Evans and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2004] AATA 171
•20 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 171
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/147
GENERAL ADMINISTRATIVE DIVISION ) Re SHARON ANN EVANS Applicant
And
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller Date20 February 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse to grant a Prospective Marriage Visa (subclass 300) to Komang Suastika.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – prospective marriage visa – inappropriate behaviour in Australia three years ago – does not pass character test – risk to Australian community outweighs compassionate grounds – discretion to grant visa not exercised – decision affirmed
Migration Act 1958: s501
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application by Sharon Ann Evans, the Review Applicant, for review of a decision of the Respondent Minister for Immigration Multicultural and Indigenous Affairs, to refuse to grant a Prospective Marriage Visa (subclass 300) to Komang Suastika, the Visa Applicant
2. Ms. Evans is an Australian citizen, having been born at Wentworthville on 2 December 1961. Mr. Suastika is an Indonesian citizen having been born on Bali on 21 June 1969.
3. Ms. Evans first met Mr. Suastika at a hotel on Bali on 30 September 2001, while she was on holiday there with her mother and daughter. During the following eight days they met each evening after Mr. Suastika finished work at his shop. He slept in the hotel room with Ms. Evans, her mother and daughter, for each of the eight nights. Ms. Evans renewed her acquaintance with Mr. Suastika on two further occasions when she visited Bali with her daughter on 25 March 2002 for 18 days and again on 2 December 2002 for 33 days.
4. During the course of the third trip to Bali, Ms. Evans became pregnant to Mr. Suastika. She subsequently gave birth to their son on 9 September 2003, in Australia.
5. Mr. Suastika had visited Australia before he met Ms. Evans. He entered Australia on 28 February 2001, on a three month Tourist Visa 676, sponsored by Mrs. June Moore and her husband. During his time in Australia, Mr. Suastika stayed with Mrs. Moore’s daughter and granddaughter, Leanne Smith and Kylie Smith. On 30 March 2001, Mr. Suastika had a serious argument with Leanne Smith. Ms. Smith claims that Mr. Suastika threatened her and her daughter with a knife. Mr. Suastika left Australia on the following day, 31 March 2001.
6. The application by Mr. Suastika for Prospective Marriage Visa, sponsored by Ms. Evans, was rejected by a delegate of the Respondent on 3 February 2003 on the grounds that Mr. Suastika did not pass the character test pursuant to section 501 of the Migration Act 1958 (the Act), and in particular subsections 501(6)(c)(ii) and 501(6)(d)(ii).
7. The provisions of section 501 of the Act, relevant to this case are:
“501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) …
(3) …
(4)…
(5) …
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a)…
(b)…
(c) having regard to either or both of the following:
(i) …;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)…
(ii)harass, molest, intimidate or stalk another person in Australia;
(iii)…..
(iv)…
(v)….
Otherwise, the person passes the character test.
Conduct amounting to harassment or molestation
(11)For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a)it does not involve violence, or threatened violence, to the person; or
(b)it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.”
8. Leanne Smith provided a written statement and also gave evidence to the Tribunal by telephone. She said (among other things):
· I am 44 years of age.
· It has been my practice in recent years to take one or two holidays per year in Bali, usually for one or two weeks at a time.
· On one of those visits about four years ago, I met the visa applicant, Mr. Suastika. Mr. Suastika was a friend of one of my friends who lived in Bali at that time.
· I met Mr. Suastika a number of times over the next two years when I visited Bali on holidays.
· In about September 2000, while I was in Bali, I commenced a relationship with Mr. Suastika. About six months later, in February or March 2001, Mr. Suastika came to Australia on a three month tourist visa, in order to accompany me to a family wedding, the wedding of my cousin. When Mr. Suastika came to Australia on that visit he stayed with me at my unit in Sans Souci in New South Wales.
· About two weeks after he arrived in Australia, Mr Suastika started to act strangely, and to behave in an obsessive and possessive way towards me. He seemed to become very jealous, and would not want me to go out. He would follow me to work, whereupon I would ask him to leave. Often on these occasions he would become angry when I asked him to leave my workplace.
