East and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 1231

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2003/194

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAMANTHA EAST

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Mr J. Block

Date8 December 2003

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr J Block, Deputy President

CATCHWORDS

IMMIGRATION - application for a prospective marriage visa – protection visa application -untruthful evidence - Minister refused protection visa application – RRT affirmed refusal of refugee status -work in breach of section 235 of the Migration Act – Visa Applicant commenced relationship with Applicant – application for visa under Prospective marriage subclass 300 visa category—discretion under Direction 21 – inconsistent evidence – false application – decision under review affirmed

LEGISLATION

Migration Act 1958, section 234, 235 and 501

Ministerial Direction 21

CASE LAW

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994)

Briginshaw v Briginshaw (1938) 60 CLR 336

Abida Khatib and Minister for Immigration and Multicultural and Indigenous Affairs (AAT unreported, 26 March 2003)

REASONS FOR DECISION

8 December 2003 Deputy President J. Block

PART A - PRELIMINARY AND GENERAL

1.       The decision under review is the refusal dated 10 January 2003 by Kristine Cala, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs of an application dated 19 March 2002 for a Prospective Marriage (Subclass 300) Visa by Roberson Pedro Cordova Lopez (“the Visa Applicant”); that application was sponsored by Ms Samantha East (“the Applicant”), who is his fiancee.

2.       The Applicant was represented by Mr N Poynder of Counsel instructed by Gibsons Lawyers, while the Respondent was represented by Mr Murray Allatt of the Australian Government Solicitor.

3. The Tribunal had before it the T-Documents (in two volumes) and also Supplementary T-Documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975, it had before it in addition exhibits as follows:-

A1.Certificate signed by Ernest Alvarez Robert

A2.Court extract evidencing Roberson Pedro Cordova Lopez’s divorce

A3.Marriage certificate between Roberson Pedro Cordova Lopez and Natalia Pamela Martinez Cruz

A4.Diploma from Ecuadorian Air Force

A5.Certificate from Parish Priest Jose Raza

A6.Certificate from Leco. Napoleon Perez in relation to Mr Lopez’s studies

A7.Certificate of Bachiller of Roberson Pedro Cordova Lopez

A8.Letter from DIMIA Onshore Protection dated 12 November 1999

A9.Statement of Samantha East

A10.Photograph of kitchen in Ecuador

A11.Photograph of roof of house and surrounding houses

A12.Photograph of kitchen area and cooking area

A13.Photograph of -kitchen

A14.Photograph of house and surrounding houses

A15.Photograph of outdoor toilet and bathroom (dim light)

A16.Photograph of surrounding areas from rooftop of house

A17.Photograph of scars on Roberson Pedro Cordova Lopez’s arm

A18.Photograph of burns on Roberson Pedro Cordova Lopez’s hands

A19.Photograph of more burns on Roberson Pedro Cordova Lopez’s hands

A20.Photograph of another view of Roberson Pedro Cordova Lopez’s hands

A21.Photograph of another view of Roberson Pedro Cordova Lopez’s hands

A22.Statement of Roberson Pedro Cordova Lopez

A23.Map of Ecuador

A24.Map of area identifying Ambato and San Pablo

A25.Statement by Milton Salvador Cordova Freire

A26.Documents concerning Ecuador tendered by the Applicant

R1.Documents concerning Ecuador tendered by Respondent.

·     The Supplementary T-Documents are not numbered sequentially and accordingly references preceded by ‘T’ refer to numbered pages in the T‑Documents (and in either volume 1 or in volume 2) whereas references preceded by ‘S’ refer to numbered pages in the Supplementary T-Documents.

·     The transcript in respect of the hearings is not numbered sequentially.  Accordingly references preceded by “1” refer to the transcript for the hearing on the first hearing day (19 August 2003) whereas references preceded by “2” refer to the transcript for the hearing on the second hearing day (31 October 2003).  Further evidence was taken on the third hearing day (7 November 2003); a further and final fourth day was needed, but only for the purpose of closing submissions.

4.       At the commencement of the hearing I was advised that certain of the Applicant’s witnesses would not be required for cross-examination and that accordingly their statement evidence can be accepted; I do so therefore in respect of Dr L Foran (Tpg325), Mrs Cheryl East (Tpg323) and Mrs M Mannix (Tpg324).  I was informed also that I could accept that the Visa Applicant has been validly divorced from his first wife (who is referred to in these reasons as ‘Pamela’) and in addition evidence to the effect that after the Visa Applicant deserted the Ecuadorian Air Force, there were visits to his parents by investigators inquiring as to his whereabouts.

5. At the commencement of the hearing, Mr Poynder applied for a confidentiality order in respect of the name of the Visa Applicant and the names of members of his family. That application was left open pending the Visa Applicant’s evidence; I indicated that I might be inclined to grant that application if that evidence did indicate that the Visa Applicant was a refugee or genuinely believed that he was a refugee, but not if the evidence did not so indicate. In my view, the Visa Applicant’s evidence indicates that he was never a refugee and moreover that he knew that he was never a refugee and accordingly that application is refused. I note in this context that the operation of section 35 of the Administrative Appeals Tribunal Act 1975 was considered by this Tribunal in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. I do not believe that this is a case in respect of which a confidentiality order is justified or for that matter needed.

6.       The Respondent has filed a Statement of Facts and Contentions, which contains the usual useful chronology of relevant events.  That statement is included as to part only, and being clause 4 which contains the chronology, and clause 13 which sets out the Respondent’s contentions as to the Visa Applicant’s alleged false and misleading statements.  Clauses 4 and 13 of that statement read as follows:-

“Facts

Date	Event
05/10/1973	Applicant was born in Ecuador [T12, f225]
20/12/1979	Review Applicant was born in Australia [T12, f227]
16/08/1977	Pamela Martinez, former wife was born 16 August 1977 [T12, f233]. (Note at T6,f98 date of birth given as 16/09/1976)
13/06/1995	Applicant was married to Pamela Martinez [T412 f233]
07/02/1996	Applicant’s child, Bridget Cordova Martinez, was born [T13, f234]
12/06/1996	Applicant was granted multiple entry visitor visa for six months with conditions (max stay 3 months, no work) [T5, f164]
27/05/1996	Applicant arrived in Australia [T9,f215]
05/12/1996	Applicant applied for a Protection Visa [T9, f215]
26/11/1997	Delegate of Minister refuses application for Protection Visa [T10, f206]
01/10/1998	Applicant divorced first wife Pamela Martinez [T13, f233]
26/10/1999	Refugee Review Tribunal handed down decision affirming refusal of refugee status (T11, f214)
02/11/2000	Applicant first met Samantha East [T13,f238]
29/11/2000	Applicant and review applicant commenced relationship [T13, f238]
01/05/2001	Applicant proposed marriage to review applicant [T13. f266 ]
06/05/2001	Applicant departed Australia [T2, f9]
19/03/2002	Applicant lodged in Madrid an application for migration under Prospective marriage subclass 300 visa category [T13, f231]
26/03/2002	Applicant interviewed at Australian Embassy in Madrid [T17,f301] [See folio 295-297]

13.The respondent asserts that the applicant’s history shows that he has given false and misleading statements in connection with visa applications.  In particular, the applicant provided the following claims which the respondent has adjudged false:

·The applicant applied for a tourist visa together with his then wife and child in 1996 claiming that he wanted to come to Australia to attend the christening of a cousin’s child and visit relatives.  He noted in the application for the visa that he wished to visit Australia from 25 May 1996 to 3 March 1996 [f26].  He stated that he had been granted 18 days leave from his employment with the Ecuador Air Force.  On his passenger arrival card he had also stated an intention to remain 10 days.

·The visa granted to the applicant while valid for 6 months after entry, allowed only a maximum stay of 3 months, before departure was required and re entry allowed.  The applicant never departed in the 6 months after arrival and at the time he applied for a Protection Visa on 5 December 1996 his Tourist Visa had expired.

·In support of the protection visa application, the visa applicant provided a statement which recounted that he had been a member of the Ecuadorian air force and in the course of his duties which “entailed checking all shipments of goods coming or going by plane” he and another serviceman discovered a parcel being shipped from one air force officer to another air force officer which contained cocaine.  As a result of seeking to report this incident, the visa applicant alleged that his colleague had been murdered and he himself was in fear of his life.  The visa applicant detailed that he had been hit and tortured and his hands marked with cigarette burns and his arm cut with a knife.  He detailed various threats to his wife and child.  He claimed that as a result of this matter he thought to take "annual leave" and that led him to come to Australia.

·The RRT affirmed a decision not to grant a protection visa and in the course of its reasons alluded to doubts concerning the visa applicant's story because “as the applicant's case stands there are a number of relevant questions arising out of his claimed experiences which are unclear.  For example, it is not clear from the evidence before me when the applicant was assaulted or tortured or the identity of those who inflicted this harm.  It is not clear when his wife was threatened, who threatened her or the nature and extent of those threats.  It is not clear whether the applicant did make a report to the military or civilian authorities about the cocaine shipment or the physical harm which had been inflicted on him, and if so what was the outcome or consequence”.

·It is noteworthy when interviewed in Madrid in respect of his spouse sub-class 309 application (T15 page 295) in answer to the question:

·Q         Why did you apply for a protection visa?

·A         Prior to leaving, Ecuador was at war with Peru, being in the armed forces, I feared for my life.  I was granted 5 day leave permit, I decided to flee from Ecuador by applying for a tourist visa to Australia, which I did, I knew that this was a serious offence and faced a severe penalty if I returned.  In fact my father kept me informed of what was taking place after I left, the military police were looking for me and if I returned within 3 years of departing, would be prosecuted.

·In answer to an earlier question which asked why he had applied for a tourist visa to enter Australia, the visa applicant had replied “because I wanted to take a holiday together with my wife and daughter..  My wife had family in Australia.  I was employed in the air force of Ecuador and was granted one month’s leave.”

·The applicant’s statements about why he came to Australia when taken together, strongly infer that the visa applicant’s claim for a protection visa was entirely a fabrication designed to obtain a permanent visa to remain in Australia or at least to extend his stay in Australia without actually having any valid claim.

·The applicant by his (unsigned and undated) statement to the Tribunal provides a very fulsome report on the entire incident involving the finding of the alleged cocaine and its aftermath. The detail contained in this statement on this incident is exactly what one would have expected to be put forward clearly to the Department in 1996 when the applicant’s recollection of the incident could have been expected to be very fresh indeed. Or even to the RRT at the hearing of the matter. While the story recounted in the decision of the RRT decision contains much of the detail in the present statement before the Tribunal it has to be commented upon as appearing to provide a greater amount of detail. It is noteworthy that the applicant chose not to attend the RRT hearing where his story could have been tested by examination.

·In his unsigned and undated statement the applicant has sought to address the fact of his non attendance at the RRT hearing. His explanation does not tally with the account set out in the RRT decision. It is noteworthy that the applicant has sought to shift ”blame”  or responsibility for actions or rather lack of actions in his case to his former wife. It is implausible that an Applicant seeking refugee status based upon the supposed desire not to be sent “back to hell” would not have taken a very active interest in the conduct of the matter. Indeed, the respondent submits that the applicant’s efforts at explanation do make him “ look like a liar “.

