. His statement that he paid for his air ticket (and according to his evidence the cost was substantial) on the day he departed was incredible. His behaviour in Australia after his arrival was hardly the act of a tourist. For two weeks he lived in Kings Cross and then moved into a boarding house in Croydon and started work within a short time. The evidence before me points overwhelmingly to the fact that the Visa Applicant came to Australia to stay. It is very possible that he knew of the protection visa method before he came to Australia. Experience in this Tribunal has taught me that it is well known from China to Russia to Chile and even in remote places in those countries. The protection visa is of course applied for since it, if applied for within the statutory time limit, allows the issue of a bridging visa which furnishes a much needed right to work.
92. This Visa Applicant’s behaviour has followed a pattern all-too-familiar to this Tribunal. It involves a single person coming to Australia on a tourist visa, applying for protection visa on bogus grounds, appealing the refusal to the RRT and thereafter to the Respondent under section 417 of the Act. The procedure affords two main advantages; it buys time, and given the pressure of the RRT caseload, the time involved can be years. It also affords the right to work; although this Visa Applicant worked in breach of section 235 of the Act both before and after he had the right to do so. His evidence before me was untruthful and fanciful to a very large extent. The truth is often the first casualty when a visa applicant feels compelled to back up his bogus protection visa application in his evidence before this Tribunal. The Visa Applicant was singularly inept in his attempts to do so. This Visa Applicant has on the balance of probabilities breached sections 234 and 235 of the Act on many occasions. The penalty prescribed for breaches of section 234 of the Act in particular is such that I must find that he fails the character test and by a wide margin.
PART H – MINISTERIAL DIRECTION 21 (“DIRECTION 21 ”)
93. In this part H references to numbered clauses should be construed as references to numbered clauses in Direction 21.
94. Clause 2.3 provides that the primary considerations are:
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
95. Clause 2.3 must be read in conjunction with clause 2.5 which reads:-
“The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”
96. The untruthful and deceitful conduct of this Visa Applicant has taken place over so long a period and is of such magnitude that the risk of recidivism cannot be discounted, although it must also be said that all of his efforts and misconduct have been directed towards the single purpose of achieving residence in Australia.
97. As regards deterrence, the most that can be said is that to grant a visa to a person such as the Visa Applicant would send entirely the wrong message. But that said, it is not easy to accept that refusals in the many cases of this nature coming before the Tribunal are having a deterrent effect. From all over the world, a constant stream of would be residents of Australia, following exactly the same route, are coming into Australia as tourists. There is no doubt a heavy cost involved; it is costly in it’s calls upon the time and resources of Embassies, of DIMIA, the RRT, the Respondent and this Tribunal and of course not forgetting all of the legal costs involved. It should be remembered also that there is a human cost involved. There is no submission in this case on the part of the Respondent that the Visa Applicant married the Applicant in order to further his aim of achieving residence in Australia. It is entirely conceivable though that his motives were mixed in the sense that he would not have married her if she did not have Australian residence.. But her suffering is a relevant factor where, as in this case, the Tribunal must affirm the decision under review. My attention has repeatedly been drawn to the penalties (and severe penalties) provided for breaches of section 234 of the Act, in respect of false and misleading conduct, but one does not hear of prosecutions. When one analyses the situation, a visa applicant in this position has very little to lose by unlawful behaviour of this nature. At the very worst, he will have a few years in Australia; he may achieve residence (especially where a child’s interests are involved), while his risk of a penalty for perjury appears to be remote. There is also of course the possibility that while living illegally in Australia, he will not be discovered by the authorities, whose resources for the detection of illegals is limited.
98. Of course some at least of these cases would not occur if there were fewer “tourists” of this kind. Accepting as I do that to distinguish a real tourist from a tourist intending to stay is difficult, country experience might suggest that rather more vigilance from some of Australia’s embassies is desirable. A recent case heard by me involved the grant of a tourist visa to an applicant who had been forced to leave Australia previously. He came to Australia and stayed with the usual consequences, and being the procedures to which I have previously referred.
99. The expectations of the Australian community would undoubtedly be that a visa should be refused in a case such as this.
100. The conduct of this Visa Applicant was particularly serious. Some of the character references (Exhibit A1) do speak well of him, but do not ever advert to the circumstances and factors, which have lead to this hearing. It is for this reason that very little weight can be attributed to them. In any event the emphasis contained in them is directed rather to establishing that the marriage is genuine.
101. In this case the hardship of the Applicant is a real factor. On the one hand she is herself Spanish-speaking and she knew that she was marrying someone who is not legally in Australia. On that basis her hardship factor must in the ordinary course be rated as low, and certainly not sufficient to outweigh the factors which point in the other direction. For the Tribunal to refuse to affirm this decision would requireruling directly against numerous decisions on much the same facts. The interests of consistency in decision-making require me not to do so. At the same time one cannot not feel sympathy for a person like the Applicant who came to Australia from Argentina as a last remaining relative and who has worked to achieve a decent position in Australia. Her attitude is simple; she wants her husband (and with him children) in Australia where there is such a good and secure life to be enjoyed. At the same time she also wants to remain amidst her close knit family. Many applicants such as the Applicant find it difficult, if not impossible, to understand why they cannot as of right bring their spouses into Australia to be with them, in these circumstances. Nor generally do they accept that untruthful conduct of this nature is as serious as the Respondent contends, on the basis that it was undertaken in order to achieve a better life.
102. The conduct of the Visa Applicant has been particularly bad, even by the standards set in similar fact cases. In many cases, the visa applicants have at least admitted the bogus nature of the protection visa applications. This Visa Applicant pursued his bogus claims to the bitter end, even when it was plainly ridiculous to do so. His evidence as regards Ms Murillo cannot be accepted. He seemed to have behaved towards her in a callous fashion. His evidence as regards financial matters, and the sale of the bulldozer cannot be accepted. His evidence as to the fact that he came to Australia on holiday is simply too ridiculous to take seriously even for a moment. And it is quite plain that the RRT was correct when it found that his evidence as to political persecution was untrue. His evidence that he had obtained an M-19 card years after he ceased to be a member of that organisation (and that in an idle moment some eight years later he decided to laminate it and attach a recent passport photograph to it, tells its own story. This is not a case where the discretion can be exercised in favour of the Visa Applicant and the decision under review must be affirmed.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of MR J BLOCK, DEPUTY PRESIDENT
Signed: A. Krilis
AssociateDate/s of Hearing 15,16 September 2003
Date of Decision 30 September 2003
Solicitor for the Applicant self-represented
Solicitor for the Respondent Mr Muthalib
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