· On 30 March 2001, approximately seven weeks after Mr Suastika arrived in Australia, I took him to see a stage show called The Zipps at the Motorboat Club at Sans Souci. On the way to the show I warned him that he should behave himself at the show.
· However, once we arrived at the Motorboat Club, Mr Suastika started to become very angry and aggressive towards the other people there. He started to tell people words to the effect of “All you Australians, you’re no good”. He said he wanted to remain in Australia and that he knew somebody in Perth.
· I told him to calm down and told him that he could not stay in Australia. I told him that because my parents had sponsored him to come out here on his tourist visa he had to return to Indonesia at the expiry of the visa.
· Mr. Suastika continued to make derogatory comments to people at the Motorboat Club, and to make comments to the effect that he intended to remain in Australia.
· I became angry with him and left the Motorboat Club without him. I drove home, which is approximately a five to ten minute drive.
· About fifteen minutes later Mr. Suastika turned up at my apartment. He told me that he wanted to get his things, so I let him in to retrieve them. I then saw him take his passport and attempt to rip it up. My oldest daughter, who is 20 years of age, tried to grab his passport from him to prevent him from ripping it up.
· Mr. Suastika then raced into the kitchen and got a kitchen knife. He came out into the lounge room shouting words to the effect of “I am going to find an Australian to kill so I can go to jail here”.
· He then grabbed my younger daughter and me by the throat and held the point of the knife to each of our throats in turn. I called out to my oldest daughter to help us.
· My eldest daughter came into the room and talked to Mr. Suastika for about five minutes, persuading him to let go of the knife, which he eventually did.
· I do not recall exactly what happened next, but Mr. Suastika then left the house, after which we closed and locked the front door. We then called the police.
· The police arrived five to ten minutes after we called them, and began searching for Mr. Suastika. They also called in the dog squad to assist in the search.
· After about forty five minutes the police located Mr. Suastika on the roof of my apartment building. They brought Mr. Suastika into my apartment for me to identify him.
· However, before the police led him away, Mr. Suastika said words to me to the effect of “You will suffer big time”. The police told him to shut up and took him away. I did not see him after that time.
· About two days after the incident, Mr. Suastika telephoned me and said words to the effect that he would get back out and would kill me and my family.
· About four or five days after that, Mr. Suastika made another telephone call to me in which he again threatened to kill me and my family.
· I did not say anything to Mr. Suastika on either occasion.
· After the second telephone call from Mr. Suastika, I changed my telephone number and reported the incident to officials at the Department of Immigration, Multicultural and Indigenous Affairs.
· I have had no further contact with Mr. Suastika, nor have I seen him or heard from him. I have since been to Bali twice, at Christmas 2001 and in July/August 2003, each time for approximately ten days, but did not see or hear from Mr. Suastika on either visit.
9. Ms. Smith took out an apprehended violence order (AVO) against Mr. Suastika, on 9 April 2001, at Sutherland Court House.
10. Mr. Suastika provided two written statements, which have been translated into English, and he gave evidence by telephone from Bali, with the aid of an interpreter. He said (among other things):
“I got to know Lee Smith while she was on holiday in Bali and we often met. She did not have a long holiday in Bali, only 3 days.
After a few days she telephoned me at my workplace. She asked, ‘Do you (Komang) want to come to Australia?” Without giving it much thought I answered yes. I very much wanted to know what Australia is like, so I answered yes. She then told me to have a passport made and not long after the passport was ready she sent a letter of sponsorship and a ticket, to obtain a visa. After a visa was prepared, I waited till the departure date. Precisely on 28 February 2001, being the date of Hari Raya Galungan, I departed for Australia in the morning. She met me with a friend and her child. I was very happy as I arrived safely. We then left for the apartment where Lee Smith lived. The day after I was introduced to her family. A few days after I was invited to go sightseeing at tourist locations such as the Sydney Zoo, her father’s house, and a fitness centre called City Gym. A few days after, we went on holiday to the Blue Mountains for only a day. The day after, we returned to Sydney, to Sans Souci, and we stayed there for a month. We had four (4) verbal arguments while we were there. Each of the four times, she threw me out at night.