·The applicant maintains that during the currency of his tourist visa he did not work illegally. He states that after he had permission to work, linked to his PVA, he only helped out his ex wife’s family with odd jobs, and he never went into the workforce and worked illegally, meaning cash in hand jobs. However, the applicant states that the “ majority of my work was in the city”. The applicant acknowledges that he remained in Australia unlawfully and worked without permission, a period of 18 months despite knowing he had no entitlement to do so. His explanation contained in his unsigned and undated statement is disingenuous. Working while unlawfully in Australia is a breach of s. 235 (3) of the Act.

·As part of each visa application, the applicant signed a declaration declaring that:

·“The information I have supplied on or with this form is complete, correct and up-to-date in every detail.

·I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled …

·In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Ethnic Affairs of any changes to my personal circumstances (eg marital status, changes to the family composition) while my application is being considered …

·I have read and understood the information supplied to me in this application.”

7.       If only as a matter of balance, the Applicant’s Statement of Facts and Contentions is included, but confined to clauses 1-19 inclusive under the head of “Facts”, and reading as follows:-

“FACTS

1.The visa applicant, Mr Roberson Pedro Cordova Lopez, is a citizen of Ecuador.

2.From 1994 the visa applicant was employed with the Ecuadorian Air Force as Head of Inventory at the Salinas Air Force Base.  In September 1995 the visa applicant and an assisting corporal found an illegal shipment of cocaine being processed through the Air Force facilities.  They advised their superior officer, who told them to forget everything they had seen.  When the officer found that the visa applicant had discussed the matter with his former wife, Ms Pamela Cruz, the visa applicant was tortured and detained by his superior officers.  Mr Cruz also received death threats. The corporal later drowned in suspicious circumstances.

3.In May 1996 the visa applicant applied for a subclass 676 Tourist (Short stay) visa to visit Australia with Ms Cruz and their infant child.  The purpose of the visit was to travel to Australia for a holiday, to see Ms Cruz’ family, and to attend the baptism of a family member in Australia.  At the time of application the visa applicant had no intention of remaining in Australia beyond the terms of his visa.  The visa was extended for a further six months in June 1996.

4.In December 1996 the visa applicant and Ms Cruz applied for a protection visa.  The application was genuine, based on the incident in September 1995 and the fact that the visa applicant had by now deserted his position in the Air Force.   The visa applicant was given a bridging visa with permission to work.

5.In November 1997 a delegate of the respondent refused the application for a protection visa on the grounds that the circumstances of the claim did not come within the ambit of the Refugees Convention.  The visa applicant sought review of the decision by the Refugee Review Tribunal (“RRT”).

6.        In late 1998 the visa applicant separated from Ms Cruz. 

7.In October 1999 the RRT affirmed the decision to refuse a protection visa to the visa applicant and Ms Cruz, again on the basis that the claim did not come within the Refugees Convention.

8.The visa applicant did not make a request to the Minister to exercise his discretion under s. 417 of the Act. However on 12 November 1999 the Onshore Protection Section of the Department of Immigration determined that his case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion.

9.From November 1999 (when the visa applicant’s bridging visa expired) the visa applicant remained in Australia without a visa.   The reason that he remained was because he was afraid of returning to Ecuador.  During this period he worked without permission.

10.In November 2000 the visa applicant met and formed a relationship with the Applicant.  About a month or so into the relationship the visa applicant told the applicant about his previous application for a protection visa.  As the relationship became more serious, they decided that they would have to leave Australia to enable the visa applicant to apply for a visa offshore.  In May 2002 the visa applicant and the applicant became engaged.

11.On 6 May 2002 the visa applicant and the applicant left Australia and travelled to Ecuador, where they stayed with the visa applicant’s family for nine months.  The applicant had a very difficult time in Ecuador.  She was unable to adjust to the culture, and she suffered constantly from health problems.  In particular, the applicant suffered from an ongoing problem that she has with her ear.  There were insufficient medical facilities in Ecuador to treat her condition.

12.In February 2002 the visa applicant and the applicant travelled to Chile, and the visa applicant lodged an application for a subclass 676 visa with the Australian Embassy in Santiago.  The application was refused and he and the applicant were advised that in their our (sic) circumstances they should apply for a prospective spouse visa, although there would be a minimum wait of eighteen months in Santiago.

13.The visa applicant and the applicant subsequently travelled to Europe on holiday.  On 19 March 2002 the visa applicant lodged an application for a subclass 300 Prospective Spouse visa with the Australian Embassy in Madrid. On 26 March 2002 the visa applicant and the applicant were interviewed at the Embassy.  Several weeks later the applicant returned to Australia, and shortly after that the visa applicant returned to Ecuador.

14.In June 2002 the applicant returned to Ecuador to visit the visa applicant for several weeks.  Once again she had difficulties with her ear during this trip, and she had to return to Australia for specialist treatment.

15.By a decision dated 10 January 2003 the application for a subclass 300 visa was refused under s. 501(1) of the Migration Act 1958 (“the Act”) on the grounds that the visa applicant did not pass the character test, having regard to his past and present general conduct

16.On 3 February 2003 the applicant lodged an application for review of the delegate’s decision with this Tribunal.

17.In April 2003 the applicant again returned to Ecuador the (sic) visit the visa applicant for several weeks.

18.The relationship between the applicant and the visa applicant is genuine and continuing.  They are due to be married in Australia on 15 November 2003. 

19.The applicant would find it extremely difficult to live in Ecuador.  The problem with her ear cannot be adequately treated in Ecuador. She is very close to her family in Australia.  She has not been able to adjust to the culture in Ecuador.”

8.       In respect of each of the Applicant and the Visa Applicant, Mr Poynder tendered their lengthy and comprehensive statements; in each case he obtained the confirmation of the witness as to its truth and after asking the witness a few other questions, sat down in order to allow Mr Allatt to cross-examine.  I hasten to say that this method of dealing with evidence of this nature is helpful to the Tribunal in that it saves time; this is so of course only where the statements themselves are complete, as they are in this case.  Because the Applicant’s evidence was uncontroversial, I include a part only of her statement, and being those clauses which related to her knowledge of the Visa Applicant’s immigration status and which are contained in clauses 14 to 17 (inclusive) of exhibit A9, reading as follows:-

“My knowledge of Pedro’s immigration status 

14.I didn’t know anything about immigration and visas when I first met Pedro. I assumed that he did have some sort of visa.  We never discussed his visa situation until we became more serious.  

15.About a month or so into our relationship Pedro began to go into more detail about his past visa application.  He told me how he applied for a protection visa here in Australia and how it was denied twice.  Pedro didn’t really know much about his applications, as his wife Pamela was the one doing everything for him, while he would go off to work.  He told me about how he didn’t go to the interview with the Tribunal, as he was really scared they were going to deport him, because they had already denied him the first time.  

16.I think Pedro’s plans were definitely not to stay in Australia, that he was going to go home and be with his family and see his daughter.  I think he just wanted to get some more money behind him.  But after meeting me, he knew that Ecuador was not the place for me, because I’m so close with my family and so happy in Australia.  He never planned to end up with falling in love with an Australian girl.  

17.While we were in Australia, Pedro only told me bits and pieces about his fear of returning to Ecuador.  He told me that he had deserted the army because there was a war at the time with Peru.  He also told me that he was mistreated and that incidents took place that made him extremely fearful.  However he never went into great detail and he didn’t tell me about the cocaine incidents until we got to Ecuador. I was angry with him because he should have told me, but what can I do now?  I love him and I will stand by him because I love him.”

9.       In respect of the Visa Applicant’s statement  I include clauses 16 to 59 (inclusive) of exhibit A22 as follows:

“STATEMENT OF ROBERSON PEDRO CORDOVA LOPEZ

The incident in September 1995

16.In my application for a protection visa I explained how I came upon an illegal shipment of cocaine and how the Air Force treated me because of this.  This information is generally correct but as my wife Pamela made the statement there are one or two inaccuracies. 

17.My job at the Air Force base meant that I had to open every package, container or box that came by plane from Quito or Guayaquil, and sign off on the clearance documents.  I would then take this document to my superior officer Mera for final signature.

18.It was in about December 1994 (not September 1995) I found an unauthorised box that was not announced on my register.  I went to Officer Mera, who informed to me that I will let the package through, as the box was addressed to one of the High Chiefs in the Ecuadorian Air Force. So I did what I was ordered to do and passed the box on to its necessary destination.

19.Then in September 1995 Corporal Artieda and I found packets of cocaine in a box being sent to Quito. Corporal Artieda was a new corporal straight from the Escuela Tecnica de la Fuerza Aerea.  Every four months I was assigned a new corporal to teach him the daily duties involved with running the warehouse.  We were always busy on Mondays or Fridays as these were the only days deliveries were made, as the planes came from Quito or Guayaquil.

20.I told Officer Mera what we thought was in the packages.  He then told me and Corporal Artieda to forget everything we had seen, and not to speak a word to anyone.

21.I only ever reported the incident to my Officer Mera. He was one of the most superior officers in my base. After hearing his response, I didn’t know who else I could go to for help.  You see being from such a poor country corruption is the only form of survival.  I knew If Officer Mera was involved then it was easy for the other officers to turn their backs.

22.I didn’t go home that weekend, as I didn’t have a pass.   So I didn’t to tell Pamela until the following weekend.  During that week at work, things seemed to go back to normal.  Monday and Friday myself and corporal Artieda continued to unload and open the packages that came from the planes, and we didn’t see anything else like what we had seen the week before. It wasn’t until I went home to Ambato for the weekend that I discussed with Pamela what I had witnessed at work.  I told her what I had seen and that I had told Officer Mera was involved. She asked me if he had offered me or Corporal Artieda to keep quiet, and when I told her no, she was worried.  Pamela told me to keep my head down and do my work.

23.Monday morning I arrived back to the base in Salinas after being at home for the weekend.  Officer Mera asked to see me privately in his office. He asked me how my weekend was, and whom did I see and speak to.  He continued with the questions and I answered them promptly. When I was answering his question another Superior Officer entered the room by the name of Officer Nieto.  Officer Mera then asked me if I had told anyone what I had seen the week prior.  I knew that they were trying to intimidate and scare me. It worked.  I confessed to them that I had told Pamela. Surprisingly they were okay with that.  They said that it was okay, though if I tell anyone else there will be problems. I promised them I wouldn’t discuss this incident with anyone else.  At the end of our discussion they told me to meet them for a drink in the city, outside the base, on Wednesday night after work at 8.00pm. 