Each time she threw me out I would go to a mutual friend’s place. I would eat and sleep there. The fourth time she threw me out was the worst. This is how it happened. Early in the morning I was with her friend. I was invited over to her friend’s workplace. I was amazed by the way people were working there. It was very different to Bali. As evening approached Lee Smith’s friend and I returned together. Before we got to my house I was invited to go to a pub. At the pub I was invited to have a drink. Her friend drank whisky and Coke, and so did I. Another friend was also there. We then took turns to buy the drinks. After having 3 glasses of whisky I asked to go home as Lee Smith telephoned me.
When I got back Lee Smith had been drinking at home with a friend. She then gave me about 3 glasses of whisky to drink. After having the 3 glasses I had a shower. After that I was given another 3 glasses. Lee Smith said that there would be a party at one of the pubs later that night. On the way there, we went to the pub where I had a drink with a friend earlier. We had more drinks there. At the pub I drank between 3 to 4 glasses. After having drinks at the pub we left for the pub we were going to. It was very romantic there. It was even near the beach. We had more drinks there and took turns to buy the drinks. Lee Smith was the first, then her friend and then me.
After that it was Lee Smith’s turn again and she didn’t want to. I asked her why she didn’t want to buy any more drinks and she said she was embarrassed. I asked her, ‘Why are you embarrassed? Don’t you come here often? Many people know you. Why are you embarrassed? Maybe your boyfriend is here?’ She just kept quiet and then her friend said to Lee Smith, ‘Maybe Komang is jealous.’ Then Lee Smith was rather angry.
After that I asked her to go home with me but she refused. I then decided to go home and at home her child asked me, ‘Where’s Mum?’ I answered, ‘She’s still there.’ Then I went back there on a bicycle. There I saw that her car was still parked. I parked the bicycle next to her car. I then went in to look for her but she was not there. Then I found that her car was no longer there and I decided to go back home. We arrived home at the same time.
I then asked, ‘Are you okay?’ She answered, ‘Yes.’ Then we went into the house and she asked me why I was jealous. I said I was not jealous. Without saying anything more she threw me out right away that very night. Then I said, ‘You can throw me out but don’t do it tonight. Just do it tomorrow.’ Even so, she still threw me out. I did not know how to go to her friend’s place as they had moved. However, she still threw me out.
Then I said, ‘You can throw me out but give me a knife to protect myself.’ Then she got angry. I had already taken a knife but her child took the knife from my hand and returned it. Then I decided to leave but I hoped to be able to spend the night there. I called out her name while I was outside asking if I could sleep inside but she just ignored me. I then went up the steps and slept on the steps. Not long after, about 8 police officers arrived with a dog. The police spread out and were looking for me. I then went down the steps and knocked the door. Then I said I was Komang. The police then handcuffed me and took me to the police station. I was held there for 3 hours. Then the police released me and I was sent to my friend’s house. Her name is Susan N. Goodsell and she is a lawyer. I slept at her house. The next morning I told her everything. Susan said I had to attend court in 3 days, on Wednesday. However a friend of Lee Smith’s, called Christine, telephoned Susan and said my return ticket had been booked for that evening. Then I thought, ‘What do I want from Lee Smith?’ I left for Bali that evening and a few days after Lee Smith telephoned me.
She said, ‘You fucking asshole. Why did you tell Susan’ The next day she telephoned again and said she wanted to come back to Bali. I threatened her and said that I would kill her if she did but it was only a threat.
A few weeks after, she telephoned again and asked me to get back together with her and she asked me to come to Australia. She said that she still loved me. After a few months she came back with her child and her mother. She went to the Nagasari Restaurant and at the time I was also there with my friends. It was a shock to see her in Bali and in the end I joined them for drinks. After having drinks at the Nagasari Restaurant we went to the Bounty discotheque. After that I took her to her hotel. The next morning her child came with her friend to have a temporary tattoo. After that I never wanted to see her again. It was better for me to return home. They arrived in Bali safely and also returned safely.’
11. Mr. Suastika also gave evidence about his relationship with Ms. Evans. His evidence was to the effect that he is in love with Ms. Evans; he is in regular contact with her by telephone; he writes to her from time to time with the aid of one of his relations who is able to write in English. In one such letter tendered in evidence dated 17 May 2003, he expressed his great love for Ms. Evans. He said that when he was with Ms. Evans during her three holidays in Bali he asked her many times, “can you have children, if yes – let’s have a child”.. He said he wanted to be in Australia for the birth of his son. He said that it would be his aim to work in Australia, to support Ms. Evans and the two children (her daughter and their son), plus make them and Ms. Evans’ parents happy.
12. Kylie Smith gave evidence that she was too traumatised by the events which occurred in Sydney, involving Mr. Suastika, her mother and herself, on 30 March 2001, to give evidence about the incident. She went on to say that she visited Bali later that year in December, when she went with a few school friends. She said that her mother and grandmother also visited Bali at the same time. She denied that she went anywhere near Mr. Suastika during that visit.
13. June Moore, mother of Leanne Smith and grandmother of Kylie Smith, gave evidence that when she heard that Kylie was going to Bali in December 2001, she went with Leanne to keep an eye on Kylie. She denied that she saw Mr. Suastika in Bali at that time. She was adamant that there was “no way we had drinks with Suastika”.
14. The Tribunal heard evidence from Susan Norma Goodsell, who is a solicitor and who also owns two shops in Bali. Ms. Goodsell’s evidence was to the following effect:
· She owns two shops in Bali. One sells leather goods, the other sells clothes.
· She travels to Bali regularly.
· She has known Mr. Suastika for about five years. He runs a small tattooing business near the front of one of her shops.
· She believes that Mr. Suastika is a quiet, courteous and friendly man. She believes that he is of good character.
· She knows Leanne Smith.
· She knew that Mr. Suastika visited Sydney in March 2001.
· She said that on the morning of 31 March 2001, at about 3am, the police brought Mr. Suastika to her home in Sydney. She said that he had wanted to go home to Bali, and that she arranged to get a substitute ticket for him at Sydney airport.
· She said that most of her customers in Bali are Australian tourists. She has seen Mr. Suastika dealing with them. She believes that he is not a threat to Australians, or anyone else.
· She said that in late 2001, she saw Leanne Smith at the same table as Mr. Suastika in a restaurant in Bali.
15. The Tribunal heard evidence from Ms. Goodsell’s sister, Gail Amos. Ms. Amos said that she was in Bali at the end of 2001. She said that she saw a young Australian girl talking to Mr. Suastika at the front of her sister’s shop. She said that her sister told her that the girl was Leanne Smith’s daughter. She did not know the girl.
16. Sharon Evans, provided a written statement and gave oral evidence to the Tribunal. She said (among other things):
· I met Komang with my mother and daughter the night of the 30th of September in Nagasari Hotel. I was not looking for a man on holidays, I was just having a good time together with my family.
· During those 8 days we were together every day. He would come to our hotel after his job and stay with us all night. He would sleep in our hotel room with myself, my mother and my daughter.
· We did not feel one bit threatened by him in any way. He was very loving and gentle towards my family and me.
· Komang and I were both sad I had to come back home on the 8th of October, but I promised I would ring him from Australia. Which I have been doing on a weekly basis.
· Through our telephone conversations we realised we were in love with each other and really missed each other lots and wanted to be together. So we talked about Komang coming to live in Australia with me and my daughter Hayley.