24.At 8.00pm on the Wednesday night I met Officer Mera and Officer Nieto at the Costa Azul Bar in Salinas.  The bar was very quiet at the time as it was winter in Salinas and there were no tourist visiting the beach.   We had a few drinks and Officer Mera then started up with the interrogation. The questioning continued about what I had told Pamela.   He asked if anyone was around when I was discussing the incident with Pamela.  He asked whether anyone could have heard what we were talking about.  I started to get nervous as I could hear the tone in his voice changing. That’s when Officer Mera started threatening me.  He grabbed both of my hands and told Officer Nieto to hold them.  Officer Mera then took his lit cigarette and burnt the tops of both my hands.  He continued to push the lit cigarette into my hands, burning them several times.  I ended up with fourteen burns on both my hands.  While burning my hands he threatened me saying that next time it won’t be my hands but it will be my face and how would my new wife like my new look.  They left me there, and I went back to the base alone and afraid.  I didn’t receive any medical attention at the base.   I went to the chemist and bought some gauzes and bandages and attended to my injuries.   

25.That Friday I left the base in Salinas and went home to Ambato, where I sought medical attention for my injuries.  I saw my family Doctor Gabriel Ocaña, and he attended to my burns.  He asked me what happened to my hands. I lied to him and said that I burnt my hands on the motor of my car as it broken down.  He didn’t believe my story and said these are cigarette burns on your hands.  I never told him what happened, and we both left it at that.

26.I went back to Salinas the following Wednesday as my family doctor faxed a medical certificate to my superior Officer Mera, stating that I need time off to help with the healing of my hands.  When Pamela saw my hands she knew that they were hurting me.  She was now really worried for my safety.  Pamela didn’t want me to go back to the base, though we both knew that I had no other choice.

27.When I went back to the base in Salinas, after a short stay in Ambato to rest the burns on my hands, I was told by Officer Mera that I would be confined to the base for one month.  This was a disciplinary procedure used by the Airforce to discipline soldiers that have stepped out of line.  I lost all my privileges.  I wasn’t allowed to use the telephone or contact my family.  I knew that the reason for my punishment was because my family doctor had witnessed the burns on my hands, and he was afraid that I had told him how I sustained these injuries.  I was confined to the base for one month, from around early October to the end October 1995.  I was frightened when Officer Mera said that I would be detained to the base.  He said the reason for my detainment was my work had been slipping at the base and that I had been late to my weekly meetings with my superior officers.  This of course was all false.

28.My friend Alex Gonzalez informed my family of my detainment after two weeks.  He also lived in Ambato so he called Pamela and said that I was being detained at the base for punishment for not attending my weekly meetings.  Alex told her that I was being detained for a month.

29.After I was released from confinement to the base an incident occurred one afternoon at the warehouse. Officer Mera came from behind me, and when I turned he cut my forearm with a knife and threatened me, saying that "This is only the beginning of what is to come, if anyone else finds out about the packages". No one else witnessed the attack. The cut was not long though very deep, so straight after the incident I wrapped a bandage over my arm and left to go home the next day to Ambato.

30. In Ambato I sought medical attention for the injury. I had a cut tendon in my arm and in order to stitch the tendon together, the doctor had to make another incision in my arm to get to the tendon. Unfortunately the doctor on duty had been drinking as it was a Friday night, and I arrived in Ambato around 8pm. So the doctor performed this operation whilst being intoxicated so he really butchered my arm. During the operation there was a power shortage and all the lights went out, so the nurses and my auntie had to hold candles up for doctor in order so he could see what he was doing. I was extremely frightened by this ordeal.

31.During my detainment, Pamela received two separate threats by the same man, by phone to her home address in Ambato.  The first threat stated to not open her mouth to anyone or I would be killed.  The man never used my name: he said “your husband”.  The second threat was again not to say anything to anyone about the incident at the base or your family will be killed.  The second threat also said not to speak about what happened at the base.  Pamela knew then that things were getting out of hand and she was extremely afraid.

32.I never personally witnessed Corporal Artieda being tortured, though I did see him with black eyes, cuts and bruises on his body. I never asked what had happened to him, just as he never asked what had happened to me.  After I had come back from my extended stay in Ambato to help with the mending of my hands, Corporal Artieda was reassigned to a different area of the base.  The two of us never worked together again.

33.In December 1995 Corporal Artieda´s body was found in the base of the Air Forces private beach. As I stated in my protection visa application, his medical report said that he had drowned in the water after going swimming whilst being intoxicated. What I can say about his death is this. Why was he swimming when he couldn’t swim? And why was he drunk when he never ever drank? After the last few months, what we both had seen and been through, I thought his death was so suspicious, though I had no evidence to back up my statement.

34.After my detainment I went home for three days, Friday to Sunday, and returned back to work on Monday morning. Pamela asked me why I couldn’t come home and I told her that they were trying to scare us by confining me to the base.  She then told me about the two threats by telephone from a male. I knew then that the threats were coming from Officer Mera. 

35.There was no investigation about my detainment, as everything Officer Mera did was allowed.  It was the Air Force policy for disciplining personnel.  The only investigation into the death of Corporal Artieda was the Coroner’s Report stating the cause of death as drowning whilst being under the influence of alcohol.  You see in Ecuador the majority of the population cannot swim, and there is such a drinking problem here, that his death is so common in males from the ages of 20-50.  So when the Coroner found the cause of death, there was no need for any further investigation as everybody believed this is how Corporal Artieda died, a very sad accident, though so common here in Ecuador. Meaning when alcohol is involved no one will dispute the cause of death, not even if the person was known for drinking alcohol.

36.In December 1995 I applied for a voluntary discharge from the Air Force. I told them that I was having family problems as I was based to far away from home and my wife was having complications with her pregnancy.  However my request was refused as you have to serve a minimum of four years, and I had only served nearly two years.  The only formal request for a discharge that I could make was that I had to be physically ill or have sustained injuries that would not enable me to continue with my duties at the base.  The only outcome of my request was that I was allowed to go home every weekend.

37.On the 7 January 1996 my daughter Brigitte was born. I was granted a four-day leave from the Department of Personnel to be with my family. When Brigitte was born reality set in.  Now I was a father, responsible for the safety of my child and my new family.

My time in Australia

38.In January 1996, after the birth of my daughter, one of Pamela’s cousins Monica Cruz and her baby daughter Taylor came to visit us from Australia. Monica Cruz migrated to Australia when she was a child, and she was an Australian citizen. Monica stayed with us at Pamela’s parents house for about four months.  In April 1996 Monica asked us if we would like to come and have a holiday in Australia, and attend the baptism of Taylor.  Pamela and I thought it would be a great idea to go to Australia for a holiday, to visit Pamela’s relatives and show them our new daughter Brigitte.  In our discussions we only ever discussed going to Australia with intention of having a holiday.  We both thought it would be a good idea to get away for a few weeks.  We never discussed that we would stay in Australia and that our sole intention was for a holiday.

39.On 21 May 1996 I applied for a one month holiday at the Personal Department (Ministry of Defence in Quito).  Lieutenant Carlos Pazos granted me a one month holidays commencing that same day.  Later that afternoon I flew to Chile to go to the Australian Embassy. On the 22 May 1996 I applied for a holiday visa to Australia at the Australian Embassy in Santiago, to visit relatives and to attend the baptism.  The visa was granted within half an hour. 

40.Our intentions to visit Australia were genuine.  I only came to Australia to have a holiday, attend the baptism and to meet Pamela’s relatives.  I never knew anything about Protection visas or refugee visas; I didn’t even know visas like this existed. I never intended to stay in Australia because I couldn’t speak any English and I didn’t have enough money to support my family for such a move.  I didn’t have any family members to rely on; these were all my ex-wife’s relatives not mine.  I didn’t want to hurt my situation any more with Officer Mera and the Air Force. A short break to Australia was what my family and me needed.

41.On 22 May 1996 I left Ecuador with my wife and child. We arrived in Australia on approximately 25 May 1996, and Pamela’s Uncle Isidro Cruz and Auntie Violeta Cruz greeted us.  We stayed with them at 13A Glenview St Kogarah Bay for the month and attended the Baptism of Monica Cruz’s daughter earlier the next month, in June 1996. Whilst in Australia we visited many of Pamela’s relatives and other South American friends of the family.  We saw the sights of Sydney, visiting Darling Harbour, Circular Quay, Bondi Beach; we acted like any normal tourist visiting Sydney.  I enjoyed myself and tried to forget all my troubles that were awaiting me back home in Ecuador.

42.Pamela was discussing with her cousin Tanya Cruz that she didn’t want to go back to Ecuador and that she wanted to spend a little bit more time here in Australia. Pamela then came to me and said that she didn’t want to go back to Ecuador yet.  I said that we have to go back because I was only granted one month’s holidays with the Air Force.  She then said “okay you go back though I’m staying here with Brigitte”.. Pamela put me in a really tight spot, as she had all her family against me, telling me that I have to stay here longer.  I told them that I was already in trouble with an officer in the Air Force, and that if I stay my life will be in danger. Tanya then said to me “that’s all the reason to stay here for as long as you can.  You can’t put Pamela and Brigitte in any more danger”.

43.On the 12 June 1996 we went with Tanya and extended our visa for a further six months.  Tanya did this for us, as both Pamela and I couldn’t speak any English.  Tanya said that we would be staying with her and that she would take full responsibility for us, meaning that we didn’t have to pay any rent to her. Pamela’s father sent us money so we could stay longer, as I didn’t have any money. 

44.In about July 1996 my father told me by telephone that you can not come back as the army has been looking for you and they will throw you into jail as you have been charged with deserting the army.  He told me that the Ecuadorian Intelligence came looking for me at my parents address.  He said that they also went to all my aunties and uncles and asked them if they knew my whereabouts. So at that point I knew I was in even more trouble.  Firstly I knew that Officer Mera had been looking for me and was asking questions about my whereabouts, and secondly the army was now going to put me into jail. 

45.At this time we were staying with Tanya in Parramatta. I spoke to Tanya and Pamela and told them what my father had told me.  I then asked Tanya if she knew any way that I could remain in Australia legally.  This is when I went to an immigration agent in Parramatta with Tanya and Pamela. Tanya discussed our case with the immigration agent, who said that we could apply for refugee status.  This is how we learnt about applying for refugee status.  The immigration agent then continued to inform us that it would be to our advantage to have legal representation to help produce a strong case. 

46.Later, around September 1996, my father sent me the lawyer’s document that he had to had to obtain.  This document stated that the Ecuadorian Intelligence was looking for me and that I have lost my Ecuadorian citizenship for 2 years, though I wasn’t able to go back home for 5 years as the army would take me to jail, for army desertion.

47.During the first four and a half months in Australia we had lived with Pamela’s relatives rent-free.  However In September 1996 we moved into an apartment at 7/46 McCourt St Lakemba, as it was getting crowded living with Pamela’s relatives.  Pamela’s father paid for us to move into this small apartment, and he agreed as we only had a few months left on our visitor visa.

48.While we were staying with Tanya, her two children tore up our passports, so we had to get replacements to apply for our protection visas.  I was very wary about going to the Ecuadorian Consulate to apply for new passports so Pamela went first and organised to get the new passports, and when they were ready I went and signed and picked mine up.