· Komang asked me during that time to marry him and I said yes. So we planned to get engaged in Bali when I returned on the 25th of March 2002 with my mother and my daughter. We also planned to get married on the 7th of December 2002 in Australia.
· When we went back to Bali on the 25th of March 2002, we also started to get papers organised for immigration.
· Komang and I stayed together in a hotel room for 18 days and my mother and daughter stayed in a room together. Komang still went to his job but was always with me every other minute. He took myself and my mother up to meet his stepmother in his village of Seririt-Singaraja. We had a lovely visit and took photos.
· In Bali in March 2002 we had our engagement dinner with some friends and my family. I took Komang a ring I had bought in Australia for him and he bought me a ring while in Bali. Then I had to leave again and go home but we hoped soon we would be together.
· When I returned to Australia on the 11th of April 2002 I contacted my agent to discuss the visa application process. I would discuss this with Komang on my weekly phone calls, sometimes every 2 weeks due to costs of calls.
· It was also during this time that Komang explained to me on the phone about what happened with Ms Lee Smith. I always knew Komang had been to Australia for a holiday, but he didn’t think it was important to tell me about Ms. Smith at that time he just wanted to get on with his life and forget about her.
· I decided to go back to Bali on the 2nd of December 2002 to visit Komang for Christmas and the New Year, because he wasn’t going to be here to get married on the 7th of December. My mother and daughter didn’t come with me this time because of the Bali bombings. My daughter didn’t want me to go as she was worried about my safety, but I love Komang and wanted to see him very much and so did he.
· Not long after I arrived in Bali his grandfather passed away so we left to go to the village in Seririt for his funeral. While we were there I got to meet all his big family and friends, and they were all very gracious to me even though many could not speak English. Komang was very good making sure I was looked after, because he had to help the men get his grandfather ready for the burial.
· It was also at this time that we stayed at his stepmother’s house for the night and received the papers from the Jakarta Embassy on refusal of visa.
· With what we found out and had to do in Bali we still spent 33 fantastic days together. Komang never went to his job all this time he stayed with me, and we went for rides on the motorbike everyday to some beautiful places. We went to the cinema a couple of times very cheap only 10000 Rp (Rupiah) which is $2.00 dollars Australian. We talked about still getting married one day and maybe starting a family, at that stage I wasn’t getting my periods and thought I could be starting menopause, because I am 41 years old, and time is getting on to have more children.
· We had a lovely Christmas together and New Years at the beach. But it was nearly time to come home and we were getting sad about that.
· After I got home from Bali, around the 26th of January 2003 I found out I was pregnant, my family and I were so happy, as I said earlier I thought it might not happen. I rang Komang to tell him and he was very very happy, but a bit sad too because he wasn’t here with me.
17. The question of whether or not Mr. Suastika passes the character test provided for in s.501 of the Act is inextricably linked to the events which occurred in Sydney in March 2001. If his behaviour did in fact become erratic, and/or if he did hold a knife to the throat of Ms. Smith and her daughter, he would clearly not pass the character test. If he later threatened Ms. Smith over the telephone, and if they both took the threats seriously, he would not pass the character test.
18. It is common ground between Mr. Suastika and Ms. Leanne Smith that:
(a)The visit of Mr. Suastika to Australia to stay with Ms. Smith in March 2001, did not go smoothly. They had many arguments. Mr. Suastika had great difficulty in working out what Ms. Smith wanted from him, or expected of him.
(b)There was a serious argument between them on the evening of 30 March 2001.
(c)A knife was produced, or taken from a kitchen drawer.
(d)Mr. Suastika remained in the vicinity of Ms. Smith’s home after he had been asked to leave.
(e)The police were called.
(f)Mr. Suastika was held by the police for some hours and then taken to the home of Ms. Goodsell.
(g)Mr. Suastika left Australia by plane on 31 March 2001.
(h)After Mr. Suastika returned to Bali, he and Ms. Smith were in contact by telephone. The conversation was heated and Mr. Suastika made threats to Ms. Smith.
(i)Ms. Smith, her mother and her daughter visited Bali at the end of the same year, 2001.
19. There is a conflict in the evidence about what happened in Bali in December 2001.
20. Ms. Goodsell and Mr. Suastika claim that Mr. Suastika met with Ms. Smith, her mother and daughter at a restaurant and had drinks together. The implication being that they were friendly towards each other and that the incident in Sydney earlier in the year was not serious.
21. Ms. Smith, her mother and daughter, deny that they had anything to do with Mr. Suastika in Bali in December 2001. The implication was that the incident in March 2001, was so bad that they wanted nothing more to do with him.
22. Without independent evidence, I find it impossible to tell which group is telling the truth about the meeting or non-meeting in Bali in December 2001. However, I have come to the following conclusions, and I find:
(a)Mr. Suastika had difficulty in coping with certain aspects of the Australian culture when he visited Sydney in March 2001. For him, it was a culture shock.
(b)He had numerous arguments with Ms. Leanne Smith while he was in Sydney. He did not help to resolve those conflicts in a mature manner.
(c)There was an incident in Ms. Smith’s house involving a knife. The incident was sufficiently serious for Ms. Smith to call the police. I do not accept that the police would have been called, if Mr. Suastika had merely taken a knife from the kitchen drawer for the express purpose of defending himself against whatever danger may have lurked outside in the Sydney streets. He intimidated Ms. Smith and her daughter to a significant degree.
(d)Although the incident was sufficiently frightening to Ms. Smith to cause her to call the police, the police took the view that after about three hours, Mr. Suastika had calmed down sufficiently to release him into the custody of Ms. Goodsell.
(e)Mr. Suastika decided that it was a good idea to quickly leave Australia the following day.
(f)Mr. Suastika did make threats on two occasions over the telephone to Ms. Smith, after he returned to Bali.
(g)The family of Ms. Smith felt sufficiently safe from Mr. Suastika to go to Bali at the end of 2001. They must have realised that Mr. Suastika had made the threats in the heat of the moment.
23. I regard the actions of Mr. Suastika in taking up a knife for the purpose of intimidating two women as a serious flaw in his character.
24. I regard the actions of a man going around with a knife in public, even for the purpose of defending himself, as having an attitude which we do not condone in Australia.
25. I regard the actions of a man who makes serious threats to a woman over the telephone, even if it is in the heat of the moment, to have serious character problems.
26. I am not satisfied that Komang Suastika passes the character test.
27. Having decided that Mr. Suastika does not pass the character test, I am required to decide whether, nevertheless, I should exercise a discretion to not refuse the grant of the visa.
28. I am sympathetic to the plight of Ms Evans. She has begun a relationship with Mr. Suastika, and he is the father of her small child. She has spent some wonderfully romantic holidays with Mr. Suastika, and she would like those holidays to continue in a permanent way in Australia. She wants her children to have a father.
29. In my view, Ms. Evans’ relationship with Mr. Suastika has not really been put to the usual tests which determine whether a relationship is genuine and continuing. They have only ever seen each other in a romantic holiday setting. They have never had to test their relationship against the realities of living together, working, paying the bills, looking after the children and weathering the stresses and strains of a relationship. On the material before me, I am not satisfied that this is a genuine, continuing relationship.
30. At any event, I am concerned that if Mr. Suastika should enter Australia, he may find the change in culture somewhat difficult to handle. He did not acquit himself well at all in Sydney. He resorted to unacceptable behaviour when things did not go well for him.
31. I have to take into account the expectations of the Australian public and their safety. I believe that in this case those considerations outweigh any compassionate grounds put on behalf of the Applicants. The discretion to not reject the application for visa will not be exercised.
32. The decision to refuse the grant of a Proposed Marriage Visa to Komang Suastika is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 27.10.03 and 17.2.04
Date of Decision 20 February 2004
Applicant CWU Consulting Services
Solicitor for the Respondent Blake Dawson Waldron
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