49.I tried to do everything in accordance with the Australian laws.  After my visit to the immigration agent, I found a lawyer, Dr Ben Gelin in, a Spanish newspaper.  Pamela and I then went to his office in George Street and explained our case to him..  We didn’t need any assistance as Dr Ben Gelin spoke Spanish as he was originally from Argentina.  Ben Gelin then said that we had a very strong case to apply for refugee status, and that he would help put our case together.  Dr Ben Gelin told us that he would do our case and that it would cost $5000 and that we could pay him fortnightly.

50.Dr Ben Gelin lodged our applications with the Department of Immigration in December 1996.

51.During the six months I was in Australia under the tourist visa I didn’t work.  However my refugee visa allowed me to work and continue living in Australia. After I had this authorisation, I helped out Pamela’s family with odd jobs. I never went into the workforce and worked illegally, meaning cash in hand jobs.  Pamela’s father continued to support both Pamela, Brigitte and myself. 

52.In January 1997 we moved into Tempe with another one of Pamela mother’s cousins, Lupe Cruz.  They had a granny flat out the back for their house and asked if we would like to live there.  We agreed, as it was a lot more convenient to live in Tempe, as it was closer to the city, and the majority of my work was in the city.  The rent was also only $100 per week, and that was $10 saving from the rent in Lakemba.

53.On 26 November 1997 when I found out that I visa had been rejected by the Department of Immigration I was devastated.  I thought that was the end and that we would have to pack our bags and go back to an uncertain future.  I was frightened and so disappointed, I really didn’t understand why they rejected my visa, as I had tried to do everything right.  The only saving grace was that my lawyer had informed us that we are able to re-apply one more time, though you will have to pay for the application fee again.  After hearing this news I felt I was given a second chance to prove my case.

54.On 19 December 1997 we lodged an application for review of the Department’s decision with the Refugee Review Tribunal. Dr Gelin and Pamela did the whole written submission, I had no involvement with it as I was working extremely long hours to support my family and try and give them a future, especially if we had to go back to Ecuador. 

55.I wasn’t aware that Pamela had told the RRT that we wanted to appear before the RRT.  I wouldn’t have written this and then change my mind and not attended the hearing.  I didn’t attend the hearing solely because I was extremely frightened that they were going to deport me.  My first application had been denied, so why all off a sudden are they going to speak to me and then believe me?  I wasn’t ready to go back and live in Ecuador knowing that I will have to go to jail, and also watching over my back for Officer Mera.  If I could go back I would have attended the hearing and begged for them to believe and to not send me back to hell.  Though I made a huge mistake and now this makes me look like a liar and that I didn’t want to face the Tribunal.  When you are frightened you do make stupid mistakes.

56.During 1998 my relationship with Pamela finally broke down, when I realised that I couldn’t go on living with her as I didn’t love her.  Unfortunately I never loved Pamela, I only married her for the sake of my daughter Brigitte.  We were just fighting too much at the end.   In November 1998 Pamela sent Brigitte back to Ecuador to stay with her grand parents (Pamela’s parents), without my knowing or my permission.  I came home from work and Brigitte was gone.  I asked Pamela where she was and she said “I sent her back to Ecuador with Janina”.  Janina Sanchez was Pamela’s mother’s cousin.  After that day I was so upset that Pamela could make these decision without me.  We were staying in Australia for our safety and to make a better life, and she put the most important person in my life in danger by sending her back to Ecuador.  I knew that Pamela was now living in Australia for other intentions, not for the sake of our family.

57.I moved out of our granny flat in Tempe into an apartment by myself in Marrickville.  I still continued to stay in contact with Pamela, and she was trying desperately to get us back together.  However I couldn’t go back to her, after the last few years of us being together I didn’t like the person she was.  I also continued to stay in contact with Brigitte, calling her grandparents and asking how she was, I also sent her clothes and money while I was in Australia.   After learning about our separation Pamela’s parents made things extremely hard for me with Brigitte. They wouldn’t speak to me on the phone and wouldn’t tell me how Brigitte was. 

58.In October 1999 we received a decision from the Refugee Review Tribunal refusing our application for a protection visa.   I was extremely disappointed, sad and angry.  I wished I had done things better, though I can’t go back and do it over again.  I was ready to come home and be with my family.  I had forgotten about trying to live in Australia.  My plans were to return to Ecuador and spend the rest of my life with my family and to try and get to know my daughter again.

59.During the period from November 1999 to May 2001, I remained in Australia and I did continue to work illegally.  I know that I was doing the wrong thing though I was still afraid to return to Ecuador.  Then I met Samantha.  For the first time in many years I felt loved and I was happy.  Now I needed to earn money to help support her and myself when we left Australia.  Even though I was working illegally, I was still paying taxes so I was still contributing to the Australian Government.”

10.     In his closing submissions, Mr Poynder sought to explain a number of untruthful statements in particular in a fax sent in May 2002 (and being the May fax as described later in these reasons) and at an interview, by the Visa Applicant, on the basis that he had previously not been believed.  Mr Poynder was presumably referring to the decision of the Refugee Review Tribunal (“RRT”); the RRT found that the Visa Applicant was not a refugee in the Convention sense, but it did not, on a proper reading of its decision, make positive adverse findings as to his credibility.  Having failed in his application for a protection visa, the Visa Applicant sought the review of that decision by the RRT.  Although the evidence before me indicates that he had specifically stated that he wished to appear at the RRT in order to be heard, he did not in fact appear before the RRT.  The Visa Applicant’s claim that he was a refugee was set out in an attachment to his application for a protection visa; that attachment appears at Tpg184 to Tpg186 inclusive, and reading as follows:-

“ATTACHMENT TO APPLICATION FOR A PROTECTION VISA, PART C, ITEM 39

I left Ecuador, and took my family (my wife and baby daughter) with me, to avoid being imprisoned or murdered by certain military authorities in my home country.

The events leading to this situation, briefly, are as follows: On 10 January 1992 I commenced a course in the “Escuela Tecnica de la Fuerza Aerea” (E.T.F.A., Air Force Technical School), investing a great deal of physical and mental effort to do my best and to attain graduation with a degree, and to be a member of the armed forces of my country. I wanted to serve my country and uphold its laws and Constitution. I have always believed that members of the military have a special and irrenounceable duty to obey and uphold their country’s laws.

On 27 October 1994 I graduated from E.T.F.A. having attained the rank of Second Corporal Aviation Technician (“Cbos.Tec.Avc.”), specialising in Supplies.  Thus I became an active member of the Ecuadorian Air Force (“F.A.E.”) and was assigned to duty, in my area of specialisation, at the Air Force Base at Salinas, or Aviation Military School, a Base at which pilot cadets are trained.

I was put in charge of one of the sections, in Supplies, called “Document Control”, and my job entailed checking all shipments of goods coming or going by plane, and issuing certificates of the contents of all such shipments.  I had to personally sign each such certificate.  One day in September 1995 when I was going about my usual duties, I had to inspect cargo about to leave for Quito, Ecuador, to ‘COTRAN” (Air Transport Command).  There was a cargo which did not correspond with my register, or list, of supplies to be dispatched.  In accord with standing regulations and my duties, I could not allow that cargo to leave uninspected.  I asked my Supervisor for authorisation to open and inspect such shipment.  Such authorisation was denied, and my Supervisor ordered me to allow the box out because it was addressed to a high chief of the Ecuadorian Air Force.

About a year later came a new class of graduates from E.T.F.A.  A new corporal, Carlos Artieda, was placed under my supervision.  He worked in my Section with the same duties, but always under my supervision.

We were then going about our duties when we encountered a box, going to Quito, not in accord with my register.  I ordered Corporal Artieda to open it, and when he did so we saw that there were packets of cocaine.  The box was addressed from Lieutenant Samual Caicedo, Head of the Supplies Department, Salinas, to Lieutenant Coronal Jorge Cabezas Quiroz, Director of the Air Transport Command

I reported to foregoing to our Supervisor, who said to us (myself and Corporal Artieda) that we should forget what we had seen, and that I should forward that box.  This same Supervisor later came to our Section and told us that nobody else should find out about what we had seen, because our physical integrity might be at risk.

Both Corporal Artieda and I realised we were in trouble.  We did not want for our careers to be ended.  Neither did we want for our lives to end.  However, both of us held our beliefs that our duty was to act in accordance with the law, and as military men we had a clear duty to report that incident – the shipment of cocaine by military transport from one officer of the Air Force to another.

In the following days we were assaulted and tortured on different occasions.  I have scars which I am prepared to show to Immigration Officers.  Each time I was assaulted I was warned not to speak about the cocaine, or about the assault, lest I lose my life.

In the course of one such torture session my companion Corporal Carlos Artieda died.  He was found four days later floating near one of the private beaches at the Aviation Military School, Salinas.  The official report to his family stated that he had gone to swim while intoxicated (alcohol), and drowned.  I know that Corporal Artieda did not drink alcohol.

I was hit and tortured.  My hands are marked with cigarette burns.  My arm was cut with a knife and had to be operated on.  The cut has lessened my ability with my fingers.  The blood loss might have caused me to die.

My wife received constant threats, that she might be killed if I revealed anything about that incident.  Mostly out of fear for my wife’s life and our daughter’s welfare I had to keep my mouth shut, and not reveal the “secret” that inside the Ecuadorian Air Force there is a network of drug traffickers and dealers.

I opted to go to the Personnel Department to ask for a voluntary discharge from the Air Force.  His was denied to me.

I then decided to apply for my regular vacations, or “annual leave”.  My plan was to leave the Air Force, for good, and Ecuador.  I applied to the Defence Ministry, in Quito, for permission to leave the country on such holidays.  A member of the Armed Forces is not allowed to leave the country without such special permission.  Somehow, my application was granted.  Thus I was able to obtain travel documents and to leave Ecuador.

I have no intention of returning to Ecuador.  If I did, my fate is likely to be the same as that of Corporal Artieda.  I fear as well for my wife and daughter.  I would not be safe in Ecuador even if I did “keep my mouth shut”, as our Supervisor had advised us to do.  If I did follow that advice, I would be betraying my deepest beliefs and my very reasons for wanting to embark upon a military career in the first place.

With my beliefs, I just cannot live in Ecuador.

Having left that country and not returned to the Air Force, I am now a deserter.  As I understand the situation, as a deserter I no longer have any citizenship rights in Ecuador, aside from the sever (sic) penalties which might be imposed on me for such crime.

I will be pleased to provide Australian authorities with any and all additional information which may be required about all of these matters.

I ask for the opportunity, for my young family and myself, to settle down in this country, where I will be a law abiding and constructive member of this free society.”

11.        It will be noted that the Visa Applicant made a number of specific claims as to why he should be treated as a refugee.  One of those claims relates to cocaine and which is referred to as the ’cocaine incident’..  The Visa Applicant alleged that he had knowledge of illegal dealings in cocaine by persons in the military.  The Visa Applicant also alleged torture by cigarette burns, and in particular by Officer Mera; that allegation is referred to as the “burns incident”.  He also referred to a torture session which resulted in the death of Corporal Artieda, and which is referred to as the “Artieda matter”..  The RRT did not (as I have said) have the opportunity to hear evidence from the Visa Applicant himself because he did not appear at the hearing, when one considers its decision as a whole the RRT while expressing reservations as to some of his claims, found against him on the basis that as a military deserter he was not entitled, under the Convention, to relief.  This is relevant in particular, having regard to the fact that on subsequent occasions (and as I have noted) the Visa Applicant made no mention of any of these incidents or matters.    In the light of his overall evidence before me, his evidence in respect of all three matters is open to serious doubt.  I will revert to these aspects when I deal with the Visa Applicant’s evidence.

PART B – THE APPLICANT’S EVIDENCE

12.     I intend to deal with the Applicant’s evidence in brief terms only, in the first place because it was not controversial and in the second place because her evidence was credible.  The Applicant is a young lady of good family background who met and fell in love with the Visa Applicant some considerable time after he had parted from his first wife Pamela.  They commenced living together, and when the Visa Applicant was obliged to leave Australia, she accompanied him.  She went with him in the main to Ecuador and where she stayed with his family.

13.     I accept firstly that the Applicant is genuinely devoted to the Visa Applicant.  I accept also that for her to live with the Visa Applicant in his home town of San Pablo would be very difficult, if not impossible, for a number of reasons.  In the first place the Visa Applicant’s family live in circumstances which are decidedly primitive and certainly very remote from the comfortable conditions to which she is accustomed.  In the second place, she suffers from health problems and in particular in relation to her ears which would be difficult to treat in San Pablo.  In the third place, her blonde colouring has the effect that she is an oddity in San Pablo.  She does not speak Spanish and so that for her to work in San Pablo would be difficult if not impossible.  All of these reasons are sufficient for me to find that for her and the Visa Applicant to be reunited in San Pablo would be very difficult indeed and that it would not be fair to expect her to do so.  The Applicant gave evidence that to live in Quito, which is the principal city of Ecuador, would not be possible because it is too expensive.  She spoke of the cost of suitable accommodation in Quito; that cost appears to be lower than it would be in Sydney.  .

14.     The Applicant knew of the Visa Applicant’s immigration status quite early on in their relationship; see clause 15 of exhibit A9.  Put in other words she knew that he had failed in his application for a protection visa just as she knew that he had come to Australia with his first wife, Pamela and daughter Brigitte.  The Applicant was asked in evidence what she would do if the application went against her; she said (and I accept) that it would not be possible for her to be reunited with the Visa Applicant in San Pablo.  However she was not asked whether it would be possible for her to be reunited in another part of South America and in particular in a city where conditions are not as primitive and where proper medical attention can be found.  It is also conceivable, although this was also not put to the Applicant, that Ecuador is not throughout as primitive.  Nor was it put to her that reunion in another country against whose laws the Visa Applicant has not offended, and such as New Zealand might be possible.  It must be remembered that the Applicant is educated and has certain skills, as does the Visa Applicant who received a degree or diploma in supplies while serving with the Ecuadorian Air Force.

PART C – THE EVIDENCE OF THE VISA APPLICANT

15.     I intend in this part C (and subsequent parts) to focus on those parts of the Visa Applicant’s evidence, which relate to the circumstances in which he first left Ecuador and his claims as to his fears in relation to a return to Ecuador.  I might note in passing that this case ran for four days, an inordinately lengthy period for a case of this nature, and that notwithstanding the size of the T-Documents and the Supplementary T-Documents.  That this is so is due to some considerable extent, to difficulties with the Ecuadorian telephone system.  Contact and particularly on the second hearing day was so sporadic that in the afternoon of that day, and after repeated attempts to contact the Visa Applicant proved unsuccessful, it was decided to abandon the hearing for the remainder of the day.  The Visa Applicant was assisted throughout by an interpreter in the Spanish language.  In fact his English is apparently quite fluent which is not surprising given that he stayed in Australia for nearly five years.  During the afternoon of the third hearing day, the Visa Applicant said that he now works in Ecuador helping his father in the latter’s business and by teaching English to neighbours.

16.     As I have indicated, the Visa Applicant testified that his statement, exhibit A22, was true and correct; he did however in relation to clause 97 of exhibit A22 specify that the projected wedding date has been changed to February 2004.

17.     During a very brief examination-in-chief Mr Poynder elicited the fact that although the Visa Applicant studied for a commerce degree specialising in marketing, his qualification was in reality equivalent to a secondary school higher certificate qualification.  That qualification is apparently additional to the degree or diploma obtained while he was serving for approximately two years with the Ecuadorian Air Force.

PART D – THE CROSS-EXAMINATION OF THE VISA APPLICANT ON THE FIRST HEARING DAY

18.     The Visa Applicant said that he came to Australia (with his wife and child) in June 1966.  He was asked whether he had previously travelled outside Ecuador and he said, “No I never did that”..  He then agreed that he applied for his tourist visa in Chile.  When asked why he had answered in the negative as to whether he had previously travelled outside Ecuador he said that he didn’t hear the question well.

19.     The Visa Applicant agreed that as set out in his statement exhibit A22, he left Ecuador and went to Chile on 22 May 1996.  His attention was drawn to the fact that his statement specified that he applied for a tourist visa in Chile and that it was granted on the same day and within half an hour after it was made.  It was pointed out to him that according to his passport the visa was granted on 24 May 1996; his answer was that he did not remember the date.

20.     It then transpired that the Visa Applicant had previously applied for a tourist visa in Venezuela and on that occasion he applied by mail.  He said that his application was rejected because the Embassy phoned his base and Officer Mera said that leave had not been granted.  The Visa Applicant said that Mera is the officer from whom he feared repercussions in connection with the cocaine incident.  It was pointed out to the Visa Applicant that Tpg49 indicates that the Visa was refused because “[A]pplication of my husband was wrongly filled out and a required paper was not included” (Tpg49).  The Visa Applicant said that that statement was made by Pamela.

21.     The Visa Applicant said that he came to Australia with Pamela and Brigitte to visit his wife’s relative, Angelina Cruz, who had invited them to attend the baptism of one of her children.

22.     The Visa Applicant was then asked how he knew about the phone call to Mera.  He said that the Embassy wished to speak to him but that Mera refused to pass the phone to him and that (later) Mera told him that he had received the call but that he “couldn’t go on holidays”..  This occurred about two weeks before the trip to Chile in May 1996 and at which time the tourist visa was obtained.

23.     He was then asked why he had originally written to the Australian Embassy in Venezuela; his answer was that he didn’t have a holiday permit.  When asked why he applied on the second occasion in Chile and in person he said that he had obtained leave from another officer and did not need Mera’s approval.  The Visa Applicant was referred to clause 39 of exhibit A22, which specifies that Lieutenant Pazos granted him one month’s holiday on 21 May 1996.  That paragraph then goes on to say that he flew to Chile later that afternoon and that he applied for a tourist visa on 22 May 1996 and which (as previously noted) was granted within half an hour and on the same day.

24.     The Visa Applicant was then asked whether air tickets to Australia had already been purchased.  He said that they had been purchased because the production of air tickets was a prerequisite for the issue of the tourist visa.  He said that his father-in-law paid for the relevant air tickets for him, his wife Pamela and Brigitte.

25.     It was pointed out to the Visa Applicant that in his Venuezuelan application he had applied for a long stay visitors visa (Tpg27).  He said that he applied for a visa for one to three months only; (Tpg27 indicates that his approved leave from the Air Force was 18 days).  It was then pointed out that his application was for a visa from 25 May 1996 to 3 June 1996 and he agreed that this accorded with the date of the baptism ceremony.

26.     The Visa Applicant repeated that he came to Australia only for a holiday and to attend the baptism.  He said that he did not intend to stay in Australia because he did not speak English and did not have enough money.

27.     The Visa Applicant’s attention was again drawn to Tpg27, which indicated leave of 18 days only and which conflicted with his statement that he had one month’s leave.

28.     The Visa Applicant agreed that having come to Australia he decided to stay longer and sought an extension of his tourist visa.  He agreed also that he subsequently applied for a protection visa; he said, “my wife convinced me to stay longer”.  He said (and repeated) that he “just intended to stay for one month and then go back to work”.

29.     It was then put to him that having extended his tourist visa (in June 1996) until December 1996, he applied for a protection visa approximately six months after his arrival.  He agreed.  He also agreed that in his passenger arrival card he had specified the length of his stay as ten days (Tpg94).

30.     The Visa Applicant said that he consulted a lawyer Dr Ben Gelin (“Gelin”) as to a protection visa.  He said that he went to see Gelin with his ex-wife’s cousin, having found Gelin’s name in a Spanish newspaper.  He paid Gelin $5,000 in fortnightly instalments; (the source of these funds was not specified). 

31.     The Visa Applicant was referred to Tpgs184 and 185, which as I have noted comprise part of the statement, which accompanied his protection visa application.  That statement has been set out in full previously in these reasons.  The Visa Applicant was referred in particular to the fact that his statement indicated that he had been denied a discharge from the Ecuadorian Air Force.  He said that he had decided to apply for his annual leave and that “my plan was to leave the Air Force and Ecuador”.

32.     The Visa Applicant then said that the statement referred to in the preceding clause, and which comprised his protection visa application was written by his ex-wife.  It was put to him that the signature appeared to be his.  He said that his ex-wife’s cousin helped her to write that statement; he said that he always intended to go back to Ecuador in order to resign from the Air Force.

33.     The Visa Applicant then, after searching for the protection visa statement, said that Pamela forged his signature in two places in the application.  He said that the signature on the tourist visa application in Chile was his own and that “my signature is easy – anybody can sign like me”.

34.     The Tribunal notes that in the absence of expert evidence from a handwriting expert it cannot say for certain that the Visa Applicant’s signatures in the application were his own although having regard to other signatures in the T-Documents admitted by him to be his, those signatures do at least on a prima facie basis appear to be his.  One thing however in this context is altogether clear, and that is that his lengthy, complex and looping signature would be difficult to forge.

35.     When pressed the Visa Applicant repeated that the signatures referable to his protection visa application were forged.  He said that this was so also of his signature at Tpg192.  It should be noted that he said that he was present throughout the preparation of the protection visa application and he did not ever furnish any reason why it was necessary for Pamela to sign instead of him.  He said when pressed, “I was present but I didn’t sign the document”.

36.     The following exchanges are taken from 1Tpg84 to 1Tpg86, as follows:

“MR POYNDER:       All right.  Mr Lopez, can you locate the typed written statement that is signed, apparently by you, on the bottom of each page.  It is a 2 page document.

THE INTERPRETER: Yes, I have it with me.  He said something about the signature, but I didn’t quite follow it because it’s crackling.  My signature is quite easy, anybody could sign like me.

MR POYNDER:         Mr Lopez, are you telling the Tribunal that the signature on that document is a forgery?

THE INTERPRETER: Yes.

MR POYNDER:         Are you also telling the Tribunal that the signature that appears on your visitor’s/tourist visa application is a forgery?

THE INTERPRETER: In which visa?

MR POYNDER:         The visitor visa application you lodged in Santiago.  Is that signature also a forgery?

THE INTERPRETER: That’s mine.

MR POYNDER:         So you lodged a document in Santiago which is not bearing a false signature, but you lodged with the Department of Immigration while in Australia, an Application for Refugee Status which bore a false signature.  Is that what you are saying?

THE INTERPRETER: I use my signatures in all documents but the one that is on the protection visa application is forged.

MR ALLATT:   And that applies not only to the typed written statement but also the signature at the end of the application, folio 192, Deputy President, which was dated 28 November 1996.  Is that the case, Mr Lopez?

THE D. PRESIDENT: I’m sorry what was that page? 195?

MR ALLATT:   That signature, Deputy President, is 192.

THE INTERPRETER: Yes, that’s correct.

MR ALLATT:   So, Mr Lopez, you now tell the Tribunal that you went along to see Mr Bengelian, solicitor.  Correct? Your wife and your wife’s cousin and I’m sure my friend will correct me if I’m wrong, prepared, in large measure, the typed written statement that goes with that application? Is that correct or not?

THE INTERPRETER: That’s correct.

MR ALLATT:   And you were present or not present when this document was completed?

THE INTERPRETER: I have to repeat the question.

MR ALLATT:   Mr Lopez, when this protection visa application was completed and the typed written statement was completed, were you present or not present when that signature was applied?

THE INTERPRETER: Yes.  I was present.

MR ALLATT:   And notwithstanding you being present, you say that you did not sign the document? Somebody else did who forged your signature? Is that correct?

THE INTERPRETER: I was present but I didn’t sign the documents.

MR ALLATT:   Right.  Now, Mr Lopez, let me go back to a little while ago.  You said, in answer to a question I asked, about the last paragraph on the second page that you, in fact, had wanted to go back to Ecuador and resign from the Air Force.  Do you recall that?

THE INTERPRETER: Yes.  Correct.

MR ALLATT:   Yes.  And, Mr Lopez, you were not in any fear about doing that, were you?

THE INTERPRETER: I was doing my things.  I didn’t follow your question.

MR ALLATT:   No.  Mr Lopez, you were in no fear of going back to Ecuador in order to resign from the Air Force?

THE INTERPRETER: I thought of resigning but I still had to work two more years before resigning.

MR ALLATT:   Yes.  But you weren’t in fear of going back to Ecuador to do that?

THE INTERPRETER: No.  I was not afraid had I went back within that month I had for holiday because then nothing would happen.

MR ALLATT:   Exactly.  You were in no fear at the time you came to Australia and had you departed in the ordinary way, you would have gone back to Ecuador without any difficulty at all.  That is correct?

THE INTERPRETER: Yes.  Because if I were to go back within the month they had given me then I wouldn’t have any problems.

MR ALLATT:   No.  And you wouldn’t have had any problems because you wouldn’t have been judged a deserter?

THE INTERPRETER: That’s right.

MR ALLATT:   Yes.  And when you lodged this refugee claim, you had become a deserter?

THE INTERPRETER: Yes, that’s correct.

MR ALLATT:   That’s right.  And, in that same document on the last page, you say, the third last paragraph from the end, page 186, Deputy President.

Having left that country –

that is, Ecuador –

and not returned to the Air Force I am now a deserter.

(reads)… penalties which might be imposed upon me for such a crime.

THE INTERPRETER: That’s right.

MR ALLATT:   Right.  Now, was that a paragraph that you drafted or your wife and cousin drafted?

THE INTERPRETER: I told that to my ex-wife and then they put together this story.

MR ALLATT:   Right. Now, I am going to try and avoid Mr Lopez going through this statement line by line, but if I can put a question to you which is not objected to, you have got the full document in front of you.  Is that correct?  Two and a half page typed document?

THE INTERPRETER: I don’t have it in front of me but I know what is in the document because I’ve been reading it.”

37.     The Visa Applicant was referred to the third last paragraph on Tpg186 as to the fact that as a deserter from the Air Force he had lost his citizenship rights.  He said that this allegation was correct.  He was then asked whether he drafted the protection visa statement or as to whether his ex-wife and her cousin drafted it.  His answer was that he told them the facts and they “put together the story”.

38.     When asked whether he had the protection visa statement with him, he said that he did not, but that it was only a few steps away.  After being directed to get it, he agreed (but only after a long pause) that although the signatures appeared to be his, they were not in fact his.

39.     Mr Allatt then cross-examined the Visa Applicant at some length as to his protection visa statement taking him through it paragraph by paragraph.  For the most part he agreed that the content was true but on occasion said that there was something missing.  As to the fourth paragraph on Tpg184 he said it omitted the fact that in December 1994 “found some packets which did not belong in my registry”.

40.     As regards the fourth paragraph on Tpg185 and which relates to the Artieda matter, he said that it is true that Artieda drowned but that “he didn’t die with me – he was transferred to another section before his death.  We didn’t see each other much and he was transferred before his death”.

41.     The Visa Applicant said on a number of occasions there would not have been any problem of any nature if he had gone back to Ecuador before his leave period expired.  He made it clear that his fears arose from the fact that he was a deserter.

42.     It was then put to him that in a fax sent to Madrid (undated but received in May 2000 (Tpg95)) he had said that his position had become life threatening because of a war between Peru and Ecuador.  I refer to that fax which appears at Tpg95 as the ’May fax’ and include its content in these reasons as follows:

“To Whom It May Concern:

I’m not going to lie about my stay in Australia.  I came to Australia on a three month holiday visa, before my visa expired I applied to the Australian Immigration Department for a refugee visa.  The reason I applied for a refugee visa, was because my situation in Ecuador had become life threatening.  A war had broken out between my country Ecuador, and Peru.  The Ecuadorian Air Force was sending me to fight.  I stayed in Australia for a period of five years, because I couldn’t come back to my country until this time, as they would have sent me to jail.  Though during my five year stay in Australia I was not illegal for the whole period of time.

Whilst waiting for the answer for my application as a refugee, the Australian Immigration Department granted me a bridging visa until the application had been answered.  It took over one year for the application to come in, and the visa was denied.  So then I re-applied for another refugee visa, and I paid $5,000 dollars for the assistance of a lawyer to help with my application.  It took another twelve months and the visa was denied.  So from then on I was an illegal citizen in Australia.

This was the situation and why I over stayed my visa.

Signature of

Roberson Pedro Cordova Lopez.”

43.     Having regard to Mr Poynder’s closing submissions as to the manner in which the content of the protection visa statement was put to the Visa Applicant, it is desirable that I include an extract from 1TS which describes the manner in which it was put; this  emerges from 1TS90 and following as follows:

“MR ALLATT:   Starting at page 184, yes.

THE D.PRESIDENT:   Madam Interpreter, what we would like you to

do is start at the top.

THE INTERPRETER:   Yes.

THE D.PRESIDENT:   And read the paragraph and then ask him, in

Spanish of course, translated it into Spanish, so would you start with:

I left Ecuador and took my family, my wife and baby daughter

with me to avoid being imprisoned or murdered by certain

military authorities in my home country.

Ask him if it is true?

THE INTERPRETER:   That's true.  Keep on going?

THE D.PRESIDENT:   Yes, please.

THE INTERPRETER:   Yes, it's true.  It's true.  It's true in part but

there is something missing.

THE D.PRESIDENT:   Hold on.  Do you want to ask what is missing

or do you want to just leave it?  The answer to your - as to the fourth

paragraph is:  it's true in part but there is something missing.

MR ALLATT:   All right.  Well, what is missing?

THE INTERPRETER:   What is missing is that in December '94 I also

found some other packets that didn't belong to my registry.

MR ALLATT:   Okay.

THE INTERPRETER:   That's correct.  That's true.  It's true.  It's

true.  I was on my own when this happened to me.  He was not with

me”.

MR ALLATT:   Which paragraph was that, I'm sorry.

THE D.PRESIDENT:   I think it is the third paragraph. 185.

THE INTERPRETER:   The third, yes.  It is the third, 185.

MR ALLATT:   Right.  And so - and what did he say that was

different?

THE D.PRESIDENT:   He said:  I was on my own when this happened

to me.

THE INTERPRETER:   Yes.  Because the paragraph says:  we were

assaulted.

THE D.PRESIDENT:   But otherwise, it is true?

THE INTERPRETER:   Yes.  It's true.  It's true that he was drowned

and that the official report said that he had - he was drunk and then he

drowned, but I didn't see him so I don't know.  That's what is not true.

THE D.PRESIDENT:   I don't know what?

THE INTERPRETER:   He didn't die in front of me.  He worked with

me under my supervision for six or seven months and then he was

transferred somewhere else.  To another section.

THE D.PRESIDENT:   But he - sorry, he didn't die - he didn't die with

me?

THE INTERPRETER:   Yes.  Before - yes, in his presence.

THE D.PRESIDENT:   He was transferred to another section?

THE INTERPRETER:   Yes.  He was transferred to another section.

THE D.PRESIDENT:   Before his death?

THE INTERPRETER:   Yes.  I was not in a very close relationship

with him and me, that we didn't see each other much.

THE D.PRESIDENT:   Yes but that wasn't the question.  Was he

transferred before his death?

THE INTERPRETER:   Yes.  He was transferred before his death.

Yes, it's true.  Yes, it's true.  Yes.  It is true.  My real intention to go

only for a few weeks holidays there and then come back to the Air

Force and resign.

THE D.PRESIDENT:   Sorry, this is the eighth paragraph, is it not?

THE INTERPRETER:   It was the last paragraph.

THE D.PRESIDENT:   One, two, three, four - - -

THE INTERPRETER:   The last one.

THE D.PRESIDENT:   - - - five, six.  Yes.  Last paragraph.

THE INTERPRETER:   Yes.

THE D.PRESIDENT:   And my real intention was - - -

THE INTERPRETER:   To go away for a few weeks - - -

THE D.PRESIDENT:   - - - was to go away for a few weeks and then

go back and resign.

THE INTERPRETER:   - - - and go back to the Air Force, yes, and

resign.

THE D.PRESIDENT:   - - - and then go back to the Air Force.  Right.

THE INTERPRETER:   My intention was to go back.  I don't think I

would have had any problems, had I gone back within my stipulated

time.

MR ALLATT:   I think you had better warn him that we are just about

to be cut off.  Does he understand the phone is about to go?

THE INTERPRETER:   I told him anyway that it was only one minute

left.

THE TRIBUNAL:   Shall I just call again?

THE D.PRESIDENT:   Is there any point?

Dear Sir/Madam

RE: ROBERSON PEDRO CORDOVA LOPEZ & ORS

RRT FILE No. N97/20822

I refer to recent correspondence and to my telephone conversation with your Mr Ben Govan, for which I am most grateful.

I confirm that my clients instructions are that they are preparing to leave Australia towards the end of June 1999.  I therefore respectfully request that your Tribunal delay making its decision on the above captioned Application for Review until mid-June if at all possible, so as to give my clients time for their preparations to leave Australia.

I enclose two Responses to Hearing Offer, declining the opportunity for a hearing, in accordance with my clients’ instructions.

Thank you for your attention.

Yours faithfully

BEN GELIN SOLICITORS

Signed

BEN GELIN

BG:CM:1980

Encl”

74.     The Visa Applicant said that he had no knowledge of any such statement, which must have come from Pamela.  He also denied that he knew anything about the file note at Spg16 in which the RRT recorded that according to Gelin his clients did not wish to attend a hearing because he was leaving the country.  The Visa Applicant said that Pamela must have given those instructions.

75.     He was then asked whether he had discussed leaving Australia with Pamela in 1999, having parted from her in 1998.  He said that they did not discuss leaving Australia.

76.     As to Spg3, which is a statutory declaration attested by a postal manager, he said “I don’t remember signing it before a judge or magistrate”..  When asked whether it was his signature he said, “well it is my signature”.

77.     As regards Spg12 the Visa Applicant said that the two signatures “must be mine; they look much like mine.”

78.     The Visa Applicant was then asked whether if his wife told Gelin that they were leaving Australia, that statement wasn’t true.  His answer was that “we didn’t have a discussion.  I had a good job in Australia”.

79.     The Visa Applicant was then asked when he worked illegally in Australia.  His answer was that he worked illegally, but only for a period of four months from May to September 2000 for a building company and being NSW Steel Fixing Company. 

80.     The Visa Applicant said that between May 1999 and October 1999 he took no steps to do anything in connection with his case.  He was then referred to Spg12, which is a request for access to documents dated 31 August 1999; (he had said that the signature “must be mine”).  He answered “I don’t remember” to questions about why he was requesting documents from the Department and whether this had anything to do with his protection visa application.  He said that he did not know who Jenny Perez was, and in any event, was not living at the address specified in the application.  (Ms Jenny Perez is referred to in Spg12 as the person preparing the request).

81.     The Visa Applicant said that after leaving Pamela aunt’s home in Tempe he did not recall signing any documents but repeated that his signature “is easy to copy”.

82.     The Visa Applicant was again asked when he worked illegally and he said, “I know it was up for a short while only four months”..  He was then referred to his own statement exhibit A22 at clause 59 which specifies that he worked illegally for 18 months between November 1999 and May 2001.  His answer was “correct”..  When it was put to him that his evidence was in conflict with his statement he said, “it was a long time ago – I couldn’t remember it well”.

83.     When asked whether he was not anxious about the fate of his application to the RRT, he said that since the original protection visa application took about two years, he thought that the review by the RRT would take the same period.  When it was pointed out to him that by this time (June 1999) nearly two years had elapsed but that surely he was anxious about the result, his answer merely was “yes, right”.

84.     When asked that his wife told him as to the progress of the application, he said that they discussed Brigitte and not the application. (Brigitte by this time had been sent back to Ecuador.)

85.     When he was asked whether the fate of his application was not a matter of importance to him, his answer was that he did not intend to stay in Australia.  When asked whether this accorded with an instruction to Gelin in June 1999 to the effect that he was leaving Australia, he replied that he always told her, his wife, that he did not want to stay in Australia.  He agreed also that his wife told him in November 1999 that they should leave.

86.     The Visa Applicant was then referred to exhibit A22 clause 57 in which he said that his wife was anxious for them to be reunited.  His answer was “I wasn’t interested in paperwork – I wasn’t interested in obtaining a visa”.

87.     Mr Allatt then put to him that his protection visa application was false.  He denied that this was so and when referred to his answers at 1TS94 and 1TS95 to the effect that he was concerned only about the fact that he was a deserter, he answered “I was also concerned about Mera and the cocaine”.

88.     The Visa Applicant said that he and the Applicant prepared exhibit A22.  He was referred to clause 58 in which he said he wanted to go back to Ecuador.  He said that this was true in that he wanted to get to know his daughter Brigitte.

89.     He was then asked why if his statement was true and he genuinely wanted to go back to Ecuador, he stayed in Australia for a lengthy period of years thereafter.  His answer was “I stayed to earn a bit more money – nothing else”. 

(Mr Poynder in his closing submissions described that statement as unfortunate).

90.     The Visa Applicant was asked whether if this application was successful he and the Applicant could be reunited in another country.  His answer was that they couldn’t do that and that they would need visas for Europe.  When asked about other countries in South America, his answer would be that it would be the same as living in Ecuador, because they were all poor and “it would be the same”..  When pressed on this allegation he said that Brazil would be best but they would have to learn Portuguese.

91.     The Visa Applicant said that he currently helps his father and also teaches his neighbours English.  Brigitte lives with Pamela’s parents and he has provided for her by depositing one half of the proceeds of sale of a unit (an amount of US$20,000) for her support.  He bought a unit in Quito while he was in Australia as an investment unit, and from monies remitted from Australia.  He said that he sees Brigitte every weekend but he has no intention of seeking custody, because he and Pamela agreed that Brigitte would live with Pamela’s parents.

PART G – THE VISA APPLICANT’S RE-EXAMINATION

92.     The Visa Applicant was first asked about a document sent to him by his father in October 1996.  That document, which is exhibit A1, was referred to as the “lawyers’ document.”  In fact that is an inaccurate description of what is no more than an affidavit by the Visa Applicant’s parents.  That document was read to the Visa Applicant in Spanish and he agreed that it is the document, which was sent to him by his father.  He agreed that it stated that he should stay out of Ecuador for five years.

93.     It was then put to him that he had in exhibit A22 specified that he had lost his Ecuadorian citizenship for two years and his attention was drawn to the fact that it says nothing of the sort.  His answer was that “it must be there somewhere”.

94.     Mr Poynder put it to the Visa Applicant that there was no such statement and inquired as to where he could have obtained this information and his answer was.  “This was information given to my father that I had lost my citizenship for three years and I should remain out of the country for five years”.

95.     The Visa Applicant was then referred to Tpg177 and said positively that it must be in Pamela’s cousin’s handwriting.  As to Tpg184 he again said that he, Pamela and Pamela’s cousin were in the same room for the purpose of preparing it and that he thought that room was in Parramatta.

96.     As to Tpg95, the Visa Applicant said that a war had broken out between Ecuador and Panama and he stayed in Australia because to return would have involved jail as a deserter. 

97.     As to Spg12 the Visa Applicant said that he recognised nothing other than his own signature and that at the time he was living in Marrickville.

98.     As to living in other countries in South America the Visa Applicant said that he did not think he had an automatic right to live in any of them.

99.     The Visa Applicant said that on his return to Ecuador there were some problems, and that in particular he was asked whether he was still in the military.  There was no arrest and no charge of any kind, and which he thought might be due to the fact that he had been out of the country for an extended period.  When asked who the inquiry as to whether he was still in the military came from, he said that it arose when he needed an updated identity card and in order to get it he had to specify that he was no longer in the military and because the new card was a non military identity card.  He said that he had to pay a fine because he needed a non military identity card and because he had served in the military for less than a year (That evidence is contradicted by the fact that at the time of his desertion he had served for nearly two years). It does seem though that there were no difficulties of any kind; the fact that he needed a different non-military identity card can hardly be categorised as a difficulty.

PART H - THE EVIDENCE OF THE VISA APPLICANT’S FATHER, MILTON SALVADOR CORDOVA FREIRE

100.   Mr Freire said that his statement dated 3 May 2003 (exhibit A25) is true.

101.   The interpreter read exhibit A1 to the witness.  Mr Freire agreed that this document was obtained for his son.  He said “we did it in front of a notary public so that my son wouldn’t have to go to jail”..  He went on to say that if the Visa Applicant had come back before the expiry of five years he would have lost his citizenship for two years.  The military had told him that the Visa Applicant should not come back before five years because then he would be put in jail.

102.   I do not think that it is necessary for me to go into detail as to this witness’s evidence, which can best be described as confused.  He thought that exhibit A1 had been executed before a competent authority; exhibit A1 is in fact no more or less than an undated letter apparently prepared by a lawyer (Dr E A Robert) which reads as follows:

“Your Honour, Civil Judge

We MILTON SALVADOR CORDOVA FREIRE, 42 years old, employee and LIDIA AZUCENA LOPEZ ORTIZ, 40, married couple, Ecuadorians, residents of this district, say respectfully to you:

That, Your Honour see fit to receive our sworn declaration as a judicial proceeding to the following effect: that, our son Second Corporal of the Ecuadorian Air Force (FAE), Roberson Pedro Cordova Lopez, left the country together with his wife Natalia Pamela Martinez Cruz although he had not been released from the FAE, nor was he assigned on active service.

We have repeatedly received telephone calls to our home, and also staff of the Ecuadorian Air Force have visited our home in San Pablo of the Picaihua district in Ambato, Tungurahua, with the aim of investigating the whereabouts of our son and proceed to his detention as they consider him a deserter of the FAE.  These investigations have also been carried out in the home of the parents of Mrs. Natalia Pamela Martinez Cruz and also of other relatives, on the basis that having deserted, he would have to spend at least five years outside the country until the action or lawsuit against him expires.

No amount is determined.”

103.   It was not a lawyer’s letter nor was it legal advice and it was not on any basis a court order or other official document.

104.   Mr Freire thought that the document was obtained in 1997.  It stated that he was 42 and his wife 40.  He said that his date of birth is 9 March 1955 and his wife’s date of birth is 26 August 1956.  He said that any document before the Tribunal which specified any other date of birth for either of them would be wrong (see Tpg172) when a different date of birth is reflected.

105.   Mr Freire said that if any document prepared for the Australian immigration authorities specified his date of birth as 1956 that would be wrong for him but not for his wife.  Moreover her date of birth is 26 August 1956 and not 17 August 1956 and not 11 May 1957 (dates occurring in other documents before the Tribunal).

106.   In exhibit A25 Mr Freire referred to the damage to his son’s hands as an accident.  When asked what sort of an accident, he said merely that he thought it might have been a punishment but did not know how or why it occurred and did not think he should ask.

107.   Although the lawyer suggested that they see a judge, they did not do so.  Exhibit A1 was prepared in order to save the Visa Applicant from jail in Ecuador and not for any reason connected with the protection visa application.

108.   It was pointed out to Mr Freire (who is a man of little education) that exhibit A25 talks of jail but not of a loss of citizenship rights.  He said that he merely recorded what the military authorities had told him. 

109.   I would not categorise the evidence of Mr Freire as being of any particular probative value.

PART I – THE CHARACTER TEST

110. At the very heart of this inquiry is of course the question of whether the Visa Applicant when he made his protection visa application, was truthful. Mr Poynder contended that so long as he was truthful there could not be a breach of section 234 of the Migration Act 1958 (“the Act”). 

111.   The first question is whether the Visa Applicant ever obtained leave from the Ecuadorian Air Force.  This is open to considerable doubt.  His evidence was he first sought a tourist visa in Venezuela which was denied because the Embassy was told he did not have leave from the military; (Pamela who, according to the Visa Applicant prepared the visa application made in Chile, assigned a different reason). If Pamela’s version was correct the Visa Applicant’s evidence is unlikely to be true.  It does indicate though that he did not have leave and that his request for leave had been refused.  It is impossible to reconcile this evidence with the fact that on his evidence, having obtained leave (but not from Mera) on one day he flew to Chile the following day and obtained a visa on the same day.  Some degree of organisation and preparation is necessary, especially where the military is involved, leaving aside all of the relevant financial implications.  If there was a certificate of leave none was produced.  Mr Poynder asked me to take little heed of the fact that the visa was in fact a few days after application was made on the basis that some degree of discrepancy was pardonable.  I might have been inclined to do so were it not for the fact that there were so many other and significant discrepancies.  Given that a considerable sum of money was needed if only to purchase the air tickets to Australia (leaving aside the air tickets to Chile) and on the basis that it would have been irrational; to purchase tickets without leave having been granted, especially where it had previously been refused, leads me to conclude that it is more likely than not that there was never any leave granted and that the Visa Applicant was a deserter from the commencement of his departure to Australia and that all of his evidence as to leave and his fear of becoming a deserter was untrue. On this basis and which is on the balance of probabilities likely to be true, he came to Australia with his wife and daughter (without having obtained leave from the air force) with the intention of staying in Australia.

112.   If leave was granted, for how long was it granted?  The evidence on this aspect differed markedly.  The evidence indicated on some occasions a period of a month but other and lesser periods were also specified. And the evidence before me as to the duration of the visitor visa sought was equally inconsistent

113.   If a tourist visa was granted for one month the references to a visa for three months were not true.  In any event the tourist visa was renewed for a period.  The protection visa was applied for some months later although there is evidence that it was under discussion within a month of the Visa Applicant’s arrival in Australia.

114.   The Visa Applicant’s evidence as to how the protection visa application came to be made and Gelin’s role in it cannot be accepted.  He said that his signatures were forged by his wife in his presence and then again when he was not present; that evidence was untruthful; in any case it is hard to understand why there was any reason to forge his signatures to an application to which he was so plainly party.  He associated himself with the protection visa application in all respects.  Mr Poynder asked me to accept that migration agents do sometimes overcharge.  This may be so but I would not make a finding against Gelin to this effect without hearing from him.  Gelin’s letter states in no uncertain terms that he prepared the application.

115.   The timing of the application does not accord with the Visa Applicant’s evidence.  He said on numerous occasions that he always intended to return within his leave period so as to avoid being categorised as a deserter and so as to avoid the penalties, which would be visited upon as a deserter.  He said repeatedly that he had nothing else to fear.  Mr Poynder contended that he did on occasion make reference to other problems by, which is meant presumably his reference to the cocaine incident.  The Arteida matter was disavowed in evidence; the burns matter was described by his father as an accident or a punishment.  It is true that on one occasion he referred to the cocaine matter but on many more occasions he made it clear that he feared only one thing, and that is that he would be a deserter if he did not return.  The Visa Applicant’s evidence as to a lawyer’s letter and the loss by him of his citizenship for two years (on one occasion three years) was plainly fictitious..  The Visa Applicant’s protestations as to his wife’s responsibility and his intentions to return to Ecuador were demonstrably false since even assuming that he ever obtained leave (which is doubtful), and even assuming that he obtained leave for one month (which is also open to doubt) he was then in difficulty by the end of June 1996 since his leave would have expired by then..  All of these factors and others to which I have referred in these reasons, leads me to conclude that on a balance of probabilities the Visa Applicant came to Australia from the outset intending to stay in Australia.  It may be noted in this context that although in some of the documents before me, he referred to the baptism for which he allegedly came, there is no such reference either at the interview or in the May fax.

116.   The Visa Applicant’s evidence as to a war and his potential involvement in it was conceived as an afterthought and was clearly untrue.  Even more to the point is the fact that in the May fax, and at his interview, he made no mention whatever of the other matters referred to in his protection visa application.  He contended that he did not do so because he had not been believed previously; that was untrue.  .

117.   The Visa Applicant’s evidence at his interview was in some respects untrue.  So was the May fax.  And so was much of his evidence before me.  He claimed that he worked illegally for four months when his own statement made it clear that the period was much longer.  All of his evidence as to Gelin and his signatures was almost certainly untrue and his attempts to assign all of the blame to his wife were unacceptable.

118.   It must be remembered that the Visa Applicant is neither uneducated nor unskilled in English.  He nevertheless sought repeatedly to have questions asked again. His evidence as I have demonstrated sometimes varied markedly at differing times.

119.   Mr Poynder contended that the Visa Applicant’s admissions that he had no problems about returning to Ecuador, other than those arising from his desertion, were elicited in answer to leading questions, and sometimes involving statements by Mr Allatt.  When one analyses that contention closely it is clear that it is not correct.  But in any event leading questions in cross-examination are usual enough.  Mr Poynder objected whenever he thought that his client was being unfairly treated. It is for this reason in particular that I have included some quite substantial extracts from the transcript.  After his applications had failed and after he failed to give evidence at the RRT (although he had previously indicated a strong desire to do so), the Visa Applicant’s statement indicated in the clearest possible terms, a desire to go home to Ecuador so as to become better acquainted with his daughter. However he stayed on in Australia for an extended period because so he said, he wanted to earn some more money. That admission indicates in my view that his reason for coming to Australia in the first place was economic, and that there was no other reason.

120.   I summarise then by repeating that on the balance of probabilities it is likely that the Visa Applicant came to Australia from the outset in order to stay in Australia and all of his evidence to the contrary was untrue.  If he did have any belief in the truth of the other problem areas to which I have referred there was very little evidence to this effect, and an assertion to this effect is contradicted by the later evidence and being in particular his interview evidence and the May fax.

121. The Visa Applicant has breached sections 234 of the Act (on numerous occasions) and also section 235 of the Act; the penalty prescribed in particular for breaches of section 234 of the Act is such that I must find that the Visa Applicant fails the character test and by a considerable margin. No other conclusion is possible in the light of his consistently untruthful behaviour over so long a period

PART J – MINISTERIAL DIRECTION 21 ISSUED PURSUANT TO SECTION 499(1)(E) OF THE ACT (“DIRECTION 21”)

122.   Direction 21 as here relevant provides:

"PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test.

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. ... 

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501 (1) provides the authority to refuse to grant a visa …

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501 (6).

…

Subparagraph 501 (6)(c) - not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501 (6)(c), decision-makers are required to make a finding that a non-citizen is "not of good character" on account of the non-citizen's past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision- makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

…

Subparagraph 501 (6)(c)(ii) - past and present general conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501 (6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

…

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

…

PART 2 - EXERCISING THE DISCRETION

2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. … Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process, which takes into account all relevant considerations.

Primary Considerations

2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations:

the protection of the Australian community, and members of the community;

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.

Protection of the Australian Community

2.4 The Government seeks to take reasonable steps to protect the

Australian community from the actions of criminals and to take action

to lessen the risk of crime and disorder within the Australian community.

…

2.5 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)

a. The seriousness and nature of the conduct

2.6 It is the Government's view that the following are examples of offences, which are considered by the Government to be very serious:

…

(i)        serious theft (including “white collar” crimes):

such crimes are of concern because of the amounts of money

involved and/or the disruption caused to individuals, business and

Government;

…

b. likelihood that the conduct may be repeated (including any risk of recidivism)

2.10 It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.

…

c. general deterrence - the likelihood that visa refusal or visa-cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways:

(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

…

Expectations of the Australian community

2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. ... Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. …

The best interests of the child

2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect.

…

OTHER CONSIDERATIONS

2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations. These other considerations may include:

…

(b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen …

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

…

(i)        whether the application is for a temporary visa or permanent visa”

123.   In this part J references to numbered clauses should be construed as references to numbered clauses in Direction 21.

124.   Clause 2.3 (quoted previously in these reasons) sets out the primary considerations. Clause 2.3 must be read in conjunction with clause 2.5 (also set out previously in these reasons).

125.   Recidivism is probably not a serious consideration, but this possibility cannot be discounted entirely given the manner in which the Visa Applicant has deceived the Australian migration system over a lengthy period.

126.   The deterrence factor is such that to grant a visa in these circumstances would send entirely the wrong message.  As Deputy President McMahon said in Re Lachmaiya and Department of Immigration and Ethnic Affairs (AAT 9295, 8 February 1994) at [35]:

“This section sets out the circumstances in which non-citizens may become illegal entrants. Many of the provisions of the section are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”

127.   I do not doubt that Australian expectations would be against the grant of a visa.

128.   As to hardship a decision such as this will cause hardship to the Applicant although it must be recognised that she knew of his difficulties at an early stage.  Could they be reunited in another South American country? The Visa Applicant’s evidence on this aspect cannot be accepted.  Even accepting that Ecuador is a very poor country there are countries in South America, which are not and where medical attention is adequate.  Brazil is an example.  New Zealand might be a possibility; the Visa Applicant has not offended against New Zealand law although as Mr Poynder said, he would have to disclose that an application to Australia for a visa was refused.  The hardship factor does not outweigh the other factors and to grant a visa in these circumstances would be to run directly against so many other similar fact cases.  I should note that there is evidence before me by members of the Applicant’s family and others, which speak well of the Visa Applicant but without reference to the conduct, which gave rise to this hearing.

129.   During his closing submissions Mr. Poynder referred to a decision by Deputy President Handley in Abida Khatib and Minister for Immigration and Multicultural and Indigenous Affairs (AAT unreported, 26 March 2003) as authority for the proposition that a protection visa application lodged after a period of delay does not necessarily indicate that it is untruthful. Mr. Allatt pointed out that each case turns on its own facts.

130.   Mr Poynder referred to the test in Briginshaw v Briginshaw (1938) 60 CLR 336 in order to contend that where the Respondent alleges untruthful behaviour it is incumbent upon on the Respondent to establish that this is so and that mere suspicion is not sufficient. The evidence before me establishes that the Visa Applicant was repeatedly untruthful and so that and to the extent relevant the Briginshaw test is satisfied.

131. If only for the sake of completeness I should mention that Mr. Poynder contended that an application for Ministerial discretion under section 417 of the Act presupposes failure at prior levels and that there is always the possibility that the Respondent might exercise his discretion in favour of the Visa Applicant. I do not accept that the fact that this may be so in any way excuses untruthful and dishonest behaviour in breach of the Act.

132.   I do not think it necessary for me to deal with other cases and including a decision by the RRT cited by Mr. Poynder.

133.   This is not a case in which it would be proper to exercise the discretion in favour of the Visa Applicant and accordingly the decision under review must be affirmed.

I certify that the 133 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT
J BLOCK

Signed:          A. Krilis
  Associate

Date/s of Hearing  19 August 2003; 30 September 2003; 31 October 2003; 7 November 2003; 13 November2003

Date of Decision  13 November 2003
Counsel for the Applicant          Mr N. Poynder
Solicitor for the Applicant           Ms Laurette Chao
Solicitor for the Respondent     Mr Murray Allatt